A
Readable Edition
of
Coke upon Littleton.

By Thomas Coventry, Esq.
of Lincoln's Inn, Barrister at Law.

London:
Saunders and Benning, Law Booksellers,
(Successors to J. Butterworth and Son.)
43, Fleet Street.
1830

2014 Digital Edition
Edited by Jon Roland


PREFACE.

The text of this work was first published about the year 1481, near 350 years ago, and the Commentary appeared about 150 years afterwards, or 200 years since. It has survived the policy of 16 kings and the attacks of as many generations; and notwithstanding the enactment of some hundreds, of statutes, and the adjudication of several thousand critical Questions, this admirable production has all along maintained, and still continues to enjoy, a reputation far exceeding that of any other legal publication. Some few, indeed, of its distant members exhibit symptoms of imbecility and decay, but the great body of the work remains sound and vigorous, and bears, even in the present day of reform, every feature of longevity and endurance. It contains, in fact, one main repository of the ancient common law of England, embodied by Littleton, commented on by Coke, and ripened by time into all the authority of an act of parliament,—which indeed it has viewed in the light of a law sanctioned by the common consent of Prince and People. A code thus matured cannot easily be abolished; in truth, to abrogate it would be to demolish one main pillar of the state.

These remarks are merely introduced to shew the futility of the supposition, that the sitting commission of inquiry have devoted this venerable pile of learning to destruction. The object of that commission is emendation not subversion; and when we consider that principle is immutable, and that both the text of Littleton and the commentary of Coke are composed almost entirely of that sterling materiel, we may rest assured, from the history of this very work, that however involved the detail of the Law of Real Property may become, its principles will be found stored up in this celebrated compendium, which must remain as it has hitherto done, the foundation of all law on the subjects of real property and conveyancing.

The following pages were composed by two learned and eminent Judges, at the close of long and active lives, occupied almost exclusively in the acquisition of that knowledge which they have thus bequeathed to posterity. The text of Littleton is written without any reference to authorities; but the Commentary of Coke is supported by a host of quotations from Bracton, Britton, Fleta, Glanville, and the Year-books; so much so as to render a perusal of those text writers a matter of curiosity rather than of use. Law-books of the present day are compiled by quite a different class of authors, and assume in consequence an essentially different cast of character. Many of them, it is true, contain excellent collections of the recently adjudged cases and statutes, but in few of them will be found the labour of general deduction or of condensed classification, — qualities in which, as also in ingenious exemplification, the present works abound.

This, then, being the nature of the works now for the hundredth time offered to the Public ; the following, it is conceived, is, at the present day, the most convenient shape in which they can appear—that is without note or comment. The text and commentary — unique and intelligible in themselves — have nevertheless been so overloaded with excellent though incongruous notes and references, that the formidable appearance, of the whole and the still more enormous price, have deterred many an aspiring tyro from entering on the perusal of so laboured a performance, — obstacles which it is hoped the present alluring edition will effectually remove,— and in which the student need fear the contraction of no erroneous notion, though his after-reading and experience will shew him many points of qualification.

The object of the present edition of Coke upon Littleton is to give the text of the work complete in its native excellence; omitting only such parts as have become entirely obsolete, and adding a few references to modern leading decisions and statutes where the text has been altogether altered or very materially modified. The marginal reductions and a new and improved index are also additions.—The pleasing task of rearing upon this solid basis the superstructure of modern law is left to the industry and ingenuity of the student, — an employment which has made many an eminent and successful lawyer, and will doubtless make many more.

5, Lincoln's Inn,
29 March, 1830.

CONTENTS.

Life Of Littleton ix

Life Of Coke xvii

Coke's Preface xlv

Fee-simple la.

Fee-tail 18 b.

Estate tail apres 27 b.

Curtesy 29 a.

Dower 30 b.

Estate for Life 41b.

Estate for Years 43 b.

Estate at Will 55 a.

Copyholds 57 b.

Homage 64 a.

Fealty 67 a.

Escuage 68 b.

Knight Service 74 b.

Socage 85 b.

Frankalmoign 93 b.

Homage Ancestral 100 b.

Grand Serjeanty 105 b.

Petit Serjeanty 108 a.

Tenure in Burgage 108 b.

Villeinage 116 a.

Rents 141 b.

Parceners 163 a.

Joint-tenants 180 a.

Tenants in Common 188 b.

Conditions 201 a.

Descents which Toll entries 238 b.

Continual Claim 250 a.

Release 264 a.

Confirmation 295 b.

Attornment 309 a.

Discontinuance 325 a.

Remitter 347 b.

Warranty 364 b.

SOME ACCOUNT

THE LIFE

SIR THOMAS LITTLETON, Knight,

ONE OF THE JUDGES OF THE COURT OF COMMON PLEAS IN THE REIGN OF EDWARD IV., A. D. 1467.

Few particulars have reached us concerning the author of the ensuing Treatise on Estates and Tenures. He lived in times of great civil commotion, but it does not appear that he took any decided part in the violent politics which then agitated the kingdom. This may account for the paucity of facts recorded of his life and character. He was born at the beginning of the 15th century, and died about the year 1481, his exact age not being known. He was buried in the cathedral church at Worcester, where a monument of his own device was erected to his memory. This monument consisted of a fair tomb of marble, which he caused to be finished in his lifetime; displaying a portraiture of himself in a kneeling posture, ejaculating an impressive prayer,— "0 Son of God have mercy upon we." As the tomb was completed in his lifetime his age is not added, and nothing therefore can be said as to the exact period of his birth.

It appears, however, that he was descended from a family of great antiquity in the counties of Salop and Worcester. Thomas Littleton was settled at South Littleton, in the county of Worcester, in the reign of Hen. 3. 1270; his grandson, Thomas Littleton, married the only daughter and heiress at law of Richard Quarterman, with whom he received a considerable landed estate. The issue of this marriage was an only daughter, Elizabeth, the mother of our Author. She married Thomas Westcote Esq., a gentlemen of good descent, who held an honourable post in the court of Hen. 6. By settlement on her marriage the estates, both of her father and mother, were entailed on the issue of the marriage, who, it was stipulated, should bear the name and arms of her paternal ancestors, the Littletons. There was issue of this marriage four sons, Thomas, Nicholas, Edmund, and Guy, and four daughters, who, to use the words of Lord Coke, "spread themselves abroad by honourable matches with many ancient families."

The eldest son, Thomas, the subject of this memoir, was designed for the bar, and in due course was entered of the Inner Temple, where he became a reader or lecturer; and by the influence of his father, then in the court of Hen. 6. obtained the stewardship of the king's household; in virtue of which office he sat as Judge in the Palace Court of Westminster, — a court then of much more consequence and resort than at present, and where we may suppose the Judge was usually of the degree of the Coif. That Littleton was at this time a Serjeant may fairly be inferred, from the circumstance of his soon afterwards being made King's Serjeant, which shows that he had been a Serjeant some time before.

On the 13th of May 1455, he was appointed one of the justices in Eyre, and rode the Northern circuit,— a province entirely devoted to the reigning house of Lancaster, which party Littleton espoused. At this time the military part of feudal tenures was grown into disuse; but in other respects the cumbrous forms of real actions, and all the technical learning of knight's-service, escuage, frankalmoign, villeinage, reliefs, wardships, attornments, warranties, and other feudal incidents, were in full force and vigour. Wills, so fruitful a source of litigation at the present day, were not then allowed of lands, and the present doctrine of uses and trusts had not been introduced, nor had feigned recoveries been fully acknowledged as a common assurance; consequently the present modes of conveyancing were altogether unknown. The only thing in common with that day and this, is the doctrine of Estates, which has continued with little variation from the first introduction of i'euds to the present time.

While our Author was on his first circuit the fatal quarrel between the two contending houses of York and Lancaster broke out into open hostilities, which lasted with varying success for a period of near thirty years, until in fact the whole ancient nobility by whom the quarrel had been fomented were nearly annihilated. The Yorkists, for the most part, had the advantage in these fierce encounters; and in 1461 the house of Lancaster was formally deposed. On that occasion a bill of attainder and forfeiture was passed against the weak King Henry 6. and his magnanimous queen, Margaret of Anjou, together with their more conspicuous adherents.

With thedeclining house of Lancaster, Littleton of course lost his place; and though it does not distinctly appear that he was included in the long list of proscriptions which followed the downfall of his unfortunate prince; yet it is certain that he did not altogether escape disgrace; for we are informed, that in the 2d year of the reign of Edw. 4. he received his pardon, and was continued in his post as justice of assize for the northern circuit. On the King's private espousal with the Lady Elizabeth Grey in 1466, the Earl of Warwick, who had long swayed the counsels of his victorious kinsman, retired in disgust, and a complete change of ministers ensued; Littleton on this occasion was appointed one of the judges of the Court of Common Pleas, and he maintained himself in that situation with great prudence and dignity for fifteen years, when he expired in a ripe old age. He was one of the judges who pronounced sentence in the celebrated Taltarum's case, which gave rise to the use of common recoveries,—the salutary effects of which, in removing the fetters on alienation, have long been felt and acknowledged.

Of the private life and character of Littleton nothing remains at this day. A wretched portrait of him is prefixed to some of the older editions of his Tenures, which was probably taken from the rude effigy on his tomb, or the family escutcheons in the churches of Frankley and Hales Owen. He married Joan, one of the daughters and co-heirs of William Burley, Esq., and widow of Sir Philip Chetwyn, by whom he had three sons, William, Richard, and Thomas. He died the 23d day of August 1481, having made his will only the day before his death, and was buried in the cathedral church of Worcester. William succeeded to the family estates, and his descendants have since been ennobled, first by the style of Baron Westcote, of Balamore in Ireland, and second, by the title of Lord Littleton, Baron of Frankley in the county of Worcester, the present noble Lord being the second under the latter title. Littleton's arms (argent a chevron between three escalop shells, sable) and motto {ting Dieu ting Roy—one God and one King) are scrupulously preserved by the family.

To his second son Richard, who afterwards became a lawyer of great eminence in the reigns of Henry 7. and Henry 8., Littleton left the affectionate bequest of the ensuing Treatise an Tenures — a rich inheritance, also, to every Student of the Law. He compiled this book when a judge, after the 14th year of Edw. 4.; but the exact period cannot be ascertained. It seems, from Sections 291, and 324., that he intended writing on tenancies by elegit and statute-merchant and staple, which not being added, induced Lord Coke to suppose that the work was prepared only a short period before his death and that it was not completely finished at that time. It does not distinctly appear that the work was published in Littleton's lifetime, but it was publicly sold before his death, as is manifest from the following note in the first page of the written copy of his work, now deposited in the public library at Cambridge, Mm. 52 —" This book was purchased in St. Paul's Church-yard, London, 27th July, 20 Edw. 4. (1480.) for 10*. 6rf." In the table of contents in this copy no mention is made of the chapters supposed to be omitted, and the situation of the table in the body of the work of the earlier editions, precludes the possibility of its being prepared by any other than the author's hand.

The art of printing was introduced in England about the year 1475, and it is conjectured that the first edition of Littleton made its appearance about 1481, printed by Lettou and Machlinia; but, as was common in the inr fancy of printing, this edition is without date. A more beautiful impression was produced at Rouen or Rohan, in France, by R. Pynson, which also is without date; but, from its similarity both in type and paper to Statham's Abridgment, printed at the same place for the same person, it is probable that both these editions were published about the same time. They are both written in law French, and run on continuously. West, the author of Symboliography, who lived in Lord Coke's time, introduced the sections, without much attention to the sense or grammatical reading; but these sections have since been retained for convenience of quotation. Lord Coke's edition of Littleton, published with his Commentary in 1628, gave the present English translation, which was taken exclusively from the Rohan edition ;—Lord Coke, as it should seem, not being then aware of any other earlier edition. This translation has been very carefully corrected by the edition of Lettou and Machlinia, as also by those of Pynson and Redman, from which corrected editions the present has been prepared.

Of the authority of Littleton — Lord Coke mentions a memorable instance where it was fully acknowledged by the whole Court of Common Pleas. His words are, "In the reign of our late sovereign lord King James of famous and ever blessed memory, it came in question upon a demurrer in law, whether a release to one trespasser should be available or no to his companion? Sir Henry Hobart, that honourable judge and great sage of the law, and those reverend and learned judges, Warburton, Winch, and Nichols, his companions, gave judgment according to the opinion of our author, and openly said, that they gave such great reverence to Littleton, that they would not have his case disputed or questioned." Co. Pref. —The merit of the work has been uniformly acknowledged and warmly applauded. — Lord Guildford made it a rule never to let a year pass without reading it through—that, however, cannot be requisite in the present day.— Lord Coke himself calls it "the ornament of the common law, and the most perfect work that ever was written in any human science," and Sir William Jones has added his meed of approbation which no one will think partial or exaggerated; he speaks of Littleton as the English lawyers' great master, and pronounces his work at once luminous in method, apposite in example, and clear and manly in style.

Besides the Treatise on Tenures, "A Reading on the Statute de Donis" is attributed to Littleton; but that work was never published, and it is doubtful if it be now in existence.

** During the progress of this work through the press, a very curious and useful Commentary on the Tenures of Littleton has been presented to the profession, edited by H. Carey, Esq. of Lincoln's Inn, Barrister at law. It is supposed to have been written prior to Lord Coke's Commentary, and Mr. Hargrove considers it a very methodical and instructive work.

THE LIFE

SIR EDWARD COKE, Knight,

LORD CHIEF JUSTICE OF THE COURT OF KING'S BENCH IN THE REIGN OF JAMES I.

Sir Edward Coke was bom at Mileham in Norfolk, in the year 1549. At the age of ten years he was sent to Norwich free school, and in 1567, at the age of eighteen, he was entered of Trinity College, Cambridge, where he remained four years. At twenty-two he removed to Clifford's Inn, and a year after (1572) he became a member of the Inner Temple, where he soon acquired the reputation of great shrewdness and penetration by the dexterity with which he unravelled a complicated case concerning some peculation of the Cook.

At the age of twenty-eight, after six years' probation in the Temple, he was called to the bar, and in 1578 made his first appearance in the Court of King's Bench in Lord Cromwell's case for libel. He was about this time appointed reader or lecturer of Lyon's Inn, where an excellent portrait of him is preserved. His father, Robert Coke, who was also a lawyer of good repute, and who had been for some time a bencher of Lincoln's Inn, died in chambers at the early age of forty-seven, while his son Edward was at Norwich school. From his father he could of course derive no "legal lore," but from him he inherited a very ample landed estate, which no doubt contributed to the rapid rise he afterwards experienced. He was successively chosen recorder of Coventry, Norwich, and London, the latter being then a sure steppingstone to the highest honours in the law.

About six years after his call to the bar, Sir Edward married Miss Bridget Paston, a descendant of Judge Paston, who sat on the Bench of the Common Pleas with the subject of the preceding memoir. With this lady he received a portion of 30,000/. and lived with her in great harmony and affection for many years.

The labour and enthusiasm with which he conducted his studies attained for him very early in life the reputation of a sound and trustworthy lawyer, and the talent and research which he brought into court soon placed him among the most eminent practitioners of his day. He was also fortunate enough to enjoy in early life the patronage of several great and influential characters, particularly of Archbishop Whitgift, and Lord Treasurer Burleigh, who threw into his hands most of the crown cases which gave strength and eclat to his well-earned famed.

In June, 1592, Thomas Egerton, Solicitor General (afterwards Lord Ellesmere), was made Attorney General and Coke succeeded him in the office of Solicitor General, as he did a year afterwards in the office of Attorney General when Egerton was made Master of the Rolls. The post of Solicitor General being now vacant, Francis Bacon (afterwards the celebrated Lord Bacon and corrupt Lord Chancellor), then not thirty years of age, made strenuous efforts through his friend the Earl of Essex, to obtain the appointment, but his ambition was blighted, and he attributed his failure chiefly to the interference of his successful rival Coke, who, however, just then promoted, could have had little influence in the nomination of a successor.

At this time Queen Elizabeth was engaged in two expensive military and naval enterprizes on the continent, to support which she was obliged to call a parliament. Coke was returned for Norfolk, and was unanimously elected Speaker of the House of Commons. The Queen's memorable speech on this occasion shews what a despotic prince expects from an obsequious parliament. She granted them "liberty of speech, but they should know what liberty they were entitled to, not a liberty for every one to speak what he pleased or what came uppermost in his brain; that sort of licence she would not allow; their privilege should extend no further than a liberty of saying aye, or no ; and she enjoined the speaker, if he perceived any idle heads so negligent of their own safety as to attempt reforming the church or innovating in the commonwealth, that he should refuse the bills exhibited for that purpose, till they were examined by such as were fitter to consider of these things, and could better judge of them :"—language which the Speaker (if we may judge from his conduct in subsequent parliaments) could ill brook, but which from circumstances he then found himself obliged to submit to. His elevated situation, however, was far from enviable. With the indefatigable zeal of the puritans on the one hand, and the reiterated commands of an arbitrary mistress on the other, it required more than ordinary caution and discernment so to manage his conduct as to escape altogether the fury of the raging elements around him. After an angry session of not quite two months the parliament was hastily dissolved, and the Speaker happily relieved from the critical eminence of his high office.

The death of Sir Edward's first wife took place soon after his appointment to the office of Attorney General, and he was left a widower with ten children to deplore the loss of one who was endeared to him by a long course of conjugal felicity which he was destined never again to enjoy. In 1598 he married Lady Elizabeth Hatton, daughter of the famous Lord Treasurer Burleigh, Earl of Essex, and relict of Sir William Hatton, brother of the chancellor. By this alliance he cemented his connection with the party in power, and acquired for a time a still further addition of influence and splendour. But this marriage proved as unfortunate as the first had been happy. It was celebrated in a private house late in the evening, contrary to the canons of the church, for which the parties were prosecuted in the Ecclesiastical Court. But by a timely submission and supplication.for pardon, a dispensation was procured, and they were absolved from the severe penalties which awaited them, on the extraordinary pretence of ignorance of the law. Lady Elizabeth Hatton possessed very extensive estates, and a large personal property, which was for the most part settled to her separate use, and she always used the name and title of Lady Elizabeth Hatton, and could never be prevailed on to bear the name of her husband. By this marriage Mr. Coke had two children, but unhappy differences arising between him and his wife, the lady betook herself and children to a separate establishment, and they were never afterwards reconciled.

About the year 1600 the Earl of Essex, the favourite alike of Queen and people, fell into disgrace by his maladministration of affairs in Ireland, and he was tried before the Privy Council. The Attorney-General Coke opened the case against him with much virulence and cruelty. He displayed, in the strongest colours, all the faults committed by Essex, and exaggerated the indignity of the conditions which Tyrone had been allowed to propose; odious and abominable conditions (said he); a public toleration of an idolatrous religion, pardon for himself and every traitor in Ireland. Essex, however, (such was his popularity) was only deprived of his office and imprisoned during the Queen's pleasure, and if he could have borne his confinement with patience would probably have been restored to favour; but the Queen was cautious and slow in a renewal of her confidence, and although she restored him to liberty, refused to reinstate him in his full credit and authority. She allowed him to retain a wine monopoly which was on the eve of expiring, but when he requested a renewal of the patent, she was advised to refuse, and even added in a contemptuous style that "an ungovernable beast must be stinted in his provender."

This rigour, pushed one step too far, proved the final ruin of this young nobleman, and was the source of infinite sorrow and vexation to the Queen herself. Essex, who had with great difficulty so long subdued his proud spirit, and whose patience was now exhausted, imagining that the Queen was entirely inexorable, burst at once all restraints of submission and prudence, and entered with avidity into every treasonable design which his enemies had prepared to entrap him. He was taken in a wild project to instigate the City to seize the Queen in her palace; and in February 1601 he and the Earl of Southampton were arraigned before their peers on a charge of high treason. The Attorney-General conducted the prosecution, and in a speech abounding in malignant abuse overwhelmed the prisoners with a very aggravated case of ingratitude and crime. Essex entreated leave to defend himself, declaring that Coke had played the orator, and had abused the ear of the Court with slanders; and Southampton exclaimed — "Mr. Attorney General, you have urged the matter very far, and you wrong me therein; my blood be upon your head!"

The guilt of the prisoners, however, was too apparent to admit of any doubt, and they were sentenced to bear the heaviest penalty the law can inflict. In signing the death-warrants the Queen felt many compunctions of tenderness towards one whom she had perhaps once sincerely loved. But what chiefly hardened her heart against him, was his supposed obstinacy, in never making, as she hourly expected, any application for mercy. She finally gave her consent to his execution, which was conducted privately in the Tower, agreeably to his own request. Sir Walter Raleigh, who came to the Tower on purpose, it is said, to wituess the execution of his rival, increased much, by this unworthy action, the general hatred under which he laboured.

Thus ended the splendid, yet imprudent career of the Earl of Essex, at the very early age of thirty-four. The Queen survived her favourite but a few years: and it seems agreed, that the circumstances attending his death hastened her own. She had in the days of his prosperity presented him with a ring, in token of her affection, assuring him, that into whatever disgrace he should fall, if he sent her that ring, she would immediately afford him a patient hearing, and lend a favourable ear to his apology. Essex reserved this precious gift to the last extremity; and after his condemnation he resolved to try its efficacy. He committed the ring to the Countess of Nottingham, to deliver it to the Queen. The Countess was prevailed on by her husband (the mortal enemy of Essex) not to execute the commission; and Elizabeth, who still expected that her favourite would make this last appeal to her tenderness, and who ascribed the neglect of it to his invincible obstinacy, was, after much delay, and many internal compunctions, pushed by resentment and policy to sign the warrant for his execution. At a subsequent period the Countess of Nottinghum, affected with the near approach of death, revealed the secret to the Queen, who in a furious passion absolutely shook the dying woman in her bed, crying, " That God might pardon her, but she never could.'" She broke from the room, and thenceforth resigned herself to the deepest and most incurable melancholy, which terminated her existence on the 24th March 1603.*

On the accession of James 1. -Coke was retained in his place and knighted. In November following he was called upon to prosecute Sir Walter Raleigh and others for treason. The exact object of this conspiracy is still involved in mystery, and the conspirators themselves had not perhaps formed any fixed design, so early did the discovery take place. It appears however to have been intended to oppose the proclamation of King James, and to place Arabella Stuart (a descendant of Henry 7.) on the throne in his stead. Lords Grey and Cobham, Sir Walter Raleigh and a few others were the principal persons accused. Raleigh was brought to trial at Winchester on the 17th November 1603, the Court then sitting there, on account of a general sickness in London. Cobham was the principal witness against him, but he was not confronted with the prisoner, and his evidence he first retracted, and then retracted his

* The celebrated ring is now in the possession of W. Sotheby, Esq , late of Bloomsbury-square.

retractation. Upon the written evidence of this single witness, without any concurring testimony, was this highly gifted individual convicted, contrary to all law, which requires, that in cases of treason the witnesses be examined in the prisoner's presence. Sir Walter knew that if he could once get Cobham face to face, his acquittal was certain; he therefore strenuously pressed the Court for a viva voce examination, which Coke as resolutely opposed. At this time all prosecutions for treason were conducted on the statute of Edw. 3., which, according to Lord Chief Justice Anderson, speaks of those who imagine a treason; "and how," says he, "can an imagination be proved by honest men, when it lies only in the secret recesses of a traitor's mind." A prosecution in these days seldom missed its aim from any defect of evidence, or indeed from any other cause. Against the weight and ability of the crown lawyers a prisoner had nothing to oppose: he was allowed no counsel; and if he prayed the Court in their humanity to see that the indictment was sufficient, the answer was, that they sat there not to give counsel, but to judge. Even the innocence of a prisoner could not be made out; for witnesses were not to be heard against the Crown. Juries were no protection to the subject: for though the Court might perhaps allow challenges for cause, they would not allow a prisoner to make one peremptory challenge. No one was, nor does it appear how anybody could possibly be acquitted under such a course of proceedings. A trial for high treason was indeed, in those days, a formal, but a certain, method of getting rid of an obnoxious character.

It is scarcely possible to convey an idea of the rancorous abuse which the intemperate Attorney gave way to on this occasion, but by extracts from the trial itself: —

Attorney-General.—I shall not need, my lords, to speak any thing concerning the king, nor of the bounty and sweetness of his nature, whose thoughts are innocent, whose words are full of wisdom and learning, and whose works are full of honour; although it be a true saying, nunquam nimis quod nunquam satis. But to whom do you bear your malice ?— to the children.

Raleigh.—To whom speak you this? You tell me news I never heard of.

Attorney.— Oh! sir, do I? I will prove you to be the most notorious traitor that ever came to the bar. After you have taken away the king, you would alter the religion. I will charge you with the words.

Raleigh.—Your words cannot condemn me; my innocence is my defence.

Attorney.—Nay I will prove all; thou art a monster, thou hast an English face, but a Spanish heart. Now you must have money. Aremberg was no sooner in England, but thou incitedst Cobham to go to him, and to deal with him for money to bestow on discontented persons, to raise rebellion in the kingdom. Raleigh.— Let me answer for myself. Attorney.— Thou shalt not. Raleigh.— It concerneth my life.

Lord Chief-Justice Popham.— Sir Walter Raleigh, Mr. Attorney is yet but in the general; but, when the king's counsel have given the evidence wholly, you shall answer every particular.

Raleigh.—I will wash my hands of the indictment, and die a true man to the king. Attorney.— You are the most absolute traitor that ever was. Raleigh.— Your phrases will not prove it, Mr. Attorney. Attorney.— Cobham writes a letter to my Lord Cecil, and commands Mellis, his man, to lay it in a Spanish bible, and to make as if he found it by chance. This was after he had intelligence with this viper that he was false.

Lord Cecil.—You mean a letter intended to me; I never had it. Attorney.— No, my Lord, you had it not. You, my masters of the jury, respect not the wickedness and hatred of the man; respect his cause. If he be guilty, I know you will have care of it, for the preservation of the king, the continuance of the gospel authorized, and the good of us all.

Raleigh.—I do not hear yet, that you have spoken one word against rue; here is no treason of mine done. If my Lord Cobham be a traitor, what is that to me?

Attorney. All that he did was by thy instigation, thou viper; it was through thee, thou traitor.

Raleigh.— It becomes not a man of quality and virtue to call me so; but 1 take comfort in it, it is all you can do.

Attorney.— Have I angered you?

Raleigh.—I am in ho case to be angry.

Popham, J.— Sir Walter Raleigh, Mr. Attorney speaks out of the zeal of his duty, for the service of the king, and you for your life; be valiant on both sides.

Raleigh.—I never came to the Lord Cobham's but about matters of his profit; as the ordering of his house, paying of the servants' board wages &c. I had of his, when I was examined, 4*000/. worth of jewels for a purchase; a pearl of 3000/., and a ring worth 500/, If he had had a fancy to run away, he would not have left so much to have purchased a lease in fee-farm. I saw him buy 300/. worth of books to send to his library at Canterbury, and a cabinet of 30/. to give to Mr. Attorney for drawing the conveyances; and God in Heaven knows, not I, whether he intended to travel or no. But for that practice with Arabella, or letters to Aremberg framed, or any discourse with him, or in what language he spake unto him; if I knew any of these things, I would absolutely confess the indictment, and acknowledge myself worthy ten thousand deaths.

Attorney.— Now let us come to those words of destroying the king and his cubs.

Raleigh.—O barbarous! if they, like unnatural villains, should use these words, shall I be charged with them? I will not hear it; I was never any plotter with them against my country; I was never false to the crown of England. I have spent 4000/. of my own against the Spanish faction, for the good of my country. Do you bring the words of these hellish spiders, Clark, Watson, and others against me?

Attorney.—Thou hast a Spanish heart, and thyself art a spider of hell; for thou confessest the king to be a most sweet and gracious prince, and yet hast conspired against him.

Raleigh.— If truth be constant, and constancy be in truth, why has he foresworn what he has said? You have not proved any one thing against me by direct proofs, but all by circumstances.

Attorney.— Have you done? The king must have the last.

Raleigh.— Nay, Mr. Attorney, he which speaks for his life, must speak last. False repetitions and mistakings must not mar my cause. You should speak secundum allega et probata, I appeal to God and the king in this point, whether Cobham's accusation be sufficient to condemn me.

Attorney.—The king's safety and your clearing cannot agree. I protest before God, 1 never knew a clearer treason.

Raleigh.— I never had intelligence with Cobham since I came to the Tower.

Attorney.— Go to, I will lay thee upon thy back, for the most confident traitor that ever came to a bar. Why should you take 8000 crowns for a peace?

Lord- Cecil.— Be not so impatient, good Mr. Attorney, give him leave to speak.

Attorney.— If I may not be patiently heard, you will encourage traitors, and discourage us. I. am the king's sworn servant, and must speak: If he be guilty, he is a traitor; if not deliver him.

Here the Attorney sat down in a chafe, and would speak no more, until the commissioners urged and entreated him. After much ado, he went on and made a long repetition of all the evidence for the direction of the jury; and at the repeating of some things, Sir Walter Raleigh interrupted him, and said, he did him wrong.

Attorney.—Thou art the most vile and execrable traitor that ever lived.

Raleigh.— You speak indiscreetly, barbarously, and uncivilly.

Attorney.— I want words sufficient to express thy viperous treasons.

Raleigh.—-I think you want words indeed, for you have spoken one thing half a dozen times.

Attorney.—Thou art an odious fellow, thy name is hateful to all the realm of England for thy pride.

Raleigh.— It will go near to prove a measuring cast between you and me, Mr. Attorney.

Attorney.—Well, I will now make it appear to the world, that there never lived a viler viper upon the face of the earth than thou.

And therewith the learned attorney drew a letter from his pocket wherein Raleigh purports to council Cobham (after some scripture exhortation) not to associate with preachers as Essex did, and so betray himself; after which the Attorney continued :—

Attorney.—Oh! damnable Atheist! he hath learned some text of scripture to serve his own purpose, but falsely alleged. He councils him not to be councilled by preachers, as Essex was: he died the child of God, God honoured him at his death; thou wert by when he died. Et lupus et turpes instant morientibus ursa. He died indeed for his offence. The king himself spake these words; "He that shall say Essex died not for treason is punishable."

Raleigh.— I say that Cobham is a base, dishonourable poor soul.

Attorney.— Is he base? I return it into thy throat, on his behalf: but for thee he had been a good subject.

Lord-Chief-Justice.— I perceive you are not so clear a man as you have protested all this while; for you should have discovered these matters to the king.

Upon the conclusion of the evidence, the jury retired for about a quarter of an hour and returned a verdict of Guilty, upon which,

The Lord-Chief-Justice proceeded:—Now it rests with me to pronounce the judgment, which I wish you had not been this day to have received from me: for if the fear of God had been in you answerable to your other great parts, you might have lived to have been a singular good subject. I never saw the like trial, and I hope I shall never see the like again. But since you have been found guilty of these horrible treasons, the judgment of this court is, that you shall be had from hence to the place whence you came, there to remain until the day of execution; and from thence you shall be drawn upon a hurdle through the open streets, to the place of execution, there shall be hanged and cut down alive, and your body shall be opened, your heart and bowels plucked out, and your privy members cut off, and thrown into the fire before your eyes; then your head shall be struck off from your body, and your body shall be divided into four quarters, to be disposed of at the king's pleasure. And God have mercy upon your soul.

Thus ended this most extraordinary and cruelly conducted trial. But notwithstanding the dreadful sentence recorded, Sir Walter was left to his Majesty's mercy, who, apparently convinced of the iniquity of the conviction, still thought the prisoner too great a malcontent to have his freedom, and yet too innocent to lose his life. Sir Walter was therefore confined in the Tower, but permitted to enjoy libera custodia; where he beguiled his imprisonment in literary and scientific pursuits. After some time spent in close companionship with musty records, he completed his "History of the World," a book which, "for the exactness of its chronology, singularity of its contexture, and learning of all sorts, should rather seem to be the work of an age, than the production of a single individual in the compass of a few years." The publisher, however, complained that he was a loser by the sale, whereupon Sir Walter threw a second part which he had prepared into the fire.

In this history Sir Walter threw out certain allusions to a gold mine in Guiana, on the southern coasts of America, which, in his travels twenty years before, he alleged to have discovered; and after fourteen years confinement in the Tower, taking advantage of the cupidity of the times, he succeeded in convincing the people, as also the Queen and Prince, and ultimately the wily King James himself, of the truth of his assertions, and obtained a commission for an expedition to Guiana in search of this hidden treasure. The King of Spain, however, had in the mean time taken possession of Guiana, and planted a small colony there called St. Thomas; which Raleigh unadvisedly sacked and plundered, but the Spaniards he alleged commenced hostilities. After a fruitless voyage he returned to an incensed court, and was immediately arrested and brought to London, where he found the Spanish Ambassador crying aloud for vengeance on the destroyer of the rising colony of Guiana. King James was thus involved in an unpleasant situation, he must either sacrifice Raleigh or encounter the charge and toil of a war with Spain. The choice was soon made, and the unfortunate Sir Walter, at near eighty years of age, was carried to the scaffold— a martyr to his country rather than a traitor to his king. Coke must certainly be acquitted of any share in this execution; but his intemperate zeal had no doubt an intimidating effect on the jury and mainly contributed to the verdict of condemnation which they unhesitatingly returned. It was thought by many that Sir Walter's commission which enabled him to exercise martial law on a considerable body of his majesty's subjects, was in itself so incompatible with the notion of a condemned criminal, that it amounted to a pardon; and certain it is that this act of apparent injustice and cruelty gave general dissatisfaction to the nation.

The next important occasion which called forth a display of the Attorney's sagacity in unravelling the perplexities of a dark and mysterious case, was the Gunpowder Treason, upon which he was engaged three-andtwenty days in arranging and connecting the evidence. At the conclusion of his able speech to the jury, he craved to be reminded of the Lords Commissioners if he had forgot any thing material. Upon which Cecil, then Earl of Salisbury, said, " Mr. Attorney, I do assure you, you have done very well, painfully and learnedly; the evidence you have well opened, and I never heard so much matter better compacted or made more intelligible to a jury."—The principal conspirators pleaded guilty, and Garnet's trial was the only one on which the learned Attorney had an opportunity of displaying his learning and ingenuity; this he did with more temper and suavity than on former occasions, and consequently commanded more general attention and respect. His speech on this occasion, which is given at length in the State Trials, is considered one of the best he ever delivered.

In June, 1606, Gawdy, Chief Justice of the Common Pleas, died, and Sir Edward now mounted the Bench. The day after his appointment, he took his seat as Chief Justice, and was attended by the Society of the Inner Temple, who indulged themselves in the evening, as was usual, with a solemn revel; and this perhaps was one of the last occasions on which a mummery of that kind was performed. The chief seat in the Common Pleas was at this time much more beneficial in point of emolument than that in the King's Bench. It was also less subject to the influence of political intrigues, and was consequently more steady and desirable in the main. In this place Sir Edward conducted himself with much propriety, there being perhaps fewer occasions for the exercise of his forbearance than in the stormy conflicts he was obliged to endure as Attorney-General.

Sir Edward held the Chief-Justiceship of the Common Pleas about seven years, when (August, 1613) Fleming, Chief Justice of the King's Bench, died. By this time Bacon had procured the post of Solicitor-General, and was one of the Privy Council: he was on terms of much intimacy also with Villiers the prime favourite of the King, and through his means this accomplished politician obtained access to the royal ear; and it now appears by the publication of his letters, that to mortify his rival Coke, and at the same time to gratify his own ambition, he advised in a memorial which he drew up, that Coke should be removed to the King's Bench, Hobart, Attorney-General, to the Common Pleas, and that he himself should be made Attorney-General. This advice was adopted, and Sir Edward Coke was, on the 25th of Ocber, 1613, sworn in Chief Justice of the King's Bench. It was one object of Bacon to embroil the Chief Justice with political questions, well knowing his inflexible adherence to the law would render his conduct obnoxious to those whom he opposed.

The Archbishop of Canterbury was at this time at the head of a High Commission Court for the administration of ecclesiastical affairs and the punishment of spiritual delinquents. Besides the power of fine and imprisonment, this Court occasionally indulged in the unconstitutional use of the rack and torture. And its commitment of Sir William Chancey to the Fleet for adultery, now raised a question as to the extent of its jurisdiction. Sir Edward Coke held that the High Commission Court had no power to commit on suspicion, and its power to imprison in any case he also allowed to be impugned without contradiction. (See 12 Co. 19.) This gave great umbrage to the Archbishop, and highly incensed the church party.

With the Lord Chancellor Ellesmere also, Sir Edward found himself entangled in an unpleasant dispute. It had always been, and still is the province of the Chancery to soften the rigour of the common law. It has therefore of necessity, power to modify in some degree the adjudications of courts of law. This the Chief-Justice denied, and hinted, that if after judgment given in the Court of King's Bench, any man should draw that judgment to a new examination in any other court, he the Chief Justice would speedily regard it. The Chancellor, however, was held justified in his claim of jurisdiction in the Star Chamber, and the Chief Justice created many enemies by the dispute.

With the King himself, the Chief Justice had also frequent conflicts on the policy and legality of court measures. On the question of proclamations which King James had been advised were equal to acts of parliament, Lord Coke delivered the following unanimous resolution of himself and brethren. "The king by his proclamation cannot create any offence which was not an offence before; for then he may alter the law of the land by his proclamation in a high point. The law of England is divided into three parts; common law, statute law, and custom; but the king's proclamation is none of them. The king has no prerogative but that which the law of the land allows him. But the king, for prevention of offences, may, by proclamation, admonish his subjects that they keep the laws and do not offend them upon punishment to be inflicted by the law &c. Lastly, if the offence be not punishable in the Star Chamber, the prohibition of it by proclamation cannot make it punishable there:" 12 Coke, 76. After this resolution, proclamations were abandoned; but the king still claimed the prerogative in his next speech to parliament.

His majesty was further offended at Sir Edward's obstinate perseverance in doubts concerning the royal prerogative in granting commendams. At this time a power was claimed by the crown of granting vacant benefices falling into its hands by lapse or otherwise in commandant, as it was called, or in augmentation of poor livings. This prerogative had been generally exercised in favour of poor bishopricks: and now it occurred that a living in Norfolk which had lapsed to the crown, was granted in commendam to the bishop of Lichfield and Coventry. The patron of the advowson sued his writ against the bishop; and, among other important points of law which were involved in the discussion of the case, the right of the sovereign to grant commendams was called in question. The king, who perhaps anticipated what would happen, had ordered Secretary Winwood, and the Bishop of Winchester, Dr. Bilson, to attend in court during the trial, and make a report to him of the proceedings. However the bishop alone was present at the hearing of the cause, and he gave his majesty to understand that Serjeant Chiborne, who argued against the commendams, had maintained several positions prejudicial to the royal prerogative; among others, that the king had only power to grant commendams in case of necessity, which necessity could never, in fact, exist, since no clerk was bound to keep hospitality above his means. On the receipt of this information, the AttorneyGeneral, Bacon, was directed to acquaint Sir Edward Coke that it was the king's pleasure that all further proceedings in the cause should be stayed till the judges could have an opportunity of conferring with His Majesty on the subject. At Coke's desire a similar intimation was officially sent to all the other judges, and they assembled together for the purpose of consulting as to the course they should pursue. The result of their deliberation was a resolution to act in every respect as though they had received no notice to suspend the proceedings: and a letter was despatched to James, who was then absent from London, containing a firm but respectful remonstrance against the command that had been addressed to them, together with their reasons for not obeying it.

Shortly after this correspondence the king returned to London, and the twelve judges were immediately summoned before the council at Whitehall (June 6th, 1G16) to answer for their conduct. His Majesty himself recapitulated the principal circumstances that had occurred, and commented with much asperity on the liberties that had been taken with his prerogative; observing that it was a new thing, and very indecent and unfit for subjects to disobey the king's commandment, but most of all to proceed in the mean time and to return to him a bare certificate; whereas they ought to have concluded with the laying down and representing their reasons modestly to His Majesty why they should proceed, and so to have submitted the same to his princely judgment, expecting to hear from him whether they had given him satisfaction." Immediately upon this declaration, the twelve judges fell on their knees and acknowledged their error as to the form of the letter, for which they craved His Majesty's gracious favour and pardon; but Sir Edward Coke entered into a defence of the matter of it, showing that the delay required would have been a delay of justice; and therefore contrary to law and the judge's oath. After some little altercation between the Attorney-General and the Lord-Chief-Justice, this point was referred to the decision of Lord Ellesmere, who gave it as his opinion that the stay which had been required by His Majesty was not against the law, nor the judge's oath. The judges were then severally asked, "Whether if, at any time, in a case depending before them, His Majesty conceived it to concern him either in power or profit, and thereupon required to consult with them and that they should stay proceedings in the mean time, they ought not to stay accordingly?" and they all, with the exception of the Lord-Chief-Justice, declared that they would. But Sir Edward Coke contented himself with answering that " when the case should be he would do that which should be fit for a judge to do." They were then permitted to proceed in the cause, which was finally decided against the Bishop of Litchfield and Coventry.

This firm and resolute conduct of the Lord-ChiefJustice gave great offence to his Majesty, and it is supposed that this weak monarch, in addition to his other reasons for being displeased with Coke, had conceived a mean jealousy of his popularity. It was evident, indeed, that the fearless integrity which had thwarted the King's views was the principal cause of that popularity; and the circumstance did not escape the attention of James, who afterwards remarked that Sir Edward Coke had obtained it without " having in his nature one particle of those things which are popular in men, being neither civil, nor affable, nor magnificent." He had, however, taken the surest means to acquire the lasting and deserved esteem of his countrymen.

One of the last judicial acts of the Chief Justice was the trial of Mrs. Turner for the murder of Sir Thomas Overbury, and what would be rather a novelty in the present day, the whole conduct of the prosecution was committed to his especial charge by the King—so enormous appeared the crime, and so established was the Judge's fame for tracking the crooked course of villany. The labyrinth of guilt he carefully unravelled, and pursued his scrutiny with great industry and severity; even his great rival Bacon, then Attorney general, paid him many high compliments on the efficacy of his searching examinations. It is, however, lamentable to relate the unbecoming language which the Chief Justice still thought proper to indulge in against the prisoner. He told her that she was guilty of the seven deadly sins, that she was a whore, a bawd, a sorcerer, a witch, a papist, a felon, and a murderer. It is scarcely necessary to add that she was condemned and executed, though the prime movers of the murder, the Earl and Countess of Somerset, escaped with their lives.

The declining health of the venerable Lord Chancellor Ellesmere, now made it apparent that the woolsack would soon be without an occupant. The sharp-sighted Bacon saw in the profound legal attainments of his rival, the only competitors. The credit of the Chief Justice was by this time completely undermined at court, and his thwarting the favourite Villiers in his endeavours to procure the reversion of a lucrative situation in the Court of King's Bench, may be considered as completing the full measure of his iniquity. It was not therefore, difficult to procure his removal. Some slight pretext was however necessary. He was accused of concealing a statute of 12,000/. due to the king from the son of the late Lord Chancellor Hatton, of speaking irreverently of His Majesty in court, of opposing the Attorney-General (Bacon), in the discharge of his duty, of assuming the style of Chief Justicier of England," and of presuming to allow his coachman to drive him bareheaded. Upon these charges, he was in November 1616 displaced, but no impeachment followed. In the ensuing March, Lord Ellesmere died, and Bacon was made Lord Keeper.

At the time of his discharge Sir Edward Coke was 67 years of age, but by great temperance and regularity he preserved his health unimpaired, and lived afterwards to the advanced age of 83. He had been ten years on the bench, and by his opposition to court measures had rendered himself a great favourite with the people; a popularity which his successor Montagu was admonished to forego. The remaining sixteen years of his life were actively spent, and his patriotic exertions in the cause of freedom, still further secured to him the love and esteem of his countrymen.

Sir Edward was anxious for a renewal of the king's favour, and therefore projected a marriage between his youngest daughter by Lady Hatton, and John Villiers, brother of the favourite Duke of Buckingham. At this proposal Lady Hatton was highly offended, and refused her consent altogether until it was wrung from her by an expression of his majesty's displeasure. The liberal settlements proposed by Sir Edward, and exacted from his lady, hastened on the match, and the parties were married by Michaelmas.

The effect of this union was the restoration of Sir Edward to the council table, and a temporary reconciliation with his wife; but it appears to have been of short continuance, for within a month after, Lady Hatton gave a grand entertainment to the new-married couple at her house in Hatton Garden, at which the King, the Duke of Buckingham, and other great personages were present, but the father of the bride was not only not invited, but expressly excluded.

Sir Edward lived long enough to prepare an impeachment against his formidable rival Bacon, for bribery and corruption, upon which he was convicted, and sentenced to pay a fine of 40,000/., and to be imprisoned in the Tower during his majesty's pleasure. This sentence the disgraced courtier survived five years, but the brilliancy of his literary productions and his unrivalled merits as a philosopher have eclipsed the weaker points of his character.

In the parliament of 1621, Sir Edward was returned for Liskeard in Cornwall, in which to use the words of Camden, he bore himself with the truest patriotism, and taught that no proclamation was of weight against parliament. For these, and other liberal expressions he was committed to the Tower *, but upon the dissolution of parliament soon after, he was released, and retired

* The apartment allotted to him was the kitchen, and on the walls it is said were found inscribed, " This place has long wanted a Cook," a curious coincidence it' true, as his name had often been pronounced and written Cook,

to his country house at Stoke Pogeys, to enjoy the residue of his days free from the turmoils of public life.

It was here, in the 75th year of his age, that he employed his leisure in writing the ensuing commentary on the treatise of Littleton, which was first published in 1628, a work replete with sound and useful learning.

In March 1625, King James died, leaving an only son Charles, and one daughter by his queen, Anne of Denmark. Charles, in the 25th year of his age ascended the throne in the midst of a violent struggle then raging between prerogative and liberty. In his third parliament, the venerable subject of this memoir was returned for Buckingham, and his strenuous and generous efforts in forcing a declaration of rights were warmly applauded by the people and never forgotten by the court. This famous ordinance commonly known as The Petition of Right, was mainly attained by the animating voice and undaunted resolution of Coke, who in defiance of threats and promises, urged on the measure with such address, that in a few days the Lords were prevailed on to join the lower House, and the petition was passed into a law.

On the dissolution of this parliament, Sir Edward retired from public life, but his unpopularity at court frequently occasioned him great disquiet. A little before his death his house was searched for seditious correspondence, and all his papers and manuscripts seized and deposited in the exchequer. Among the documents carried off was his will, which was never afterwards found.

Sir Edward died on the 3rd September 1633, in the 83rd year of his age, as the following epitaph from his monument in Titeshall Church, where he was buried, will more fully shew :—

Dedicated to the Memory of

Sir Edward Coke, Knight, a late reverend Judge,

Born at Mileham in this County of Norff.

Excellent in all Learning divine and human, That for his

Owne, This for his Countrie's good, especially in the Knowledge

And Practice of the Municipal Lawes of this Kingdome,

A famous Pleader, a sound Counsellor.

In his younger Yeares Recorder of the Cities of Norwiche

And London, next Solicitor Generall to Queene

Elizabeth, and Speaker of the Parliament in the 35

Year of her Reigne. Afterwards Attorney General to

The same Queene, as also to her Successor King James.

To both a faithfull Servant for their Ma"", for their Safetye.

By Kinge James constituted Chief Justice of bothe Benches

Successively. In both a Just, in both an Exemplary Judge.

One of his Mai'"1, most honorable Privie Counsell. As also of

Counsell to Queene Anne, and Chief Justice in Eire

Of all liir Forests Chases and Parkes.

Recorder of the Cittye of Coventrye, and High Steward

Of the Universitye of Cambridge, whereof he was sometime

A member in Trinitye Colledge.

He had two Wives; By Bridget his first wife (one of the

Daughters and Coheires of John Paston, Esq.) he had Issue Seaven

Sonnes and Three Daughters; And by the Lady Elizabeth his second

Wife (One of the Daughters of the Right Honorable Thomas late Earle

Of Exeter) he had Issue Two Daughters.

A chast Husband, a provident Father.

He crowned his pious Life with as pious and

Christian Departure at Stoke Poges in the

County of Buckingham, on Wednesdaye

The Third Daye of September in the Yeare of

Our Lord M.DCXXXIIII. And of his age LXXXIII.

His last Wordes

Thy Kingdom come, Thy Will be done.

Learne Reader to live so that thou mayst so die.

Sir Edward Coke was gifted with the advantages of a fine person and commanding appearance. The bust of him which is preserved in the library at Trinity College, Cambridge, and the portrait which hangs in the hall of Lyon's Inn, represent him as having handsome and regular features, with a gravity of countenance to which the costume of his time, and particularly the long pointed beard, did not a little contribute. He was at all times particularly attentive to his apparel and general personal appearance, holding it for a maxim that the exterior neatness of the body ought to be emblematic of the inward purity of the heart.

The patriotism and independence of Sir Edward Coke, says a contemporary writer, must ever be considered as the brightest feature in his character. It is as a patriot alone that he stands superior to his great contemporary Bacon, with whom throughout the greater part of his professional career he was placed in constant competition. Both had embraced the same profession, both prosecuted it with ardour and success; one attaining the highest, the other the second dignity it can confer; and both lived to experience the instability of the preferment they had struggled so hard to acquire. But the causes which produced the downfall of these illustrious persons were widely different"; and he whose integrity was unimpeached rose highest in public estimation after his disgrace at court; while all the brilliant qualities of his rival, when sullied by corruption, failed to procure him the consideration and esteem that to a generous mind form the most gratifying reward of every exertion. As a practical lawyer, Coke was undoubtedly without an equal. All the abstruse learning of the common law, the subtle niceties of pleading, and the voluminous enactments of the statute-book, were treasured in his memory; and from this copious repertory he could always draw wherewithal to supply the emergencies of a particular case.

The regular life which Sir Edward Coke observed, kept him in vigorous health to the last. He seldom slept more than six hours, and usually rose at three in the morning. He was no friend to medicine, and was wont to give God solemn thanks that he never gave his body to physic, his heart to cruelty, nor his hand to corruption. He was very frugal in his expenditure, and as his income was large he left a good inheritance to his family. He was ardently attached to his profession, and one may suppose from the extent, variety, and depth of research displayed in his numerous publications, that he was a slave to his studies; but with method in his labour, and perseverance in his work, he has shewn what temperance and assiduity combined may accomplish. Of the common law he was a great admirer, and when a statesman one day intimated that he meant to consult him on a point of law: "If it be common law," said Coke, " I should be ashamed if I could not give you a ready answer; but if it be statute law, I should be equally ashamed if I answered you immediately." This statesman was Archbishop Abbot, who while hunting in the park, most unhappily killed a man with his cross-bow. Lord Coke was asked on the event being mentioned to him (he was playing at bowls at the time) whether a bishop might hunt in a park by the laws of the realm?—He answered, that it was clear he might, for there was an old law which required of bishops when they died to leave their pack of hounds to the King's free use and disposal.

Bacon's character of Coke is perhaps applicable in some degree to all great lawyers. In a remonstrance addressed to the Chief Justice while under censure, which is undoubtedly Bacon's production, he says, "You cloy your auditory when you would be observed; speech must be either sweet or short. You converse with books, not men, and books especially human; and have no excellent choice with men, who are the best books; for a man of action and employment you seldom converse with, and then but with your underlings."— This from an eye witness was perhaps a just though a severe criticism. But in his general character Coke is uniformly spoken of as a man of great prudence and learning, and of a pious and virtuous life. The depth of his knowledge and the wisdom of his judgments have never been disputed, and he must be regarded by all as a sound, constitutional, and upright judge, notwithstanding the obliquity of his manners and the austerity of his deportment.

His works consist of Institutes of the Laws of England in three parts, of which the Commentary on Littleton is the first; and Reports of Cases in the King's Bench, now collected in six volumes, together with some few other smaller productions, but all of equal note. He has found an able biographer in Mr. Woolrych, whose recent "Life of Sir Edward Coke" has set the character of the Chief Justice in a fairer light than it has hitherto been placed in. In Fuller's Worthies also will be found many particulars concerning this great Judge, and his life in the Biographia Britannica, as also that in the biographical department of the Library of Useful Knowledge, are spirited productions.

LORD COKE'S PREFACE.

We have formerly written, that this book is the ornament of the common law, and the most perfect work of its kind, and there never was any learned man in the law, that understood our author, but concurred with me in this commendation. And albeit our author in his Three Books cites not many authorities, yet he holds no opinion but what is approved by these two faithful witnesses, authority and reason. We have known many of his cases drawn in question, but never could find any judgment given against them, which we cannot affirm of any other book in our law.

We have in these Institutes endeavoured to open the true sense of each particular case, and the extent of the same, either in express words or by implication; and where any position is altered by act of parliament, we have endeavoured to observe the same and wherein the alteration consists. And we have by comparison of the late and modern impressions of the text with the original print, vindicated our author from two injuries: First, from divers corruptions in the late and modern prints, and, Secondly, from all additions and encroachments upon him, that nothing might appear in this work but his own.

Our hope is, that the young student, who meeting with difficult terms and matter was at first discouraged, may, by reading these Institutes, have the difficulty and darkness both of the matter and terms of art, facilitated and explained, to the end he may proceed in his study cheerfully and with delight; and therefore I have termed them Institutes, because my desire is, they should institute and instruct the studious, and guide him in a ready way to the knowledge of the laws of England.

This Part we have (not without precedent) published in English, to the end that the nobility and gentry of this realm, who may be pleased to read him and these Institutes, may understand the language wherein they are written. And I cannot conjecture that the general communicating of these laws in the English tongue can work any inconvenience, but introduce great profit, seeing that Ignorantia juris non excusat. Et neminem oportet esse sapientiorem legibus, No man ought to be wiser than the law. And true it is, that our books of reports and statutes in ancient times were written in such French as in those times was commonly spoken and written by the French themselves. But this kind of French that our author has used, is most commonly written and read, and very rarely spoken, and therefore cannot be either pure, or well pronounced. But it should be remembered that by long custom many ancient terms and words drawn from the French are grown to be terms of art, and are so apt and significant to express the true sense of the laws, and are so woven in the laws themselves, that it is in a manner impossible to change them, neither ought legal terms to be changed. In school divinity you meet with a whole army of words, which cannot defend themselves in hello grammatical}, and yet are more significant, compendious, and effectual to express the true sense of the matter, than if they were expressed in pure Latin.

This work we have called, "The First Part of the Institutes," for two causes: First, because our author is the first book that the student takes in hand. Secondly, because I have other Institutes not yet published, viz. The Second Part, being a Commentary upon the statute of Magna Charta, Westm. 1. and other old statutes. The Third Part treats of criminal causes and pleas of the crown: which Three Parts we have by the goodness of Almighty God already finished. The Fourth Part we have purposed to be of the jurisdiction of courts: but hereof we have only collected some materials towards the raising of so great and honourable a building. We have now, by the goodness and assistance of Almighty God, brought this twelfth work to an end: in the Eleven Books of our Reports we have related the opinions and judgments of others; but herein we have set down our own.

Before I entered into any of these Parts of our Institutes, I, acknowledging my own weakness and want of judgment to undertake so great works, directed my humble suit and prayer to the Author of all goodness and wisdom, out of the Book of Wisdom; Pater et Deus tnisericordice, da mihi sedium tuarum assistricem Sapientiam! Mitte earn de ca'lis Sanctis tuis et d sede magnitudinis tucc, at mecum sit et mecum laborct, ut sciam quid acceptum sit apud te! "O Father and God of mercy, give me wisdom, the assistant of thy seats! O send her out of thy holy heavens, and from the seat of thy greatness, that she may be present with me, and labour with me, that I may know what is pleasing unto thee!" Amen.

Our author dealt only with estates and tenures. I have added somewhat concerning estates by force of certain statutes, as of statute-merchant, statute-staple, and elegit, (whereof our author intended to have written) and likewise of executors to whom lands are devised for payment of debts, and the like. And once for all I desire the learned reader will not conceive any opinion against this painful and large volume, until he shall have advisedly read over the whole, and diligently searched out, and well considered of the several authorities, proofs and reasons which we have cited and set down for warrant and confirmation of our opinions throughout this whole work.*

My advice to the student is, that before he read any part of our Commentaries upon any Section, that first he read again and again our author himself in that Section, and do his best endeavours, first of himself, and then by conference with others, (which is the life of study) to understand it, and then to read our Commentary thereupon, and no more at any one time than he is able with a delight to bear away, and after to meditate thereon, which is the life of reading. And albeit the reader shall not in any one day (do what he can) reach to the meaning of our author, or of our Commentaries, yet let him be no way discouraged, but proceed; for on some other day, in some other place, that doubt will be cleared.

* The margins of all the editions of Lord Coke's works are crowded with authorities from the Year Books, and the text writers of his day. These have been omitted in the present edition, because of their uselessness in study, and the difficulty of following them, as also from the scarceness of the authorities referred to.

READABLE EDITION

COKE UPON LITTLETON.

BOOK I.
CHAPTER I. Section 1.

FEE-SIMPLE.

Tenant in fee-simple is he who has lands or tenements to hold Tenant in fee io him and his heirs for ever. Therefore, if a man purchase lands M ai or tenements in fee-simple, it behoves him to have these words in his purchase, To have and to hold to him and his heirs: for it is these words (his heirs) that make the estate of inheritance. If a man purchase lands by these words, To have and to hold to him for evtr; or by these words, To have and to hold to him and his assigns for ever: in these cases he hath but an estate for term of hfe, for that there lack the words (his heirs), which words only make an estate of inheritance in all feoffments and grants.

Tenant.] In latin, tenens is derived from the verb teneo, and Tenant—mam has in law several significations. 1. It signifies the estate of the tenant in the land. 2. It signifies the tenure or service whereby the lands or tenements are holden. All lands and tenements in England in the hands of subjects are holden mediately or immediately of the king, and therefore the owner of the land is not called a tenant because he holds of some superior lord by some service. But the king in this sense cannot be said to be a tenant, because he has no superior but God Almighty. Of the several estates of land our author treats in his first book, and he begins with fee-simple, because all other estates are derived out of the same.

Fee-simple tthat.

Fee-simple.] Fee legally signifies inheritance, and simple is added for that it is descendible to heirs generally, that is, simply without restraint to heirs of the body or the like. Of fee-simple it is commonly holden that there be three kinds, viz. fee-simple absolute, fee-simple conditional, and fee-simple qualified or base. But the more genuine and apt division were to divide fee, that is, inheritance, into three parts, viz. simple or absolute, conditional, and qualified or base; for this word (simple) properly excludes both conditions and limitations that defeat or abridge the fee. Hereby it appears that fee in legal understanding signifies that the land belongs to us and our heirs, in respect whereof the owner is said to be seised in fee, and in this sense the king even may be said to be seised in fee. Of fee in the first sense our author treats in this first book, and as it is taken in the second sense, in his second book; and of the third you shall read in our author, Sect. 13. G44, 645.


Lands or tenements.] Here it is to be observed, that a man may have a fee-simple in three kinds of hereditaments, viz. real, personal, and mixt. Real, as lands and tenements, whereof our author here speaks. Personal, as if an annuity be granted to a man and "his heirs," it is a fee-simple personal. And lastly, hereditaments may be mixt both of the realty and personalty. As when the king creates an Earl of such a county or other place, to hold that dignity to him and his heirs, this dignity is personal, and also concerns lands and tenements. But of this matter more shall be said in the next chapter. Sect. 14 and 15.

Fee by right and wrong distinguished.

A lawful or pure inheritance.] Here it is well put in the disjunctive lawful or pure, for every fee-simple is not lawful. A disseisor, abator, intruder, usurper, &c. have a fee-simple, but it is not a lawful fee. So that every man who has a fee-simple, has it either by right or by wrong. If by right, then he has it either by purchase or descent. If by wrong, then either by disseisin, intrusion, abatement, usurpation, &c. In this chapter Littleton treats only of a lawful fee-simple, and divides the same as is aforesaid.

For if a man purchase.] Persons capable of purchase are of two ^l"> man rmrsorts, natural persons created of God, as I. S. I. N. &c. and persons incorporate or politic created by the policy of man, who are therefore called bodies politic; and these be of two sorts, viz. cither sole, or aggregate of many: again, aggregate of many, either of all persons capable, or of one person capable and the rest incapable or dead in law, as in the Chapter of Discontinuance, Sect. 665, shall be shewn. Some men have capacity to purchase, but not ability to hold: some, capacity to purchase and ability to hold or not at the election of themselves or others: some, capacity to take and to hold: some, neither capacity to take nor to hold; and some, are specially disabled to take some particular things.

If an alien christian or infidel purchase houses, lands, tenements, Aiiem. or hereditaments, to him and his heirs, albeit he can have no heirs, L ■" yet he is of capacity to take a fee-simple, but not to hold. For npon an office found, the king shall have it by his prerogative, of whomsoever the land is holden. And so it is if an alien purchases land and dies, the law casts the freehold and inheritance upon the king. If an alien purchase any estate of freehold in houses, lands, tenements, or hereditaments, the king npon office found shall have them. If an alien be made a denizen and purchase land, and die without issue, the lord of the fee shall have the escheat, and not the king. But as to a lease for years, there is a diversity between a lease for years of a house for the habitation of a merchant strangrer being an alien, whose kino- is in league with ours, and a lease for years of lands, meadows, pastures, woods, and the like. For if he take a lease for years of lands, meadows, &c. upon office found, the king shall have it. But of a house for habitation he may take a lease for years as incident to commerce; for without habitation he cannot merchandize or trade. But if he depart or relinquish the realm, the king shall have the lease. So it is, if he die possessed thereof, neither his executors or administrators shall have it, but the king; for he had it only for habitation as necessary to his trade or traffic, and not for the benefit of his executor or administrator. But if the alien be no merchant, then the king shall have the lease for years, albeit it were for his habitation; and so it is if he be an alien enemy. And all this was resolved by the judges assembled for that purpose in the case of Sir James Croft, Pasch. 29. of the reign of Queen Elizabeth.

Fehn. Also if a man commit felony, and after purchase lands, and after is attainted, he had capacity to purchase, but not to hold it; for in that case the lord of the fee shall have the escheat; and if a man be attainted of felony, yet he has capacity to purchase to him and to his heirs, albeit he can have no heir, but he cannot hold it; for in that case the king shall have it by his prerogative, and not the lord a fee; for a man attainted hath no capacity to purchase (being a man civiliter mortuus) but only for the benefit of the king, no more than the alien-nee has.

Corporation. If any sole corporation or aggregate of many, either ecclesiastical or temporal (for the words of the statute of mortmain, 7 Edw. 1. c. 2. are si quis religiosus vel alius) purchase lands or tenements in fee, they have capacity to take but not to retain unless they have a sufficient license in that behalf; for within the year after the alienation the next lord of the fee may enter; and if he do not, then the next immediate lord to have half a year, and so of all the mesne lords, up to the king who shall have the land so aliened for ever in default of the other lords; but this is to be understood of such inheritances as may be holden. Of inheritances which are not holden of any, as rent charges, commons, and the like, the king shall have them presently by a favourable interpretation of the statute. But an annuity granted to a corporation is not considered as in mortmain, because it charges the person only. And lands granted to a corporation are said to be in mortmain, because the lands are as to the superior lords dead to their services, for by an alienation in mortmain they lose their escheats and the services of their knights, also the feudal incidents of wardship, marriage, reliefs and the like; and therefore such an alienation is said to be in mortmain or dead hand, for that a dead hand yields no service.

Infants. An infant or minor (and all are such who are under the age of twenty-one years) has, without the consent of any other person, capacity to purchase, and the law will assume that such purchase is for his benefit, but at his full age he may either agree threunto and perfect it, or without cause to be alleged, waive or disagree to the purchase; and so may his heirs after him, if he agreed not thereunto after his full age.

Lunatic. A man of non-sane memory may, without the consent of any other, purchase lands, and he himself cannot waive it, but if he die in his madness, or after his memory recover without agreement thereunto, his heir may waive and disagree to the estate purchased without any cause shewn; and so of an idiot. But if the man of non-sane memory recover his memory and agree to the purchase, then is it unavoidable.

And note that an hermaphrodite may purchase land according Hermaphrodite. to that sex which prevails. [3a]

A feme covert cannot take any thing of the gift of her husband Feme covert. [except by will or through the medium of uses and trusts] but she is of capacity to purchase of others without the consent of her husband. And of this opinion was Littleton in the year-books, and in this book, Sect. 677; but her husband may disagree thereunto and devest the whole estate; but if he neither agree nor disagree, the purchase is good; but after his death, albeit her husband agreed thereunto, yet she may, without any cause alleged, waive the same, and so may her heirs also, if after the decease of her husband she herself agreed not thereunto. A wife {uxor) is a good name of purchase, without a Christian name; and so it is if a Christian name be added and mistaken, as Em for Emelyn, Sec. for utile per inutile non vitiatur.

But the queen consort of the king of England, is a separate Queen. person from the king by the common law, and is of ability and hath capacity to purchase and grant without the king. Of which see more at large, Sect. 200.

The parishioners, inhabitants, or churchwardens [of a parish] are Churchu ardent. not [as such] capable of purchasing lands [except by an act of parliament or grant from the crown] but goods they may purchase.

An ancient grant by a lord to his commoners of a right of way Commoners. was formerly good; but otherwise it is of such a grant at this day. And so in ancient time a grant made to a lord et ftominibus mis tarn liberis quam tiativis, or the like, was good ; but these persons are not of capacity to purchase land by such a name at this day.

name.

And regularly it is requisite, that the purchaser be named by Purchaser's the name of baptism and his surname, and that special heed be taken to the name of baptism, for a man cannot have two names of baptism but he may have divers surnames. And yet in

some cases, though the name of baptism be mistaken (as in the case put before of the wife), the grant is good. So it is if lands be given to Robert Earl of Pembroke, where his name is Henry,—to George bishop of Norwich, where his name is John:—in these and the like cases there can be but one of that dignity or name. And therefore such a grant is good, albeit the name of baptism be mistaken.

Kame <facer- If by license lands be given to the dean and chapter of the holy and undivided Trinity of Norwich, this is good, although the dean be not named by his proper name, provided there be a dean at the time of the grant, [for the dean is the head, and without a head the corporation is not complete and cannot purchase] but in pleading the dean's proper name must be shewn. And so on the other side, if the dean and chapter make a lease, without naming the dean by his proper name, the lease is good, if there were a dean at the time of the lease; but in pleading, the proper name must be shewn; andjso is the year-book 18 E. 4. to be intended; for the same j udges in 13E. 4. held a grant to a mayor aldermen and commonalty to be good although the mayor was not named by his proper name; but in pleading the name must be shewn as it was there also holden.

Kame of bap- If a man be baptised by the name of Thomas, and after, at his HrmaTLi Ms-' confirmation, by the bishop he is named John, he may purchase by uuguuhed. th.e name of his confirmation. And this was the case of Sir Francis Gawdie, late chief justice of the court of Common Pleas, whose name of baptism was Thomas, and his name of confirmation Francis: and the name of Francis he afterwards bore and by the advice of the judges used that name in all his subsequent purchases and grants. And this agrees with our ancient books, where it is holden that a man may have divers names at divers times, but not divers Christian names. And the court said, it may be that a woman is baptised by the name of Anable, and forty years after she is confirmed by the name of Douce, and then her name is changed, and after she is to be called Douce, but all purchases, &c. made by her by her name of baptism before her confirmation remain good; a matter not much in use now, nor requisite to be put in use, yet is it necessary to be known. But purchases are good in many cases by a known name, or by a certain description of the person without either surname or name of baptism, as taori J. S. as hath been said, or primogenitoJUio, or secundo genitoJUio, &c. or jilio natil minimo, J. S. or senior/ puero, or omnibus filiis, or jiliabus J. S. or omnibus liberis seu excitibus of J. S. or to the right heirs of J. S.

A bastard having acquired a name by reputation may purchase by Emtard. his reputed or known name to him and his heirs, although he can L^J

have no heir but of his body. A man makes a lease to B. for life, remainder to the eldest issue male of B. and the heirs males of his body. B. has issue a bastard son, he shall not take the remainder, because in law he is not his son; for que ex damnato coitu nascunlur inter liberos non computentitr. And, as Littleton says, a bastard is quasi mdliusjilius and cannot have a name of reputation immediately on his birth. So it is if a man make a lease for life to B. the remainder to the eldest issue male of B. to be begotten of the body of Jane S. whether the same issue be legitimate or illegitimate. B. has issue a bastard on the body of Jane S., this son or issue shall not take the remainder; for (as it has been said) by (he name of issue, if there had been no other words, he could not take; and (as it has been also said) a bastard cannot take but after he has gained a name by reputation, [as] that he is the son of B. &c. [then if an estate be limited or given to him by that name he may take.] Hence a bastard can take no remainder limited before he be born; but after he is born and has gained by time a reputation to be known by the name of a son, then a remainder limited to him by the name of the son of his reputed father, is good; but if he cannot take the remainder by the name of issue at the time when he is born, he shall never take it at all. And so it seems for the same cause that if, after the birth of issue, B. had married Jane S., whereby the issue might have become bastard eigne and have had a possibility to inherit, vet he shall not take the remainder.

Persons deformed having human shape, idiots, madmen, lepers, who may pw deaf, dumb, and blind, minors, and all other reasonable creatures, c ase' have power to purchase and retain lands or tenements.

But the common law disables some men to take any estate Offices. in some particular things; as if an office either of the grant of the king or subject, which concerns the administration, proceeding, or execution of justice, or the king's revenue, or the common-wealth, or the interest, benefit, or safety of the subject, or the like, if these or any of them be granted to a man that is inexpert, and has

no skill and science to exercise or execute the same, the grant is merely void, and the party disabled by law and incapable to take the same pro commodo regis et populi; for only men of skill, knowledge, and ability to exercise the office are capable of the same, to serve the king and his people. An infant or minor is not capable Steward. of an office of stewardship of the court of a manor, either in pos

session or reversion. No man, though never so skilful and expert, is capable of a judicial office in reversion, but must expect until it fall in possession. And see Sect.378. where bargaining or giving of money or any manner of reward &c. for offices there mentioned, shall make such a purchaser incapable thereof, which is worthy to be known, but more worthy to be put in due execution.

Monitor. A monster born within lawful matrimony, that hath not human

shape, cannot purchase, much less retain any thing.

Professed monks.

The same law is de professis et mortuis seeculo, for they are civiliter mortui; whereof you shall read at large in its proper place, Sect. 200.

Purchase and descent distinguished.

Purchase.] In latin perquisitum, of the verb perquirere. Littleton describes it in the end of this chapter in this manner: also purchase is called the possession of lands or tenements that a man has by his deed or agreement, unto which possession he comes not by title of descent from any of his ancestors or of his cousins, but by his own deed. So that I take it, a purchase is when one comes to lands by conveyance and [rightful] title, and that decisions, abatements, intrusions, usurpations, and such like estates gained by wrong, are not to be called purchases but oppressions and injuries.

Fraudulent conveyances.

Note, that purchasers of lands, tenements, leases, and hereditaments, for good and valuable consideration, shall avoid all former fraudulent and covinous conveyances, estates, grants, charges, and limitations of use of or out of the same, by a statute made since Littleton wrote, [27 Eliz. c. 4. 13 Eliz. c. 5.] whereof you may plainly and plentifully read in my reports, to which I will add, this case: I. C. had a lease of certain lands for sixty years if he lived so long, and forged a lease for ninety years absolutely, and he by indenture reciting the forged lease, for valuable consideration, bargained and sold the forged lease and all his interest in the land, to R. G. It seemed to me that R. G. was no purchaser within the statute of 27 Eliz. for he contracted not for the true and lawful interest, for that was not known to him and perhaps if he had known the shortness of the term, he would not have dealt for it, but the visible and known term which he purchased was forged; and although by general words the true interest did pass, yet he gave no valuable consideration for it, neither did he contract for it. And of this opinion were all the judges in Serjeant's-Inn, in Fleet-street.

And on the other side, purchases, estates, and contracts may be Utury. avoided, since Littleton wrote, by certain acts of parliament [An] against usury; and to those who lend money my caveat is, that neither directly nor indirectly, by art, or cunning invention, they take above ten per cent, interest for their money [the then current interest], for they that seek by sleight to creep out of these statutes, will deceive themselves and repent in the end.

Purchase lands.] Littleton here, and in many places, puts lands but for an example; for his rule extends to seigniories rents, advowsons, commons, estovers, and other hereditaments, of what kind or nature soever.

La«rf.] Terra, in the legal signification, comprehends any Land includa ground, soil, or earth whatsoever; as meadows, pastures, woods, moors, waters, marshes, furzes, and heath. Terra est nomen generaliisimum et comprehendit omnes species terra; but properly, terra dicitur a terendo, quia vomere terilur; and anciently it was written with a single r; and in that sense it includes whatsoever may be ploughed, and is all one with arvum ab arando. It legally includes all castles, houses, and other buildings: for castles, houses, 8tc. consist upon two things, viz. land or ground, as the foundation or structure thereof, so that in passing the land or ground, the structure or building thereupon passes therewith. Also, the waters that yield fish for the food and sustenance of man are not by that name demandable; but the land whereupon the water flows or stands is demandable, as for example, twenty acres of land covered with water: and besides, the earth does furnish man with many other necessaries for his use, as it is replenished with hidden treasures, namely, with gold, silver, brass, iron, tin, lead, and other metals, and also with a great variety of precious stones, and many other things for profit, ornament, and pleasure [all which pass by the general name of land]. And lastly, the earth has, in law, a great extent upwards, not only of water, as hath been said, but of air, and of all other things, even up to heaven; for cujus est solum ejus est usque ad caelum.

Moveable fee- And albeit land, whereof our author here speaks, be the most s""p' firm and fixed inheritance, and fee-simple the highest and most

absolute estate that a man can have; yet may the same at several times be moveable, sometime in one person and alternis vicibus in another; nay, sometime in one place and sometime in another. As for example, if there be eighty acres of meadow, which have been used time out of mind to be divided between certain persons, so that a certain number of acres appertain to each person individually; as for example, to A. thirteen acres to be yearly assigned and lotted out, so as sometime the thirteen acres lie in one place and sometime in another, and so of the rest; A. has a moveable fee-simple in thirteen acres which may be parcel of his manor or lordship, albeit they have no certain place but are yearly set out in several places, so that the number only is certain, and the particular acres or place wherein they lie after the year is uncertain. And so it was adjudged in Bridgwater's case. If a partition be made between two coparceners of one and the same land, viz. that the one shall have the land from Easter until Lammas to her and to her heirs, and the other shall have it from Lammas till Easter to her and her heirs, or that the one shall have it the first year, and the other the second year, alternis vicibus, &c. that also is a case wherein two persons have several inheritances in the same land at several times. So it is if two coparceners have two several manors by descent, and they make partition, that the one shall have the one manor for a year, and the other the other manor for the same year, and after that year then that she who had the one manor shall have the other, et sic alternis vicibus for ever, this is a good partition, and although the manors be several, yet are they certain, and it is therefore stronger than Bridgwater's case; so that this makes a division of estates into certain or immoveable, whereof Littleton here speaks, and uncertain and moveable, whereof these three cases for examples have been put; and in these cases it is to be noted, that the possession is not only several, but the inheritance is general also.

Herbage. It is also necessary to be seen by what names lands shall pass.

L' If a man has twenty acres of land, and by deed grants to another and his heirs vesturam ttrree, and makes livery of 6eisin stcundam formam charts, the land itself shall not pass, because he has a particular right in the land; for thereby he shall not have the houses, timber-trees, mines, and other real things parcel of the inheritance, but he shall have the vesture of the land, (that is) the com, grass, underwood, sweepage, and the like, and he shall have an action of trespass quare clausumfregit. The same law is if a man grant herbagium terra, he has a like particular right in the land, and shall have an action quare clausum fregit; but by grant thereof and livery made the soil shall not pass, as is aforesaid. If a man let to B. the herbage of his woods, and after grants all his lands in the tenure possession or occupation of B., the woods shall pass, for B. hath a particular possession and occupation, which is sufficient in this case; and so it was resolved.

So if a man be seised of a river, and by deed grants seperalem Fisimy. piscariam in the same, and makes livery of seisin secundum formam charts, the soil does not pass nor the water, for the grantor may take water there, and if the river becomes dry, he may take the benefit of the soil; for there passed to the grantee but a particular right, and the livery being made secundum formam chartee cannot enlarge the grant. For the same reason, if a man grant aquam suam, the soil shall not pass, but the fishery within the water passes therewith. And land covered with water shall be demanded by the name of so many acres covered with water; whereby it appears that they are distinct things.

So if a man grant to another to dig turf in his land and to carry Turf. it away at his will and pleasure, the land shall not pass, for part only of the profit is given viz. the turf, and not the trees, mines, See.

But if a man seised of lands in fee, by his deed grants to Rents and another the profit of those lands, to have and to hold to him and af^ldltsl'f. his heirs, and makes livery secundum formam chartee, the whole land itself does pass; for what is the land but the profits thereof, for thereby vesture, herbage, trees, mines, and all whatsoever is parcel of the land passes.

A man seised of divers acres of wood, grants to another omnes Woods; the buncos suos, all his woods, not only the woods growing upon the land pass, but the land itself, and by the name [of land covered with

wood] shall it be recovered in a prttcipe; for boscos does not only include the trees but the land also whereupon they grow.


If a man grants all his pastures, pasturas, the land itself employed in the feeding of beasts shall pass, and also such pastures or feedings as he hath in another man's soil. So if a man grant omnia prata sua, all his meadows, the land itself of that kind shall pass; el dicilur pratitm quasi paratum, because it grows spontaneously without manurance. A man grants omms brveras sitas, the soil where the heath grows shall pass. And by the grant of omnesjunt-arias or joncarias, the soil where rushes grow shall pass; and he that grants omnes mariscos suos, does convey all his fens and marshy grounds. By grants of tbese particular kinds of land, the lands of the description named only do pass; but, as hath been said, by the grant of land in general, all these particular kinds and some others pass.

Honour.
IsU.

Castle.

Town.

Fann.

Grange.

Pool.

By the name of an honour, which a subject may have, divers manors and lands may pass. So by the name of an isle, insula, many manors lands and tenements may pass. And by the name of a castle, one or more manors may be conveyed; tt t converso, by the name of a manor &c. a castle may pass. But note by the way, that no subject can build a castle or house of strength embattled &c. or other fortress defensible, without the license of the king, for the danger which might ensue if every man at his pleasure might thus entrench himself. By the name of a town, villa, a manor may pass. And by the name of a manor, divers towns may pass.

By the name of a j'erme or farm, Jirma, houses, lands, and tenements may pass; and_/?>»?« is derived of the Saxon word J'tormian, to feed or relieve, for in ancient time were reserved upon these leases cattle and other provisions for the lessor's sustenance. Note, a farm in the north part is called a tack, in Lancashire a farm-holt, in Essex a wike; but the word farm is the general word, and anciently fundus signified a farm, and sometimes land. Lands making a knight's fee shall pass by the grant of a knight's fee, de unofeodo militis. By the name of a grange, grangia, a house or edifice, not only where corn is stored up as in barns, but necessary places for husbandry also, as stables for hay and horses, and stables and styes for other cattle, and a curtilage, and the close wherein it stands shall pass. Stagnum, in English, a pool, consists of water and land: and therefore by the name of stagnutu, or a pool, the water and [5 b] land shall pass also.

So it is of a forest, park, chase, vivary, and warren in a man's Forest. own ground, by the grant of any of them, not only the privilege but j>„X the land itself passes.

By the grant of a messuage or house, the orchard, garden, and Messuage ami curtilage do pass, and so an acre or more may pass by the name of r"r(' "ee' a house.

By the name of minera, mfodina plumbi, &c. the land itself shall Mi»«pass in a grant, if livery be made, and so shall it be recovered L ^ in an assize.

By the grant of a foldcourse, or the like, lands and tenements FoU-emirse. may pass; [contra it is presumed of a sheep-walk.]

Tenement um, tenement, is a large word to pass not only lands Tenementsand other hereditaments and inheritances which are holden, but also offices, rents, commons, profits apprendcr out of lands, and the like, wherein a man may have a frank-tenement and whereof he can be said to be seised ut de libero tenemento. But heereditamentum, Hereditaments. hereditament, is the largest word of all in that kind; for whatsoever may be inherited is an hereditament, be it corporeal or incorporeal, real, personal, or mixed.

A man seised of land in fee having divers charters, deeds, and evi- Deeds. dences, makes a feoffment in fee, either without warranty, or with warranty against him and his heirs only [as covenants and warranties are at this day usually made]; the purchaser shall have all the charters, deeds, and evidences, as incident to the lands, et ratione terra, to the end he may the better defend the land himself, if he has no warranty to recover in value; for the evidences are, as it were, the sinews of the land, and the feoffor not being bound to warranty, has no use of them. But if the feoffor be bound to warranty [that is, if he warrants the title generally] so that he is bound to render in value [against whoever claims], then is the defence of the title at his own peril; and therefore the feoffee in that case shall have no deeds that comprehend warranty whereof the feoffor may take advantage. Also he [the feoffor] shall [in such case] have such charters as may serve him to deraigne the warranty paramount. Also he shall have all deeds and evidences which are material for the maintenance of the title to the land, but other evidences which concern the possession and not the title of the land [as leases], the feoffee shall have them.

Habendum. To have and to hold.] These two words in this place prove a double signification, viz. to have an estate of inheritance of lands descendible to his heirs, and to hold the same of some superior lord.

Parts of a There are eight formal or orderly parts of a deed of feoffment, viz. 1. the premises which are implied by Littleton; 2. the habendum, whereof Littleton speaks; 3. the tenendum, mentioned by Littleton; 4. the reddendum; 5. the clause of warranty; 6. the in cujus rei testimonium, comprehending the sealing; 7. the date of the deed, containing the day, the month, the year, and style of the king or of the year of our Lord; lastly, the clause of hiis testibus. The office of the premises of the deed is twofold: first, rightly to name the feoffor and the feoffee; and secondly, to comprehend the certainty of the lands or tenements to be conveyed by the feoffment, either by express words or which may by reference be reduced to a certainty, for cerium est quod certum reddi potest. The habendum has also two parts, viz. first, to name again the feoffee; and secondly, to limit the certainty of the estate. The tenendum at this day, where the fee simple passes, must be of the chief lords of the fee. And of the reddendum, more shall be said in its proper place in the Chapter of Rents. Of the clause of warranty, more shall be said in the Chapter of Warranties. In cujus rei testimonium sigilum meum apposui is added, for the seal is an essential part of the deed. The date of the deed many times antiquity omitted; and the reason thereof was, for that the limitation of prescription or time of memory, did often in process of time change, and the law was then holden, that a deed bearing date before the limited time of prescription was not pleadable; and therefore they made their deed without date, to the end they might allege them within the time of prescription. And the date of the deeds was commonly added in the reign of Edw. 2 and Edw. 3, and so ever since. And sometimes antiquity added a place, as datum apud D. which was in disadvantage of the feoffee, for if the deed be general, he may allege it to be made where he will. And, lastly, antiquity did add

hits testibits in the contents of the deed after the in cujus rei testimonium, written in the same hand that the deed was, which witnesses were called, the deed read, and then their names entered; which clause of hiis testibits in subjects' deeds continued until and in the reign of Henry 8, but is now wholly omitted.

If the witness be an infidel, or infamous, or of non-sane memory, Witmua, »&•

may be.

or not of discretion, or a party interested, or the like, he can be no r(j £] good witness. But oftentimes a man may be objected to on a jury who cannot be challenged to be a witness; and therefore, though the witness be of the nearest alliance or kindred, or of counsel, or tenant, or servant to either party, or any other exception that makes him not infamous, or to want understanding or discretion, or a party in interest, though it be proved true, that shall not exclude the witness to be sworn, but he shall be sworn, and his credit upon the exceptions taken against him left to those of the jury who are triers of the fact; insomuch as some books have said, that though the witness named in the deed be named a disseisor in the writ, yet he shall be sworn as a witness to the deed, and though a witness be outlawed in a personal action, that is no exception against him to exclude him to be sworn as a witness to a jury. But note, it is a maxim in law, that witnesses cannot testify a negative, but can only prove an affirmative: but if one of the witnesses named in the deed be one of the panel, he shall be put out of the panel. If all the witnesses be dead (and no man can keep his witnesses alive, for time weareth out all men), then continual and quiet possession is a violent presumption of right, and stands for a proof [i. e. till rebutted.] Note, it hath been resolved, that a wife cannot be produced either for or against her husband, quia sunt dua anima in came una; and it might be a cause of implacable discord and dissention between them, and a means of great inconvenience.

But now let us return to that from which by way of digres- Formal parts sion (upon this occasion) we are fallen. I have termed the said "" "r^VV parts of a deed the formal or orderly parts, but they are not of . theessence of a deed of feoffment; for if such a deed be withoutpremisses, habendum, tenendum, reddendum, clause of warranty, clause of in cujus rei testimonium, the date, or the clause of hiis testibus, yet the deed is good. For if a man by deed gives lands to another and to his heirs without saying more, this is good, if he put his seal to the deed, deliver it, and make livery accordingly. So it is if A.

give lands to have and to hold to B. and his heirs, this is good, albeit the feoffee is not named in the premises. But no well advised man should trust to such deeds which the law by construction only makes good, ut res magis valeat; but when form and substance concur, then is the deed fair and absolutely good.

lUir, tibii. To him and to hit heirs.] Uteres, in the legal understanding of

[7 hi] the common law, implieth, that he is ex justis nuptiis procreatus;

for hares legitimus est quern nuptia demount rant, and is he to whom

lands, tenements, or hereditaments, by the act of God and right of

blood do descend of some estate of inheritance.

Monster. A monster, which has not the shape of mankind, cannot be heir

or inherit any land, albeit it be brought forth within marriage; but although he has deformity in any part of his body, yet if he has human shape he may be heir.

Bastard. Neither can a bastard be heir, as hath been before said.

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Hermaphrodite. Every heir is either a male, or female, or an hermaphrodite, that is both male and female. And an hermaphrodite (which is also called Audrogt/nus) shall be heir, either male or female, according to that kind of sex which prevails. Hermaphrodita, tarn masculo qtiam J'amiuec comparalur, secundum prtevalescentiam sexus incalescent'ts. And accordingly it ought to be baptised. See more of this matter Sect 35.

Aliens. A man seised of lands in fee hath issue an alien that is born out

of the king's allegiance; he cannot be heir, propter defectum subjectionk, albeit he be born within lawful marriage. If made denizen by the king's letters patent, yet cannot he inherit to his father or any other. But otherwise it is, if he be naturalized by act of parliament; for then he is not accounted in law an alien but a subject. But after one be made denizen, the issue that he hasafterwards shall be heir to him, but no issue that he had before. If an alien conies into England and has issue two sons, these two sons are indigent, subjects born, because they are born within the realm. And yet if one of them purchase lands in fee, and dies without issue, his brother shall not be his heir; for there was never any inheritable blood between the father and them; and where the sons by no possibility can be heir to the father, the one of them shall not be heir to the other. See more of this matter Sect. 198. [and 25 Geo. 2. c. 40.]

If a man be attainted of treason or felony, although he be born Atufinder. within wedlock, he can be heir to no man, nor any man heir to him, propter delictum, for that by his attainder his blood is corrupted. And this corruption of blood is so high, that it cannot be absolutely salved and restored but by act of parliament; for albeit the person attainted obtain his charter of pardon, yet that does not make any to be heir whose blood was corrupted at the time of the attainder, either downward or upward. As if a man has issue a sou before his attainder, and obtains his pardon, and after the pardon has issue another son, at the time of the attainder the blood of the eldest was corrupted, and therefore he cannot be heir. But if he die, living his father, the younger son shall be heir; for he was not in esse at the time of the attainder, and the pardon restored the blood as to all issues begotten afterwards. But in that case if the eldest son had survived the father, the younger son cannot be heir; because he has an elder brother who by possibility might have inherited; but if the elder brother had been an alien, the younger son should be heir, for that the alien never had any inheritable blood in him. See more plentifully of this matter Sect 746. 747. If a man has issue two sons, and after is attainted of treason or felony, and one of the sons purchase land and dies without issue, the other brother shall be his heir; for the attainder of the father corrupts the lineal blood only, and not the collateral blood between the brethren, which was vested in them before the attainder, and each of them by possibility might have been heir to the father. But otherwise it is in the case of the aliennee, as hath been said. But some have holden that if a man after he be attainted of treason or felony have issue two sons, that the one of them cannot be heir to the other, because they could, not be heir to the father, for that they had no inheritable blood in them.

One that is born deaf and dumb may be heir to another, albeit it i«comp»mt was otherwise holden in ancient time. And so if born deaf, dumb, pmOTls> and blind, for in hoc casu vitio parcitur tiaturali. But contract they cannot. Idiots, lepers, madmen, outlaws in debt, trespassers; or the like, persons excommunicated, men attainted in a pramunire or convicted of heresy, may be heirs.

Posthumous child.

If a man has a wife, and dies, and within a very short time after the wife marries again, and within nine months has a child, so as it may be the child of the one or the other, some have said that in this case the child may choose his father, quia in hoc casujiliatio tum potest probari; for avoiding of which question and other inconveniences, this was the law before the conquest, Sit omnis vidua sine marito duodecim mensibvs, et si maritaverit peidat dotem.

Heir looms.

Heir apparent.

[86]

A man by the common law cannot be heir to goods or chattels, for hares dicitur ab hareditate. If a man buy divers fish, as carp, bream, tench, &c. and put them in his pond, and dies, in this case the heir shall have them, and not the executors, but they shall go with the inheritance; because they were at liberty, and could not be gotten without industry as by nets, and other engines. Otherwise it is, if they were in a trunk or the like. Likewise, deer in a park, conies in a warren, and doves in a dovehouse, young and old, • shall go to the heir. But of ancient time the heir was permitted to have an action of debt upon a bond made to his ancestor and his heirs; but the law is not so held at this day, vide Sect. 12.

It is to be noted, that one cannot be heir till after the death of his ancestor. Before, he is called hares apparens, heir apparent. When a man having lands in fee-simple dies, and his wife soon marries again, and feigns herself with child by her former husband, in this case though she be married, the writ de ventre inspicietido doth lie for the heir. But if a man seised of lands in fee (for example) has issue a daughter, who is heir apparent, she in the life of her father cannot have this writ for divers causes. 1st. Because she is not heir, but heir apparent; for, as hath been said, nemo est hares viventis; and this writ is given to the heir to whom the land is descended. And both Bracton and Fleta say, that this writ lies ad querelam veri haredis, which cannot be in the life of his ancestor; and herewith agrees Britton and the Register. 2dly. The taking of a husband in the case aforesaid being her own act, cannot bar the heir of his lawful action once vested in him. 3dly. The law does not give the heir apparent any writ, for it is not certain whether he shall be heir, solus Deus facit haredis. 4thly. The inconvenience were too great, if heirs apparent in the life of heir ancestor should have such a writ to examine and try a man's lawful wife in such sort as the writ de ventre inspiciendo does appoint; and if she should be found to be with child,or suspected, then she must be removed to a castle, and there safely kept until her delivery, and so any man's wife might be taken from him against the laws of God and man.

And it is to be observed, that every word of Littleton is worthy Heir in singular of observation. First (hares) in the plural number; for if a man give land to a man and to his heir in the singular number, he has but an estate for life, for his heir cannot take a fee-simple by descent, because he is but one, and therefore in that case his heir shall take nothing.

Also observable is this conjunctive (et.) For if a man give lands To A. or his to one, to have and to hold to him or his heirs, he has but an estate for life for the uncertainty.

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His.'] If a man give land to two, to have and to hold to "His" omitted. those two et haredibus, omitting mis, they have but an estate for life, for the uncertainty; whereof more hereafter in this section. But it is said, if land be given to one man et haredibus, omitting mis, that notwithstanding a fee-simple passes; but it is safe to follow Littleton.

And his assigns.] Assignee cometh of the verb assign. And Assigns. note there be assigns in deed, and assigns in law, whereof see more in the chapter of warranty, Sect. 733.

These words (his heirs) which words only make an estate of inherit- Sole Corpoonce in ail feoffments and grants.] Here Littleton treats of purchases by natural persons, and not by bodies corporate or politic; for if lands be given to a sole body politic or corporate (as to a bishop, parson, vicar, master of an hospital, 8cc,) there to give him an estate of inheritance in his politic or corporate capacity, he must have these words: To have and to hold to him and his successors; for without this word successors, there passes in those cases no inheritance; for as the heir doth inherit to the ancestor, so the successor doth succeed to the predecessor, and the executor to the testator.

But it appears here by Littleton, that if a man at this day give Successors. lands to J. S. and his successors, this creates no fee-simple in him; for Littleton, speaking of natural persons, saith that these words

[9«] (his heirs) make an estate of inheritance in all feoffments and grants, whereby he excludes these words (his successors.) But if a grant be made to a dean and chapter his heirs and successors; in this case, albeit the word (heirs) applies to them in their natural capacity, yet because the grant is made to them in their politic capacity, it shall enure to them and their successors. And so if the king grants lands to J. S. habendum silri et successoribus sive fueredibns suis, this grant shall enure to him and his heirs.

ChiMrm horn B. having divers sons and daughters, A. gives lands to B. and paientt when. his children and their heirs; the father and all his children take a fee-simple jointly by force of the words (their heirs); but if he had no child at the time of the feoffment, the children born afterwards shall not take; [but the father shall have an estate tail.]

,lehi- These words (his heirs) do not only extend to his immediate heirs,

but to his heirs remote and most remote, born and to be born.

And the reason wherefore the law is so precise to prescribe certain words to create an estate of. inheritance, is for avoiding of uncertainty, which is the mother of contention and confusion.

Estate. Make an estate.] Status dkititi a stando, because it is fixed and

permanent.

hie of Man. The Isle of Man, which is no part of the kingdom, but a distinct

territory of itself, hath been granted by the great seal to divers subjects and their heirs. It was resolved by the Lord Chancellor, the two chief justices and chief baron, that the same is an estate descendible according to the course of the common law; for whatsoever state of inheritance passes under the great seal of England, it shall be descendible according to the rules and course of common law of England.

Feoffment. In all feoffments and grants.'] Here he gives the feoffment the

first place, as the ancient and the most necessary conveyance, both for that it is solemn and public, and therefore best remembered and proved, and also for that it clears all disseisins, abatements, intrusions, and other wrongful or defeasible estates, where the entry of the feoffor is lawful, which neither fine, recovery, nor bargain and sale by deed indented and inrollcd doth.

And by " feoffments and grants" is implied a division of fee into Hereditameuu corporeal, as lands and tenements, which lie in livery and pass by i„Corporeat. livery either with or without deed [by common law, but now otherwise since the statute of frauds], and incorporeal, which lie in grant, and cannot pass by livery, but by deed only, as advowsons, commons, &c. And note, by the delivery of the deed, the freehold and inheritance of such hereditaments as lie in grant, do pass. Hence the deed of incorporeate inheritances equals the livery of corporeate. And therefore Littleton says, in all feoffments and giants, hareditas, alia corporalis, alia incorporalis: corporalis est, qua tangi potest el videri; incorporalis, qua tangi non potest, nee videri.

Feoffment is derived of the word of art feodum, quia est donalis Feoffment. Jeodi; for the ancient writers of the law called a feoffment donatis, of the verb do, or dedi, which is the aptest word of feoffment. And that word Ephron used, when he enfeoffed Abraham, saying, I give thee the field of Machpelah over against Mamre, and the cave therein I give thee, and all the trees in the field, and the borders round about; all which were made sure unto Abraham for a possession, in the presence of many witnesses.

By a feoffment the corporeate fee is conveyed, and it properly betokens a conveyance in fee, as our author himself hereafter says, in his chapter of tenant for life. And yet sometimes improperly it is called a feoffment when an estate of freehold only doth pass.

Grant, concetsio, is properly of things incorporeal, which, (as hath Grant. been said) cannot pass without deed. And here it is to be ob- "■ J served, (that I may speak once for all) that every period of our author, in all his three books, contains matter of excellent learning, necessarily to be collected by implication, or consequence. For example, he says here, that the words (his heirs) make an estate of inheritance in all feoffments and grants. He expressing feoffments and grants, necessarily implies, that this rule extends not,—

First, to last wills and testaments; for thereby, as he himself after wm. says, an estate of inheritance may pass without these words (his heirs). As if a man devise twenty acres to another, [on condition] that he pay his executors 10/. for the same, hereby the devisee hath a fee-simple by the intent of the devisor, albeit the payment be not to the value of the land. So it is if one devise lands to a man

in perpetuum, or to give and to sell, or in fee-simple, or to him and his assigns for ever. In these cases a fee-simple will pass by the intent of the devisor. But if the devise be to a man and his assigns, without saying (for ever,) the devisee hath but an estate for life. If one devise land to a man et sanguine suo, that is a feesimple; but if it be semini suo it is an estate tail.

Fine.

lieleau.

Secondly, that it extendeth not to a fine sur conusans de droit come ceo que il ad de son done, by which a fee also may pass without this word (heirs) in respect of the height of that fine, whereby it is implied that there was a precedent gift in fee.

Thirdly, nor to certain releases, and that three manner of ways. 1st. When an estate of inheritance passes and continues; as if there be three coparceners or joint tenants, and one of them releases to the other two, or to one of them generally without this word (heirs), by Littleton's opinion they have a fee-simple, as appears hereafter. 2dly. By release, when an estate of inheritance passes and continues not, but is extinguished; as where, the lord releases to the tenant, or grantee of a rent, &c. releases to the tenant of the land generally all his right, &c. hereby the seigniory, rent 8w;. are extinguished for ever, without this word (heirs). 3dly. When a bare right is released, as when disseisee releases to the disseisor all his right, he need not (saith our author in another place) speak of his heirs. But of these and the like cases, more shall be said in its proper place.

Recovery. Fourthly, nor to a recovery,- for regularly every recoveror re

covers a fee-simple.

Dignity. Fifthly, nor to a creation of nobility by writ; for when a man is

called to the upper house of parliament by writ, he is a baron, and has an inheritance therein without the word (heirs). Yet may the king limit the general estate of inheritance created by the law and custom of the realm to the heirs male or general, of his body by the writ; as he did to Bronifiete, who in 27 H. 6. was called to parliament by the name of the Lord Vescue, &c. with the limitation in the writ to him and the heirs males of his body. But if he be created by patent, he must of necessity have these words (his heirs), or the heirs males of his body, or the heirs of his body, &c. otherwise he has no inheritance. The first creation of a baron by patent, that I find, was of John Beauchamp of Holt, created baron by patent in 11 R. 2.; for barons, before that time, were called by writ And it is to be observed, that of ancient times earls, &c. were created by girding them with a sword, and nominating him earl, 8cc. of such a county or place; and tins, with a calling of him to parliament by writ by that name, was a sufficient creation of inheritance.

But out of this rule of our author the law makes divers Exception. exceptions (et exceptio probat regulam); for sometimes by a feoffment a fee-simple shall pass without these words (his heirs). For example, first, if the father enfeoff the son, to have and to hold to him and to his heirs, and the son enfeoffs the father as fully as the father enfeoffed him, by this the father has a fee-simple.

Secondly, in respect of the consideration, a fee-simple had passed Frank marat the common law without this word (heirs), and at this day an naffe' estate of inheritance in tail. As if one had given land to a man with his daughter in frank-marriage generally, a fee-simple had passed without this word (heirs); for there is no consideration so much respected in law as the consideration of marriage, in respect of alliance and posterity, [but now an estate tail passes].

Thirdly, if a feoffment or grant be made by deed to a mayor and Corporation commonalty, or any other corporation aggregate of many persons ass"sate' capable, they have a fee-simple without the word (successors); because in judgment of law they never die.

Fourthly, in case of a sole corporation, a fee-simple shall some- corporation times pass without this word (successors). As if a feoffment in fee tolt' be made of land to a bishop, to have and to hold to him in libera eleemouna, a fee-simple will pass without this word (successors). And so if a man give lands to the king by deed inrolled, a feesimple will pass without these words (successors, or heirs); because in judgment of law the king never dies.

Fifthly, in grants sometimes an inheritance shall pass without Partition. this word heirs. As if partition be made between coparceners of L1UaJ lands in fee-simple, and for owelty of partition the one grants a rent to the other generally, the grantee shall have a fee-simple without

Ei change.
Confirmation.

this word (heirs); because the grantor hath a fee-simple in con

sideration whereof he granted the rent.

And this rule of our author extends to the passing of estates of inheritance in exchanges, releases, or confirmations that enure by way of enlargement of estate, warranties, bargain and sales by deed indented and inrolled, and the like, in which this word (heirs) is also necessary; for they amount, to a feoffment or grant, and stand upon the same reason that a feoffment and grant does; for like reason makes like law, ubi eadem ratio, ibi eadem jus.

like reason. And this is to be observed throughout all these three books, that

where other cases fall within the same reason, our author puts his case but for an example; for so our author himself, in another place, explains it, saying, and memorandum that in all other [such] like cases, although it be not here expressly moved or specified, if they be in like reason, they are in the like law.

Purchase.

Gavelkind.

Right heirs.

And here our author is understood to speak of heirs when they are inheritable by descent, for they are capable of land also by purchase, and then the course of descent is sometimes altered. As if lands of the nature of gavelkind be given to B. and his heirs, having issue divers sons, all his sons after his decease shall inherit; but if a lease for life be made of gavelkind lands, the remainder to the right heirs of B. and B. dies, his eldest son only shall inherit; for he only (to take by purchase) is right heir by the common law. So note a diversity between a purchase and a descent. But where the remainder is limited to the right heirs of B. it need not be said, and to their heirs; for being plurally limited, it includes a fee-simple, and yet it vests in them only by purchase.

Conveyances at
Common Lav.

Out of that which has been said it is to be observed, that a man may purchase lands to him and his heirs by ten manner of conveyances (for I speak not here of estoppels). 1st. By feoffment. 2dly. By grant (of which two our author here speaks). 3dly. By fine, which is a feoffment of record. 4thly. By common recovery, which is a common conveyance, and is in nature of a feoffment of record. 5thly. By exchange, which is in nature of a grant. 6thly. By release to a particular tenant. 7thly. By confirmation to a particular tenant, both which are in nature of grants. 8thly. By grant of a reversion or remainder with attornment of the particular tenant, of all which our author speaks hereafter. 9thly. By bargain and sale by deed indented and enrolled, ordained by statute since Littleton wrote. lOthly. By devise by custom of some particular place, as he shews hereafter, and since he wrote, by will in writing generally by authority of parliament.

Our author speaks of feoffments and grants, whereby is im- ViueUinand plied lawful conveyances; and therefore this rule extends not to X^i'm/m. disseisins, abatements, or intrusions into lands or tenements, or to usurpations to advowsons, &c. in which cases estates in fee-simple are gained by the act and wrong of the disseisors, abators, intruders, and usurpers; and if a disseisin, abatement, or intrusion be made to the use of another, if cestui que use agrees thereunto in pais [that is, openly in the face of the country, or before witnesses] by this bare agreement he gains a fee-simple, without any livery of seisin, or other ceremony.

Section 2.

And if a man purchase land in fee-simple, and die without issue, Collateral he who is his next cousin collateral of the whole blood, how far escent' soever he he from him in degree, may inlierit and have the land as heir to him.

Littleton shews here who shall be heirs to lands in fee-simple; for he intends not this case of an estate tail, for he speaks of an heir of the whole blood, which extends not to estates tail, as shall be said hereafter in this Chapter, Sect. 6.

Neil cousin collateral.'] Neither excludes he brothers or sisters, after Wothen because he hath a special case concerning them in this Chapter, Sect. 5, and in his Chapter of Parceners; but this is intended where POo] a man purchases lands and dies without issue, having neither brother nor sister, then his next cousin collateral shall inherit. So that here is implied a division of heirs, viz. lineal (whoever shall first inherit), and collateral (who are to inherit for default of lineal). For in descents it is a maxim in law, quod linea recta semper praftrtur transversali. Lineal descent is conveyed downwards in a right line; as from the grandfather to the father, from the father to

the son, &c. Collateral descent is derived from the side of the

lineal; as grandfather's brother, father's brother, &,c. " ATerr cousin

• | collateral s/iall inherit" gives a certain direction to the next cousin

l cb *° the 80n» [that is» the cousin to the son shall be preferred to the

*■ \ I next cousin of the father,] and, therefore, the father's brother and

his posterity shall inherit before the grandfather's brother and his

posterity. Et sic de ceteris; for propinquior includit propinquum, et

propinquus remotum, et remotus, remotiorem.

•' Next blood." Upon this word {next) I put this case. One has issue two sons A. and B. and dies; B. has two sons, C. and D. and dies. C. the

A l> eldest son has issue, and dies. A. purchases lands in fee-simple,

jr-j, and dies without issue. D. is the next cousin, and yet shall not .' inherit; but the issue of C.; for he that is inheritable is accounted in law next of blood. And therefore here is understood a division of next, viz. next jure representationis, and next jure propinquitatU; that is, by right of representation and by right of propinquity. And Littleton means of the right of representation, for legally in course of descents, he is next of blood inheritable. And the issue of C. represent the person of C; and if C. had lived, he had been legally the next of blood. And whensoever the father, if he had lived, should have inherited, his lineal heir by right of representation shall inherit before any other, though another be jure propinquitatis, nearer of blood; and therefore Littleton intends this case of next cousin of blood immediately inheritable. So that this produces another division of next blood, viz. immediately inheritable, as the issue of C, and mediately inheritable as D., if the issue of C. die without issue; for the issue of C. and all that line, be they never so remote, shall inherit before D. and his line; and therefore Littleton says well, how far so ever he be from him in degree. And here arises a diversity in law between next of blood inheritable by descent, and next of blood capable by purchase ; and therefore, in

Remainder to the case before-mentioned, if a lease for life were made to A., with

Zho takeu' remainder to his next of blood in fee, in this case, as hath been said, D. shall take the remainder, because he is next of blood and capable by purchase, though he be not legally next to take as heir by descent.

Section 3.

But if there be father and son, and the father hath a brother that Father not heir

« uncle to the son, and the son purchase land in fee-simple, and dies through"^

without issue, living his father, the uncle shall have the land as uncle

heir to the son, and not the father, yet the father is nearer of

blood; because it is a maxim in laic, that inheritances may lineally

descend, but not ascend. Yet if the son in this case die without

issue, and his uncle enters into the land as heir to tlie son, (as by

law he ought), and after the uncle dies without issue, living the

father, the father shall have the land as heir to the uncle, and not

as heir to his son, for that he cometh to the land by collateral

descent and not by lineal ascent.

Yet the father is nearer of blood.] And therefore some do hold Remainder to upon these words of Littleton, that if a lease for life were made to iffath„ can' the son, the remainder to his next of blood, that the father shall *£"• t5 B,& take the remainder by purchase and not the uncle, for that Littleton says the father is next of blood, and yet the uncle is heir. As if a man has issue two sons, and the eldest son has issue a son and dies, then a remainder is limited to his next of blood, the younger son shall take it, yet the other is his heir.

It is a maxim in law, that inheritances mat/ lineally descend, but not ascend.

Maxim, i. e. a sure foundation or ground of art, and a conclusion Maxim, what. of reason, so sure and uncontrollable as that they ought not to be L*l aJ questioned. And that which our author here and in other places calls a maxim, hereafter he calls a principle, and it is all one with a rule, a common ground, postulatum, or an axiom, and it were too much curiosity to make nice distinctions between them.

And his uncle enters into the land.] For if the uncle in this case Theunciemuu does not enter into the land, then cannot the father inherit the ^j"" y land; for there is another maxim in law herein implied, that a man L1' "J that claims as heir in fee-simple to any man by desceut, must make himself heir to him that was last seised of the actual freehold and inheritance. And if the uncle in this case docs not enter, then

had he but a freehold in law and no actual freehold, but the last that was seised of the actual freehold was the son to whom the father cannot make himself heir; and therefore Littleton says, and his wide enters into the land (as by law he ought), to make the father inherit as heir to the uncle.

Hh title defeat- Note, that true it is that the uncle in this case is heir, but not mens heir" absolutely heir; for if, after the descent to him, the father has issue a son or daughter, that issue shall enter upon the uncle. And so it is if a man has issue a son and a daughter, the son purchases land in fee and dies without issue, the daughter shall inherit the land; but if the father has afterwards issue a son, this son shall enter into the land as heir to his brother, and if he has issue a daughter and no son, she shall be coparcener with her sister.

What seisin of As by law he ought."] These words as a key do open the secrets "leTed'tiumLts °^ ^e *aw» ^or hereupon is concluded, that where the uncle cannot sufficient for a oret an actual possession by entry or otherwise, there the father in

possessio fratris. ° , 'J

Adnicson. this case cannot inherit. And therefore if an advowson be granted to the son and his heirs, and the son dies without issue, and this descends to the uncle, and he dies before he does or can present to the church, the father shall not inherit, because that would make him heir to the son, which he cannot be. And so of a rent and the like. But if the uncle had presented to the church, or had seisin of the rent, there the father should have inherited. For Littleton puts his case of an entry into land but for an example.

Same of a re- If the son make a lease for life, and dies without issue, and the re

"version descends to the uncle, and he dies, the reversion shall not

descend to the father, because in that case he must make himself heir to the son.

Warranty. A. infeoffs the son with warranty to him and his heirs, the

son dies, the uncle enters into the land and dies, the father if ri2a1 ^e De iropteaded shall not take advantage of this warranty, for then he must vouch A. as heir to his son, which he cannot do; for albeit the warranty descended to the uncle, yet the uncle leaves it as he found it, and then the father by Littleton's (ought) cannot take advantage of it. For Littleton, Sect. 603, says that warranties shall descend to him that is heir by the common law ,and Sect. 718, he says that every warranty which descends, doth descend to him who is heir to the person that made the warranty by the common law, which proves that the father shall not be bound by the warranty made by the son, for that the father cannot be heir to the son who made the warranty. And a warranty shall not go with tenements whereunto it is annexed, to any special heir, but only to the heir at the common law. And therefore if the uncle be seised of certain lands, and is disseised, and the son releases to the disseisor with warranty, and dies without issue, this shall bind the uncle ; hut if the uncle dies without issue, the father may enter, for the warranty cannot descend upon him.

So if the son concludes himself by pleading concerning the Estoppel. tenure and services of certain lands, this shall bind the uncle; but if the uncle die without issue, this shall not bind the father, because he cannot be heir to the son, and consequently not to the estoppel in that case; but if it be such an estoppel as runs with the land, then it is otherwise.

Section 4.

An D in case where the son purchases land in fee-simple, and dies Descent. without issue, they of his blood on the father's side shall inherit Eternal line

'J J •> preferred,except

as heirs to him, before any of the blood on the motlier's side; but "°e » maternal if he had no heir on the part of his father, then the land shall descend to the heirs on the part of the mother. But if a man marries an inheritrix of lands in fee-simple, who has issue a son, and dies, and the son enters into the tenements, as son and heir to his mother, and after dies without issue, the heirs of the part of the mother ought to inherit, and not the heirs of the part of the father. And if he has no heir on the part of the mother, then Escheat. the lord of whom the land is held shall have the land by escheat. In the same manner it is, if lands descend to the son of the part of the father, and he enters, and afterwards dies without issue, this land shall descend to tlie heirs on the part of the father, and not to the heirs on tlte part of the mother. And if there be no heir on the part of the fatJier, the lord of whom the land is held shall have the land by escheat. And so see the diversity, where the son purchases lands or tenements in fee-simple, and where he comes to them by descent on the part of his mother or on the part of his father.

}il"°^°f fir* By this it appears, that our author, divides heirs into heirs of

the part of the father, and into heirs of the part of the mother. And note, it is an old and true maxim in law, that none shall inherit any lands as heir, but only the blood of the first purchaser, for refert a~ quo fiat perquisitum. As for example, Robert Coke takes the daughter of Kjiightley to wife, and purchases land to him and to his heirs, and by Knightley has issue, Edward, none of the blood of the Knighlleys, though they be of the blood of Edward, shall inherit, albeit he had no kindred but them, because they were not of the blood of the first purchaser, viz. of Robert Coke.

lUir on father'i They of his blood on the father's side.] Here it is to be understood, that the father has two immediate bloods in him, viz. the blood of his father and the blood of his mother. Both these bloods are of

HuAand's at- the part of the father. And this made ancient authors say, that if

tainder seised , . ...

jure uxoris. a man be seised of lands in right of his wife, and is attainted of felony, and after has issue, this issue should not inherit his mother, for that he [i. e. the issue born after the attainder] could derive no blood inheritable from the father. And both these [12/V] bloods of the part of the father must be spent before the heir of the blood on the part of the mother shall inherit, wherein the male line on the part of the father, (that is) the posterity of such male, be they male or female, must fail before the line of the mother shall inherit. And the reason of all this is, for that the blood of the part of the father is more worthy, and more near in judgment of law than the blood of the part of the mother.

Cotuangninity. Before any of the blood on the mother's tide.] And it is to be observed, that the mother has also two immediate bloods in her, (viz.) her father's blood and her mother's blood. Now to illustrate all this by example, Robert Fairefield, [A] son of John Fairefield, [B] and Jane Sandie, [C] takes to wife Ann Boyes [D], daughter of John Boyes [E] and Jane Bewpree, [F] and has issue William Fairefield [G], who purchases lands in fee. Here William Fairefield [G] has four immediate bloods in him, two of the part of his father, viz. the blood of the Fairefields, and the blood of the Sandies, and two of the part of his mother, viz. the blood of the

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Boyeses, and the blood of the Bewprees, and so in both cases upward in infinitum- Now admit that William Fairefield [G] dies without issue, first the blood of the part of his father, viz. of the Fairefields, and for want thereof the blood of the Snndyes, (for both these are of the part of the father) if both these fail, then the heirs of the part of the mother of William Fairefield shall inherit, viz. first the blood of the lioyeses, and for default thereof the blood of the Betoprees.

It is necessary to be known in what cases the heir of the part Material of the mother shall inherit, and where not. If a man be seised of esta(e' lands, as heir of the part of his mother, and makes a feoffment in fee, and takes back an estate to him and his heirs, this is a new purchase; and if he dies without issue, the heirs of the part of the father shall first inherit.* If a man so seised [i. e. by descent from Condition. his mother] makes a feoffment in fee upon condition, and dies, the heir of the part of the father, who is the heir at the common law, shall enter for the condition broken; but the heir of the part of the mother shall enter upon him, and enjoy the land. A man so seised makes a feoffment in fee, reserving a rent to him and to his heirs, this rent shall go to the heirs of the part of the father; but if he had made a gift in tail, or a lease for life, reserving a rent, the heir of the part of the mother shall have the reversion; and the rent also, as incident thereunto, shall pass with it; but the heir of the part of the mother shall not take advantage of a condition annexed to the same, because it is not incident to the reversion, nor can pass therewith.

If a man has a rent-seek of the part of his mother, and the Rent. tenant of the land grants a distress to him and to his heirs, and the "piq -> grantee dies, the distress shall go with the rent to the heir of the part of the mother, as incident or appurtenant to the rent, for now is the rent-seek become a rent charge.

* Bui here Lord Colce must be understood to speak of two distinct conveyances in fee; thejirst passing the use as well as the possession to the feoffee, and so completely divesting the feoffor of all interest in the land; and the second re-granting the estate to him. For if, in the first feoffment, the nse had been expressly limited to the feoffor and his heirs, or if there was no declaration of uses, and the feoffment was not on such a consideration as to raise an use in the feoffee, and consequently the use resulted to the feoffor, in either case he is in of his ancient w, and not by purchase. 3 Lev. 404., and 2Salk.59. Harg. n. (2).

Maternal descent when broken.

A man so seised as heir on the part of his mother makes a feoffment in fee to the use of himself and his heirs, the use being a thing in trust and confidence shall ensue the nature of the land, and shall decend to the heir on the part of the mother [that is, the use being the same as it was before the feoffment, it is the old use which continues, and so the estate taken back is not as in the case put before a new purchase.]

Escheat.

Ilecoveru.

A man hath a seigniory as heir on the part of his mother, and the tenancy escheats, it shall go to the heir of the part of the mother. If the heir of the part of the mother, of land whereunto a warranty is annexed, be impleaded and vouch, and judgment is given against him, and for him to recover in value, and he dies before execution, the heir of the part of the mother shall sue execution to have in value against the vouchee, for the effect ought to pursue the cause, and the recompense shall ensue the loss.

Limitation to heirs i mateina roid.

If a man gives lands to a man, to have and to hold to him and his heirs on the part of his mother, yet the heirs on the part of the father shall inherit; for no man can institute a new kind of inheritance not allowed by the law, and words (on the part of his mother) are void, as in the case that Littleton puts in this chapter. If a man gives lands to a man to him and his heirs males, the [common] law rejects this word males, because there is no such kind of inheritance, whereof you shall read more in its proper place.

Heirs on the fart of the wife.

A man has issue a son, and dies, and the wife dies also, lands are let to one for life with remainder to the heirs of the wife, the son dies without issue, the heirs of the part of the father shall inherit, and not the heirs of the part of the mother; because it [the remainder] vested in the son as a purchaser, [he being born at the time, and on his death it is his heir, as the heir of the first purchaser, that is to be sought for, and not the heir of the wife.] And the rule of Littleton holds as well in other kind of inheritances, as in lands and tenements.

But if a man marries an inheritrix, #c] Here there is an

Maternal ami paternal descent

kept distinct. other maxim, that whensoever lands descend from the part of the mother, the heirs of the part of the father shall never inherit. And likewise when lands descend from the part of the father, the heirs of the part of the mother shall never inherit; el sic paterna patcrnis, el i converso, materna maternis. For further manifestation whereof. See a Table at the end of this Chapter. [which however is not much to the purpose.]

Shall have the land by escheat.,] Escheat signifies properly when Escheat happens by accident the lands fall to the lord of whom they are held, in fhZrT—Attain which case we say the fee is escheated. And an escheat raav '''"•A^'1'

* J ration, and

happen two ways, propter defectum sanguinis aut per delictum tenentis, Outlawry. i. e. for felony, which is perfected by judgment three ways, aut quia suspensusper collum, aut quia abjuravit regnum, aut quia utlegatusest. And therefore they who are hanged by martial law, in furore belli, forfeit no lands.

The father is seised of lands in fee, holden of J. S., the son is Attainder of attainted of high treason, the father dies, the lands shall escheat **>/«***>*• to J. S. propter defectum sanguinis, for that the father died without beir. And the king cannot have the land, because the son never had any thing to forfeit; but the king shall have the escheat of all the lands whereof the person attainted of high treason was seised, of whomsoever they were holden.

In an appeal of death or other felony, &c. process is awarded Attainder reagainst the defendant, and pending the process, the defendant con- fittedTnT""' vevs away the land, and afterwards is outlawed, the conveyance is intermediate

* J i • i . convetiancebad;

good, and shall defeat the lord of his escheat; but if a man be contra of out

indicted of felony, and pending the process against him, he conveys au"^'

away the land, and afterwards is outlawed, the conveyance in that

case shall not prevent the lord of his escheat. And the reason of

this diversity is manifest; for in the case of the appeal, the writ [I3b~\

contains no time when the felony was done, and therefore the

escheat can relate but to the outlawry pronounced*; but the

indictment contains the time when the felony was committed, and

therefore the escheat upon the outlawry shall relate to that time.

Which cases I have added, to the end the student may perceive

how much the observation of writs, indictments, process, judgments,

and other entries conduces much to the understanding of the right

reason of the law.

* So it is presumed outlawry in a personal action will not invalidate a conveyasc« before final judgment is pronounced.—Ed.

D

A'u escheat on dissolunon of body corporate. Land reverts to donor.

And it is to be well observed that our author says, if he has no heir, fyc. the land shall escheat. In which word is implied a diversity (as to the escheat) between fee-simple absolute which a natural body hath, and fee-simple absolute which a body politic or incorporate hath. For if land holden of J. S. be given to an abbot and his successors, in this case, if the abbot and all the convent die, so that the body politic is dissolved, the donor shall have his land again, and not the lord by escheat. And so if land be given in feesimple to a dean and chapter, or to a mayor and commonalty, and to their successors, and after such body politic or incorporate is dissolved, the donor shall have the land again, and not the lord by escheat. And the reason and cause of this diversity is, for that in the case of a body politic or incorporate, the fee-simple is vested in their politic or incorporate capacity created by the policy of man, and therefore the law doth annex this condition to every such gift and grant, that if such body politic or incorporate be dissolved, the donor or grantor shall re-enter, for that the cause of the gift or grant fails; but no such condition is annexed to an estate in fee-simple vested in any man in his natural capacity, but where the donor or feoffor reserves to him a tenure, and then the law does imply a condition by way of escheat. Also (as hath been said) no writ of escheat lies, but in the three cases aforesaid, and not where a body politic or incorporateis dissolved.

Section 5.

Elder brother. Ai/SO if there be three brothers, and the middle brother purchases lands in fee-simple, and dies without issue, the elder brother shall have the land by descent, and not the younger, &c. And also if there be three brothers, and the youngest purchases lands in feesimple, and dies without issue, the eldest brother shall have the land by descent, and not the middle brother, for the eldest is most worthy of blood.

Descent and purchase distinguished.

Now comes our author to the descent between brothers, which he purposely omitted before. Descent, descensus, comes of the latin word descendo; and, in the legal sense, it signifies when lands by right of blood fall to any person after the death of his ancestors ; or a descent is a means whereby one may derive his title to certain lands as heir to some of his ancestors. And from these observations arises another division of estates in fee-simple, viz. that every man who has a lawful estate in fee-simple has it either by descent or by purchase.

The eldest is most worthy of blood.] It is a maxim in law, that Mule preferred the next male of the worthiest blood shall ever inherit (as also and all paternal female descendants from him,) before the female, and the female of the part ^J/""'"'^" of the father before the male or female of the part of the mother, [14 a] &c., because the female of the part of the father is of the worthiest blood. And therefore among the males, the eldest brother and his posterity shall inherit lands in fee-simple as heir before any younger brother, or any descending from him, because (as Littleton says) he is most worthy of blood. In King Alfred's time, knights' fees descended to the eldest son, for that by division of them between males, the defence of the realm might be weakened; but in those days socage fee was divided between the heirs male, and therewith agrees Glanville. But of this more shall be said hereafter in its proper place.

Section 6.

Also it is to be understood, that none shall have land in fee-simple Half blood ex

by descent as heir to any man, unless lie be his heir of the whole cIudec1,

llood. For if a man has issue two sons by divers venters, and

the elder purchase lands in fee-simple and dies without issue, the

younger brother shall not have the land, but the uncle of the elder

brother or other his next cousin shall have the same, because the

younger brother is but of half-blood to the elder.

No man can be heir to a fee-simple by the common law but he who has sanguinem duplkatum, the whole blood, that is, both of the father and of the mother, so that the half-blood is no blood inheritable by descent; because that he who is but of the half-blood cannot be a complete heir, for that he has not the whole and complete blood, and the law in descents of fee-simple respects that which is complete and perfect.

Section 7.

Possessio

fratris.

And if a man has issue a son and a (laughter by one venter, and a son by another venter, and the son of the first venter purchases lands in fee and dies wit hon I issue, the sister shall have the land by descent as Iteir to her brother, and not the younger brother, for that the sister is of the lohole blood of her elder brother.

Section 8.

Same.

[146]

And also, where a man is seised of lands in fee-simple, and has issue a son and daughter by one venter, and a son by another venter, and dies, and the eldest son enters and dies without issue, the daughter shall have the land and not the younger son; yet the younger son is heir to the father but not to his brother. But if the eldest son does not enter into the land after the death of his father, but dies before any entry made by him, then the younger brother may enter, and shall have the land as heir to his father. But where the elder son in the case aforesaid enters after the death of his father, and has possession, there the sister shall have the land, because possessio fratris de feodo simplici facit sororera esse haeredem. But if there be two brothers by divers venters, and the elder be seised of land in fee, and dies without issue, and his uncle enters as next heir to him, and also dies without issue, now the younger brother may have the land as heir to the uncle, for that he is of the whole blood to him, albeit he be but of the half blood to his elder brother.

Thi»ruUnot Seised of lands in fee-simple.] These words exclude a seisin in

a£s btM"and tee-tai1. albeit he hath a fee-simple expectant. And therefore, if Teveraont. See lands be given to a man and his wife and to the heirs of their two

alto infra, 156. °

bodies, the remainder to the heirs of the husband, and they have issue a son, and the wife dies, and he takes another wife, and has issue a son, the father dies, the eldest son enters and dies without issue, the second brother of the half blood shall inherit; because the eldest son, by his entry, was not actually seised of the fee-simple, being expectant, but only of the estate tail. And the rule is, that possessio fratris de feodo simplici facit sororem esse havetkm; and here the eldest son is not possessed of the fee-simple, but of the estate tail.

And though Littleton speaks of lands only, yet there may be Of what then a possessio fratris of a use, of a seigniory, a rent, an advowson, and may e a *'"*' of other hereditaments.

And the eldest son enters.] These words are materially added when Eldest son must the father dies seised of lands in fee-simple, for if the eldest son mofeSMssessio does not in that case enter, then without question the youngest son fra,rj!shall be heir; because, as hath been said before, he must regularly make himself heir to the person who was last actually seised (or to the purchaser), that is to the father where the eldest son does not enter. And therefore Littleton adds, that the son is heir to the father. But when the eldest son in this case enters, then cannot the youngest son, being of the half blood, be heir to the eldest, but the land shall descend to the sister of the whole blood. Yet in many cases, albeit the son does not enter into lands descended in fee-simple, the sister of the whole blood shall inherit; and in some cases, where the eldest son does enter, yet the younger brother of the half blood shall be heir.

If the father makes a lease for years, and the lessee enters, and Possession of his [the father] dies, then if the eldest son dies during the term before i'YhatuUin'.' entry or receipt of rent, the younger son of the half blood shall not inherit, but the sister; because the possession of the lease for years is the possession of the eldest son, for he is thereby actually seised of the fee-simple; and consequently the sister of the whole blood shall be heir.

The same law is if the lands be holden by knights' service, Entry by

the eldest son being within age, and the guardian enters into the lands. And so it is if the guardian in socage enter.

guardian.

But in the case aforesaid, if the father makes a lease for life, or a Lease for life or gift in fee-tail, and dies, and the eldest son dies in the life of the te- MSMssmfra"' Bant for life or tenant in tail, the younger brother of the half blood *?.** "*J*B

'* ° eldest son receive

shall inherit; because the tenant for life or tenant in tail is seised rent.
of the freehold, and the eldest son hath nothing but a reversion ex-
pectant upon that freehold or estate tail; and therefore the youngest
son shall inherit the land as heir to the father who was last seised

of the actual freehold. And albeit a rent had been reserved upon the lease for life, and the eldest son had received the rent and died, yet it is holden by some that the younger brother shall inherit, because the seisin of the rent is no actual seisin of the freehold of the land. But 35 Ass. pi. 2. seems to the contrary, because the rent issues out of the lands, and is in lieu thereof, wherein the only question is, whether such a seisin of the rent be such an actual seisin of the land in the eldest son as the sister may in a writ of right make herself heir of this land to her brother? But it is clear, that if there be bastard eigne, and mulier puisne, and the father makes a lease for life or a gift in tail, reserving a rent and dies, and the bastard receives the rent [all his lifetime] and dies [leaving issue] this shall bar the mulier [by estoppel], for the reason of that stands upon another maxim, as shall manifestly appear in its apt place, Sect. 399.

Possessio fratris Seised of lands.] But in this case, if the eldest son enters, doner. 'and gets an actual possession of the fee-simple, yet if the wife of the father be endowed of the third part, and the eldest son dies, the younger brother shall have the reversion of the third part, notwithstanding the elder brother's entry; because his actual seisin which he got thereby was by the endowment defeated. But if the eldest son had made a lease for life, and the lessee had endowed the wife of the father, and tenant in dower had died, the daughter should have the reversion, because the reversion was changed and altered by the lease for life, and the reversion is now expectant on a new estate for life.

Entry into part Enter.] Hereupon the question grows, whether if the father be suffiaen . seised of divers parcels of land in one county, and after the death

of the father the son enters into one parcel generally, and before any actual entry into the other, dies, whether the general entry into [156] part shall not vest in him an actual seisin in the whole, so that the sister shall inherit the whole? And some take a diversity when an entry shall vest or divest an estate, that there must be several entries into the several parcels, but that where the possession is in no man, but the freehold in law is in the heir that enters, there the general entry into one part reduces all into his actual possession. And therefore if the lord enters into a parcel generally for a mortmain, or the feoffor for a condition broken, [without saying in the name of the whole] or the disseisee into a parcel generally, the entry shall not vest nor devest in those or the like cases, only for that parcel. But when a man dies seised of divers parcels in possession, and the freehold in law is by the law cast upon the heir, and the possession is in no man, there the entry into parcel generally seems to vest the actual possession in him of the whole. But if his entry in that case be special, viz. that he enter only into that parcel, and no more, then that parcel only is reduced into actual possession.

A man seised of lands.] What then is the law of rent, advowson, Posnessio frairii or such things that lie in grant? If a rent, or an advowson, „„(/*"*"'' descend to the eldest son, and he dies before he has seisin of the rent, or present to the church, the rents or advowson shall descend to the youngest son, for that he must make himself heir to his father, as hath been oftentime said before. The like law is of offices, courts, liberties, franchises, commons of inheritance, and such like. And this case differs from the case of tenant by the Curtesy. curtesy; for there if the wife dies before the rent day, or the church becomes void, the law in respect of the issue begotten by him will give him an estate by the curtesy of England, because there was no laches or default in him, nor could he possibly get seisin. But the case of the descent to the youngest son stands upon another reason, viz. to make himself heir to him that was actually seised, as hath been said.

In fee-simple.] For half blood is not respected in estates tail, n,djbi0odap~ because the issues claim by descent per formam doni, and the issue p,''",'.',"

J r J ' estates tutt.

in tail is ever of the whole blood to the donee.

Possessio fratris de feodo simplici facit sororem esse hteredem.] Four ruin to Hereupon four things are to be observed, every word being almost j^s operative and material. First, that the brother must be in actual possession; for possessio est quasi pedis positio. 2dly. de feodo simplici excludes estates in tail. 3dly. facit sororem esse hecredem. So that soror est hares facta, and therefore some act must be done to make her heir, and the younger son is hares natus if no act be done to the contrary. And albeit the words be facit sororem esse heeredem, siutr's.«««. yet this extends to the issue of the sister, &c. who shall inherit before the younger brother. 4thly. Of dignities, whereof no other No possessio possession can be had but such as descends to a man and his heirs, ,",," ''s'" (as to be a duke, marquis, earl, viscount, or bavon) of which there can be no possession of the brother to make the sister inherit; but the younger brother, being heir (as Littleton says) to the father, shall inherit the dignity inherent to the blood as heir to him who was first created noble.

Neither posses- And you shall understand that concerning descents there is a

sio fratris nor

half blood hold law, parcel of the laws of England, called jus corona, and differs a» t crown. in many things from the general law concerning the subject. As for example, if the king has issue a son and a daughter by one venter, and a son by another venter, and purchases lands and dies; and the eldest son enters and dies without issue, the daughter shall not inherit these lands, nor any other fee-simple lands of the crown, but the younger brother shall have them. Wherein note that neither possessio fratris holds of lands of the possessions of the crown, nor is half blood an impediment to the descent of the lands of the crown, as it fell out in experience after the decease of king Edward the sixth to queen Mary, and from queen Mary to queen Elizabeth, both of whom were of the half blood, and yet inherited not only the lands which king Edward or queen Mary purchased, but the ancient lands parcel of the crown also.

Descent of land* A man, who is king by descent of the part of his mother, purpunhasedby chases lands to him and his heirs, and dies without issue, this land ■'"•'''"""'• shall descend to the heir of the part of the mother; but in the case of a subject, the heir of the part of the father shall have them. So king Henry the eighth purchased lands to him and his heirs, and died, having issue two daughters, the lady Mary and the lady Elizabeth; after the decease of king Edward, the eldest daughter queen Mary did alone inherit all his lands in fee-simple. For the eldest daughter or sister of a king shall inherit all his feesimple lands. So it is if the king purchase lands of the custom of gavelkind, and dies leaving issue divers sons, the eldest son only shall inherit these lands. And the reason is, for that the quality of the person does in these and many other like cases alter the descent, so that all the lands and possessions whereof the king is seised in jure corona, shall secundum jus corona attend upon and follow the crown, and therefore to whomsoever the crown descends, these lands and possessions descend also; for the crown and the lands whereof the king is seised in jure corona, are con[16a] comitantia. If the right heir of the crown be attainted of treason, crown cures at- yet shall the crown descend to him, and eo instante (without any other reversal) the attainder is utterly avoided, as it fell out in the case of Henri/ the seventh. And if the king purchase lands to him and his heirs, he is seised thereof in jure corona; a fortiori, when he purchases land to him, his heirs and successors.

tainder.

But hereof this little taste shall suffice.

Section 9.

And it is to wit, that this word (inheritance) is not only intended Inheritance where a man has lands or tenements by descent of inheritage, but also every fee-simple or tail which a man has by his purchase may be called an inheritance, because his heirs may inherit him.

There be some that have an inheritance, and have it neither by Nuenarxet to descent, nor properly by purchase, but by creation; as when ^"«T ur/f the king creates any man a duke, a marquis, earl, viscount, or <""' '«""*

. . . . . patent.

baron to him and his heirs, or to the heirs male of his body, &c.

he has an inheritance therein by creation. A man may have

an inheritance in title of nobility and dignity three ways; that

is to say, by creation, by descent, and by prescription. By [166]

creation two manner of ordinary ways (for I will not speak of a

creation by parliament), by writ, and by letters patent. Creation

by writ is the more ancient way ; and here it is to be observed,

that a man shall gain an inheritance by writ. King Richard the

second created John Beauchampe de Holte baron of Kidderminster

by his letters patent, bearing date the 10th October, anno regni

sui 11, before whom there was never any baron created by letters

patent, but only by writ. And it is to be observed, that if he

be called generally by writ to parliament, he has a fee-simple in

the barony without any words of inheritance; but if he be created

by letters patent, the estate of inheritance must be limited by apt

words, else the grant will be void. If a man be called by writ

to parliament and the writ is delivered to him, and he dies

before he comes and sits in parliament, [it becomes a question]

whether he was a baron or no? And it is to be answered that he

was no baron, for the direction and delivery of the writ to him

makes him not noble; for this writ has no operation or effect until

he sit in parliament, and thereby his blood is ennobled to him and

his heirs lineal, and thereupon a baron is called a peer of parlia

ment. And if issue be joined in any action, whether he be a baron, &c. or no, it shall not be tried by jury, but by the record of parliament, which could not appear unless he were of the parliament. Therefore a duke, earl, &c. of another kingdom, are not to be sued by those names here, for they are not peers of parliament. And albeit the creation by writ is the more ancient; yet the creation by letters patent is the surer, for he may be sufficiently created by letters patent and made noble albeit he never sit in parliament.

Of nobility bu marriage.

And it is to be observed, that nobility may be granted for term of life by act in law without any actual creation; as if a duke take a wife, by the intermarriage she is a duchess in law; and so of a marquis, an earl, and the rest, and in some other cases. And there is a diversity between a woman that is noble by descent, and a woman that is noble by marriage. For if a woman, that is noble by descent, marry one that is under the degree of nobility, yet she remains noble still; but if she gain her nobility by marriage, she loses it if she marry under the degree of nobility, and so is the rule to be understood, si mulier nobilis nupserit ignobili desinit esse nobilis. But if a duchess by marriage marries a baron of the realm, she remains a duchess and loses not her name, because her husband is noble, et sic de cxteris.

Dignity for lift. And as an estate for life may be gained by marriage, so may the king create either man or woman noble for life, but not for years; because then it might go to executors or administrators. The true division of persons is, that every man is either noble, that is, a lord of parliament of the upper house, or under the degree of nobility, that is, amongst the commons, as knights, esquires, citizens, and burgesses of the lower house of parliament, who are commonly called the House of Commons; and he who is not of the nobility, is by intendment of law among the commons.

Section 10.


Demesne as of An D of such things whereof a man may have a manual occupation, possession or receipt, as of lands, tenements, rents, and such like, there a man shall say in his count and plea, that such a one teas seised in his demesne as of fee. But of things which do not lie in such manual occupation, &c. as of an advowson of a church and such like, then he shall say, that lie was seised as of fee, and not in his demesne as of fee.

Seised.'] Seisitus, comes of the French word seisin, i. e. possessio, Seited und po>saving that in the common law, seised or seisin is properly applied g'ZheJ!"' to the freehold, and possessed or possession properly to goods and chattels; although sometimes the one is used instead of the other.

In his demesne as of fee.] In dominico suo ut infeodo. Dominicum Lands in deis not only that inheritance wherein a man has proper dominion or TM"TM^j*n.'n" ownership, as it is distinguished from the lands which another S""*"*holds of him in service, but that which is manually occupied, manured, and possessed, for the necessary sustenance, maintenance, and support, of the lord and his household, and savours de domo of the house, either ad mensam, for his or their board or sustenance, or is manually received, (as rents) for bearing and defraying of necessary charges public or private. And in Domesday demesne land is called inland; as for example, quatuor bovatas terra de inland, et decern bovatas in servilio.

In such manual occupation, fyc] There is nothing in our author utiieton's Ac but is worthy of observation. Here is the first (#c.) and there is [17 b] no (#c.) in all his three books (there being as you shall perceive very many), but it is for two purposes. 1st. It implies some other necessary matter. 2dly. That the student may, together with that which our author has said, inquire what authorities there be in law that treat of that matter, which will work three notable effects. l6t. It will make him understand our author the better. 2dly. It will exceedingly add to the reader's invention: and lastly, it will fasten the matter more surely in his memory.

As of an advowson.] Wherein a man hath as absolute an ownership Advomm. and property as he hath in land or rents, yet he shall not plead that ^J^TcTnoe he is seised in dominico suo ut de feodo, because that inheritance, derived from it. savouring not de domo, cannot either serve for the sustenance of him and his household, nor can any thing be received from the same for defraying its charges. And therefore he cannot say that he is seised thereof in dominico suo ut de feodo; whereby it appears how the common law detests simony and all corrupt bargainsfor

presentation to any benefice, and intends that the person presented for discharge of the cure should be presented freely without expectation of any thing; nay, so cautious is the common law in this point, that the plaintiff in a quare impedit could recover no damages for the loss of his presentation until the statute of W. 2. c. 5. And 7B.&C. ISO. that is the reason why a guardian in socage shall not present to an advowson, because he can take nothing for it, and by consequence he cannot account for it, for by law he can meddle with nothing that he cannot account for. And in a writ of right of advowson, the patron shall not allege the esplees or taking of the profits in himself but in his incumbent.

Advowson of a Advowson.] There is this difference between an advowson of the

moitty and

moiety (i/ ad- moiety of a benefice [which is an entire thing] and the moiety of gutihed." an advowson [which is only part]. The advowson of a moiety is,

[18a] when there are several patrons and two several incumbents in one church, the one of the one moiety thereof, and the other of the other moiety, and one part as well of the church as of the parish allotted to the one, and the other part thereof to the other j and in that case each patron if he be disturbed shall have a quare impedit, ad medietatem tcclesia. But if there be two coparceners, and they agree to present by turn, each of them in truth has but a moiety of the advowson, but since there is but one incumbent, if either of them be disturbed, she shall have a quare impedit, ad ecclesiam. But in the case of the two coparceners, one of them may have a writ of right of advowson de medietate advocationis; for in truth she has but a right to a moiety; but in the other case, where there are two patrons and two incumbents in one church, each of them may have a writ of right of advowson de advocatione medietatis. And as there may be two several parsons in one church,(as hath been said) so there may be two who may make but one parson in a church. And Fitzh. says, that two prebendaries may be one parson of a church, who shall join in a juris utrum, so that one rectory may be annexed to two prebends, and then both of them will make but one parson.

Section 11.

And note, that a man cannot Iiave a more large or greater Fee-simple,the estate of inheritance than a fee-simple. largest estate.

This extends as well to fee-simples conditional and qualified, as to fee-simples pure and absolute. For our author speaks here of the ampleness and greatness of the estate, and not of the perdurableness of the same. And he who has 'a fee-simple conditional or qualified, has as ample and great an estate, as lie who has a feesimple absolute; and hence a diversity appears between the quantity and quality of the estate.

From this estate in fee-simple, estates tail, and all other particular estates are derived; and therefore worthily our author begins his first book with tenant in fee-simple, for a principalioribus seu dignioribus est inchoandum.

Cannot have a more large or greater estate 6fc] For this cause Hence fee urm two fee-simples absolute cannot be of one and the self-same land. If **"' the king make a gift in tail, [whereby a reversion is left in himself] and the donee is attainted of treason, in this case the king has not two fee-simples in him, viz. the ancient reversion in fee and a feesimple determinable upon the dying without issue of tenant in tail, but both of them are consolidated and conjoined together. And so it is if such a tenant in tail conveys the land to the king his heirs and successors, the king has but one estate in fee-simple united in him, and the king's grant of one estate is good, and so was it adjudged in the court of Common Pleas.

And yet by act of law, there may be in several persons a qualified Qualified fee fee-simple in one, and a fee-simple determinable in another by ^compatible if matter ex post facto; as if a gift in tail be made to a villein, [who ra"ed°y act"f anciently could take nothing except to his lord's use] and the lord enters, the lord has a fee-simple qualified, [that is determinable on the failure of his villein's issue] and the donor has a reversion in fee. But if the lord infeoff the donor, now both fee-simples are nnited, and he has but one fee-simple in him. But one fee-simple cannot depend upon another by grant of the parties; as if lands

be given to A. [and his heirs] so long as B. has heirs of his body, with remainder over in fee, the remainder is void, [but the grantor has a possibility of reverter which he may grant away.]

Section 12.

Purchase in- Also, purchase is called the possession of lands or tenements that otherStitle but a man hath by his deed or agreement, unto which possession he comes descent. ^f jy tfffe oj descent from any of his ancestors, or of his cousins,

but by his own deed.

[18&] A purchase is always intended by title and most properly by

some kind of conveyance, either for money or some other consideration, or freely of gift, for that is in law also a purchase. But a descent, because it comes merely by act of law, is not said to be a purchase; and accordingly the makers of the act of parliament in 1 Hen. 5. cap. 5, speak of those who have lands or tenements be purchase or descent of inheritance.

Tenant by escheat, curtesy or dower, are in by purchase, contra of disseisor.

And so it is of an escheat or the like, because the inheritance is cast upon, or a title vested in the party by act of law, and not by his own deed or agreement, as our author here says. Like law of the estate of tenant by the curtesy, tenant in dower, or the like. But such as acquire lands by mere injury or wrong, as by disseisin, intrusion, abatement, usurpation, &c. cannot be said to come in by purchase, no more than robbers, burglars, pirates, or the like, can justly be termed purchasers.

Tombmonu- If a nobleman, knight, esquire, &c. be buried in a church, and

("utcheon, be- have his coat-armour and pennons with his arms, and such other long to heir, but ensigns of honour as belong to his degree or order, set up in the

executor has also ° ° ° 'r

aright of action church, or if a gravestone or tomb be laid or made, &c. for a monuthtm. ment of him, in this case, albeit the freehold of the church be in

the parson and these things be annexed to the freehold, yet cannot the parson [or any other person] take or deface them, without being subject to an action by the heir and his heirs in the honour and memory of whose ancestor they were set up. And some hold that the wife or the executors who first set them up may have an action in that case also against those that deface them in their time.

And note, that chattels which are constituted heir-looms fsuch as BmrUom,

v heirs action Jor.

the best bed, table, pot, pan, cart, or other dead moveable chattel) may go to the heir, and the heir then may have an action for them at the common law, and shall not be obliged to sue in the ecclesiastical court; but heir-looms are made so by custom, not by common law. And the ancient jewels of the crown are heirlooms, and shall descend to the next successor, and are not devisable by testament.

CHAPTER II. Section 13.

FEE-TAIL.

Origin of en- Tenant in fee-tail is by force of the statute of W.2. cap. \,for before that statute, all inheritances were fee-simple: for all the gifts which are specified in that statute were fee-simple conditional at the common law, as appears by the rehearsal of the same statute. And now by this statute, tenant in tail is in two manners, that is to say, tenant in tail general, and tenant in tail special.

[19«] The statute of W. 2.] This statute was made in 13 E. 1. [A.D.

1285], and is called West. 2, because the parliament was holden at Westminster, and to distinguish it from a statute called Westminster the first. And albeit many parliaments were afterwards holden at Westminster besides these, yet these two only, propter excellentiam, were called the statutes of Westminster. And the cause of making this statute was to preserve the inheritance in the blood of those to whom the gift was made.

Of conditional Before the said statute all inheritances were fee-simple.~\ Here fee

estates in nature ....... .... „ ....

of estates mil at simple is taken in its large sense, including as well conditional or common u. qualified, as absolute fees, to distinguish them from estates in tail since the said statute. Before which statute de donis conditionalibus, if land had been given to a man, and to the heirs male of his body, the having issue female was no performance of the condition; but if he had issue male and died, the issue male would have inherited, yet he had not a fee-simple absolute; for if he had died without issue male, the donor might have entered as in his reverter. By having issue, the condition was performed for three purposes: 1st, to alien; 2d, to forfeit; 3d, to charge with rent, common, or the like. But the course of descent was not altered by having issue, for if the donee had issue and died, and the land had descended to his issue, yet if that issue had died (without any alienation made) without issue, his collateral heir should not have inherited, because he was not within the form of the gift, viz. heir of the body of the donee. Lands were given before the statute in frank-marriage, and the donees had issue and died, and afterwards the issue died without issue; it was adjudged, that his collateral issue shall not inherit, but the donor shall reenter. So note, that the heir in tail had no fee-simple absolute at the common law, though there were divers descents. If lands had been given [at the common law] to a man and to his heirs male of his body, and he had issue two sons, and the eldest had issue a daughter, the daughter was not inheritable to the fee-simple, but the younger son per formam doni. And so if land had been given at common law to a man and the heirs female of his body, and he had issue a son and daughter, and died, the daughter should have inherited this fee-simple at the common law. If the donee in tail Of the donee's had issue before the statute, and the issue had died without issue, fore an(i „«„,. the alienation of the donee at the common law, having no issue at **""had' that time, had not baired the donor. If donee in tail at the common law had not aliened before any issue had, and afterwards had issue, this alienation had barred the issue, because he claimed a fee-simple; yet if that issue had died without issue, the donor might re-enter, for that he aliened before any issue, at which time he had no power to alien to bar the possibility of the donor. But if feme tenant in tail had taken husband, and had issue, and the husband and wife had aliened in fee by deed before the statute [without matter of record], the issue might have [recovered the land in ?i\formedon in descender; for the alienation was not lawful: but otherwise it is, if it had been by fine. And these things, though they seem ancient, are necessary notwithstanding to be known, as well for the knowledge of the common law, as for annuities and such like inheritances as cannot be entailed within the said statute, and therefore remain at common law. If the king [196] before the statute de donis conditionalibus had made a gift to a man, and to the heirs of his body begotten, the donee after issue born might have aliened as well as in the case of a common person. But if the donee had no issue, and before the statute had aliened with warranty, and died, and the warranty had descended upon the king, this should not have bound the king of his reversion without assets; but otherwise it was in the case of a common person. On the other hand, if lands had been given to the king and to the heirs of his body, he could not before issue have aliened in fee, but only to have barred his issue as a common person might have done, but not to have barred the reversion, for that should have been a wrong in the case of a subject, and the king's prerogative cannot alter his case, nor make it greater than the donor gave unto him; and it is a maxim in law, that the king can do no wrong. When all estates were fee-simple, then were purchasers sure of their purchases, farmers of their leases, creditors of their debts, the king and lords had their escheats, forfeitures, wardships, and other profits of their seigniories: and for these and other like cases, by the wisdom of the common law all estates of inheritance were fee-simple; and what contentions and mischiefs have crept into the quiet of the law by these fettered inheritances, daily experience teaches us.

Statutes. Effect of preamble.

As appears by the rehearsal of the same statute.] Here, by the authority of our author, the rehearsal or preamble of a statute is to be taken for truth; for it cannot be thought, that a statute, which is made by authority of the whole realm, as well of the king, as of the lords spiritual and temporal, and of all the commons, will recite a thing against the truth.

No use raisable on seisin in tail.

By this statute the land is as it were appropriated to the tenant in tail and to the heirs of his body, therefore if an estate be made, either before or since the statute of uses, 27 H. 8. c. 10. to a man and the heirs of his body, either to the use of another and his heirs, or to the use of himself and his heirs, this limitation of use is utterly void. For before the said statute of 27 Hen. 8. he could not have executed the estate to the use [and what he could not do before the statute he cannot do since. But this opinion has been controverted, and it seems that a use in fee may be raised on a seisin in tail, subject to determination on failure of the seisin, 1 Sand. Uses.]

Section 14, 15.

Tail general. Tenant in tail general is, where lands or tenements are given to a man, and to his heirs of his body begotten. In this case it is called general tail, because whatsoever woman such tenant takes to wife (if he has many wives, and by every of them has issue), yet every one of these issues by possibility may inherit the tenements by force of the gift; because every one of such issue is of his body engendered. In the same manner it is, where lands or tenements are given to a woman, and to the heirs of her body; albeit that she has divers husbands, yet the issue which she may have by every husband, may inherit as issue in tail by force of this gift; and therefore such gifts are called general tails.

Land.'] In its general and legal signification, (as hath been said Land includes before) includes not only all kind of grounds, as meadow, pasture, wood &c. but houses and all edifices whatsoever. In a more restrained sense it is taken for arable ground.

Tenements.] This is the only word which the said statute of What aud W.2. that created estates tail, uses; and it includes, not only all ?'"" '""J/'"*

'' 'J be entailed.

corporate inheritances which are or may be holden, but also all inheritances issuing out of any of those [corporeal] inheritances, or TM , concerning, or annexed to, or exercisable within the same, though they lie not in tenure; therefore all these without question may be entailed. As rents, estovers, commons, or other profits whatsoever granted out of land; or uses, offices, dignities which concern lands or certain places, may be entailed within the said statute, because all these savour of the realty. So a right of nomination to a benefice may be entailed for the same reason. But if the grant be of an inheritance merely personal, or to be exercised about chattels, and is not issuing out of land, nor concerning any land, or some certain place, such inheritances cannot be entailed, because they savour nothing of the realty. As if I grant to a man and to the heirs of his body, to be keeper of my hounds, or master of my horse, or to be my falconer, or such like, with a fee therefore, these cannot be entailed within the said estate, for that they be not issuing out of tenements, nor annexed to, or exercisable within, or concerning lands or tenements of freehold or inheritance, but concerning chattels, and savour nothing of the realty. And so it Annuity. is, if I by my deed for me and my heirs grant an annuity to a man, and the heirs of his body, for that this only charges my person, and concerns not land, nor savours of the realty. In all these cases he has a fee conditional as they were before the statute, and the grantee by his grant or release may bar his heir, as he might have done at the common law, for that in these cases he is not restrained by the said statute.

And to his heirs of his bodti begotten.] In gifts in tail these words VHiat words

#!_• • » «. , n • essential to cre

(heirs) are as necessary as in feoffments and grants; for seeing ate estate tan u

2 deed'.


every estate tail was a fee-simple at the common law, and at the common law no fee-simple could be in feoffments and giants without these words (heirs), and that an estate in fee-tail is but a cut or restrained fee, it follows, that in gifts in a man's life-time no estate can be created without these words (heirs), unless it be in case of frankmarriage, as hereafter shall be shewn. And where Littleton says (heirs), yet (heir) in the singular number in a special case may create an estate tail, as appears by 39 Ass. p. 20. hereafter mentioned. And yet if a man give lands to A. and the heirs of his body, the remainder to B. in form aforesaid, this is a good estate tail to B. for that in form aforesaid includes the other. If a man lets lands to A. for life, the remainder to B. in tail, the remainder to C. in form aforesaid, this remainder is void for the uncertainty. But if the remainder had been, the remainder to C. in the same form, this had been a good estate tail; for idem semper proximo antecedenti refertur. If a man give lands or tenements to a man and his seed, or the issues or children of his body, he has but an estate for life; for albeit that the statute provides, that the will of the giver according to the form of the deed of gift manifestly expressed shall be observed, yet that will and intent must agree with the rules of law. And of this opinion was our author himself, as it appeared in his learned reading upon this statute, where he holds, if one gives land to a man and the issues of his body lawfully begotten or to his seed, he has but an estate for life, for that there wants words of inheritance.

What words of

procreation

necessary.

Of his body.] These words are not so strictly required but that they may be expressed by words that amount to as much: for the example that the statute of W. 2. puts hath not these words, "of his body," but the word " heirs," viz. " when any one gives land to a man and his wife and the heirs of this man and woman begotten," &c . If lands be given to B. and his heirs of his first wife lawfully begotten, this is a good estate. in special tail (albeit he hath no wife at that time) without these words "of his body." So it is if lands be given to a man and to his heirs which he shall beget of his wife, or to a man and the heirs of his flesh, or to a man and the heirs of him. In all these cases these are good estates tail, and yet these words " of his body" are omitted.

Entail may be It is holden by some opinions, that if there be grandfather,

to other than J f' o

the donee's issue, father, and son, and lands are given to the grandfather and to his

tenses.

heirs begotten by the father, and the father and grandfather die, oouer. the son is in as heir to the grandfather begotten upon [or by] the i

body of his father, and [then] the wife of the grandfather [shall] I

in that case be endowed. But certain it is, that in some cases one shall have the land performam doni who is not issue of the body of the donee, which see, Section 30.

Begotten,'] "Procreatis." This word may in many cases be Begotten in omitted or expressed by the like, and yet the estate tail is good: as and'future' "heirs of his flesh," "heirs of him," " heirswhich shall happen" &c. as is aforesaid; and where the word of Littleton is "engendered," or " begotten," procreatis, yet if the word be procreandis, (being begotten) or quos procreaverit, (which shall be begotten) the estate tail is good; and as procreatis extends to the issues begotten afterwards, so procreandis extends to the issues begotten before.

Section 16.

Tenant in tail special is, where lands or tenements are given to a Special tail

man and to his wife, and to the heirs of their two bodies begotten.

In this case none shall inherit by force of this gift, but those that

be engendered between the two. And it is called special tail,

because if the wife dies, and he takes another wife, and have issue,

the issue of the second wife shall not inherit by force of this gift,

nor the issue of the second husband, if the first husband die.

To a man and his wife.] Then put the case that lands are given To man and to a man and a woman unmarried and the heirs of their two rM.""" bodies: for the apparent possibility to marry, they have an estate tail in them presently. So it is where lands are given to the husband of A. and to the wife of B. and the heirs of their bodies, they have presently an estate tail, in respect of the possibility. [Infra, sec. 25.]

But put the case that the premises and the habendum are in other What if hubenmanner than Littleton has put, and let us see what the law in „,""/„"«.resuch cases is. As if a man in the premises give lands to another and P"S"a"jthe heirs of his body, habendum to him and his heirs for ever; it lias been holden that in this case he hath an estate tail, and a fee

Xo gift in fee direct.

simple expectant. And so (it is said) vice versa, if lands be given to a man and to his heirs in the premises, habendum to him and the heirs of his body, that he hath an estate tail, and a fee-simple exba- pectant. But it was otherwise resolved in 8 Co. Lit. 150. If land* be given to B. and his heirs, to have and to hold to B. and his heirs, if [i. e. provided] B. have heirs of his body, and if he dies without heirs of his body, that it shall revert to the donor, this is adjudged an estate tail, and the reversion in the donor. For the will of the donor in this deed of gift manifestly expressed shall be observed: and therefore in the case next precedent, if these or the like words be added (and if he dies without heirs of his body that the lands shall revert to the donor), then the habendum shall by authority of divers books be construed upon the whole deed, to be a limitation or a declaration what heirs are meant in the premises to inherit, and that in that case the reversion is in the donor.

Two deeds of same land, one in fee other in tail, how construed.

If a man make a charter of feoffment of an acre of land to A. and his heirs, and another deed of the same acre to A. and the heirs of his body, and deliver seisin according to the form and effect of both deeds, in this case A. cannot take a fee-simple only, as some hold, for that livery was made according to the deed in tail, as well as to the charter in fee, neither can the livery enure only to the deed of estate tail with a fee-simple expectant, for that livery was made as well upon the deed in fee- simple, as the deed in tail. Therefore others hold, that in that case it shall enure by moieties, that is, to have an estate tail in the one moiety, with the fee-simple expectant, and a fee-simple in the other moiety; and so the livery shall work immediately upon both deeds.

Section 17.

Frank-marriage. Ex pro vi.

In the same manner it is, where tenements are given by one man to another with a wife (who is the daughter or cousin to the giver) in frank-marriage, this gift hath an inheritance by these words (frank-marriage) annexed unto it, although it be not expressly said or rehearsed in the gift that the donees shall have the tenements to them and to their heirs between tlie two begotten. And this is called special tail, because the issue of the second wife may not inherit.

To a man with a wife.] The consideration of marriage is more Four requisites. favoured in law than any other consideration, and here it may be [***] observed once for all, that four things are incident to a frankmarriage. 1st. That it be given for consideration of marriage either to a man with a woman, or, as some have held to a woman with a man. 2dly. That the woman or man who is the cause of the gift be of the blood of the donor; but it may be made as well after marriage as before, and it may be made with a widow, &c. 3dly. If the gift be made of such a thing as lies in tenure, that the donees hold of the donor at the time of the estate in frankmarriage made. A rent service may be given in frankmarriage, because it may be holden. And so may a rent charge or rent seek, as Fitz. N. B. holds, and it appears in our books that a common may be granted in frankmarriage. 4thly. That the donees shall Free to the 4th hold freely of the donor till the fourth degree be past. And there- *gr"' fore if land be given to a woman, with the son of a donor in frankmarriage, there passes an inheritance; but if the donee who is the cause of the gift be not of the blood of the donor, then there passes but an estate for life, if livery be made. Also if lands be given to a man with a woman of the blood of the donor in liberum maritagium, the remainder in fee either to a stranger or to the donees, they have no estate tail because there is no tenure of the donor ; but if in that case, the remainder had been limited to another in tail reserving the reversion in fee to the donor, there the said words {in liberum maritagium) create an inheritance, because the donees hold of the donor. And cestui que use before the statute of 27 H. 8. could not have made a gift in frankmarriage, because the reversion was in the feoffees. And if the donor gives lands in liberum maritagium reserving a rent, this reservation shall take no effect till the fourth degree be past, but the frankmarriage is good; for if the reservation should be good, then could not the donees have an estate tail for want of the words of the heirs of their bodies. And these words (in liberum maritagium) are such words of art, and so necessarily required, as they cannot be expressed by words equivalent, or amounting to as much. If the king give land to a Tenant in tail man and a woman and the heirs of their two bodies, and the p woman die without issue, yet shall the man be tenant in tail after possibility of issue extinct But if the king give land to a man with a woman of his kindred in frankmarriage, and the woman dies without issue, the man, in the king's case, shall not hold it for QJi> life, because the woman was the cause of the gift; but

[22a] otherwise it is in case of a common person, if lands be given to a man and a woman in special tail, and they are divorced causa praxontractus, both shall hold the lands for their lives; but in case of frankmarriage if they be divorced, the woman shall enjoy the whole land, because she was the cause of the gift.

Guardian.

If lands holden in socage be given in special tail, and the donees die, the issue being]within the age of fourteen years, the next of kin of the part of the father, or of the part of the mother who can obtain the custody shall have it, but in case of frankmarriage the heir of the part of the mother shall have it, because as hath been said she was the cause of the gift.

Section 18.

Why called And note, that this word (Talliare) implies that the lands are limited to some certain inheritance. And because it is limited and put in certain what issue shall inherit by force of such gifts and how the inheritance shall endure, it is called in latin, feodum talliatum, i. e. haereditas in quandam certitudinem limitata. For if tenant in general tail dies without issue, the donor or his

Reversion. heirs may enter as in their reversion.

To me heir and Of all the estates tail the most coarcted or restrained that I find in our books, is the estate tail in 39 Ass. pi. 20, where lands were given to a man and to his wife and to one heir of their bodies lawfully begotten, and to one heir of the body of that heir only; and this case is an exception (some say) out of the general rule put before by Littleton, Sect. 13, that all estates tail were fee-simple at the common law; for (say they) by this limitation (ftaredi) in the singular number the donees had not had a fee-simple at the common law. [2 Vern. 325.]

Section 19.

Tenure in tail In the same manner it is of the tenant in special tail, be. For in

is of donor. ......

every gift in tail without more saying, the reversion of the feesimple is in the donor. And the donees and their issue shall do to the donor and to his heirs the like services as the donor does to his

and where.

[226]

lord tiext paramount, except the donees infrankmarriage, who shall hold quietly from all manner of service {unless it he for fealty) until the fourth degree is past, and after the fourth degree is past, the issue in the fifth degree, and so forth the other issues after him, shall hold of tJie donor or of his heirs as they hold over, as before said.

The reversion of' the fee-simple is in the donor.] A reversion is Reversion what where the residue of the estate always does continue in him who made the particular estate, or where the particular estate is derived out of his estate, as here in the case of Litt. where tenant in feesimple makes gift in tail, so it is of a lease for life, or for years. If a man extends lands by force of a statute merchant, staple, recognizance or elegit, he leaves a reversion in the conusor.

But since Littleton wrote, the description must be more large Limitation to upon the statute of uses 27 H. 8., for at this day, if a man seised heirt gi"£ him of lands in fee makes a feoffment in fee, (and departs with his whole ° "j"TM"* .

'x r under rule «n

estate) and limits the use to his daughter for life, and after her Sheiiy'sca*.

decease, to the use of his son in tail, and after to the use of the

right heirs of the feoffor: in this case, albeit he departed with the

whole fee-simple by the feoffment, and limited no use to himself,

yet has he a reversion; for whensoever the ancestor takes an estate

for life, and after a limitation is made to his right heirs, the right

heirs shall not be purchasers. And here, in this case, when the

limitation is to his right heirs, and right heir he cannot have during

his life (for non est hares viventis) the law creates an use in him

during his life, until the future use comes in esse, and consequently

the right heirs cannot be purchasers; and there is no diversity

when the law creates the estate for life, and when the party. And

if the limitation had been to the use of himself for life, and after ,

to the use of another in tail, and after to the use of his own right

heirs, the reversion in fee would have been in him, because the use

of the fee continued over in him; and the statute executes the

possession to the use in the same plight, quality, and degree, as

the use was limited.

If a man make a gift in tail, or a lease for life, the remainder to Remainder to

his own right heirs, this remainder is void, and he has the rever- „TM%void%hen.

sion in him, for the ancestor during his life bears in his body (in Anceitor bean

judgment of law) all his heirs, and therefore it is truly said, that Jjji,*" **'"m

hares est pars antecessoris. And this appears in a common case, that if land be given to a man and his heirs, all his heirs are so totally in him, as he may give the lands to whom he will. So it is if a man be seised of lands in fee, and by indenture makes a lease for life, the remainder to the heirs male of his own body, this is a void remainder; for the donor cannot make his own right heir a purchaser of an estate tail without departing with the whole fee-simple out of him: as if a man make a feoffment in fee to the use of himself for life, and then to the use of the heirs male of his body, this is a good estate tail executed in himself, and the limitation is good by way of use, because it is raised out of the estate of the feoffees, which the feoffor departed with, and that is apparent, for a limita17««—Common tion of use to himself had without question been good. If a man Statute. y make a feoffment in fee to the use of himself in tail, and after to the use of the feoffor in fee, the feoffee has no reversion but in nature of a remainder, albeit the feoffee has the estate tail executed in him by the statute, and the feoffee is in by the common law, which is worthy of observation.

[23a] To conclude this point, whosoever is seised of land, has not only

Resulting use. tne estate of the land in him, but the right to take the profits, which

Old and new » & r »

linn. is in nature of a use, and therefore when he makes a feoffment in

fee without valuable consideration to divers particular uses, so much of the use as he disposes not of, is in him as his ancient use in point of reverter. So it is if lands [descended] of the part of the mother [be limited to another to the use of the feoffor and his heirs], the use shall go to the heir of the part of the mother, which could not be, if it were not the old use but a thing newly created. The like law is of lands of the custom of borough-english, gavelkind, 8tc.

Tenure of estates The donees and their issue shall do to the donor and to his heirs the 'datio Sub'"feu~ like services, as the donor does to his lord next paramount.] The reason of this is, that when by construction of the said statute there was a reversion settled in the donor, for that the donee had an estate of inheritance, the judges resolved that he should hold of his donor, as his donor held over, except that if the donor by subinfeudation holds of the person of his feoffor, the donee in tail shall hold of his feoffor as of his reversion, provided the donor makes no special reservation, for then the special reservation excludes the tenure which the law would create.

marriage.

Except the donees infrankmarriage.] It is to be understood, that Frank although the land be given in liberum maritagium, in free marriage generally, yet first the law makes a limitation of this word (free), viz. till the fourth degree be past, for the reason that our author here yields. And albeit it be free marriage, yet the donees and their issues until the fourth degree be past shall do fealty, for that is incident to every tenure (except frankalmoigne) and cannot be separated from it, and therefore the donees and their issues shall hold it as freely till the fourth degree be past as the donor can make it. See more of this in the chapter of Frankalmoigne.

Section 20.

And the degrees in frankmarriage shall be counted in this Four degrees in

manner, viz. from the donor to the donees in frankmarriage the now counted.

first degree, because the wife who is one of the donees ought to be

daughter, sister, or other cousin of the donor. And from the

donees up to their issue shall be accounted the second degree, and

from their issue unto their issue the third degree, and so forth.

And the reason is because that after every such gift, the issues of

the donor, and the issues of the donees after the fourth degree

past of both parties in such form to be accounted, may by the law

of the holy church intermarry.

The learning of degrees set out in the civil and canon law [23 fc] (wherein I find some difference) is worth the knowledge, to the end Mode t>f reckon

* D tng degrees in

that Littleton and the law in this case may the better be under- descent and stood, which I will divide into certain rules; whereof the first is, Ruu, f. '" y' that a person added to a person in the line of consanguinity makes a degree. And it is to be understood, that a line is threefold, viz.

* When a deed cannot operate in the way intended by reason of some technical Covenant to informality, it remains to be seen whether it may not operate in some other way, 'land seised. and whether there is enough to support it as a covenant to stand seised. Informal deeds are more frequently made among relations than between purchasers, who, in giving valuable considerations, take care to have the instrument formally prepared; but if there is a fourth degree of relationship between the parties, the deed may probably be supported on the doctrine of covenants to stand seised.

the line ascending, descending, and collateral. And first, for example, of the ascending line, take the son and add the father, and it is one degree ascending; add the grandfather to the father, and it is a second degree ascending.

Rule 2. So that how many persons soever there may be, take away one,

and you have the number of degrees. If there be four persons it is the third degree, if five the fourth, for one must exceed, and then you have the degree. Likewise by the descending, take the father, and add the son, and it is one degree; then take the son and add the grandchild, and it is the second degree; and so likewise further. Wherein observe that the father, son; and grandchild, albeit there are three persons, yet they make but two degrees, because (as it hath been said) one must exceed for making a degree.

Rule 3

It is to be noted, the person must be reckoned from whom the computation is made. And there is no difference between the canon and civil law in the ascending and descending line [but in the collateral line there is] for those whom the civilians reckon in the second degree, the canonists reckon in the first; and [24 a] those whom they place in the fourth, these place in the second. Therefore if we would know in what degree two of kindred stand according to the civil law, we must begin our reckoning from one, by ascending to the person from whom both are branched, and then, by descending, to the other to whom we count, and it will appear in what degree they are. For example, in brothers' and sisters' sons, take one of them and ascend to his father, there is one degree; from the father to the grandfather, that is the second degree; then descend from the grandfather to his son, that is the third degree; then from his son to his son, that is the fourth. But by the canon law there is another computation, for the canonists always begin from the stock, namely, the person from whom they do descend and of whose distance the question is. For example, if the question be, in what degree the sons of two brothers stand by the canon law? we must begin from the grandfather and descend to one son, that is one degree; then descend to his son, that is another degree; then descend again from the grandfather to his other son, that is one degree; then descend to his son, that is a second degree; so in what degree either of them are distant from the common stock, in the same degree they are distant between themselves: and if they be not equally distant, then we must observe another rule. In what degree the most remote is distant from the common stock, in the same degree they are distant between themselves, and so the most remote makes the degree.


But it is necessary to be known, concerning marriages between Marriage withpcrsons of kindred one to another, that it is enacted by the statute grees allowed. of 32 H. 8. that no reservation or prohibition (God's law excepted) shall trouble or impeach any marriage without the Levitical degrees.

Equity.] Is a construction made by the judges, that cases out [2461 of the letter of a statute, vet being within the same mischief, or St"ts- Equity

, . . . of, noticed at

cause of the making of the same, shall be within the same remedy haw. that the statute provides: and the reason thereof is, for that the law-makers could not possibly set down all cases in express terms.

Sections 21, 22.

Also if lands be given to a man and to his heirs male of his body Estate tail male begotten; his issue male only shall inherit, and not his issue or female 800"female; in like manner if the gift be to a man and his issue female of his body begotten, the issue male shall not inherit, but only his issue female. For in such cases the will of the donor shall be observed, who ought to inherit, and who not.

* These two sections, or any thing therein, need not any explana- Gift to A.a»<(

tion, in respect that they shall be explained hereafter in the next '"J"b",JITftto

section, saving only these words (who ought to inherit) are very theheinfemaU

. ° * "J A. bad.

observable, for they imply a diversity between a descent and a purchase. For when a man gives lands to one and the heirs females of his body, and dies, having issue a son and a daughter, the daughter shall inherit; for the will of the donor (the statute working with it) shall be observed. But in case of a purchase it is otherwise: for if A. have issue a son and a daughter, and a lease for life be made [to B.] with remainder to the heirs female of the body of A., and A. dies [leaving a son and daughter] the heir female can take nothing, because she is not heir; for she must be both heir and heir female, which she is not, because the brother is heir, and therefore the will of the giver cannot be observed, because here is no gift, and therefore the statute cannot work thereupon. And so it is if a man has a son and a daughter and dies, and lands be given to the daughter and the heirs female of the body of her [25 a] father, the daughter shall take nothing but an estate for life, because there is no such person, she not being heir. But where a gift is made to a man and to the heirs female of his body, there the donee being the first taker is capable by purchase and the heir female by descent secundum formam doni: and therefore Littleton purposely added these words, who ought to inherit.*

Section 23.

Descent of And in case where lands or tenements be given to a man and to male. the heirs male of his body, and he has issue two sons, and dies,

and the eldest son enters as heir male, and has issue a daughter, and dies, his brother shall have the land, and not the daughter, for that the brother is heir male. But otherwise it is in the other entails, which are specified in the statute West. 2.

Section 24.

Same. Ai.so, if lands be given to a man and the heirs male of his body,

and he has issue a daughter, wlio has issue a son, and dies, and after the donee dies: in this case, the son of the daughter shall not inherit by force of the entail; because whosoever shall inherit by force of a gift in tail made to the heirs male, ought to convey his descent wholly by the heirs male. Also in this case the donor may enter, for that the donee is dead without issue male in the law, insomuch as the issue of the daughter cannot convey to himself the descent by an heir male.

Descent of estate And so it is mutatis mutandis, when a gift in tail is made to a "l r256i man anc* to tne ne're female of his body, and he has issue a son,

* This doctrine of my Lord Coke is not fully acquiesced in. But Mr. Margrave has attempted to shew, in a voluminous note to this passage, that it will stand the test of the severest criticism where the construction rests singly on the words heirs female, and they stand unexplained by any other words or circumstances.

who hath issue a daughter, this daughter shall never inherit, because she must convey by descent through females.

If a man give lands to a man and to the heirs male of his body Descent of tail begotten, remainder to him and to his heirs female of his body '^aUuil^tn t«if begotten, the donee has issue a son, who has issue a daughter, /«■«'•• who has issue a son, this son is not inheritable to either or both these estates tail, because, as Littleton saith, the male must make his conveyance only by males, and so must the female by females. But in this case the land shall revert to the donor. And therefore the safest way, when a man will entail his lands to the heirs male and female of his body, is to limit the first estate to him and the heirs male of his body, the remainder to him and to the heirs of his body, and then all his issues whatever are inheritable.

But if A. has issue a son and daughter and dies, and the son has Estate taiifeissue a daughter and dies, and a lease for life is made, the remain- "'" A

der to the heirs female of the body of A.; in this case the daugh- ,—! ,

terofA. shall not take causa qua supra. But albeit the daughter |"

of the son makes her conveyance by a male, she may take an estate

tail by [descent], for she is heir and a female: but if lands be de- B

vised to one for life, the remainder to the next heir male of B. in r

tail, and B. hath issue two daughters, and each of them hath issue J J

a son, and the father and daughters die, some say this remainder

is void for the uncertainty; some say that the eldest shall take it,

because he is the worthiest; and others say that both of them shall

take, for that they both make but one heir.

If lands be given to a man and to the heirs male or female of Heirs male or

,..,,, . female.

his body, he has an estate in tail general in him.

Section 25.

In the same manner it is, where lands are given to a man and his Estate tail by

wife, and to the heirs males of their two bodies begotten, &c.'"""''"'

To a man and his wife.~] But what if tenements be given to a Gifts in tail to

man and to a woman not being his wife, and to the heirs male of ^"married how

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construed. Ante, sect. 16.

their two bodies? They have also an estate tail, albeit they be not married at that time.* And so it is, if lands be given to a man wjjo has a wife, and to a woman who has a husband, and the heirs of their two bodies ; they have presently an estate tail, for the possibility that they may marry. But if lands be given to two husbands and their wives, and to the heirs of their bodies begotten, they shall take a joint estate for life and several inheritances, viz. the one husband and his wife the one moiety, and the other husband and wife the other moiety, and no cross remainder or other possibility shall be allowed by law, where it is once settled and has taken effect. But if lands be given to a man and two women and the heirs of their bodies begotten, in this case they have a joint estate for life and every of them a several inheritance, because they cannot have one issue of their bodies, neither shall there be by any construction a possibility upon a possibility, viz. that he shall marry the one first and then the other. And the same law is, when land is given to two men and one woman and to the heirs of their bodies begotten.

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The ancestor Also, if tenements be given to a man and to his wife, and to the

body the issue heirs of the body of the man, in this case the husband has an

takes" thcestate esta*e ,B tail general, and the wife but an estate for term of life.

tail.

Section 27.

Same. Also, if lands be given to the husband and wife, and to the heirs

of the husband which he shall beget on the body of his wife, in this case the husband has an estate in special tail, and the wife but an estate for life.

* They have not estates tail each in a moiety, but the whole for life in joint tenancy, with the possibility of having an estate tail in event. They are not tenants in tail without possibility, &c. but with possibility.

Section 28.

And if the gift be made to the husband and to his wife, and to the if both named

heirs of the body of the wife by the husband begotten, there the wife -mutate.6tail.'

hath an estate in special tail, and the husband but for term of life.

But if lands be given to the husband and the wife, and to the heirs

ichich the husband shall beget on the body of the wife, in this case

both of them have an estate tail, because this word (heirs) is not

limited to the one more than to the other.

HeirsJ] This word (heirs) is nomen operativum. To which of the ■• Heirs of surdonees it is limited, it creates an estate tail in him; but if it incline ,„„)„}„,. an<i no more to the one than to the other, then both take, as here Lit- ne"hertukettleton puts the case. If lands be given to the husband and the wife and to the heirs of the body of the survivor [which makes a contingent remainder and the heirs take by purchase], the gift is good, and the survivor shall have an estate tail general, but the estate tail vests not till there be a survivor.

And hereby it appears that a gift made to a man and to the heirs "Th*"t ««<' of his body, is as good as to his heirs of his body. [See further post, 27 a.]

Section 29. [266]

Also, if land be given to a man and to his heirs, which he shall Tne an

/••••• 7 cestor not

beget on the body of his wife, in this case the husband has an estate named takes in special tail, and the wife has nothing [but her dower.] no "ns'

Section 30.

Also, if a man has issue a son and dies, and land is given to the To A. and the son and to the heirs of the body of his father begotten, this is a body of his good entail, and yet the father was dead at the time of the gift. fa.t>'er'aneslate And there be many other estates tail by the equity of the said statute of West., which are not here specified.

To wife and heirs of her husband, o)c. tiieu take by purchase, and the only a life estate.

If a man has issue a son and dies, #■<"•] John de Mandeville by his wife Roberge had issue Robert and Maud. Michael de Morevill gave certain lands to Roberge and to the heirs of John Mandeville her late husband on her body begotten, and it was adjudged that Roberge had an estate but for life, and the fee-tail vested in Robert (heirs of the body of his father being a good name of purchase), and that when he died without issue, Maud the daughter was tenant in tail as heir of the body of her father, performam doni. [But if the gift had been to Roberge and to the heirs of her body by the husband begotten, or to the heirs of her body and of the body of her husband begotten, it would have been an estate tail in the wife; and though the said Maud is called in the writ heir to the said Robert] yet in truth the land did not descend unto her from Robert, and therefore if Maud had been of the half-blood she would have taken. In which case it is to be observed, that albeit Robert being heir took an estate tail by purchase, and the daughter was no heir of his body at the time of the gift, yet she recovered the land performam doni, by the name of heir of the body of her father, which notwithstanding her brother was, and he was capable at the time of the gift; and therefore when the gift was made she took nothing but in expectancy, when she became heir per formam doni.

Construction of gift by one coparcener to her sister mil the heirs of the hotly of her father.

If a man has issue two daughters, and dies seised of two acres of land in fee-simple, and the one coparcener gives her part to her sister and to the heirs of the body of her father, in this case the donee has an estate tail in one moiety of the donor's part, for the donee is not the entire heir, but the donor is heir with the donee, [and as to the other moiety the donor by the words should herself take a remainder in tail after her sister's life,] but since she cannot give to the heirs of her own body, the donee has this other moiety of her sister's part for life [with remainder to her sister in fee as of her reversion.]

"Heirs female If a man has issue a son and a daughter, and dies, and land is the father, a g'ven to the daughter and to the heirs female of the body of the ^'fefn' -\ father, she takes but an estate for life; because she is not heir female to take by purchase, as before has been said.

"To A.and And to t/tc heirs of the body ofhisfather..] These words {the heirs)

fan afhU are observable; for if they were (his heirs) it clearly alters the case. And therefore, if lands be given to the son and to his heirs of the father," a fee. body of his father, the son cannot take as heir of the body of his ',', th", '^Klin_ father, because the grant is to him and to his heirs &c. and conse- euidudquently he has a fee-simple. But if there be grandfather, father, and son, and the father dies, and lands be given to the son, and to the heirs of the body of the grandfather, this is a good estate tail in the son; so that Littleton put his case of the father but for an example.

Section 31.

But if a man give lands or tenements to another, to have and to "Heirsmale" hold to him and to his heirs male, or to his heirs female, he to e'ves a **' ichom such a gift is made has a fee-simple, because it is not limited by tlte gift of what body the issue male or female shall be, and so it cannot in any wise be taken by the equity of the said statute, and therefore he has a fee-simple. [So adjudged in Pari. 8 Co. I.]

If the king by his letters patent gives lands and tenements to a in utters patent man and to his heirs male, the grant is void, for that the king is *° l"8' deceived in his grant, inasmuch as there can be no such inheritance of lands or tenements as the king intended to grant. But if the king for reward of service grants armories or arms [i.e. armorial bearings] to a man and to his heirs male without saying (of the body), this is good, and they shall descend accordingly.

If a man by his last will devise lands or tenements to a man and In mil " heirs

.... i t > i ■ t* i -11 male" gives an

to his heirs male, this by construction of law is an estate tail, the estate tail. law supplying these words (of his body).

A man seised of lands in gavelkind gives or devises the same to Devise of gaveta man and to his eldest heirs. He cannot hereby alter the cus- j,TM<m«i< heirs, tomary inheritance, but as in the case of our author, ut res magis "eldest" TMtaleal, the law rejects (males), so in this case the law rejects this [27 b~\ adjective (eldest).

And so it is if lands be given to a man and to the eldest heirs So in gift to A. female of his body, yet all the daughters shall inherit, as it has "linfniaiZ Iwn resolved.

CHAPTER III. Section 32.

TENANT IN TAIL AFTER POSSIBILITY OP ISSUE EXTINCT.

This estate oc- Tenant in fee-tail after possibility of issue extinct is, where tene

curs only in special tail

mfiits are given to a man and to his wife in special tail; if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct. And if they have issue, and the one dies, albeit that during the life of the issue, the survivor shall not be called tenant in tail after possibility of issue extinct; yet if the issue die without issue, so as there be not any issue alive which may inherit by force of the tail, then the surviving parly of the donees is tenant in tail after possibility of issue extinct.

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Littleton having spoken of estates of inheritance, viz. fee-simple and fee-tail, now treats of tenants of freehold only, that is, for term of life, and therein first of tenant in tail after possibility of issue extinct; and he gives unto him the first place, because this tenant has several qualities and privileges which tenant in tail himself has and which lessee for life has not. As first, he is dispunishable for waste. 2dly. He shall not be compelled to attorn. 3dly. He shall not have aid of him in the reversion. And yet he has some other qualities, which are not agreeable to an estate in tail, but to a bare lessee for life. 1st. If he makes a feoffment in fee, this is a forfeiture of his estate [to him in remainder]. 2dly. If an estate in fee, or in fee-tail, in reversion, or remainder, descend or come to this tenant, his estate is drowned, and the fee or fee-tail executed3dly. He in the reversion or remainder shall be received upon his default, as well as upon a bare tenant for life. 4thly. An exchange between a bare tenant for life and him is good, for their estates in respect of their quantity are equal; so as the difference stands in the quality, and not in the quantity of the estate. And as an estate tail was originally carved out of a fee-simple, so is the estate of this tenant [carved] out of an estate in special tail. And these privileges the law allows him to keep in respect of the privity of his estate, and of the inheritance that once was in him. And he is called tenant in tail after possibility of issue extinct, because by no possibility can he have any issue inheritable to the same estate tail. But if one gives land to a man and his wife and to the heirs of their two bodies, and they live till each of them be an hundred years old, and have no issue, yet do they continue tenants in tail, for that the law sees no impossibility of having children.

Section 33.

Also, if tenements be given to a man and to his heirs which he Same.
shall beget on the body of his vnfe, in this case the wife has nothing
in the tenements, and the husband is seised as donee in special tail.
And in this case, if the wife die without issue of her body begotten
by her husband, then the husband is tenant in tail after possi-
bility of issue extinct.

If the wife die without issue.] So that the estate of this tenancy Thu estatecan must be altered by the act of God, and that by dying without "1"ood, not by issue; for if a feoffment in fee be made to the use of a man and his wife for term of their lives, and after to the use of their next issue male to be begotten in tail [the words issue male being construed words of purchase], and after to the use of the husband and wife and of the heirs of their two bodies begotten, they having no issue male at that time; in this case the husband and wife are tenants in special tail executed [till they have a son], and after they have issue a son, then they become tenants for life, the remainder to the son in tail, the remainder to them in special tail; for albeit their estate tail is turned to an estate for life, yet [are they not tenants in tail apres] but bare tenants for life [for their estate for life comes to them by original limitation]; but if the issue die, and the husband dies leaving no other issue, then the wife shall have the privileges of tenant in tail after possibility of issue extinct, as appears in Lewes Bowles' case, 11 Co. 80. where it is said, that the estate of this tenant must be created by act of God, and not by limitation of the party. If land be given to a man and to his wife and to the heirs of their two bodies; and after they are divorced causa precontract's, or consanguinitatis, or affinitatis, their estate of inheritance is turned to a joint estate for life; and albeit they had

once an inheritance in them, yet for that the estate is altered by [28 b] their own act, and not by the act of God, viz. by the death of either party without issue, they are not tenants in tail after possibility of issue extinct.

Special tail Lands are given to the husband and wife and to the heirs of the

bad, \but "w't body of the husband, the remainder to the husband and wife and e contra.] to ^e heirs of their two bodies begotten; the husband dies without

issue; the wife shall not be tenant in tail after possibility, for the remainder in special tail was utterly void, and could never take effect; for so long as the husband should have issue, it should inherit by force of the general tail, and if the husband die without issue, then the estate tail special cannot take effect, in as much as the issue which should inherit the special tail, must be begotten by the husband, and so the general, which is larger and greater, has frustrated the special tail which is the lesser. And the wife in that case shall be punished for waste.

Section 34.

Issue in special An i) note, that none can be tenant in tail after possibility of issue come tenants in extinct, but one of the donees, or the donee in special tail. For tail, apni. tne donee in general tail cannot be said to be tenant in tail after possibility of issue extinct; because always during his life, he may by possibility have issue which may inherit by force of the same entail. And so in the same manner the issue which is heir to liie donees in special tail, cannot be tenant in tail after possibility of issue extinct, for the same reason.

Frank mar- If lands be given to a man with a woman in frankmarriage,

albeit the woman (who was the cause of the gift) dies without issue, yet the husband shall be tenant in tail after possibility of issue extinct, for that he and his wife were donees in special tail, and so are within the words of Littleton. The residue of this section is evident.

CHAPTER IV. Section 35. [29a]

CURTESY OP ENGLAND. Tenant by the curtesy of Enqland is, where a man takes a wife Curtesy is hus

... . - ., . . , . . . ., band's estate

seised in fee-simple or in fee-tail general, or seised as heir in tail fcr life in wife's

special, and has issue by tJie same wife male or female born alive, n*TM *a 'f°e or'yin

albeit the same after dies or lives, yet if the wife dies, the husband tail>

shtdl hold the land during his life by the law of England. And he

« called tenant by the curtesy of England, because this is used in

no other realm but England only. And some have said, that he

shall not be tenant by the curtesy, unless the child which he has

by his wife be heard cry; for by the cry it is proved that the

child was born alive.

Takes a wife seised.] And first of what seisin a man shall be andofuhichshe

. , ,.,, ... ...... . is seised in dud,

tenant by the curtesy, lnere is in law a twofold seism, viz. a seisin in deed, and a seisin in law, whereof more shall be said Sect. G81. And here Littleton intends a seisin in deed, if it may be attained unto. As if a man die seised of lands in fee-simple or in fee-tail general, and these lands descend to his daughter, and she takes a husband and has issue, and dies before any entry, the husband shall not be tenant by the curtesy, and yet in this case she had a seisin in law; but if she or her husband had during her life entered, he should have been tenant by the curtesy [or if the lands had been let to a tenant, the husband would have been entitled to curtesy, although no rent accrued due during the lifetime of the wife, 3 Atk. 469].

A man seised of an advowson or rent in fee has issue a daughter, Bmi/«<*r.w.<n» who is married and has issue, and dies seised, and the wife, before law enough. the rent became due or the church became void, dies, she had but a seisin in law, and yet he shall be tenant by the curtesy, because

he could by no industry attain to any other seisin. Et impoteniia excusat legem.

Kc curtesy of But a man shall not be tenant by the curtesy of a bare right,

reversion or a . '. _

hare right. title, or use*, or ot a reversion or remainder expectant upon any estate of freehold, unless the particular estate be determined or ended during the coverture. *

The issue must he such as can inherit theettate. —Special tail.

Past fee.

In fee-simple or fee-tail general or special, and hath issue by the same wife, male or female,,] Second, of what estate. If lands be given to a woman and to the heirs male of her body, she takes a husband, and has issue a daughter, and dies, he shall not be tenant by the curtesy; because the daughter by no possibility could inherit the mother's estate in the land ; and therefore where Littleton says, issue by his wife male or female, it is to be understood, which by possibility may inherit as heir to her mother of such estate. Littleton himself explains this by express words; cap.v. Dower, fo.40. sect. 52. And therefore if a woman tenant in tail general makes a feoffment in fee, and takes back an estate in fee, then [having only a base or defeasible fee] takes a husband and has issue, and the wife dies, the issue may in a formedon recover the land against the father, by force of the estate tail, and as heir to his mother; [in which case the father cannot have curtesy, for the seisin of his wife is defeated, and the heir inherits, not under that seisin, but under the seisin paramount the feoffment; but if the issue had been content to take the base fee, then would the father have been curteseablc.]

Death of issue before wife's seisin immaterial.

And has issue.] Third, the time of having issue, and fourth, what kind of issue. If a man seised of lands in fee has issue a daughter, who takes husband and has issue, and the father dies, the husband enters, he shall be tenant by the curtesy, albeit the issue was had before the wife was seised. And so it is albeit the issue had died in the lifetime of the father before any descent of the land, yet shall he be tenant by the curtesy.

Issue hom after If a woman seised of lands in fee takes husband, and by him is enough!" pregnant, and in her travail dies, and the child is afterwards delivered alive, yet the husband shall not be tenant by the curtesy, because the child was not born during the marriage, nor in the lifetime of the wife; but in pleading he may allege that he had issue during the marriage.

* That is of a Use before the Statute, or a bare Equity, but of a Trust, the husband is now by a strange anomaly curteseablc. 1 Atk. 603.

If the wife be delivered of a monster, which hath not the shape Issue, deaf, of mankind, this is no issue in the law; but although the issue has g",rs'cZ-tesZ some deformity in any part of his body, yet if he hath human c(",tTM 'J ° shape this sufficeth. If the issue be born deaf or dumb, or both, or be born an idiot, yet it is lawful issue to make the husband tenant by the curtesy and [itself] to inherit the land.

Born alive.'] If it be born alive it is sufficient, though it be not What signs «f heard cry; for peradventure it may be born dumb. And this was v > "*"" ."• resolved in Paine's case, 8 Co. 30. For the pleading is, that during the marriage the husband had issue by his wife, and upon trial it must be proved that the issue was born alive, for dead issue is as none; and crying is but a proof that the child was born alive, which may be proved by shewing motion, stirring, or the like.

By the custom of gavelkind a man may be tenant by the curtesy Gavelkind. without having any issue. L ai

Albeit the issue after dies or lives.] And therefore if a woman Death <>f issue tenant in tail general takes a husband, and has issue, which issue ""muter'"L dies, and the wife dies without any other issue, yet the husband shall be tenant by the curtesy, albeit the estate tail be determined, because he was entitled to be tenant by the law of England before the estate tail was spent, and for that the land remaineth.

But if a woman makes a gift in tail, reserving a rent to her and Curtesy of rent. her heirs, then takes a husband and has issue, the donee dies without issue, and the wife dies, the husband shall not be tenant by the curtesy of the rent, for that the rent newly reserved is by the act of God determined, and no estate thereof remaineth. But if a man be seised in fee of a rent and makes a gift in tail general to a woman, she takes husband and has issue, the issue dies, and the wife dies without issue, he shall be tenant by the curtesy of the rent, because the rent remains.

Four requisites to curtesy.

If' the wife dies, the husband shall hold the land, <$c] Four things do belong to an estate by the curtesy, viz. marriage, seisin of the wife, issue, and death of the wife. But it is not requisite that these should concur together all at one time. And therefore, if a man takes a woman seised of lands in fee, and is disseised, and then they have issue, and the wife dies, he may enter and hold by the curtesy. So if he has issue which dies before disseisin as is aforesaid.

Curtesy begins in wife's life after issue had.

And albeit the estate [by curtesy] be not consummate until the death of the wife, yet the estate has such a beginning in the life of the wife after issue had, that it is respected in law for divers purposes. First, after issue had, he shall do homage alone, and is become tenant to the lord, and the avowry shall be made only upon the husband in the life of the wife, as shall be said hereafter when we come to the apt place.

Effect of husband's alienation*

Secondly, if after issue the husband makes a feoffment in fee, and the wife dies, the feoffee shall hold it during the life of the husband, and the heir of the wife shall not during his life recover it in any real action; for it could not be a forfeiture, because the estate, at the time of the feoffment, was an estate initiate, though not consummate.

Husband can- And it is adjudged in 29 E. 3. that the tenant by the curtesy 'usymZtakea cannot claim by a devise, and waive the estate by the curtesy, belije estate by cause, says the book, the freehold commenced in him before the devise for term of his life.

Scotland.
Ireland.

In England only."] It is also used within the realm of Scotland, and there it is called Curialitas Scotia. And so it is in the realm of Ireland.

Curtesy allowed of Joint tenancy with several inheritances but not dower.

And some have said, that in divers cases a man shall, by having issue, be tenant by the curtesy where a woman shall not be endowed. And therefore they say, if lands be given to two women and to the heirs of their two bodies begotten, and one of them takes husband and has issue and dies, the inheritances being several, the husband shall be tenant by the curtesy, as it is adjudged 7 E. 3, and in other books this judgment is cited and allowed. But certain

it is, that if land be given to two men and to the heirs of their two bodies begotten, and the one takes a wife and dies, she shall not be endowed, for no estate in the land is altered by that marriage. But I leave the reader to his own opinion, or rather to suspend it until he comes to the proper place in the next chapter. \_o0b]

A woman takes husband, and has issue, lands descend to the if wife dies«« wife, the husband enters, and after the wife is found an idiot by iost.' office, the lands shall be seised by the king, for the title of the tenancy by the curtesy and of the king begin at one instant, and the title of the king shall be preferred.

A man shall be tenant by the curtesy of a castle which serves Curtesy ofcastle for the public defence of the realm, but a woman shall not be endowed thereof, as shall be said more at large hereafter. A man shall be tenant by the curtesy of a common sans nombre, but a woman shall not be endowed thereof, because it cannot be divided. A man shall be tenant by the curtesy of a house that is Caput BaronuE or Comitaius: but it appears by 4 H. 3, Dower 180, that a woman shall not be endowed of it, for the law respects honour and order.

A man entitled to be tenant by curtesy makes a feoffment Husband's in fee upon condition, and enters for the condition broken, and condition dethen his wife dies, he shall not be tenant by the curtesy, because '^e\h" albeit the estate given by the feoffment be conditional, yet [the estate taken back was absolute] and the estate comprised in the feoffment was the entire curtesy which by the feoffment became absolutely extinct [and could not be revested by the condition], for the condition was not annexed to it [the curtesy, but to the estate conveyed]. As if the lord disseise the tenant, then makes a feoffment in fee of the land upon condition, and enters for the condition broken, yet the seigniory is extinct [in that particular land] for that was inclusively extinct by the feoffment [and could not be restored by entry on breach of the condition]. See more of tenant by curtesy, Section 52.

CHAPTER V. Section 36.

OF DOWER.

Dower is the wife's third of her husband's lands for her life.

Tenant in dower is, where a man is seised of certain lands or tenements in fee-simple, fee-tail general, or as heir in special tail, and lakes a wife, and dies, the wife after the decease of her husband shall be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, to have and to hold to the same wife in severalty by metes and bounds for term of her life, whether she had issue by her husband or no, and of what age soever the wife be; so that she be past tlie age of nine years at the time of the death of her husband, otherwise she shall not be endowed.

Three essentials to this estate.

[31a]

Tenant in doweri] Dower by the common law is allowed to the wife for the sustenance of herself and the nurture and education of her children. To the consummation of dower three things are necessary; viz. marriage, seisin, and death of her husband.

/(is held free of taies nud crown debts.

Dos or dower, as the name imports, is in itself a freedom, and the tenant in dower has many privileges, as to be quit and free of all talliage or tax. And tenant in dower shall not be distrained for the husband's crown debt. And other privileges she has; of all which Ockam yields the reason, doti ejus parcatur quia premium pudoris est.

Husband, alien or traitor no doner; contra if an idiot, outlaw, or felon.

Where a man.'] If the husband be an alien the wife shall not be endowed. But the wife of an idiot, non compos mentis, or person outlawed, or attainted of felony or trespass, of heresy, pramunire, or the like, shall be endowed. But if the husband be attainted of treason, albeit it be treason done after the title of dower [has attached] she shall not be endowed, as shall be said hereafter.

Seised,] Here this word (seised) extends itself as well to a seisin Seisin in law in law, or a civil seisin, as to a seisin in deed, which is a natural iU.v'c'entseisin: but seised he must be either the one way or the other during the coverture. For note, a woman shall be endowed of a seisin in law. As where lands or tenements descend to the husband, before entry, he has but a seisin in law, and yet the wife shall be endowed, albeit it be not reduced to an actual possession, for it lies not in the power of the wife to bring it to an actual seisin, as the husband may do of his wife's land when he is to be tenant by the curtesy, which is worthy of observation.

And yet of every seisin in law, or [indeed of every] actual seisin of Xodowrrrf lands or tenements, a woman shall not be endowed. For example, scent, comTM if there be grandfather, father, and son, and the grandfather is ""P"'''"' seised of three acres of land in fee, and takes wife, and dies, this J[ _

land descends to the father, who dies either before or after entry, j.

now is the wife of the father dowable. The father dies, and the wife of the grandfather is endowed of one acre and dies, the wife of the father shall be endowed only of the two acres residue, for the dower of the grandmother is paramount the title of the wife of the father, and the seisin of the father which descended to him (be it in law or actual) is defeated, and now upon the matter the father had but a reversion expectant upon a freehold, and in that case, dos de dote peti non debet; although the wife of the grandfather dies living the father's wife. And here note a diversity between a descent and a purchase. For in the case aforesaid, if the grandfather had infeoffed the father, or made a gift in tail unto him, there in the case abovesaid, the wife of the father, after the decease of the grandfather's wife, should have been endowed of that part assigned to the grandmother, and the reason of this diversity is, for [31 b] that the seisin, that descended after the decease of the grandfather to the father, is avoided by the endowment of the grandmother, whose title was consummate by the death of the grandfather; but in the case of the purchase or gift, that took effect in the life of the grandfather (before the title of dower of the grandmother was consummate), [and] is not [entirely] defeated [by the first dower], but only quoad the grandmother, and in that case there shall be dos de dote.

And yet there is another diversity where the wife of the father or ifihefint is first endowed, and where the wife of the grandfather; for in that IiSJIg„<>d.

case, if after the decease of the grandfather and father the son enters and endows his mother of a third part, against whom the grandmother recovers a third part and dies, the mother shall enter again into the land recovered by the grandmother, because she had in it an estate for term of her life, and the estate for the life of the grandmother is lesser in the eye of the law, as to her, than [an estate for] her own life. [See further, 2 Vern. 403.]

Of dower on an exchange.

Also the husband may be seised in his demesne as of fee absolutely, yet the woman shall not be endowed, as she shall not be endowed both of the land given in exchange and of the land taken in exchange, and yet the husband was seised of both, but she may have her election to be endowed of which she will.

Momentary seisin nvt enough.

Also of a seisin for an instant a woman shall not be endowed; as if cestuique use, after the statute of 1 R. 3. and before the statute of 27 H. 8, had made a feoffment in fee, his wife should not be endowed. Likewise if two joint-tenants be in fee, and the one makes a feoffment in fee, his wife shall not be endowed. And so if the conusee of a fine grants and renders the land to the conusor, the wife of the conusee shall not be endowed, for it is not possible that the husband could have endowed his wife of such a [temporary and instantaneous] estate.

Castle,mansion. Lands or tenements.] Of a castle that is maintained for the necessary defence of the realm a woman shall not be endowed, because it ought not to be divided, and the public shall be preferred before any private right. But of a castle that is only maintained for the private use and habitation of the owner, a woman shall be endowed; and of the principal mansion or capital messuage, the wife shall be endowed, but not if it be caput baronice.

Estate tail determined.

And of an estate tail in lands determined, a woman shall be endowed in the like manner and form as a man shall be tenant by the curtesy, mutatis mutandis.

Base fee. In fee-simple, fee-tail general, #c.] If a man be tenant in fee-tail

general and makes a feoffment in fee, and takes back an estate to him and to his wife and to the heirs of their two bodies, and they have issue, and the wife dies, and the husband takes another wife and dies, the [second] wife shall not be endowed, for during the cover

ture he was seised of an estate tail special, and yet the issue which the second wife had may by possibility have inherited [the estate tail general]. The same law is, if [the husband] in this case had taken back an estate in fee-simple, and afterwards had taken a wife and had issue by her [and died leaving such issue him surviving; the wife in that case] shall not be endowed, for [the base or wrongful fee descending on the issue, he is in by his preferable rightful title under the entail and thereby] the fee-simple becomes vanished by the remitter and the issue has the land by force of the entail, [of which the husband was not seised at any time during the coverture.] But in that case the tenant cannot plead that the husband was never seised of such an estate whereof the demandant might be endowed, but he must plead the special matter.

And lakes a wife.] If a man so seised as is aforesaid, takes an Alien queen. alien to wife, and dies, she shall not be endowed; but if the king take an alien born [to wife] and dies, she shall be endowed by the law of the crown.

If a Jew born in England takes to wife a Jewess born also in Jewess. England, and the husband is converted to the Christian faith, and then purchases lands, and enfeoffs another, and dies, the wife shall not be endowed unless she also be converted.

By metes and bounds.] Albeit of many inheritances that be Mill, fair, entire, whereof no division can be made by metes and bounds, [and wn, tithes, %c. where therefore] a woman cannot be endowed of the thing itself, [32a] yet she shall be endowed thereof in a special and certain manner. As of a mill, [or rather of the tolls of an ancient mill where by custom all the tenants of a manor are bound to grind their corn, allowing the miller a certain dish full of flour for the use of his mill,—of such a mill] a woman shall not be endowed by metes and bounds, nor in common with the heir, but either she may be endowed of the third toll-dish, or of the whole mill every third month. And a woman shall be endowed of the third part of the profits of a fair, of the third part of the profits of the office of marshalsea, of the third part of the profit of a dove-house, and likewise of the third part of a piscary, viz. every third fish or every third throw of the net. Also of the third presentation to an advowson, and of the third part of profits of courts, fines, heriots, 8tc. Also a woman

shall be endowed of tithes : and the surest endowment of tithes is of the third sheaf; for what land shall be sown is uncertain.

Husband's lease But in some cases of lands and tenements, which are divisible, iZrria'e de- and which the heir of the husband shall inherit, yet the wife shall prwes uije oj t ^e en(jowe(j, As if the husband makes a lease for life of certain

dower; contra

of lease for years lands, reserving a rent to him and his heirs, and then takes wife

or rent intuit. .

and dies, the wife shall not be endowed, neither of the reversion (albeit a reversion is within Littleton's definition of a tenement) because there was no seisin in deed or in law of the freehold [during coverture], nor of the rent, because the husband had but a particular estate therein, and no fee-simple. But if the husband makes a lease for years, reserving a rent, and takes a wife and dies, the wife shall be endowed of the third part of the reversion by metes and bounds, together with the third part of the rent, and execution shall not cease during the years. And herewith agrees the common experience at this day. But if the husband makes a gift in tail, reserving a rent to him and to his heirs, and afterwards the donor takes wife and dies, the wife shall be endowed of this rent, because it is a rent in fee, and by possibility may continue for ever.

Common. Rent. Of a common certain a woman shall be endowed, but of a com'""" •"' mon sans nombre en grosse she shall not be endowed, as hath been

said before. And so of a rent service, rent charge, and rent seek, she shall be endowed: but of an annuity, (which charges only the person and issues not out of any lands or tenements) she shall not be endowed. But if the freehold of the rents, common, &c. were suspended before the coverture, and so continue during the coverture, she shall not be endowed of them. [But if the freehold be not suspended before the coverture and] after the coverture the husband extinguishes the [rent common &c] by release or otherwise, yet shall the wife be endowed; for as to her dower [these things] in the eye of the law have continuance.

improved value If the wife be entitled to have dower of three acres of marsh, Jth'e'ratse"6" eacn acie bemg °^ tne value of twelve pence, and the heir by his industry and charge makes it good meadow and improves the value of each acre to ten shillings, the wife shall have her dower according to the improved value, and not according to the value as it was in her husband's time: for her title is to the quantity of the land, viz. one just third part. And the like law it is if the heir improve the value of the land by building: and on the other side, if the value be impaired in the time of the heir, she shall be endowed according to the value at the time of the assignment, and not according to the value as it was in the time of her husband.

Any time during the coverture.] For the better understanding of Marriage must this it is to be remembered, that to dower three things belong, ^i',""e«z"n*. viz. marriage, seisin, and death of the husband. Concerning the Divttr"seisin, it is not necessary that the same should continue during the coverture, for albeit the husband aliens the lands or tenements, or extinguishes the rents or commons, &c. yet the woman shall be endowed. But it is necessary that the marriage do continue, for if that be dissolved the dower ceases, ubi nullum matrimonium, ibi nulla dos. But this is to be understood when the husband and wife are divorced a vinculo matrimonii, as in case of precontract, consanguinity, affinity, &c. and not a* mensa et t/ioro only, as for adultery. And yet it is said, that if the assignment of dower ad ostium ecclesiee be specified, viz. that notwithstanding any divorce shall happen yet that she shall hold it for life, that this is good.

If the wife elope from her husband, that is, if the wife leave her Elopement and husband, and goes away and tarries away with her adulterer, she shall lose her dower until her husband willingly without coercion [326] or ecclesiastical censure be reconciled to her and permit her to cohabit with him. And if she goes willingly with or to the adulterer, this is a departure and a tarrying, albeit she remains not continually with the adulterer, or if she tarries with him against her will, or if he turn her away, or if she cohabit with her husband by the censures of the chinch, in all these cases she loses her dowry.

In severalty by metes and bounds.] This means where the husband Metes and

has a sole possession in severalty, as well as a sole seisin, for if he „<," ta'tenancy

fee-seised in common, there the wife cannot be endowed by metes ">c°»»<"»>and bounds, as appears in this chapter, Sect. 44.

IJfote, the endowment by metes and bounds, according to the Dowress takes, common right, is more beneficial to the wife, than to be endowed „,/„,( incumagainst common right [as ad ostium ecclesite] for there she shall hold branceu

the land charged with incumbrances made after her title to dower [has occurred, but where she is endowed of common right she takes paramount incumbrances].

Writ of dower; Whether she has issue by her husband or no.] Herein the tenant damans. ' ' in dower, as in many other cases, is preferred before the tenant by curtesy; but yet this great disadvantage the wife has, that she cannot enter into her dower by common law, but is driven to her writ of dower to recover the same, wherein sometimes great delays are used, and therefore the well-advised friends of the wife will provide for a jointure to be made to her, as shall be said hereafter. By the statute of Magna Charta, cap. 7, it is provided that she shall tarry in the chief house of her husband but forty days after his death, within which time dower shall be assigned unto her; but of little effect was that act, for no penalty is thereby provided if it be not done: which term of forty days is in law called Quarantine. But if she marry within the forty days, she loses her quarantine. And by the statute of Merton, 20 H. 3, c. 1, it is provided that the wife shall recover damages in her writ of dower from the time of the death of her husband. But herein divers things are observable. 1st. She shall recover no damages in a writ of right of dower, but only in a writ of dower. 2dly. She shall recover damages only when her husband dies seised of the freehold and inheritance, which a lease for life prevents but not a lease for years. 3dly. If she delay the writ herself, she shall not recover damages, hence, 4thly. It is necessary for the wife to demand her dower as soon as she can before good testimony, for otherwise she may by her own default lose the value and her damages. For if she bring a writ of dower against the heir, and he comes into court and pleads that he has been always ready and yet is to render dower &c. if the wife has not requested her dower, she shall lose the mean values and her damages; but if she has requested her dower, she may [33 a] plead it, and issue may be thereupon taken. 6thly. This statute of Merton extends to copyholds, where the custom is that women be dowable. 7thly. If the wife has dower assigned unto her in chancery she shall have no damages.

Estoppel by ac- So it is if the heir or his feoffee assign dower, and the wife ac

TnpzWoTm* cepts it, she loses her damages. A man seised of lands in fee,

record. takes a wife and grants a rent charge, and after makes a feoffment

in fee, and takes back an estate tail and dies, the wife recovers dower against the issue in tail by reddition, the wife makes a surmise that her husband died seised, and prays a writ to enquire of the damages, and that is granted to her. In this case she holds the land charged with the rent charge, for by her prayer she accepts herself dowable of the second estate, for of the first estate, whereof she was dowable, her husband died not seised, and so she has concluded herself; wherefore if the rent charge be more to her detriment than the damages are beneficial to her, it is-good for her in that case to make no such prayer.

Of what age soever the wife be, so as she be above the age of nine Of the wife't years at the time of the death of her husband.] Therefore if the wife "ge' be past the age of nine years at the time of the death of her husband, she shall be endowed, of what age soever her husband be, although he be but four years old. Wherein it is to be observed, that albeit Consensus non concubitus facil matrimonium, and that a woman cannot consent before twelve, nor a man before fourteen, yet this inchoate and imperfect marriage (from the which either of the parties at the age of consent may disagree) shall, after the death of the husband, give dower to the wife, [the possibility of Voidable mardissent being then taken away] and therefore this, after the death anuuiudafter of the husband, is accounted a lawful marriage as to dower, and %£?„?""" the bishop upon issue joined in a writ of dower, Quod nunquam fuerunt copulati legitime matrimonio, ought to certify that they were coupled in lawful marriage, albeit the man were under fourteen, or the wife above nine and under twelve. So it is if a marriage de facto be voidable by divorce, in respect of consanguinity, affinity, precontract, or such like, whereby the marriage might have been dissolved, and the parties freed a vinculo matrimonii yet if the husband die before any divorce, then, for that it cannot now be avoided, this wife de facto shall be endowed; for this is legitimist matrimonium (as in the other case when the wife is infra [336] annos nubi/es) quoad dotem. And so in a writ of dower the bishop ought to certify, that they were legitimo matrimonio copulati, according to the words of the writ.

But if they were divorced a vinculo matrimonii in the life of her Divorce a husband, she loses her dower : otherwise it is if they were divorced causa aditlterii, which is but a mensd et thoro, and not o vinculo matrimonii.

Wife attainted offelony. Pardon.

If the husband alien his land, and the wife is attainted of felony, now is she disabled [to claim dower], but if she be pardoned before the death of the husband, she shall be endowed.

Wife an alien. Effect of denitation and naturalisation.

But otherwise it is of an original absolute disability; as if a man take an alien to wife, and after the husband aliens the land, and then the wife is made denizen, and the husband dies, she shall not be endowed, because her capacity and possibility to be endowed came [subsequent to the marriage] by the [act of] denization. Otherwise it is if she were naturalized by act of parliament, whereof see more in the Chapter of Villenage.

Civil death. After the decease of her husband.'] This is intended of a natural,

not of a civil death. For if the husband enter in religion, the wife shall not be endowed until he be naturally dead.

Different lorti of dower.

And in this chapter Littleton divides dower into five parts, viz. dower by the common law. 2d. Dower by the custom. 3d. Dower ad ostium ecclesitz. 4th. Dower ex assensu patris. And 6th. Dower de la pluis beale. And all these dowers were instituted for the competent livelihood of the wife during her life, and the education of her children by the man she has married.

Section 37. Dower by cus- And note, that by the common law the wife shall have for her

torn may be of . . j,

half or the dower but the third part of the tenements tohich were her husband's dwing the espousals; but by the custom of some county, she shall have the half, and by the custom in some towns and boroughs she shall have the whole ,• and in all these cases she shall be called tenant in dower.

or a fourth only.

And as custom may enlarge, so may it abridge dower and restrain it to a fourtb*part, 8cc.

Gavelkind.

By the custom of gavelkind the wife shall be endowed of a moiety, so long as she keeps herself sole, and without child; which she cannot waive and take her thirds for her life. For in this case,

consuetudo tollit communem legem.

Section 38. [34a]

Also, there be two other kinds of dower, viz. dower at the church Jointures at

** . . Common Law.

door, and dowers by the fathers consent [which dowers are in the

nature of jointures at the common law.]

Section 39.

Dower at the church door is, where a man of full age seised in Dower at fee-timple, 1ms agreed to be married to a woman, and when he comes ° u"tc_ oor' to the church door to be married, there, after affiance and troth plighted between them, he endows the woman of his whole land, or of the half, or other lesser part thereof, and there openly does declare the quantity and the certainty of the land whichshe shall have for her dower. In this case the wife, after the death of the husband, may enter into the said quantity of land of which her husband endowed her, without any other assignment.

Where a man of full age."] That is, of one and twenty years. The *"*"«* A man of the age of eighteen years took a wife, and by assent of his guardian endowed her ad ostium ecclesite, and it was adjudged a good endowment, albeit the husband died before the age of one and twenty years; but I hold Littleton's opinion to be good law, [and the above endowment by assent of guardian not binding.]

There, after affiance between them.] But this dower is good with- '• "g ** wUkm out deed, because [it does not arise and cannot exist till after the marriage solemnised] and then the husband cannot make a deed to his wife. And no assignment of dower at common law can be made ad ostium ecclesia before marriage, for before marriage the woman is not entitled to dower.

And there openly does declare the quantity and certainty of the Law deiighujn land.] Here are two things that the law delights in, viz. 1st. iwM<rit.v. To have this and the like openly and solemnly done. 2dly. To LJ4&J have certainty, which is the mother of quiet and repose. And this word (moiety) abovesaid is to be intended of the half in certainty,

and not of a moiety in common, which clearly appears in that here Littleton says, the quantity and certainty of the land.

Quarantine lost If the wife marry within the forty days she loses her quarantine, by marriage. fQT J^i. habitation in the house is personal to her, and only given to

her in judgment of law during her widowhood albeit the words of

the law are general.

Dowress cannot If a woman bring a writ of dower of a six pounds rent charge, ZTdei'Sed"' and has judgment to recover a third part, albeit it be certain that bytLeritf. she siian have forty shillings, yet she cannot distrain for forty

shillings, before the sheriff has delivered the same unto her: for wheresoever the writ demands land, rent, or other things in certain, the demandant after judgment may enter or distrain before any seisin delivered to him by the sheriff upon a writ of habere facias seisinam. But in dower where the writ demands nothing in certain, there the demandant after the judgment cannot enter or distrain until execution sued, by which execution the sheriff is by the king's writ to deliver the third part in certainty to the demandant. And so it is when the wife of one tenant in common demands a third part of a moiety, yet after judgment she cannot enter until the sheriff deliver to her the third part, albeit the delivery of the sheriff shall reduce it to no more certainty than it was.

Requisites to Without other assignment.] For as concerning dower at the

"iottfr."""' common law, there must be assignment either by the sheriff (as hath been said), by the king's writ, or else by the heir or other tenant of the land by consent and agreement between them. To a perfect assignment of dower several things are to be observed: 1st. It must be certain. 2dly. It must be either of some part of the land whereof the wife is dcwable, or of a rent or some other profit issuing out of it. 3dly. The assignment must be absolute, not conditional, or subject to any limitation. And 4thly. It must be made by him that is tenant, or has the freehold of the land.

When husband'i If two or more joint-tenants of lands [that is, if the husband has assigndT'-11 aliened to two or more in joint-tenancy in fee], one of them may The one for the assign dower to his wife of a third part in certainty, and this shall

other if them. ° . r , i_

[35a] bind his companions, because they were compellable to do the same by law. But if one of them assign a rent out of the land to the wife, this shall not bind his companion, because he was not compellable by the law thereunto. If the husband make several feoffments of several parcels and dies, and the one feoffee assigns dower to the wife in satisfaction of all, the other feoffee shall not take advantage of this assignment, because they are strangers thereunto, and cannot plead the same. But in that case if the husband dies seised of other lands in fee-simple, and the same descend, to his heirs, and the heir endows the wife of certain of those lands in full satisfaction of all the dower that she ought to have, as well in the lands of the feoffees as in his own lands, this assignment is good, and the several feoffees may take advantage of it.

Section 40.

Dower by assent of the father is, where the father is seised of Voweteimtenements in fee, and his son and heir apparent, when he is mar- HnmPatTM' ried, endows his wife at the monastery or church door, of parcel of his father's lands or tenements with the assent of his father, and assigns the quantity and parcels. In this case after the death of the son, the wife shall enter into the same parcel without any assignment. But it has been said in this case, it behoves the wife to have a deed from the father to prove his assent and consent to this endowment.

Where the father is seised of tenements in fee.] Tenant for life of Must be of an a parcel of land, the reversion to the father in fee, the son and heir '*'"•„„'" v°t' apparent of the father endows his wife of this land by the assent of the father, the tenant for life dies, the husband dies, the reversion was a tenement in the father, and yet this is no good endowment ex assensu patris, because the father at the time of the assent had but a reversion expectant upon a freehold, whereof he could not have endowed his own wife; and albeit the tenant for life died, living the husband, yet quod initio non valet, tractu temporis twn convalescet. And for the most part, dower ad ostium ecclesiec and [35 J] ex assensu patris, ensue the nature of dower at the common law. And for these the wife may have a writ of dower, albeit they be certain, as well as for her third part at common law.

And his son and heir apparent.] It must be such a son and heir Heir must be

apparent as must continue heir apparent [that is he must not be ''IreZmptive"!

heir presumptive], and therefore the youngest son and heir apparent Gavelkind.

Boro' English, cannot endow his wife ex assensu pat?is, of lands whereof the father triaasscnsu fra' is seised in fee of the nature of borough English, because the father may have another son, and then the husband is not heir apparent: and it is in respect of the constant and perpetual apparency, that the son and heir apparent may endow his wife of his father's lands. And so it is of lands in gavelkind; and this is the reason that dower ex assensu fratris is not good$ for albeit [the brother be] heir apparent at the time, yet by possibility [his brother] may have issue, which would exclude the heir presumptive. But an endowment ex assensu matris, is as good as ex assensu patris, because in that case there may be an apparency of a constant and perpetual heir. And some have said, that if the, father after his assent be attainted of treason or felony, that the [son's] wife in that case loses her dower, because her husband does not continue heir [to his father, the corruption of blood destroying that continuity.]

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The endowment When he is manied endows his wife.] In this case, albeit the free"h Vfaiher% hold and inheritance is in the father, yet in respect (as hath been said) of the constant and perpetual apparency of the heir, the heir apparent does endow, and the father does but assent. And therefore where the father endows his son's wife, there the endowment was held void, because the husband is to endow and the father [only to] assent.

He need not be

And it is holden in 2 H. 3. Dower, 199. That if the heir apparent be within age, yet the endowment ex assensu patris is good. Note, Littleton in the case of dower ad ostium ecclesia, puts the husband of full age, but here of the dower ex assensu patris he speaks generally.

but the land must be set out.

And assigns the quantity and parcels..] So as both in dower ad ostium ecclesia, et ex assensu patris, the certainty must be expressed. And therefore where books speak of a moiety, it is intended (as hath been said) of half in certainty.

Wife may enter After the death oj the son, the wife shall enter.] In this case after ti£H *Ufi. the death of the husband the wife shall enter, or have writ of dower albeit the father be alive.

Ten essentials to a deed.

It behoveth the wife to have a deed from the father to prove his assent to this endowment.] This word (deed) in the understanding

of the common law is an instrument written on parchment or paper, whereunto ten things are necessarily incident: viz. First, writing. Second, on parchment or paper. Third, a person able to contract. Fourth, by a sufficient name. Fifth, a person able to be contracted with. Sixth, by a sufficient name. Seventh, a thing to be contracted for. Eighth, apt words required by law. Ninth, sealing. And tenth, delivery.

A deed cannot be written upon wood, leather, cloth, or the like, On leather, %c. but only upon parchment or paper, for the writing upon them can '"TM mmt' be least vitiated, altered, or corrupted; and if the deed be enrolled according to the statute of 27 Hen. 8. cap. 10. it must be enrolled in parchment for the strength and continuance thereof, and not in paper, and so it was resolved in parliament by the judges in anno 23Eliz.

If a deed be alleged in a count or plea, regularly it must be Vnfert reshewn to the court, to the end the court may judge whether there qJ^J,ad\d. be apt words to make it a good contract according to law, whereof more shall be said in the Chapter of Conditions. But if non est factum be pleaded, because thereby the sealing, delivery, or other matter of fact is denied, it shall be tried by the country; [i. e. by a jury.]

If a man deliver a writing sealed, to the party to whom it is Deed, delivery. made, as an escrow to be his deed upon certain conditions, &c. [36 al this is an absolute delivery of the deed, being made to the party himself, for the delivery is sufficient without the utterance of any words, otherwise a man that is mute could not deliver a deed: tradition [or delivery] is the only requisite, and then if the words are contrary to the act the words are not of any effect, non quod dictum e»f, sed quod factum est inspicitur. But [a deed] may be delivered to a stranger, as an escrow, 8tc. because the bare act of delivery to [a person who is no party] without words works nothing. And as a deed may be delivered to the party without words, so may a deed be delivered by words without any [formal] act of delivery, as if the writing sealed lies upon the table, and the feoffor or obligor says to the feoffee or obligee, "Go and take up that writing, it is sufficient for you;" or, " it will serve your turn;" or, "Take it as my deed;" or the like words; either is a sufficient delivery.

nu dower may An assignment of dower, either ad ostium ecclesiee, or ex assensn

a'thirl"'tthan Vatris, may be made of morC than a third part' Btlt tUe ancient

law was, that no greater assignment could be made in those cases but of a third part, but less might, as appears in Glanvill.

Section 41.

Widow may reject dower, niinsfmmandiu assensu, and claim dower at Common Law.

An D if after the death of her husband she enters and agrees to such dower at the church door, &c. then she is concluded to claim any other dower by the common law of any [other] lands or tenements which were her husband's. But if she will, she may refuse such dower at the church door &c. and then shall she be endowed after the course of the common law.

Estoppel by acceptance of jointure or dineer.

[366]

She is concluded to claim any other dower by the common law.] Wherein a diversity is to be observed between a dower ad ostium ecclesiee, or ex assensu patris, and a jointure or estate made to the wife in satisfaction of her dower. [If] dower [ad ostium or ex assensn] be assented to, [after the husband's death, that] is a bar to dower at the common law, for a woman cannot have double dower, one by the common law and the other ad ostium, &c. but a jointure [even if assented to] was no bar of dower at the common law [before the statute of jointures], for a right or title that one has to a freehold cannot be barred by acceptance of a collateral satisfaction.

.Su requisites to jointure.

. But since Littleton wrote, by the statute of 27 H. 8, if a jointure be made to the wife [before marriage], according to that statute it is [such] a bar of dower as that the woman shall not have both jointure and dower [and if she accepts the jointure before marriage, then can she not claim dower.] But to the making of a perfect jointure within that statute six things are to be observed. First, Her jointure [must be a primary] limitation [of freehold, infra] to take effect in possession or profit for her life at least presently after the decease of her husband. Second, it must be for the term of her own life, or [for some] greater estate. Third, it must be made to herself, and to no other for her. Fourth, it must be made in satisfaction of her whole dower, and not of part of it. Fifth, it must be either expressed or averred to be in satisfaction of her dower. And sixth, it may be made either before or after marriage.— Concerning the first, if a man make a feoffment in fee of lands or tenements either before or after marriage to the use of the husband for life, and after to the use of A. for life, and then to the use of the wife for life in satisfaction of her dower, this is no jointure within the statute,, because by the first limitation it was not to take effect in possession or profit presently after the death of her husband. And albeit in that case A. should die living the husband, and after the death of the husband the wife enters, yet this is no bar of her dower, but she shall have her dower also, because it is not within the said statute, and (as hath been said) by the common law jointure is no bar of dower. 2. It must be either in fee-tail, or for term of her own life; an estate for the bfe or lives of one or many other persons, or to her for a hundred or a thousand years, &c. if she lives so long, is no good bar of dower, albeit they be expressly made in satisfaction of dower, causa qua supra [i. e. they are less estates than an estate for her own life]. 3. If an estate be made to others in fee-simple in trust for her for life, so that the estate remains in them, albeit it be for her benefit and by her assent and be expressed to be in full satisfaction of dower, yet is this no bar of dower, [because it is not made to the wife herself]. The 4th is so plain that it needs not any example. 5. A devise by will cannot be averred to be in satisfaction of dower, unless it be so expressed in the will. 6. If the jointure be made Jointure before

•/- • aud tijter mar

before marriage, the wife cannot waive it and claim her dower at riage distinthe common law; but if it be made after marriage, she may waive guts the same and claim her dower. I have touched these points the more summarily, because they are resolved at large with the reasons thereof in Vernon's case, 4 Co. 1. So to comprehend all in few words,—A jointure (which in common understanding extends as well to a sole estate as to a joint estate with her husband) is a competent livelihood offreehold for the wife of lands or tenements, &c. to take effect presently in possession or profit after the decease of her husband for the life of the wife at least, provided she herself be not the cause of determination or forfeiture of it. If a jointure be made to a wife before coverture, and afterwards the husband and wife alien the lands by fine, she shall not be endowed of any other lands of her husband, [for she accepted the jointure in full satisfaction of all dower]. But if the jointure had been made after marriage, notwithstanding the alienation by the husband and wife thereof by fine, yet seeing her estate was originally waivable, and

the time of her election came not till after the decease of her husband, she may claim her dower in the residue of his lands. But in the other case, the jointure of the wife made before marriage was not waivable at all.

Treason and Now, as dower ad ostium ecclesia and ex assensu patris is better for

felony what

effect on jointure the wife than dower at common law, because in respect of the certainty she may enter and is not driven to her real action, so a jointure is more sure and safe for the wife, for besides an equal [37 a] certainty, she shall not be barred of her jointure albeit her husband commit treason or felony, as she would be of both her dower ad ostium ecclesia, and ex assensu patris by the common law. But now at this day by the statutes of 1 £. 6. cap. 12, and 5 E, 6. cap. 11, a wife shall not lose any title of dower which to her has accrued, by the attainder of her husband by any manner of murder or other felony whatsoever. But if the husband be attainted of high treason or petit treason she shall be barred of her dower at this day, so long as that attainder stands in force.

Etymology of Concluded, comes of the verb concludo, which is derived of con and "ppe claudo, to determine, to finish, to shut up, to estop or bar a man to

plead or claim any other thing.

Section 42.

Heir must bo And note, that no wife shall be endowed ex assensu patris inform rp n aforesaid, but where her husband is son and heir apparent to his father.

Section 43.

Assignment And note, that in all cases, where the certainty appears what husbaad%W Cn lands or tenements the wife shall have for her dower, there the estate is held in wifi may enfer after the death of her husband without any assiqn

common, or the w * J * J J

lands in dower ment. But where the certainty appears not, as to be endowed of are not set out. ...... . . . , , ,. ,

the third part to have m severalty, or the moiety according to the

custom to hold in severalty, in such cases it is necessary that her

dower be assigned to her after the death of her husband; because it does not appear before assignment what part of the lands or tenements she shall have for her dower.

As if a woman bring a writ of dower of three shillings rent, albeit she ought to be endowed of one shilling, yet cannot Bhe after judgment distrain for twelve pence before assignment, because the demand was uncertain. And so it is if two tenants in [37 £] common be, and the wife of one of them bring a writ of dower to be endowed of a third part of a moiety, and have judgment to recover, yet cannot she enter without assignment, albeit the assignment cannot give her any certainty, because her husband's estate was uncertain. See more of this before, Section 39.

Section 44.

But if there be two joint tenants of certain lands in fee, and tlie wife of tenant one aliens that which to him belongs, to another in fee, who takes a TMJ^TMme *ife, and dies; in this case tlie wife for her dower shall have dower Mt ont* the third part of the moiety which her husband purchased, to hold in common fas Iter part amounts) with the heir of her husband, and with the other joint tenant, who did not alien, for that in this case her dower cannot be assigned by metes and bounds.

In this case the wife cannot enter without assignment, of which sufficient has been said before.

Section 45.

And it is to be understood, that the wife shall not be endowed of No dower of lands or tenements which her husband holds jointly with another i0,ni tenancy* nt the time of his death; but otherwise it is where lie holds in common, as in the case next abovesaid.

The reason of this diversity is, for that the joint tenant who survives, claims the land by the feoffment and by survivorship, which is above the title of dower, and he may plead the feoffment made to himself without naming his companion that died; but Contraofte

. ..,.. , . , . nanci/ in com

tenants in common have several freeholds and inheritances, and

tnon.

their moieties shall descend to their several heirs, and therefore their wives shall be endowed.

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Tenant in tail And it is to be understood, that if tenant in tail endows his wife cannot jointure a( tjte cnurcn door, as is aforesaid, this shall avail her little or

by Common

Law or Statute, nothing, for after the husband's decease the issue in tail may enter upon the widow's possession; and so may he in the reversion, if there be no issue in tail then alive.

The reason of this is, for that the tenant in tail is restrained by the statute of 13 E. 1. de donis conditioiialibus [from any alienation which shall bind the issue; so that if the tenant in tail makes a jointure it may be defeated by the issue.]

Section 47.

Infant cannot give dower ad ostium, but he may ei assensu valrii.

Also, if a man seised in fee-simple, being within age, endows his wife at the monastery or church door, and dies, and his wife enters, in this case the heir of the husband may oust her. But otherwise it is (as it seems) where the father is seised in fee, and the son within age endows his wife ex assensu patris, the father being then of full age.

The reason of this diversity is, for that in the first case the husband within age is seised, and therefore he being within age cannot by a voluntary act bind himself; otherwise it is, where he does an act whereunto he is compellable by law: but in the latter case the father who gives the assent [and who is adult] is seised of the freehold and inheritance, and the son therein has nothing, and therefore his heir shall not avoid it in respect of his infancy.

Section 48.

Dower de la plus beale.

Also, there is another dower, which is called endowment de la pluis beale. [And this is where a man has lands in socage and

lands in knight's service, and dies, leaving a son within age and a widow, she shall take her dower wholly out of the lands in socage, in relief of the lord who ivas entitled to be guardian in chivalry; for knight service, being instituted for tlie defence of the realm was highly favoured, and should not be dismembered where it could be avoided.]

Section 52. [40a]

An D memorandum, that in every case where a man takes a wife To curtesy the seised of such an estate [in lands or] tenements as the issue which !5sue h.ad'must

u u J be such as can

lie has by his tvife may by possibility inherit, in that case, after the in.herit the decease of the tvife, he shall have the same tenements by the curtesy of England, but otherwise not.

If a man takes a wife seised of lands or tenements in fee, and iaue before has issue, and after the wife is attainted of felony so that the issue ,»i/«'s""<"'»<?«

. J gives curtesy,

cannot inherit her estate, yet he shall be tenant by the curtesy in contra i/after, respect of the issue which he had before the felony and which by possibility might then have inherited. But if the wife had been attainted of felony before the issue, albeit he has issue afterward, he shall not be tenant by the curtesy.

Section 53.

Also, in every case where a woman takes a husband seised of an To dower, th, tstate in [lands or] tenements, and by possibility it may happen ^^3 that the wife may fiave issue by her husband, which issue may t'n- coul1' inherit herit the same estate as heir to her husband, there the wife shall esTate?'"' have dower of such lands or tenements, but otherwise not. For if tenements be given to a man and to the heirs which he shall beget of the body of his wife, in this case the wife has nothing in the tenements, and the husband has an estate as donee in special tail. Yet if the husband die without issue, the same wife shall be endowed of the same tenements; because the issue, which she by possibility *ught have had by the same husband, might have inherited the same tenements. But if the wife dies, living her husband, and afterwards the husband takes another wife, and dies, his second *ife shall not be endowed in this case for the reason aforesaid.

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Albeit the wife be a hundred years old, or the husband at his death be but four or seven years old, so that there is no common probability of issue between them, yet the law saith, that if the wife be above the age of nine years at the death of her husband, she shall be endowed, and seeing that women in ancient times have had children at an age whereunto no woman doth now attain, the law cannot judge that impossible, which by nature was possible. And in my time, a woman above threescore years old has had a child, and ideo non definitur in jure. And for the husband's being of such tender years, he has habitum, though he has not potent inm at that time; and therefore his wife shall be endowed; [and if he lives long enough there is a possibility of his having issue by his wife, which possibility is all that the law regards.]

On husband's attainder wife endouable, though issue eannot inherit. E converso on wife's elopement.

Which issue may inherit.'] A man seised of land in tail general takes wife, and afterwards is attainted of felony, before the statute of 1 E. 6. the issue should have inherited, and yet the wife should not have been endowed; for the statute of W. 2. cap. 1. relieves the issue in tail, but not the wife. But at this day, if the husband be attainted of felony, the wife shall be endowed, and yet the issue shall not inherit the lands which the father had in fee-simple. If the wife elope from her husband, 8tc. she shall be barred of her dower, as hath been said, and yet the issue shall inherit.

Section 54.

It is easily perceived that this shaft came not out of Littleton's quiver of choice arrows; and therefore 1 will leave it [out].

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Effect of husband's attainder.

And note, Vavisor says, that if a man be seised of land and commils felony, and after aliens, and then is attainted, his wife shall have a good action of dower against the feoffee: but if the land be escheated to the king, or to the lord, she shall not have a writ of dower. And so see the difference and enquire what the law here

This also is a new addition, and this opinion is exploded: for it The five punuh. is clear, that the wife at the common law should not have been """'' endowed against the feoffee. For to deter and restrain men from committing of treason or felony, the law has inflicted five punishments upon him that is attainted of treason or felony. 1. He shall lose his life, and that by the infamous death of hanging between heaven and earth, as unworthy, in respect of his offence, of either. 2. His wife, who is a part of himself (et erunt aninue due. in came una) shall lose her dower. 3. His blood is corrupted, and his children cannot be heirs to him, and if he be noble or gentle before, he and all his posterity are by this attainder made ignoble. 4. He shall forfeit all his lands and tenements; and 5. all his goods and chattels; and all this is included by the law in the judgment, quodsuspendatur per collum. But this is not intended of all felonies, but only of felony by stealing of goods above the value of twelvepence, and not of petit larceny under that value. So that the woman shall lose her dower as well against the feoffee as against the lord by escheat. And the reason of this is yielded by Littleton himself in the Chapter of Warranties, Sect. 746, to the end that men should be afraid to commit felony. But at this day the wife of a man attainted of felony (as often hath been said) shall be endowed by force of the statutes in that case provided.

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Estate Tor life includes estate pur outer vie.

Ten ANT for term of life is, where a man lets lands or tenements to another for term of the life of the lessee, or for term of the life of another man. In this case the lessee is tenant for term of life. But by common speech he who holds for term of his own life, is called tenant for life, and he who holds for term of another's life is called tenant pur auter vie.

Of occupancy.

None of things lying in grant.

Or for term of another's life.] Now it is to be understood, that if the lessee in that case dies living cesluique vie (that is, he for whose life the lease was made), he that first enters shall hold the land during that other man's life, and he that so enters is within Littleton's words, viz. tenant pur auter vie, and shall be punished for waste as tenant pur auter vie, and is subject to the payment of the rent reserved, and [this person so entering] is in law called an occupant, because his title commences by his first occupation. And so if tenant for his own life grants over his estate to another, if the grantee dies [before the grantor] there the person who first enters shall be [called] an occupant. In like manner it is of an estate created by law; for if tenant by the curtesy or tenant in dower grant over his or her estate, and the grantee dies, there also shall be an occupant. But against the king there shall be no occupant, because nullum tempus occurrit regi. And therefore no man shall gain the king's land by priority of entry. There can be no occupant of any thing that lies in grant, which cannot pass without deed, because every occupant must claim by a que estate and aver the life of cestuique vie. To prevent the estate by occupancy, it is necessary to add these words (to have and to hold to him and his heirs during the life of cestuique vie), and this shall prevent [general occupancy, for the heir shall be] the occupant [as specially named], and yet the lessee may assign [the land] to whom he will [notwith

standing the limitation to heirs]; or if he has already an estate for another man's life without the word heirs, he may [to prevent a general occupancy at his death] assign his estate [over] to divers men and their heirs during the life of the cestuique vie [in trust for himself, for by probability some one of the assignees thus specially named may outlive the cestuique vie].

Note, that to every tenant for life is incident three kinds of Ettoven. estovers, viz. housbote, ploughbote, and hay bote. And these the lessee may take upon the land demised without any assignment, unless he be restrained by special covenant, for modus et conventio vincuiit legem. And the same estovers that tenant for life may have, tenant for years shall have.

You have perceived that our author divides tenant for life into Tenant for lift't two branches, viz. into tenant for term of his own life and into f^de'"."a'n tenant for term of another man's life; to this may be added a third, not a forfeiture.

," nor a surrender

viz. into an estate both for term of his own life and for term of if it beforiifo another man's life. As if a lease be made to A. to hold to him for ^ &""'"*' term of his own life and the lives of B. and C, in this case the lessee has but one freehold during his own life and the lives of two others. And herein is a diversity to be observed between several estates in several degrees, and one estate with several limitations. For in the first, an estate for a man's own life is higher than for another man's life, but in the second it is not. As if A. be tenant for life, with remainder to B. for life, A. may surrender to B., for the estate of B. for term of his own life is higher than an estate [42 a] for another man's life: [besides a particular estate is always considered a lesser estate than an estate in remainder:] and therefore if tenant for life enfeoff him in the remainder for life, this is a surrender, and no forfeiture. And albeit an estate for term of a man's own life be but one freehold, yet may several freeholds in certain cases be derived out of the same, whereof our books are very plentiful and therein you may disport yourselves for a time. As if tenant for life makes a lease by deed, or without deed, to him in remainder or reversion in tail or in fee, for the life of him in remainder or reversion [on which grant a reversion necessarily arises to the grantor for the grantee may not outlive him], and afterwards he in the remainder takes wife and dies [whereby the estate for his own life thus granted to him expires], his wife shall ■tot be endowed, for the tenant for life shall enjoy the land again

[as in his former estate and condition; and] forfeiture it cannot be, for he in the remainder was party; and surrender it cannot be, for the whole estate [of the tenant for life] was not given [i. e. there was an intermediate reversion left in the grantor which prevented a merger]. So it is, if tenant for life take husband and by deed indented they make a lease to him in the reversion for the life of the husband, reserving a rent, this is neither forfeiture nor absolute surrender, for the cause aforesaid, and the reservation is good [for there is a reversion in the tenant for life, to which distress is incident.]

Estate iui- The heir makes a lease for life, reserving a rent, against whom

reihes on dowel the wife recovers her dower and dies, the lessee shall have the land

reusing. again for life, and the rent is revived. B. seised of lands in fee,

takes to wife I. S. and infeofTs C. in fee, who takes Alice to wife:

C. dies, Alice is endowed; B. dies, I. S. recovers dower against Alice

and dies, Alice shall enjoy the land again during her life.

Tenant for life's if A. and B. are joint-tenants, A. for life and B. in fee, and they

grant Jur less # ...

than his life join in a lease for life, A. has a reversion, and shall join in an action

version. Waste, of waste. So if tenant for life and he in the reversion join in a

lease for life, it is said, that they shall join in an action of waste,

and that the lessee for life shall recover the place wasted, and he in

reversion, damages.

What uncertain If a man grant an estate to a woman dum solafuit, or durante estates. viduitate, or quamdiu se bene gesserit, or to a man and a woman

during the coverture, or as long as the grantee dwell in such a house, or so long as he pay ten pounds &c. or until the grantee be promoted to a benefwe, or for any like uncertain time; in all these cases, if it be of lands or tenements, the lessee has in j udgment of law an estate for life determinable [on the event mentioned] if livery be made; and if it be of rents, advowsons, or any other thing that lies in grant, he has a like estate for life by the delivery of the deed, and in count or pleading he shall allege the lease, and conclude, that by force thereof he was seised generally for term of his life.

Lease to A. till If a man make a lease of a manor, which at the time of the lease 'Xes him am' made is worth twenty pounds per armum, to hold until the lessee e,iau, contra on be paid one hundred pounds out of the rents and profits, in this case because the annual profits of the manor are uncertain [in grant of a Tint

certain.

themselves, although at the time of the lease they are certain] the lessee has an estate for life, if livery be made, determinable upon the levying of the hundred pounds. But if a man grant a rent of twenty pounds peramium until a hundred pounds be paid, there he has an estate for five years, for there it is certain, and depends upon no uncertainty.

And yet in some cases.a man shall have au uncertain interest in Device to execulands or tenements, and yet [he shall have] neither an estate for '■"?,''" 'w''.'

'« *- J paid gives them

life, nor for years, nor at will. As if a man by his will in writing, °ut*chattel.

devise his lands to his executors for payment of his debts, or until

his debts be paid; in [either] case the executors have but a chattel

interest in the land until the debts are paid; for if they should

have it for their lives, then by their deaths their estate would cease

and [so by that means] the debts [may remain] unpaid; but being

a chattel, it shall go to the executors of executors till the debts

are paid, and so note a diversity between a devise and a conveyance

at the common law in his lifetime.

And tenant by statute merchant, by statute staple, and by elegit, Statute and have uncertain interests in lands and tenements, and yet they have \autbZtchZbut chattels, and no freehold. teU

A man may have an estate for term of life determinable at will; Office and rem as if the king grants an office to one at will, with a rent to him a°ncY. perJon for the exercise of his office for term of his life, this rent is determinable upon the determination of the office.

If one grants lands, tenements, reversions, remainders, rents, ad- A general grant vowsons, commons, or the like, and expresses or limits no estate, f'[". "" f'^ff the lessee or grantee (due ceremonies requisite by law being performed) hath an estate for life. The same law is of a declaration of use. As if A., tenant in fee-simple, makes a lease of lands to B. for term of life, without mentioning for whose life, it shall be deemed for term of the lessee's life, for it shall be taken most strongly against the lessor, and as hath been said an estate for a man's own life is higher than for the life of another.

But if tenant in tail make such a lease without expressing for ""/J^h^'„unt whose life, this shall be taken but for the life of the lessor, for two <» tail, thin it«

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reasons. First, when the construction of any act is left to the law, the law which abhorreth injury and wrong will never so construe it, as it shall work a wrong: and in this case, if by construction it should be for the life of the lessee, then would the estate tail be discontinued and a new reversion gained by wrong: but if it be construed for the life of the tenant in tail, then no wrong is wrought. And it is a general rule, that whensoever the words of a deed, or of the parties without deed, may have a double intendment, and the one stands with law and right, and the other is wrongful and against it, the intendment that stands with law shall be taken. Secondly, the law more respects a lesser estate by right, than a larger estate by wrong; as if tenant for life in remainder disseise tenant for life [in possession] now he hath a fee-simple [by wrong]; but if the tenant disseised dies, then is the wrongful estate in fee by law changed to a rightful estate for life. To shut up this point it has been adjudged, that where tenant in tail made a lease to another for term of life generally, and after released to the lessee and his heirs, albeit between the tenant in tail and him, a fee-simple passed [by the release,] yet after the death of the lessee the entry of the issue in tail is lawful, which could not be, if it had been a lease for the life of the lessee, for then by the release it had been a discontinuance executed. But let us now return to Littleton.

Section 57.

Definition of terms " donor" and " donee," he.

Freehold and less than freehold.

And it is to be understood, that there is feoffor atid feoffee, donor and donee, lessor and lessee. Feoffor is properly where a man enfeoffs another in any lands or tenements in fee-simple, he who makes the feoffment is called the feoffor, and he to whom the feoffment is made is called the feoffee. And the donor is properly where a man gives certain lands or tenements to another in tail, he who makes the gift is called the donor, and he to whom the gift is made is called the donee. And the lessor is properly where a man lets to another lands or tenements for term of life or for term of years, or to hold at will, he who makes the lease is called lessor, and he to whom the lease is made is called lessee. And every one who has an estate in any lands or tenements for term of his own or another mans life, is called tenant of the freehold, and no other of a less estate can have a freehold: but those of a greater estate have a freehold; for he in fee-simple hath a freehold [accompanied tcil/i an inheritance] and tenant in tail hath a freehold [in the same manner.]

In the Comment to Section 2. some mention is made of the per- Who *«y grmt sons who may purchase. Now somewhat [remains] to be said of the ability to give, grant, enfeoff, Sec. Whosoever is disabled by the common law to take, is disabled to [give, grant, and] enfeoff. But many that have capacity to take, have no ability to enfeoff, as men attainted of treason, felony, or of a pramunire, aliens born, traitors, and felons after the offence committed if attainder ensues, idiots, madmen, a man deaf dumb and blind from his nativity, a feme-covert, an infant, a man under duress, [these have no sufficient ability to give or grant,] and their feoffments may be avoided. But bastards, a man deaf, dumb, or blind, with understanding and sound memory, albeit he express his intention by signs only, or the like, may enfeoff, &c. [and their acts solemnly performed cannot [43a] afterwards be defeated.]

All feoffments, gifts, grants, and leases by bishops, (albeit they BUhop$, be confirmed by the dean and chapter) or by any of the colleges or P1TMTM'6?* halls in either of the Universities or elsewhere, or by^deans and chapters, master or guardian of any hospital, parson, vicar, or any other having spiritual or ecclesiastical living, are also liable to be avoided; and all the said bodies politic or corporate, are by the statutes of the realm disabled to make any conveyances to the king, or to any other, as it hath been adjudged: which statutes have been made since Littleton wrote.

[But by the statute of Magna Charta, cap. 32, it seems that the Snbinf*iUktnt tenant might have made a feoffment of part of his land to hold of statute i/quia himself, but some have doubted this, and the chief lords particularly emPtoressought to establish a contrary doctrine, for by this species of subinfeudation they lost a considerable portion of their feudal services; if the tenant could alien to hold of himself, the principle of tenure was preserved and the lord's license and fine were superseded. King Henry the third very strenuously endeavoured to avoid this statute, for that it was made by king John under duress and confirmed by himself when under age.] But in judgment of law the king, DuoMlityof as king, cannot be said to be a minor: for when the royal body noulTking.''' politic of the king meets with the natural capacity in one [43 6] person, the whole body shall have the quality of the royal politic,

which is the greater and more worthy, and wherein is no minority. But now this point of subinfeudation is made clear by the statute of 18 E. 1, de quia emptores terrarum which has in effect taken away the said statute of Magna Charta, cap. 32, for thereby it is provided, that it shall be lawful for every free man to sell his lands or any part thereof at his will and pleasure, so that the feoffee do hold of the chief lord &c. And herein are divers notable points to be observed. 1 st. That these words " it shall be lawful" prove that the tenant could not have safely aliened parcels of his tenancy on the said act of Magna Charta. 2dly. That upon the feoffment of the whole, the tenant shall hold of the chief lord. 3dly. That the tenant might enfeoff one part to hold of the chief lord. But this act (the king being not named) does not take away the king's fine due to him by the statute of Magna Charta.

Freehold and chattels distinguished.

Statute and elegit creditors have a chattel to hold as a freehold.

Freehold.] Here it appears that tenant in fee, tenant in tail, and tenant for life, are said to have a frank-tenement or freehold, to distinguish it from terms for years, or chattels, and customary, or copyhold lands. And note that tenant by statute merchant, statute staple, or elegit, are said to hold land ut liberum tenementum until their debt be paid; and yet in truth they (as hath been said) have no freehold, but a chattel only, which shall go to their executors; and the executors, if they be ousted, shall have [remedy by real action] as by an assise. But (ut) is similitudinary, [and in respect of the remedy by real action these tenants have the] similitude of a freehold, but nullum simile est idem.

CHAPTER VII. Section 58.

TENANT FOR TERM OF YEARS.

Tenant for term of years is where a man lets lands or tenements Who is.

to another for term of certain years, after the number of years

that is accorded between the lessor and lessee. And when the

lessee enters by force of the lease, then is he tenant for term of

years; and if the lessor in such case reserves to himself a yearly

rent upon such lease, he may choose either to distrain for the rent Remedies for

in the tenements let, or else he may have an action of debt for the

arrearages against the lessee. But in such case it behoves that the

lessor be seised in the same tenements at the time of his lease ; for

it is a good plea for the lessee to say, that the lessor had nothing

in the tenements at the time of the lease, except the lease be made

by deed indented, in which case such plea lies not for the lessee to

plead.

Where a man lets lands, <Sfc] When Littleton wrote, many per- Enabling and sons might make leases for years, or for life or lives, at their will dTMal'h"g and pleasure, who now cannot make them firm in law. And [44 a] some persons may now make leases for years, or for life or lives (observing due incidents), firm and good in law, who of themselves could not do so when Littleton wrote, and this by force of divers acts of parliament; as namely, 32 H. 8. 1 Eliz. 13Eliz. 18Eliz. and 1 Jac. Regis, of which statutes one is enabling, and the rest are disabling.

When Littleton wrote, bishops with the confirmation of the dean Leasts, by ecdc and chapter, master and fellows of any college, deans and chapters, "ast,catPerim!master or guardian of any hospital and his brethren, parson or vicar with the consent of-the patron and ordinary, archdeacon, prebend, or any other body politic, spiritual and ecclesiastical (concurrentibus

hits qua injure requiruntur), might have made leases for lives or years, without limitation or stint. And so might they have made gifts in tail or estates in fee at their will and pleasure, whereupon not only great decay of divine service, but dilapidations and other inconveniences ensued, and therefore they were disabled and restrained by the said acts of 1 Eliz. 13 Eliz. and 3 Jac. Regis, to make any estate or conveyance to the king at all, or to the subject; but there is excepted out of the restraint or disability leases for three lives, or one and twenty yeats, with such reservation of rent, and with such other provisions and limitations as hereafter shall appear.

i4»ci«ni offices. Also they may make grants of ancient offices of necessity with ancient fees, concurrentibus hiis qua in jure requiruntur, for those grants are not within the statute of 32 H. 8. but by construction they are not restrained by the statutes of 1 Eliz. or 13 Eliz., because these ancient offices be of necessity, and with the ancient fees, and so no diminution of revenue.

Enabling
Statute:

Nine reauUilct thereto.

There are three kinds of persons who at this day may make leases for three lives &c. in such manner as is hereafter expressed, who could not do so when Littleton wrote, viz. 1st. Any person seised of an estate tail in his own right. 2dly. Any person seised of an estate in fee-simple in the right of his church. 3dly. Any husband and wife seised of any estate of inheritance in fee-simple or fee-tail in right of his wife, or jointly with his wife before the coverture or after, viz. the tenant in tail by deed to bind his issue in tail, but not the reversion or remainder, the bishop 8cc. by deed without the dean and chapter to bind his successors, the husband and wife by deed to bind the wife and her and their heirs, and these are made good by the statute of 32 H. 8. which enables them thereunto. But to the making of such leases good by the said statute, there are nine things necessary to be observed belonging to them all, and some other to some of them in particular.

Indenture. First, the lease must be made by deed indented, and not by deed

poll or by parol.

Commencement. Secondly, it must be made to begin from the day of the making thereof, or from the making thereof.

Thirdly, if (here be an old lease in being, it must be surrendered Notinrtvenun. or expired, or ended within a year of the making of the lease, and *• ■' the surrender must be absolute and not conditional.

Fourthly, there must not be a double lease in being atone time; AV concurrent, as if a lease for years be made according to the statute, he in the reversion cannot expulse the lessee, and make a lease for life or lives according to the statute, nor £ converse; for the words of the statute be, to make a lease for three lives, or one and twenty years, so as one or the other may be made and not both.

Fifthly, it must not exceed three lives, or one and twenty years, Limit of term. from the making of it, but it may be for a lesser term, or fewer lives.

Corporeal not

Sixthly, it must be of lands, tenements, or hereditaments, J,TM^^,,,. manurable or corporeal, which are necessary to be let, and whercoat a rent by law may be reserved, and not of things that lie in grant, as advowsons, fairs, markets, franchises, and the like, v>hereout a rent cannot be reserved.

Seventhly, it must be of lands, or tenements, which have most Anciently Ut. commonly been let to farm, or occupied by the farmers thereof by the space of twenty years next before the lease made, so that if it be let for eleven years at one or several times within those twenty, it is sufficient. A grant by copy of court roll in fee, for life or Copyhold. years is a sufficient letting to farm within the statute, for he is but tenant at will according to the custom, and so it is of a lease at will by common law; but those lettings to farm must be made by some one seised of an estate of inheritance, and not by a guardian in chivalry, tenant by curtesy, tenant in dower, or the like.

Eighthly, that upon every such lease there be reserved yearly Ancient rent. during the same lease, due and payable to the lessors their heirs and successors &c. so much yearly farm, or rent, or more as hath been most accustomably yielded or paid for the lands &c. within twenty years next before such lease made. Hereby, 1st. it appears (as hath been said) that nothing can be demised by authority of this act, but that whereout a rent may be lawfully reserved. 2dly. That where not only a yearly rent was formerly reserved, but things not annual, as heriots, or any fine or other profit at or upon

not usually let bad.

the death of the farmer, yet if the yearly rent be reserved upon a lease made by force of this statute, it suffices by the express words of the act. 3dly. If he reserve more than the accustomable rent, it is good also by the express letter of the act; but if twenty acres of land have been accustomably let, and a lease is made of Addition of am those twenty, and of one acre which was not accustomably let, reserving the accustomable yearly rent, and so much more as exceeds the value of the other acre, this lease is not warranted by the act, for that the accustomable rent is not reserved, seeing part was not accustomably let, and the rent issues out of the whole. 4thly. If tenant in tail let part of the land accustomably let, and reserve a rent pro rata, or more, this is good, for that is in substance the accustomable rent. 5thly. If two coparceners be tenants in tail of twenty acres, every one of equal value and accustomably let, and they make partition, so that each has ten acres, they may make leases of their several parts each of them, reserving the half of the accustomable rent. 6thly. If the accustomable rent had been payable at four days or feasts of the year, yet if it be reserved yearly payable at one feast, it is sufficient, for the words of the statute are, "reserved yearly."

Coparceners on partition may reserve half rent.

Kot sans waste. Ninthly, nor to any lease to be made without impeachment of or for any manner of waste. Therefore if a lease be made for life, the remainder for life &c. that is not warranted by the statute, because it is dispunishable for waste [inasmuch as the next remainderman not having an estate of inheritance, cannot maintain a writ of waste]. But if a lease be made to one during three lives, this is good, for the occupant, if any happen, shall be punished for waste.

8tatut«extend The words of the statute are (seised in right of the church), yet a bishop that is seised jure episcopatus, a dean of his sole posEccieaastical sessions in jure decanatus, an archdeacon in jure archidiaconatus, a persons. prebendary and the like, are within the statute, for every of them

Not to a parson generally is seised injure eccles'ue. But a parson and vicar are excepted out of the statute of 32 H. 8, and therefore if either of them make a lease for three lives &c. of lands accustomably let, reserving the accustomed rent, it must be also confirmed by the patron and ordinary, because it is excepted out of 32 H. 8, and not restrained by the statutes of 1 or 13 Eliz. And what has been said concerning a lease for three lives, holds of a lease for twentyone year*.

If a bishop make a lease for twenty-one years, and all these Bishop's conyears being spent saving three or more, yet may the bishop make "/^^^"Zd a new lease to another for twenty-one years, to begin from the ifconfirmed,

■ • r i i contrao/taise

making, according to the exception ot the statute, but not a lease for life. for life or lives, as hath been said; and the concurrent lease has [45 <0 been resolved to be good, as well upon the exception of 1 Eliz. as to bishops as upon 13 Eliz. which extends to spiritual and ecclesiastical corporations, aggregate of many, as deans and chapter &c. which 32 H. 8, did not: but in the case of a concurrent lease by the bishop, it must be confirmed [by the dean and chapter as at common law.]

Also the exception of 1 Eliz. and 13 Eliz. differs from the Commencement statute of 32 H. 8, for the lease for years to be made according to " atu "• the exceptions of the statutes of 1 and 13 Eliz. must begin from the making, and not from the day of the making, but by 32 H. 8, [they must begin] from the day of making. And although the statutes of 1 and 13 Eliz. do not appoint the lease to be made by writing, yet must it therein and in the other eight properties or qualities before mentioned and required by 32 H. 8, follow the pattern thereof (the concurrent lease only except). Although the Rent and uaste. exception in 1 and 13 Eliz. concerning the accustomed rent is more general than that of 32 H. 8, and there is not any provision for leases made dispunishable of waste &c. yet must the pattern of 32 H. 8, be followed: for leases without impeachment of waste made by such spiritual and ecclesiastical persons are unreasonable, and the cause of dilapidations.

And albeit it is provided by the said acts of 1 and 13 Eliz. that Lease good all giants, &c. leases, &o. made, &c. (other than leases for three S^g ST * lives or one and twenty years, according to these acts) should be utterly void and of no effect, to all intents constructions and purposes, yet grants or leases, 8cc. not warranted by those acts are not void, but good against the lessor, if it be a sole corporation, or so long as the dean or other head of the corporation remains, if it be a corporation aggregate of many: for the statute was made in benefit of the successor. [Nor, as it seems, is the lease absolutely void, but only voidable, and is affirmed by the successor's acceptance of rent. Hale's MSS.]

A man fe/s.] Here Littleton puts the case where one lets &c. Eject of lease It is therefore necessary to be seen what the law is wheje divers anmger.°m

join in a lease. If the tenant of the land and a stranger who has nothing in the land, join in a lease for years by deed indented of one and the self-same land, this is the lease of the tenant only, and the confirmation of the stranger, and yet the lease as to the stranger works by conclusion.

Lean bv uv«rai If two several tenants of several lands join in a lease for years

Otwi i» me by D^d indented, these are several leases, and several confirmations

of each of them from whom no interest passes, and works not by

way of conclusion in any sort, because several interests pass from

them.

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B. tenant for life of C., and he in the remainder or reversion in fee, having several estates in the one and the same land, join in a lease for years by deed indented, this demise shall work in this way: during the life of C. it is the lease of B. and the confirmation of him in the reversion or remainder; and after the decease ofC.it is the lease of him in the reversion and remainder, and the confirmation of B.; for seeing the lessors have several estates, the law shall construe the lease to move out of both their estates respectively, and every one to let that which he lawfully may let, and to be the lease only of tenant for life and confirmation of him in the remainder or reversion, neither is there any conclusion in this case, as shall be said hereafter. Tenant for life and he in remainder in fee made a lease for years by deed indented, the lessor was ejected, and brought an ejectione jirrruc, and declared upon a demise made by tenant for life and him in remainder, and upon not guilty pleaded, this [i. e. the foregoing] special matter was found, and that tenant for life was living, and it was adjudged against the plaintiff; for during the life of the tenant (as hath been said) it is the lease of the tenant for life; and therefore during his life he ought to have declared of a lease made by him, and after his decease he ought to declare of a lease made by him in remainder. And the deed indented could be no estoppel in this case, because there passed an interest from them both. For whenever any interest passes from a party there can be no estoppel against him, and so it was adjudged.

Hereby you shall understand your books the better which treat of these matters, and accordingly it was adjudged, that where tenant in tail and he and the remainder-man in fee joined in a grant of a rent-charge by deed in fee, and after the tenant in tail died without issue, the grantee distrained and avowed by force of a grant from him in the remainder; and upon non concessit, the jury found the special matter, and it was adjudged for the avowant; for every one granted according to his estate and interest.

Leases for lives or years are of three natures: some are good in Of mid and law, some are voidable by entry, and some void without entry. Of ?Ar 'j\ such as are good in law, some are good at the common law as made by tenant in fee, whereof Littleton here puts his case: some by act of parliament; as tenant in tail, a bishop seised in fee in the right of his church alone without his chapter, a man seised in feesimple or fee-tail in the right of his wife, together with his wife (as hath been said) may by deed indented make leases for twentyone years or three lives, in such manner and form as hath been said and by the statute is limited, all which were voidable by the common law when Littleton wrote, and now are made good by parliament. An infant seised of land holden in socage, may by /,.„.,. ;,„ ,„/•„„< custom make a lease at his age of fifteen years, and shall bind him, at £ * which lease was voidable by the common law: some also are voidable by the common law after the death of the lessor, as of tenant in tail, a bishop &c. or after the death of the husband (intended of leases not warranted by the said statute of 32 H. 8.); some are voidable by act of parliament, as by a bishop though it be confirmed by dean and chapter if it be not warranted by the statute of 32 H. 8.; and so of a dean and chapter after the death of the dean; some are voidable at times by the lessor himself or his heirs, as by an infant and the like. Some void in futuro, and some are void inprasenti. In futuro, as if a tenant in tail make a lease for years and dies without issue, it is void as to them in reversion or remainder though it be made according to the said statute. If a prebend, parson or vicar ttastsvoU make a lease for years, it is void by death if it be not according to d^r^Ju^"' the statutes. Otherwise it is of a lease for life, for that is void- T">ersu>ntrable, et sic de similibus. Some are void in precsenti; as if one makes a lease for so many years as he shall live, this is void in prccsenti for the uncertainty.

For term."] Terminus, in the understanding of the law, does not Term. only signify the limits and limitation of time, but also the estate < ^wTJTM*" and interest that passes for that time. As if a man makes a lease '"f}"'/>""'■

. gmthta.

for twenty-one years, and after makes a lease to begin from the end

and ,expiraton of the said term of twenty-one years; and afterwards the first lease is surrendered [or forfeited], yet the second lease shall begin presently; but if it had been to begin after the end and expiration of the said term of twenty-one years, in that case, although the first term had been surrendered, yet the second lease should not begin till after the twenty-one years had been ended by effluxion of time, [hence the words, or other sooner determination of the said term, are usually inserted.]

What wordt Words to make a lease are, demise, grant, to farm let, betake,

make a Uau. and whatsoever wor(i amounts to a grant may serve to make a lease.

o/the necessary Of certain years.] For regularly in every lease for years the certmnty to term must have a certain beginning and a certain end; and here

commencement ° °

of term. with agrees Bracton, terminus annorum certus debet esse et determi

natus. And Littleton is here to be understood, first, that the years must be certain when the lease is to take effect in interest or possession. For before it takes effect in possession or interest, it may depend upon an uncertainty, viz. upon a possible event before it begin in possession or interest, or upon a limitation or condition subsequent. Secondly, albeit there appear no certainty of years in the lease, yet if by reference to a certainty it may be made certain, it suffices, quia id certum est quod certum reddi potest. For example of the first: if A. seised of lands in fee, grant to B. that when B. pays to A. twenty shillings, that from thenceforth he shall have and occupy the land for twenty-one years, and after B. pays the twenty shillings, this is a good lease for twenty-one years from thenceforth. For the second: if A. leases his lands to B. for so many years as B. hath in the manor of Dale, and B. has then a term in the manor of Dale for ten years, this is a good lease by A. to B. of the land of A. for ten years.

Leasehuparson. If the parson of D. make a leases of his glebe for so many years as he shall be parson there, this cannot be made certain by any means, for nothing is more uncertain than the time of death, terminus vital est incertus, et licet nihil certius sit morte, nihil tamen incertius est Itora mortis. But if he make a lease for three years, and so 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, 1st, for three years, and after that for three years; and for the residue uncertain [which the law rejects].

If a man makes a lease to J. S. for so many years as J. N. shall For $ommy

....... . 1 l yearsasA.shatl

name, this at the beginning is uncertain; but when J. N. has named name,good. the years, then it is a good lease for so many years.

A man makes a lease for twenty-one years, if J. S. live so long; por 21 years, if this is a good lease for years, and yet is certain in uncertainty, for (ll!/'"J)° °"s the life of J. S. is uncertain. By the ancient law of England, for many respects a man could not have made a lease above forty years at the most, for then it was said that by long leases, many were prejudiced and many times men disinherited, but that ancient law [46 a] is antiquated.

In the eye of the law any estate for life, being, as Littleton has Leasehold a /<■«

, . > • estatethana

said, an estate of freehold, against whom a preecipe quod reddat lies, freehold.

is a higher and greater estate than a lease for years, though it be

for a thousand or more, which never are without suspicion of

fraud: and they were the less valuable, for that at the common

law, they were subject unto and under the power of the tenant of

the freehold, for by suffering a recovery in a real action he could by

collusion bar the lessor of his term. But now the statute of 21 Term not barred

-,.», by a recovery.

H. 8. gives remedy to tenants for term of years to falsify all manner of recoveries had against the tenants of the freehold upon feigned and untrue titles.

If two coparceners be, and one of them let her part to another Lease by eo

e 10 , •<.••,!• parceners how

tor years, and afterwards upon a writ 01 partition brought against „ffected by j*rthe lessor, too little is allotted to the lessor, it is holden by some "'""'■ that the lessee cannot avoid it, for that it is made by the oath of men, and judgment is thereupon given that the partition shall remain firm and stable. But if there be two coparceners of three acres of land, every one of equal value, and the one coparcener lets her part, and afterwards makes partition, and one acre only is allotted to the lessor, the lessee is not bound hereby, but he may enter and take the profits of another half acre, for that of right belongs unto him.

And albeit (as hath been said) a lease for years must have a cer- Term must bar* tain beginning and a certain end, yet the continuance thereof may "iZandcertain be uncertain, for the same may cease and revive again in divers e"dcases.

1

Lease by tenant As if a tenant in tail make a lease for years reserving twenty 'bu'endowmlutof shillings, and afterwards takes a wife, and dies without issue, now hit ttidmc. a8 to him in the reversion the lease is merely void: but if he endow

the wife of tenant in tail of the land (and she maybe endowed though the estate tail is determined); now is the lease as to the tenant in dower (who is in of the estate of her husband) revived again as against her, for as to her the estate tail continues, for she shall be attendant for the third part of the rent and services, and yet they were extinguished by act in law. So it is, if tenant in tail make a lease for years ut supra, and dies without issue, his wife enceinte with a son, he in the reversion enters, against him the lease is void, but after the son is born the lease is good, if it be made according to the statute, otherwise voidable.

Lemeavoided by If tenant in fee take wife, and make a lease for years, and dies, retires on its the wife is endowed, she shall avoid the lease, but after her decease

cessation.

the lease shall be in force again. [The lease does not in fact determine and revive, as it all along exists, and may be assigned subject only to the preferable right of dower.]

Dower of appro- If a woman be endowed of an advowson which is appropriated Pr"r46 fiT*"' C?M" w'tnou* license] and she present, and her incumbent is admitted, instituted, and inducted, albeit the incumbent die, yet is the appropriation wholly dissolved, because the incumbent which came in by presentation, had the whole estate in him; and so it was adjudged, as the case is to be intended.

AeoM by ifiiuni Tenant in tail makes a lease for forty years, reserving the rent,

in tail voidable, r .......

andamjirmabie to commence ten years alter; tenant in tail dies; the issue enter re,7ffp'"nce "^ an<* enfe°ff A.; ten years expire, the lessee enters; if A. accept the rent, the lease is good, for he shall have the same election that the issue in tail had, either to make it good, or to avoid it, so that it could not be precisely affirmed whether by the entry of the issue this executory lease was avoided, but it depends uncertainly upon the will of the feoffee.

InteresM ter- An(( wnen the lessee enters by force of the lease, then is he tenant for

mini. Release. ■'J J J

term ofyears.~\ And true it is, that to many purposes he is not tenant for years until he enter; thus a release made to him is not good to increase his estate before entry; but he may release

the rent reserved before entry, in respect of the privity. Neither Reversion. can the lessor grant away the reversion by the name of the reversion before the lessee's entry. Sect. 567. But the lessee before entry has an interest, interesse termini, grantable to another. Vide Sect. 319. And albeit the lessor die before the lessee enters, yet the lessee may enter into the lands, as our author himself holds in this chapter. And so if the lessee die before entry, yet his executors or administrators may enter, because he presently by the lease has an interest in him: and if it be made to two, and one die before entry, his interest shall survive. Vide Sect. 281.

He who has a lease for years, has it either in his own right, How mfe\ whereof Littleton has here spoken, or in another's right, and that ,^cteddB"'^. in divers manners; as a man may have a term for years in right ""£*• of his wife, whereof the husband has power to dispose at any time during his life, and if he survives his wife, the law gives the lease to him. But if he makes no disposition thereof, and his wife survive him, it remains with the wife: but of this in another place more fully. If a man be possessed of a term of forty years in right of his wife, and makes a lease for twenty years, reserving a rent, and dies, the wife shall have the residue of the term, but the executors of the husband shall have the rent, for it was not incident to the reversion, for that the wife was not a party to the lease. So note, that a disposition of part of the term is no disposition of the whole. But if the husband grant the whole term upon condition that the grantee shall pay a sum of money to his executors &c. and the husband dies, then if the condition is broken, and the execntors enter, this is a disposition of the term and the wife is barred thereof, for the whole interest was passed away. If a lease be made to baron and feme for term of their lives [whereby they become tenants by entireties] with remainder to the executors of the survivor of them [which remainder being to the survivor is contingent], and the husband grants away this term and dies, this shall not bar the wife, for that the wife had but a possibility, and no interest. If husband and wife be ejected of a term held in right of his wife, and the husband brings an ejectione firms, in his own name, and has judgment to recover, this is an alteration of the term, and vests it in the husband.

If a lease for years be made to a bishop and his successors, yet Corporation his executors or administrators shall have it in auter droit, for regu- ttrmfor years,

since it has no larly no chattel can go in succession to a sole corporation, no more than if a lease be made to a man and his heirs can it go to his heirs. But let us return to Littleton.

Commencement Touching the time of the beginning of a lease for years, it is to Dei^ery. fm- be observed, that if a lease be made by indenture bearing date 26th

'ruiudZu1'' May &c> to have and to hold for twenty-one years from the date, or from the day of the date, it shall begin on the 27th day of May. If the lease bear date the 26th day of May &c. to have and to hold from the making thereof, or from thenceforth, it shall begin on the day on which it is delivered, for the words of the indenture are not of any effect till the delivery, and thereby from the making or thenceforth, they take their first effect. But if it be a die confectionis, then it shall begin on the next day after the delivery. If the habendum be for the term of twenty-one years without mentioning when it shall begin, it shall begin from the delivery, for there the words take effect, as is aforesaid. If an indenture of lease bear date which is void or impossible, as the 30th day of February, or the 40th of March, if in this case the term be limited to begin from the date it shall begin from the delivery, as if there had been no date at all. And so it is, if a man by indenture of lease, either recite a lease which is not, or is void, or misrecite a lease in esse in a material point, to'have and to hold from the ending of the former lease, this lease shall begin in course of time from the delivery thereof.

Rem, of what Reserve to him a yearly rent #c.] First, it appears here by LitluTrfinmrTM' tleton, that a rent must be reserved out of the lands or tenements, poreaihertdita- whereunto the lessor may have recourse to distrain, as Littleton

ments, for there

can be'no dis- here also says, and therefore a rent cannot be reserved by a common r47 al person out of any incorporeal inheritance, as out of advowsons, commons, offices, corrody, mulcture of a mill, tythes, fairs, markets, liberties, privileges, franchises, and the like, but if a lease for years be made of them by deed, it may be good by way of contract to support an action of debt, but distrain the lessor cannot. Neither shall it pass with the grant of the reversion, for it is not a rent incident to the reversion, but if any rent be reserved in such case upon a lease for life, it is utterly void, for in that case no action of debt lies. But if a man demise the vesture or herbage of his land, he may reserve a rent, for the thing is manourable [i. e. capable of perception by the manour or hand], and the lessor may distrain the cattle upon the land: and so a reversion, or a remainder of lauds or tenements may be granted reserving a rent, for the apparent possibility that it may come into possession, and they are tenements within the words of Littleton.

It appears by Littleton, that reservando is an apt word of reserv- Reddendum, ing a rent, and so is reddendo, solvendo,faciendo, inveniendo, diimmodo, exception di'sand the like. And note a diversity between an exception (which tmSuu ' • must be part of the thing granted, and must be in. esse) for which exceptis, salvo, prater, and the like, be apt words; and a reservation which is always of a thing not in esse but newly created or reserved out of the land or tenement demised. But out of a general a part may be excepted, as out of a manor, an acre, but not a part of a certainty, as out of twenty acres, one.

It is to be observed, that the lessor cannot reserve to any other Beten-atum but to himself, for Littleton says, reserve to himself and his 0"'lis heirs not heirs, for otherwise the rent shall determine by his death if he '" e*ecut0"or.

J assigns, if so it

die within the term. But if he reserve a rent generally without ceases m his saying to whom it shall go, it shall go to his heirs. If he reserve a rent to himself and his assigns, yet the rent shall determine by his death; because the reservation is good but during life. So it is if he reserve a rent to himself and his executors it shall end by his death, because the heir has the reversion, and the rent was incident to the reversion. So if a man warrant land to B. and his assigns, the assignee must vouch during the life of B., for the warranty continues only during the life of B. for want of words of inheritance. So if the rent be reserved to the lessor his heirs and assigns, so that it be incident to the inheritance, then shall all the assignees of the reversion enjoy the same.

If two joint tenants be, and they make a lease for years by £«««<; by joint

,,,.,, . <- i , • tenants, resern

parol, or by deed poll, reserving a rent to one or them, tins i„g rent to one. shall enure to both, but if it be so reserved by deed indented, it shall enure to him alone [to whom it is reserved] by way of conclusion [that is in exclusion of the survivor, who by joining in the lease is estopped from averring any thing against it, post,

185 a.]

Rent may be Yearly rent.] So it is if the rent be reserved every two, or three,

famUe n-ery more Years< Qf rents Littleton excellently treats hereafter in

tii-0 or three J J

years. his chapter of Rents, and therefore in this place thus much shall

suffice.

Distress, uhat To distrain for the rent.] Here it is necessary to be seen and what not. what things may be taken for rent, and how the distress ought to be kept. 1st. It must be of a thing whereof a valuable property is in some body, and therefore dogs, bucks, does, conies, and the like that are fera nalura cannot be distrained. 2d. Although it be of valuable property, as a horse &c. yet when a man or woman is riding on him, or an axe in a man's hand cutting of wood, and the like, they are for that time privileged, and cannot be distrained. 3d. Valuable things shall not.be distrained for rent, for the benefit and maintenance of trade and by consequence for the common wealth, and they are there by authority of law ; as a horse in a smith's shop shall not be distrained for the rent issuing out of the shop, nor the horse 8tc. in the hostry, nor the materials in the weaver's shop for the making of cloth; nor cloth or garments in a tailor's shop; nor sacks of corn or meal in a mill or in a market; nor shall any of these things be distrained for damageyeasa«F,for they are in custody of the law. 4th. Nothing shall be distrained for rent that cannot be rendered again in as good plight as it was at the time of the distress taken; as sheaves or shocks of corn or the like cannot be distrained for rent, but for damage feasant they may be distrained. But chariots or carts of com may be distrained for rent, for they may be restored. 5th. Beasts belonging to the plough, averia caruca, shall not be distrained, (which is the ancient common law of England, for no man shall be distrained by the utensils [47 b~\ or instruments of his trade or profession, as the axe of the carpenter, or the books of a scholar) but goods or other beasts, which Bracton calls animalia (or catel/a) oliosa, may be distrained. 6th. Furnaces, cauldrons, or the like fixed to the freehold, or the doors or windows of the house, or the like cannot be distrained. Lastly, beasts that escape may be distrained for rent, though they have not been levant and couchant. [But see as to this last point 2 Lutw. 1573.]

Live cattle. Note, that he who distrains any thing that has life, must im

and cmert. pound them in a lawful pound within three miles in the same county, and that is either overt or open, in a pinfold made for such purposes, or in his own close, or in the close of another by his consent. And it is there called open, because the owner may give his cattle meat and drink without trespass to any other, and then the cattle must be sustained at the peril of the owner. Or it is a pound covert, or close, as to impound the cattle in some part of his house, and then the cattle are to be sustained with meat and drink at the peril of him who distrains, and he shall not have any satisfaction therefore. But if the distress be of utensils of household, or such like dead goods which may take harm by wet or weather, or be stolen away, there he must impound them in a house or other pound covert within three miles within the same county, for if he impound them in a pound overt he must answer for them. If the distress be taken of goods without cause, the owner may make rescue; but if they are distrained without cause, and impounded, the owner cannot break the pound and take them out, because they are then in the custody of the law. But if a man distrains cattle for damage feasant, and puts them in the pound, and the owner who had common there makes fresh suit, and finds the door unlocked, he may justify the taking away of the cattle in a parco fracto. If the owner break the pound and take away his goods, the party distraining may have his action de parco fracto, and he may also take his goods that were distrained wheresoever he finds them and impound them again.

But it is to be observed, that for the rent due on the last day of Remdue,ml<ut the term, the lessor cannot distrain, because the term is ended [and „"„i/bedi'st7a7ne'd one cannot distrain the same day the rent becomes due but only fy a,tfTM"

J J then ended.

the day after;] and therefore some used to reserve the last half year's rent at the feast of the nativity of Saint John Baptist before the end of the term, so that if the rent be not then paid, the lessor may distrain between that and Michaelmas following.

Action of debt.'] Note, upon a lease for years, reserving a yearly Remedy fc.v rent: the lessor may have several actions of debt for every year's rent. acUon *

* But now by statute 8 Ann. c. 14. rent may be distrained for after the determination of the lease in the same manner as before, and for six calendar months afterwards, if the landlord's title and the tenant's possession continue so long. See also 4 Geo. 2. c. 28., 11 Geo. 2. c.19.

But upon a bond or contract for payment of several sums no action of debt lies till the last day be past.

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Hut in iuch case it behoves the lessor to be seised in the same tenements at the time of his lease ; for it is a good plea for the lessee to say, that the lessor had nothing in the tenements at the time of the lease.] And the reason of this is, that in every contract there must be quid pro quo, for contractus est quasi actus contra actum; and therefore if the lessor has nothing in the land, the lessee has not quid pro quo, nor any thing for which he should pay any rent. And in that case he may also plead, that the lessor non dhnisit, and give in evidence the other matter, except the lease be made by deed indented, t\c. If the lease be made by deed indented, then are both parties concluded, but if it be by deed-poll the lessee is not estopped to say, that the lessor had nothing at the time of the lease made. A., lessee for the life of B., makes a lease for years by deed indented, and after purchases the reversion in fee. B. dies [whereby the estate pour auter vie out of which the lease was carved ceases, then] A. may avoid his own lease, for he may confess and avoid the lease which took effect in point of interest and determined by the death of B. But if A. had nothing in the land, and made a lease for years by deed indented, and after purchased the land, the lessor is as well concluded as the lessee to say that the lessor had nothing in the land; and here it works only upon the conclusion, and the lessor cannot confess and avoid as he might in the other case. If a man take a lease of his own land by deed indented reserving a rent, the lessee is concluded. But if a man take a lease of the herbage of his own land by deed indented, this is no conclusion to say, that the lessor had nothing in the land, because it was not made of the land itself: but if a man take a lease for years of his own land by deed indented, the estoppel does not continue after the term ended. For by the making of the lease the estoppel arises, and consequently by the end of the lease, the estoppel determines, and that part of the indenture which belonged to the lessee, after the term ended belongs to the lessor, which could not be if the estoppel continued.

Section 59.

And it is to be understood, I lint in a lease for years, by deed or Livery not newithout deed, there needs no livery of seisin to be made to the ofyeaj^. leTM lessee, but he may enter when he will by force of the same lease. But of feoffments made in the country [as distinguished from feoffments made in court and enrolled], or gifts in tail, or lease for term of life; in such cases where a freehold shall pass, if it be by deed or without deed, it is necessary to have livery of seisin.

Livery of seisin is a solemnity that the law requires for the passing Livery ofuiiin

of a freehold of lands or tenements by delivery of the seisin thereof. And there are two kinds of livery of seisin, viz. a livery in deed, and a livery in law. A livery in deed is where the feoffor takes the ring of the door, or a turf or a twig of the land, and delivers the same upon the land to the feoffee in name of seisin of the land. And this may be done in two ways. By a solemn act and words; as by delivery of the ring or hasp of the door, or a branch or twig of a tree, or a turf of the land, with these or the like words, (the feoffor and feoffee both holding the deed of feoffment, and the ring of the door, hasp, branch, twig, or turf) and the feoffor saying, " Here I deliver you seisin and possession of this house, in the name of all the lands and tenements contained in this deed, according to the form and effect of this deed;" or by words without any ceremony or act; as, the feoffor being at the door or within the house, may say " Here I deliver you seisin and possession of this house, in the name of seisin and possession of all the lands and tenements contained in this deed :" el sic de similibus: or, *' Enter you into this house or land, and have and enjoy it according to the deed:" or, "Enter into the house or land, and God give you joy:" or, " I am content you shall enjoy this land according to the deed;" or the like. For if words may amount to a livery within view, much more may they upon the land. But if a man deliver the deed of feoffment upon the land, this amounts to no livery of seisin, for it has another operation to take effect as a deed: but if he deliver the deed upon the land in name of seisin of all the lands contained in the deed, this is a good livery: and so are other books intended that treat hereof, if the deed was delivered in name of seisin of that land. Hereby it appears, that

how performed.

the delivery of any thing upon the land in name of seisin of that land, though it be nothing concerning the land, as a ring of gold or the like, is a good livery of seisin of the land, and so has it been resolved by all the judges; and so of the like.

Part in name of whole.

If divers parcels of land be contained in a deed, and the feoffor delivers seisin of one parcel according to the deed, all the parcels pass, albeit he says not (in name of all Sac.) because the deed contains all. And so if there be divers feoffees, and he makes livery to one according to the deed, the land passes to all the feoffees, and yet the plainer way is to say (in the name of the whole, or of all the feoffees.)

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If a man make a charter [of feoffment] in fee, and deliver seisin for life secundum formam carta, the whole fee-simple shall pass, for it shall be taken most strongly against the feoffor. Note, that these words (secundum formam carta) are understood according to the quantity and quality of the effectual estate contained in the deed. If a man make a lease for years by deed, and deliver seisin according to the form and effect of the deed; yet he has but an estate for years, and the livery is void, as Littleton says. So if A. by deed give land to B. to have and to hold (after the death of A.) to B. and his heirs, this is a void deed, because he cannot reserve to himself a particular estate [of freehold nor can he create a freehold mfuturd], and construction must be made upon the whole deed; and if livery be made according to the form and effect of the deed, the livery is void also, because the livery refers to a deed that has no effect in law, and cannot therefore work secundum formam carta.

Livery by attorney good.

And it is to be observed, that neither the feoffor being absent can make livery, nor the feoffee being absent can take livery, but only by warrant of attorney by deed, and not by parol, because it concerns matter of freehold.

Livery of moveable freehold.

Vide sect. 1, in Bridgewater's case, where a man has a moveable estate of inheritance, for example there put, in thirteen acres: if they be parcel of a manor, they may pass by the name of the manor; but if they be in gross, then the charter of feoffment must be of thirteen acres lying and being in the meadow of eighty acres, generally, without bounding or describing the same in certainty.

A livery in law is, where the feoffor says to the feoffee, being in Livery in law. the view of the house or land (I give yonder land to you and your heirs, go enter into the same, and take possession thereof accordingly), and the feoffee does accordingly in the life of the feoffor enter, this is a good feoffment. But if either the feoffor or feoffee die before entry the livery is void. And livery within view is good where there is no deed of feoffment. And such a livery is good albeit the land lie in another county. A man makes a charter of feoffment and delivers seisin within view, if the feoffee dare not enter for fear of death, but claims the same, that shall vest the freehold and inheritance in him, albeit by the livery no estate passed to him, neither in deed nor in law, so that such a claim shall serve as well to vest a new estate and right in the feoffee, as in the common case to revest an ancient estate and right in the disseisee &c. as shall be said hereafter more at large in the Chapter of Continual Claim. And so note a livery in law shall be perfected and executed by an entry in law.

If a man be disseised, and make a deed of feoffment and a letter Livery by of attorney to enter and take possession and afterwards to make unctiont.'~"' livery secundum formam carta, this is a good feoffment albeit he was out of possession at the time of the charter made, for the authority given by the letter of attorney is executory, and nothing passed by the delivery of the deed till livery of seisin was made. And in ancient letters of attorney power is given to others to take possession for the feoffor. But if a man be disseised, and make a writing of lease for years and deliver the deed, and afterwards delivers it upon the ground, the second delivery is void, for the first delivery made it a deed, and because the lease for years must take effect by delivery of the deed, therefore the deed delivered when he was out of possession was void. But so it is not of a charter of feoffment, for that takes effect by the livery and seisin. But if the lessor had delivered it as an escrow, to be delivered as his deed upon the ground, that had been good.

And note, a man may have an inheritance in an upper chamber, Chambers, inthough the lower buildings and soil be in another, and seeing it is an inheritance corporeal, it shall pass by livery.

A man makes a lease for years and afterwards makes a deed of Tenant in potfeoffment and delivers seisin, the lessee being in possession and not Knt totkeiwery

or <i it it possession.

assenting to the feoffment, this livery is void; for albeit the feoffor has the freehold and inheritance in him, yet that is not sufficient, for a livery must be given of the possession also; but if the lessee be absent, and has neither wife nor servants (though he has cattle) upon the ground, the livery of seisin shall be good. If a man be seised of a house and several closes in one county in fee, and makes a lease for years, and afterwards makes a feoffment in fee of the same, and makes livery of seisin in the closes (the lessee or his wife or servants then being in the house) the livery is void for the whole: for the lessee cannot be upon every parcel of the land to him demised for the preservation or continuance of his possession therein. And therefore his being in the house, or upon any part of the land to him demised, is sufficient to preserve and continue his possession in the whole from being ousted or dispossessed.

Deed informal in one respect muu operate in another.

[49 a]

Note a great diversity; when a man has two ways to pass lands, and both of the ways be by the common law, then if he intends to pass them by one of the ways, [which from some informality he cannot do] yet ut res magis valeat it shall pass by the other. But where a man may pass lands either by the common law, or by raising of an use, and settling it by the statute, there in many cases it is otherwise.

Eiampies. For example, if a man be seised of two acres in fee, and lets one

of them for years, and intending to pass them both by feoffment, makes a charter of feoffment, and makes livery in the acre in possession, in name of both, only the acre in possession passes by the livery; yet if the lessee attorn, the reversion of that acre shall pass by the deed and attornment, for he is in by the common law, and in the per in both, and so in the like. But otherwise it is, if the father make a charter of feoffment to his son with a letter of attorney to make livery, and no livery is made, yet no use shall arise to the son, because he should be in by the statute in another degree, viz. in the post, and the intention of the parties work much both in the raising and direction of uses. So if cestuique use and his feoffees had joined in a feoffment after the statute of 1 R. 3, &c. it had been the feoffment of the feoffees and the confirmation of cestuique use, for the estate at the common law shall be preferred. Livery is to cor- So to conclude this point; of freehold and inheritances, some be MheruZf'ieed corporeal, as houses &c. lands &c. these are to pass by livery of

seisin, by deed or without deed; some be incorporeal, as ad- i* to incorporeal

hereditaments.

vowsons, rents, commons, estovers &c. these cannot pass without deed, but they may without any livery for the law has provided the deed in this case in place or stead of the livery. And so it is if a man make a lease, and by deed grants the reversion in fee, here the freehold with attornment of the lessee passes by the deed which is in lieu of the livery, [or rather the freehold being in remainder passes by grant].

This ancient manner of conveyance by feoffment and livery of Feoffor out of

... - i ii i Ti possessiont

seism, does tor many respects exceed all other conveyances. For nothing but (as hath been said) if the feoffor be out of possession, neither fine, ^ZlbylZg. recovery, indenture of bargain and sale enrolled, nor any other conveyance, will avoid an estate by wrong aud reduce clearly the estate of the feoffee so as to make a perfect tenant of the freehold; this can be done by livery of seisin only upon the land: and the other conveyances being made off the ground, do sometimes more hurt than good, when the feoffor is out of possession.

And yet in some cases a freehold shall pass by the common law When a freehold

_, may P0** with'

without livery of seism; as if a house or land belong to an office, out livery. by the grant of the office by deed, the house or land passes as belonging thereunto. So if a house or chamber belong to a corody, by the grant of the corody, the house or chamber passes. A freehold may by custom be surrendered without livery, as hereafter shall be said: and so of assignment of dower ad ostium ecclesia, or otherwise, and by exchange a freehold may pass without livery, as hereafter shall be said in this Chapter.

Section 60.

But if a man lets lands or tenements by deed or without deed for Livery to term term of years, the remainder over to another for life, or in tail, or "remahiderof in fee; in this case it is necessary, that the lessor make livery of freehold. seisin to the lessee for years, otherwise nothing passes to those in remainder, although the lessee enter into the tenements. And if the termor in this case enters before any livery of seisin be made to him, then is the freehold and also the reversion in the lessor. But if he makes livery of seisin to tlie lessee, then is the freehold to

gel her with the fee in those in remainder according to the form of the grant and the will of the lessor.

By deed or without deed.] For seeing that the remainders take effect by livery, there needs no deed [at common law.]

Remainder what.

The remainder.] Is the residue of an estate in land depending upon a particular estate, and created together with the same, and in law latin it is called remanere.

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Makes livery of seisin to the lessee.] Livery is not necessary in this case for the lessee himself, because he has but a term for years, but it is for the benefit of those in the remainder, so that the livery to the lessee shall enure for the benefit of them in the remainder: for delivery of possession could not be made to the next in remainder, because the possession belonged to the lessee for years; and for that the particular term and all the remainders make in law but one estate and take effect at one time, therefore the livery is to be made to the lessee. But if a lease for years without deed be made to A. and B., with remainder to C. in fee, and livery is made to A. in the absence of B. in the name of both; it seems the livery is good to vest the remainder: and there is a diversity where joint attornies are appointed to receive livery for another and livery is made to one of them in the name of both, this is clearly void, because they have but a mere and bare authority, and they both make but one attorney in law, unless the warrant be joint and several, but the lessee for years has an interest in the land. Again, if A. is to make a feoffment to B. and C. and their heirs without deed, and A. makes livery to B. in the absence of C. in the name of both and to their heirs; this livery is void to C, because a man being absent can take a freehold by livery [only] by his attorney lawfully authorised to receive the same by deed, unless the feoffment be made by deed, and then the livery to one in the name of both is good.

Delivery of deed Note, there is a diversity between livery of seisin of land and the "■ '^uhand delivery of a deed; for if a man deliver a deed without saying any thing, it is a good delivery, but to a livery of seisin of land words are necessary; as taking in his hand the deed and the ring of the door (if it be of a house) or a turf or twig (if it be of land) and the feoffee laying his hand on the deed also, the feoffor must say to the feoffee, "Here I deliver to you seisin of this house," or "of this land, in the name of all the land contained in this deed," according to the form and effect of the deed; or if it be without deed, then the words may be, "Here I deliver you seisin of this house," or "land," &c. "to have and to hold to you for life," or "to you and the heirs of your body," or "to you and your heirs for ever," as the case shall require.

seism without deed distinguished.

When the kinsman of Elimelech gave unto Boas the parcel of Antiquity of land that was Elimelech's, he took off his shoe, and gave it unto Boas in the name of seisin of the land (after the manner in Israel) in the presence and with the testimony of [ten elders and] many witnesses, [whom he addressed, saying, "Ye are witnesses this day, that I have bought all that was Elimelech's, of the land of Naomi," his kinsman, who alone had the right of redemption: and it does not appear that any writing was then executed.] And when Ephron enfeoffed Abraham of the field of Machpelah, he said to him, "Agrum trado tibi," #c. "I deliver this field to thee."

A man makes a lease for years to A., the remainder to B. in Livery in view fee, and makes livery to A. within view; this livery is void, for by"TM*)1""*no man can take by force of a livery within view, but he who takes the freehold himself.

And if the termor in this case enters before any liven/ of seisin Leaee's entry made, ijcJ] By the entry of the lessee he is in actual possession, preven s "*^y• and then the livery cannot be made to him who is in possession. But if the lessor and lessee come upon the ground, with purpose the lessor to make and the lessee to take livery, there his entry vests no actual possession in him until livery be made. And there- No remitter by fore if it be agreed between the disseisor and disseisee, that the TMe7o makta* disseisee shall release all his right to the disseisor upon the land, "£""' "cept and accordingly the disseisee enters into the land, and delivers the release to the disseisor upon the land, this is a good release, and the entry of the disseisee, being for this purpose, did not avoid the disseisin, for his intent in this case did guide his entry to a special purpose; [and if it had avoided the disseisin, the disseisor would not have had any estate whereupon the release might have worked.] But if the disseisor enfeoff the disseisee and others, there, albeit

the disseisee came to take livery, yet when livery is made, the disseisee is remitted to the whole in judgment of law, as shall be said more at large in the Chapter of Remitter, in its proper place.

[50a] Section 61.

Livery of part An D if a man will make a feoffment, by deed or without deed, of cept feoffment*" lands or tenements which he has in divers towns in one county, the be by deed, and nverv 0f seisin made in one parcel of the tenements in one town, in

lands are in dif- J J . .

ferent counties, the name of all the rest, is sufficient for all other the lands and tenements comprehended within the same feoffment in all other the towns in the same county. But if a man makes a deed of feoffment of lands or tenements in divers counties, there it is necessary in every county to have a livery of seisin.

In one county.] And forasmuch as the men of one county do not associate together with men of another county at county courts, turns, leets, and other courts, therefore in judgment of law they shall take no notice of a livery in another county to pass any lands in their own county. But of this more shall be said hereafter.

Section 62.

Exchange of And in some cases a man shall have by the grant of another afeecountygoodby simple, fee-tail, or freehold without livery of seisin. As if there nowb^st'Tt ^e two men> an(l eacn °f them is seised of a quantity of land Frauds.] jn one county, and the one grants his land to the other in exchange

for the land which the other has, and in like manner the other grants his land to the first grantor in exchange for the land which the first grantor has; in this case each may enter into the other's land so put in exchange without any livery of seisin; and such exchange made by parol of tenements within the same county without writing is good enough.

if in two *mn- Here Littleton puts a case where freehold &.c. shall pass without vm'eai herediZ'- 'iverv °f seisin, and thereupon puts the case of an exchange of """"• " deM lands in one county which is good by deed or without deed, without

Ttquiriu. . ....

any livery, but if it be in several counties there must be a deed.

time.

Also of things that lie in grant, as advowsons, rents, commons &c.

an exchange of them, albeit they are in one county, is not good,

unless it be by deed; and therefore Littleton puts his case warily

of land. And in case of a fine, which is a feoffment of record—of

a devise by a last will—of a surrender—of a release or confirmation

to a lessee for years, or at will; in all these and some other cases [50 J]

a freehold may pass without livery. But this word (exchange) is

so appropriated by law to this case, that it cannot be expressed by

any periphrasis or circumlocution.

hi this case each may enter fyc] For by the exchange the parties, Evtry essential albeit the lands are all in one county, have no freehold in deed or in l^J^iffl"1 law in them before they execute the same by entry; and therefore if one of them dies before the exchange be executed by entry, the exchange is void; for the heir cannot enter and take it as a purchaser, because he was named only to take by way of limitation of estate in course of descent.

Section 63.

A.ND if the lands exchanged be in divers counties, there it is Deed requisite necessary to have a deed indented made between them of the lanXintwo exchange. countie8

This is evident enough. But of what things an exchange may What may u be made (which was a conveyance frequent in former times) is to "^7'$ land, be seen : and herein many things are to be observed. 1st. That but "<""'""'" the things exchanged need not to be in esse at the time of the exchange made. As if I grant a rent newly created out of my lands in exchange for the manor of Dale, this is a good exchange. 2dly. There needs no transmutation of possession; and therefore a release of a rent, or estovers, or a right to land, in exchange for land, is good. The things exchanged need not be of one nature, so they concern lands or tenements, whereof Littleton here speaks. As land for rent or common, or any other inheritance which concerns lands or tenements, or spiritual things, as tithes &c. for temporalities, and tenure by divine service for a temporal seigniory &c. But annuities or such like which charge the person only, and do not

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concern lands or tenements, cannot be exchanged for lands or tenements.

Section 64. nor fee-tail for A.nd note, that in exchanges it is essential that the estates which

ioi* - ^Mnnlft*

both parties have in the lands exchanged be equal; for if the one wills and grants that the other shall have his land in fee-tail for the land which he has of the grant of the other in fee-simple, although the other agree to this, yet the exchange is void, because the estates are not equal.

Section 65.

nor life estate In the same manner it is, where it is granted and agreed between tail general for them, that the one shall have in the one land fee-tail, and the other tail special: £„ fjie other land but a term for life; or if the one shall have in the one land fee-tail general, and the other in the other land feetail special &e. So in exchanges it is necessary that the estates of both parties be equal, viz. if the one has a fee-simple in the one land, that the other shall have a like estate in the other land; and if the one has fee-tail in the one land, the other ought to have the like estate in the other land &c. and so of other estates. But the [relative] value of the lands is immaterial, for albeit the land of one be of far greater value than the land of the other, that is no detriment to the exchange,provided the estates exchanged be equal. And so in an exchange there are two grants, for each party grants his land to the other in exchange Sfc. and in each of their grants mention shall be made of the exchange.

but joint tenants That the estates be equal.] Equality in lands is threefold, viz.

wftftftmanufa ^st- Equality in value. 2dly. Equality in quantity of estate given

TtZn^insev and taken- 3t%- Equality in quality or manner of [holding the]

raity. estates given and taken. But, as Littleton says, equality in value

L aJ is not requisite ; neither is equality in the quality or manner of

[holding] the estate. And therefore two joint tenants may give

lands to two other men [to hold in joint tenancy] in exchange for

not void. Jure uxoris.

lands [received] from them to hold in common; and yet the manner of their estates is not equal, for the estate of one party is joint, and the other is in common. And so it is if two men give lands to A. and his heirs in exchange for lands received from A. to hold to them and their heirs [in joint tenancy or in common]; though here the one party has a joint, and the other a sole estate, yet the exchange is good.

The like law is if the one land be of a defeasible title, and Defective title

. . . makes exchange

the other of an indefeasible title, yet the exchange is good till it be voidable only, avoided. So if tenant in tail, or husband seised in right of his wife, exchange lands, and by the exchange they give a fee-simple, this is good until it be avoided by the issue in tail, or by the wife after the death of the husband.

An exchange with the king is good, and yet the king is 6eised F?chang»with in his politic capacity, and the subject in his natural capacity.

To sum up the whole there are five things necessary to the per- Five requisites fection of an exchange. 1st. That the estates given be equal. """rVl /?i'ffe' 2d. That this word " exchange" be used, which is so individually requisite, that it cannot be supplied by any other word, or described by any circumlocution. 3d. That there be an execution of the exchange by entry or claim in the lifetime of the parties. 4th. That if it be of things that lie in grant, it must be by deed. 5th. If the lands be in several counties, there ought to be a deed indented, or if the things lie in grant [then also a deed indented is requisite] albeit the [things granted] lie in one county.

If an infant exchange lands, and after his full age occupy the Infant,exchange lands taken in exchange, the exchange is become perfect, for the wUabieT exchange at the first was not void (because it amounted to a livery, and also in respect of the recompence) but voidable only.

Although the other agree.'] The agreement of the parties cannot Agreement conmake that cood which the law makes void. rary'"

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Section 66.

Interesse ter

tiiini.

Livery to attorney must bo in life time of

feoffor.

Also, if a man lets land to another for a term of years, albeit the lessor dies before the lessee enters into the tenements, yet he may enter into the same tenements after the death of the lessor, because the lessee by force of the lease has right presently to have the tenements according to the form of the lease. But if a man makes a deed of feoffment to another, and a letter of attorney to one to deliver to him seisin by force of the same deed; yet if livery of seisin be not executed in the life of him who made the deed, [that is, the letter of attorney, the feoffment] avails nothing, for [by the death of him who authorised the livery, the power is at an end and cannot be executed aftervmrds] and then if there be no livery of seisin, he to whom the feoffment was made has nought in the tenements, and the right thereto forthwith descends to the heir of him who made the deed, or some other.

The reason is, because the interest of the term vests iD the lessee before entry, and therefore the death of the lessor cannot devest that which was vested before.

Powerofat- Letter of attorney.] Here first it appears that the authority to

by"deea\" deliver seisin must be by deed: for letter of attorney is equivalent [52 a] to warrant of attorney [which must be] by deed.

Disabled persons may be private attorneys.

Second. Littleton here speaks generally of a letter of attorney to one, and few persons are disabled to be private attorneys to deliver seisin; for monks, infants, ffiine coverts, persons attainted, outlawed, excommunicated, villeins, aliens &c. may be attorneys. A feme covert may be an attorney to deliver seisin to her husband, and the husband to the wife, and he in remainder to the lessee for life.

Attorney mi«t Third. It appears here that the attorney must pursue his warrant, ptuer'aZdwhat otherwise he does not deliver seisin by force of the deed. Now his cutimefu ***' authority 's twofold [viz. that which is] expressed in his warrant, and [that which is] implied in law. And first of his express authority. A man seised of Black Acre and White Acre makes a deed of feoffment of both, and a letter of attorney to enter into both Acres, and to deliver seisin of both of them according to the form

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and effect of the deed, and he [the attorney] enters into Black Acre and delivers seisin secundum formam chartee, this livery and sesin is good, albeit he did not enter into both, nor into one in the name of both; for when he delivers seisin of one secundum formam charttc, that implies a livery of both. So when the feoffment is made to two or more, and the attorney is to make livery of seisin to both, and the attorney makes livery of seisin to one of the feoffees secundum formam et effectual charts, this is good to both, but in that case he that is absent may waive the livery.

If lessee for life makes a feoffment [in fee, which is a larger estate When the atthan he can warrant] and gives a letter of attorney to [his own] right u bound lessor to deliver seisin on the feoffment which the lessor accepts, b,J *" "«fv*

r 'anre of the

and makes livery accordingly, notwithstanding this livery the J*"""--
lessor may enter for the forfeiture. But if lessee for years makes
a feoffment in fee and gives a letter of attorney to his lessor to
make livery, and the lessor makes livery accordingly, this livery
shall bind the lessor, and shall not be avoided by him: for the
lessor cannot make livery as attorney to the lessee, who had no
freehold to deliver; but the freehold which he did deliver was his
own [and by his own delivery he shall be bound]. If the lessor
make a deed of feoffment and a letter of attorney to the lessee for
years to make livery, and he does it accordingly, this shall not
drown or extinguish his term, because he did it as a minister to
another and in another's right, and this is accounted in judgment
of law as the jact of the other [and not his own, moreover] the
the feoffee claims nothing by the lessee, but only by the lessor who
made the feoffment to him. If one as procurator or attorney to
another present to his own benefice he puts himself out of posses-
sion because he [i. e. his clerk] comes in by the induction and in-
stitution of the ordinary. If the tenant devise that his lord shall
sell his land, and dies, and the lord sells it, the seigniory remains.
But if the lord or a grantee of a rent-charge had been also cestuique
use of the land, and after the statute of R. 3, and before the statute
of 27 H. 8, cestuique use had made a feoffment in fee of the land,
albeit the land passes from the feoffees, and his feoffment is war-
ranted by the power given to him by the statute, yet the seigniory
or rent-charge is extinct by his feoffment, for he has not a bare
authority as the attorney has.

If attorney do less than his authority livery void* But custom to grant copyholds in fee authorises a grant for life.

[526]

If a man be disseised of Black Acre and White Acre, and a warrant of attorney is made to enter into both and to make livery, there, if the attorney enters into Black Acre only and makes livery secundum formam chartee, the livery of seisin is void, because he does less than his warrant; for the estate of the disseissor in White Acre cannot be divested without an entry. But there is a diversity between an authority coupled with an interest, and a bare authority. For example, a custom within a manor time out of mind of man used, was to grant certain lands parcel of the said manor in fee-simple, and never any grant was made to any and the heirs of his body, or for life or years; and the lord of the said manor granted to one by copy for life, with remainder over to another and the heirs of his body; and it was adjudged, that the grant and remainder over was good; for the lord having authority by custom and an interest withal [of the largest dimensions] might grant [thereout] any lesser estate: for in this case, the custom that enables him to grant the greater estate enables him also to grant the lesser, omne majus in se continet minus. But he who has but a bare authority, as also he who has a warrant of attorney, must pursue his authority (as hath been said) and if he does less, it is void.

Reversion will pass by livery, though U properly lies in grant.

A man makes a lease for life, then executes a charter of feoffment with a letter of attorney to deliver seisin, the attorney enters upon the lessee [and delivers seisin to the feoffee], this is sufficient to convey away the reversion [although it lies in grant, and the livery and feoffment were not the proper assurances for conveying it]; and the reason is that livery of seisin being requisite to perfect the common assurance of lands [viz. a feoffment], it is [when by accident or design affixed to another instrument] expounded favourably, ut res magis valeat quam pereat. And this was adjudged in the court of Common Pleas, and afterwards affirmed in the King's Bench, on a writ of error.

And it is to be known, that a deed of feoffment beginning "To

Feoffment by deed-poll gond,

and attorney all faithful Christians," or" Know all men present and to come," or u /"contra i/fty tne like [which are properly commencements of deeds poll, is good, kuhebea "* am^ a letter of attorney may be contained in such a deed; for one party. continent [i. e. one instrument] may contain divers deeds to several

persons; but if it be by indenture between the feoffor on the one

part, and the feoffee on the other part, there a letter of attorney in such deed is not good unless the attorney be made a party to the deed indented.

Now the authority implied by law, is, that the attorney shall Attorney cannot not deliver seisin within view [that is, where, for fear of some Zlthin'iZw. bodily injury he dare not enter on the land], for his warrant is intended of an actual and express livery and not of a livery in law, and so it has been resolved.

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the deed.~\ Here albeit the warrant of attorney be indefinite, with- "''""'"""'

out limitation of any time, yet the law prescribes a time, as Littleton here says, the life of him that made the deed; but the death not only of the feoffor, of whom Littleton speaks, but of the feoffee also, is a countermand in law of the letter of attorney, and the feoffment itself is thereby rendered of none effect, because nothing can pass before livery of seisin. For if the feoffor dies, the land descends to his heirs; and if the feoffee dies,livery cannot be made to his heir, because then he would take by purchase, whereas "heirs" were named by way of limitation.

Therefore a letter of attorney to deliver seisin after the decease Power to deliver of the feoffor [in express terms] is void. fcoffee's decease

bad.

Fourthly, in all cases the attorney must pursue the warrant in substance and effect. Sthly. All this is to be understood of sole persons, or of a corporation or body consisting of one sole person, as a bishop, parson &c. But it holds not of a corporation aggregate of many persons capable. And therefore if a mayor and common- Death of a^grealtv make a charter of feoffment with a letter of attorney to deliver gatecori>°

J J rations head

seisin, the livery of seisin is good after the decease of the mayor, vacatauot because the corporation never dies. The like law is of a dean and chapter, et sic de similibus.

Lastly, if the lessor by his deed license the lessee for life or years Licence to alien (who is restrained by condition not to alien without license) to "^^deal/f^ alien, and the lessor dies before the lessee does alien, yet his death is no countermand of the license, but the lessee may alien notwithstanding, for the license exempts the lessee out of the penalty of

the condition, and the deed was executed on the part of the lessor as much as it could be. So if the king licenses an alienation in mortmain, and dies, the licence may be executed after his death.

Section 67.

Tenant for less ALSO, if tenements be let to a man for a term of half a year, or

than a year said J f

to be tenant for for a quarter of a year ore. in this case, if the lessee commit waste, the lessor shall have a writ of waste against him, and the writ shall say, that lie held for a term of years; but he shall liave an especial declaration upon the truth of the matter, and the count shall not abate the writ, because he cannot have any other writ upon Ihf matter.

Waste lies by whom, against whom, and what is waste.

[53 a]

Houses.

Wainscot, fixtures.

An action of waste lies against tenant by the curtesy, tenant in dower, tenant for life, for years, or half a year, by him who has the immediate estate of inheritance, for waste or destruction in houses, gardens, woods, trees, or in lands, meadows &c. There are two kinds of waste, viz. voluntary or actual, and permissive. Waste may be done in houses, by pulling or prostrating them down, or by suffering the same to be uncovered, whereby the spars, rafters, or other timber of the house become rotten. But if the house be uncovered when the tenant comes in, it is no waste in the tenant to suffer the same to fall down. But though the house be ruinous at the tenant's coming in, yet if he pull it down, it is waste unless he rebuild it again. Also if glass windows (though glazed by the tenant himself) are broken down, or carried away, it is waste, for the glass is part of the house. And so it is of wainscot, benches, doors, windows, furnaces, and the like, annexed or fixed to the house, either by him in the reversion, or the tenant.

Tenant bound to repair.

Though there be no timber growing upon the ground, yet the tenant at his peril must keep the houses from wasting. If the tenant do or suffer waste to be done in houses, yet if he repair them before any action brought, there lies no action of waste against him, but he cannot plead, quod nov fecit vaslum, but the special matter. A wall uncovered when the tenant comes in, is no waste if it be ■uffered to decay.

If the tenant cut down or destroy any fruit-trees growing in the Fruit tna. garden or orchard, it is waste; but if such trees grow upon any of the ground which the tenant holds out of the garden or orchard, it is no waste.

If the tenant build a new house, it is waste, and if he suffer it Newerectimu to be wasted, it is a new waste. If the house falls down by tempest, or be burnt by lightning, or prostrated by enemies, or the like, without a default of the tenant, or was ruinous at his coming in and falls down of itself, the tenant may build the same again with such materials as remain, and with other timber which he may take growing on the ground for his habitation, but he must not make the house larger than it was. If the house be discovered [i. e. unroofed or partially damaged] by tempest, the tenant must in convenient time repair it

If the tenant of a dove-house, warren, park, vivary, or the like, Dovehouse, take so many that sufficient store be not left [or] as he found when he came in, this is waste; and to suffer the paling to decay, whereby the deer are dispersed, is waste.

And it is to be observed, that there is waste, destruction, and Timber tree*. exile. Waste properly is in houses, gardens, and timber-trees, (viz. oak, ash, and elms, and these are timber-trees in all places) either by cutting them down, or topping them, or doing any act whereby the timber may decay. Also in countries where timber is scanty, and beeches or the like are converted to building for the habitation of man, or the like, they are all accounted timber. If the tenant cut down timber-trees, or such as are accounted timber, as is aforesaid, this is waste; and if he suffer the young germins to be destroyed, this is destruction. So it is, if the tenant cut down underwood (as he may by law), yet if he suffer the young germins to be destroyed, or if he stub up the same, this is destruction. Cutting down of willows, beech, birch, asp, maple, or the like, standing in the defence and safeguard of the house, is destruction. If there be a quickset fence of white thorn, if the tenant stub it up, or suffer it to be destroyed, this is destruction; and for all these and the like destructions an action of waste lies. But the cutting out of dead wood is no waste; though converting trees to fuel, when [-53 £j there is sufficient dead wood, is waste. If the tenant suffer the

houses to be wasted, and then fell down timber to repair the same, this is double waste.

Mines and minerals.

Digging for gravel, lime, clay, brick, earth, stone, or the like, or for mines of metal, coal, or the like hidden in the earth, where the mines were not open when the tenant came in, is waste: but the tenant may dig for gravel or clay for the reparation of the house, as well as he may take convenient timber-trees.

Sea and river banks.

It is waste to suffer a wall of the sea to be in decay, so as by the flowing and reflowing of the sea, the meadow or marsh is surrounded, whereby the same becomes unprofitable; but if it be surrounded suddenly by the rage or violence of the sea, occasioned by wind, tempest, or the like, without any default in the tenant, this is no waste punishable. So it is, if the tenant repair not the banks or walls against rivers, or other waters, whereby the meadows or marshes be surrounded and become rushy and unprofitable.

Conversion of arable to pasture, b)c.

If the tenant convert arable land into wood, or 2 converso, or meadow into arable, it is waste, for it changes not only the course of husbandry, but the proof and evidence [of his lessor's title to the land, for if the land be described as arable in the deeds and on view the land is found to be pasture, some special evidence is necessary to prove the identity.]

Fences, ditches,

The tenant may take sufficient wood to repair the walls, pales, fences, hedges, and ditches, as he found them; but he can make no new fences; and he may take also sufficient ploughbote, firebote, and other housebote.

Selling reparation timber.

The tenant cuts down trees for reparations and sells them, and after buys them again, and employs them about necessary reparations, yet is it waste by the vendition: and note that he cannot sell trees, and with the money cover the house.

Accidental fin. Burning of the house by negligence or mischance is waste.

Estate »f in- No person shall have an action of waste, unless he has the im

site toac'tioTrf mediate state of inheritance, but sometimes another shall join with *"""• him for conformity. As if a reversion be granted to two, and to the heirs of one; they two shall join in an action of waste: and in like manner the surviving coparcener and the tenant by the curtesy shall join in an action of waste: and if two joint-tenants be, with remainders to the heirs of one of them, and they make a lease for life, they shall join in an action of waste. If the estate tail determine pending the action of waste, and the plaintiff becomes tenant in tail after possibility of issue extinct, the action of waste is gone. If the tenant doth waste, and he in the reversion dies, the heir shall not have an action of waste for the waste done in the life of the ancestor; nor shall a bishop, master of an hospital, parson, or the like, for waste in the time of the predecessor. And so if lessee for years commits waste, and dies, an action of waste lies not against the executor or administrator for waste done before their time. But if two Coparceners coparceners be of a reversion, and waste is committed, and one of J°m """''" them dies, the aunt and the niece shall join in an action of waste. If lands be given to two and to the heirs of one of them, he that has the fee shall not have an action of waste upon the statute of Gloucester, for that they are joint-tenants; but his heirs shall have an action of waste against [the other becoming sole] tenant for life.

If a lease be made to A. for life, the remainder to B. for life, the Mesne remainremainder to C. in fee, in this case where it is said in the Register, „^/°r '•'" and in F. N. B. that an action of ^waste lies, it is to be understood after the death or surrender of B. in the mean remainder, for during his life no action of waste does lie. But if a lease for life be made, the remainder for years, the remainder in fee, an action lies presently during the term in remainder, for the mean term for years is no impediment. But if a man make a lease for life or years, and afterwards grants the reversion for years, the lessor shall have no action of waste during the years, for he himself has granted away the reversion in respect whereof he is to maintain his action. Otherwise it is, if he had made a lease in reversion, which had been but a future interest; for there an action of waste lies during the term, and so is the book to be understood, and the term shall be saved in that case.

Note, after waste done there is a special regard to be had to the juvenionmmi continuance of the reversion in the same state that it was at the time ^""^",. of the waste done; for if after the waste the reversioner grants over, though he takes back the whole estate again, yet is the waste dis

punishable. So if he grant the reversion to the use of himself and his wife and his heirs, yet the waste is dispunishable, and so of the like; because the estate of the reversion continues not, but is altered, and consequently the action of waste for waste done before (which consists in privity) is gone.

Prohibition liet against whom.

[54 a]

Tenant for life's assignee punishable for waste.

Waste by stranger.

Waste by husband seised jure Uxuus.

A prohibition of waste lay against tenant by the curtesy and tenant in dower by the common law, but not against tenant for life or years, because they came in by their own act, and he [the lessor] might have provided that no waste should be done.

A tenant by the curtesy or in dower can hold of none but of the heir and his heirs by descent, and therefore if they grant over their whole estate, and the grantee commits waste, yet the heir shall have an action of waste against them, and recover the land against the assignee; but if the heir either before the assignment had granted, or after the assignment doth grant the reversion over, the stranger shall have an action of waste against the assignee, because in both cases the privity is destroyed: in all other cases the action of waste shall be brought against him who did the waste, for it is in nature of a trespass. If tenant for life grants over his estate upon condition, and the grantee commits waste, and the grantor re-enters for the condition broken, the action of waste shall be brought against the grantee, and the place wasted recovered.

But tenant by the curtesy, tenant in dower, tenant for life, years, &c. shall answer for the waste done by a stranger, and shall take their remedy over. An infant, as also baron and feme, shall be punished for waste done by a stranger, and so shall the wife that has the estate by survivorship be punished for waste done by her husband in his life-time, if she agree to the estate, though there has been variety of opinions in our books as to this.

But if a f6mc tenant for life take husband, and the husband commits waste, and the wife dies, no action of waste lies against the husband in the tenuit, for he was seised but injure uxoris, and his wife was tenant of the freehold; but if a fihne be possessed of a term for years, and take husband, and the husband commits waste, and the wife dies, the husband shall be charged in an action of waste, for the law gives the term to him.

If tenant for life or years or their assignee make a grant over, and notwithstanding take the profits, an action of waste lies against him by him in the reversion or remainder by the statute.

An occupant shall be punished for waste; and so if an estate be Occupant. made to A. and his heirs during the life of B., and A. dies, the heir of A. shall be punished in an action of waste.

>~o action of waste lies against a guardian in socage (but an GuardTM. account or trespass lies), nor against tenant by statute staple, or elegit.

If waste be done sparsim here and there in woods, the whole woods Watte sparsim. shall be recovered, or so much wherein the waste sparsim is done. And so in houses so many rooms shall be recovered wherein there is waste done; but if waste be done sparsim throughout, all shall be recovered. It has been said that if the hall be wasted, the whole house shall be recovered, because the whole house is denominated of the hall; but later authority is to the contrary.

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A writ of waste.'] See in the Register five several writs of waste; Five writs of two at the common law for waste done by tenant in dower, or the guardian; and three by special or statute law, for waste done by tenant for life, for years, and tenant by the curtesy.

The writ shall say that he held for term of years.] The statute of Tenant far half Gloucester, cap. 5. which gives the action of waste against the JjjJJyj£ ""r's lessee for life or years [which lay not against them at the common »'"lin s'"'- "f law] speaks of one that holds for term of years in the plural num- [546] ber; and yet here it appears, by the authority of Littleton, that although it be a penal law, whereby treble damages and the place wasted shall be recovered, yet a tenant for half a year being within the same mischief, shall be within the same remedy, though it be oat of the letter of the law; for Qui haret i?i literd heeret in cortice, which is an excellent example, whereupon in many like cases a man may settle a certain judgment.

In many cases a tenant for life or years may fell timber to make Leute may fell

reparations, albeit he be not compellable thereunto, and shall not ""^^"i

be punished for the same in any action of waste. As if a house be *"g hmu*. ruinous at the time of the lease made, if the lessee suffer the house

to fall down be is not punishable, for he ia not bound by law to repair the house in that case. And yet if he cut down timber upon the ground so let, and repair it, he may well justify; and the reason is, for that the law favours the supportation and mainteo.i«>in( te- nance of houses of habitation for mankind. And therefore if two

nnnt, #c. may . . . - - .

compel the other or more joint-tenants or tenants in common be of a house ot nabitrem"r""""' arion, and the one will not repair the house, the other shall have by law a writ of de reparation fascienda, and the writ says, ad susteiitatiotiem ejusdem domus teneantur. So it is if the lessor by his covenant undertakes to repair the house, yet the lessee (if the lessor does it not) may with the timber growing upon the ground repair it, though he be not compellable thereunto. In the same manner, if a man make a lease of a house and land without impeachment of waste for the house, yet may the lessee with the timber upon the ground repair the house, though he may utterly waste it if he will; and so in many other cases.

lessee may work mines, when.

A man has land in which there is a mine of coals, or of the like, and makes a lease of the land (without mentioning any mines) for life or for years, the lessee for such mines as were open at the time of the lease made, may dig and take the profits thereof. But he cannot dig for any new mine that, was not open at the time of the lease made, for that would be adjudged waste. And if there be open mines, and the owner makes a lease of the land with the mines therein, this shall extend to the open mines only, and not to any hidden mine: but if there be no open mine, and the lease is made of the land together with all mines therein, there the lessee may dig for mines, and enjoy the benefit thereof, otherwise those words should be void. I have been the more spacious concerning this learning of waste, for that it is most necessary to be known of all men.

To A., for life, remainder to him for 21 years not merged ; contra e converse

Now has Littleton spoken of an estate for life, and an estate for years in several persons. Now let us see how they stand simul el semel in one person. If a man lets lands to another for life, the remainder to him for twenty-one years, he hath both estates in him so distinctly that he may grant away either of them; for a greater estate [cannot merge in a lesser, as a freehold in a chattel, or a remainder in a particular estate, though the greater estate] may uphold a lesser, but not P converso; and therefore if a man makes a lease to one for twenty-one years, the remainder to him for term of his life, the lease for years is merged and drowned in the remainder for life.

If a man make a lease for life to one, the remainder to his exe- Limitation to cutors for twenty-one years, the term for years shall vest in him; U(!stj ;„ him, for even as ancestor and heir are correlativa as to inheritance; (as if "'""'• an estate for life be made to A., the remainder to B. i n tail, the remainder to the right heirs of A, a fee [i. e. a remainder in fee] vests in A. as much as if it had been limited to him and his heirs); even so are testators and executors correlativa as to chattels. And therefore if a lease for life be made to the testator, the remainder to his executors for years, the chattel shall vest in the lessee himself, as well as if it had been limited to him and his executors.*

• And if an estate be limited to A. for life, with remainder to the executors of B. for 21 years, if B. be dead the executors should take a vested interest by way of remainder; but if B. be living they should take a contingent interest by way of remainder, which however does not require any particular estate to support it, because it is not an estate but only an interene termini till entry; but whether "executors" is a good name of purchase, has not, to the recollection of the editor, been distinctly decided. The points for consideration in such a case are, whether a character not fixed by law can be a good description of a person who, perhaps, may never be appointed, and if he be appointed, then another question is, whether he takes beneficially or in trust for the person whose executor he is; the heir, taking by purchase, takes beneficially, indeed he cannot take in trust for his ancestor who is dead.

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Tenant at will entitled to emblements, but not tenant for years.

Tenant at will is, where lands or tenements are let by one man to another, to luive and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleases him. Yet if the lessee sow the land, and the lessor, after it is sown and before the corn is ripe, puts him out, yet the lessee shall have the corn, and shall have free entry, egress and regress, to cut and carry away the corn, because he knew not at what time the lessor would enter upon him. Otherwise it is if tenant for years, who knoics the end of his term, sows the land, and his term ends before the corn is ripe. In this case the lessor, or he in the reversion, shall have the corn, because the lessee knew the certainty of his term and when it would end.

The will must be at option of both partiet.

It is regularly true, that every lease at will must in law be at the will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implies it to be at the will of the lessee also; for it cannot be only at the will of the lessor, but it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the will of the lessee, this must be also at the will of the lessor; and so are all the books that seem prima facie to differ clearly reconciled.

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Yet if the lessee sow the land #c.] The reason of this is, for that the estate of the lessee is uncertain, and therefore lest the ground should be unmanured, which should be hurtful to the commonwealth, he shall reap the crop which he sowed in peace, albeit the lessor determines his will before it is ripe. And so it is if he set roots or sow hemp or flax, or any other annual profit, if after

the same be planted, the lessor oust the lessee; or if the lessee dies, yet he or his executors shall have that year's crop. But if he plant young fruit trees, or young oaks, ashes, elms &c. or sow the ground with acorns &c. there the lessor may put him out notwithstanding, because they will yield no present annual profit.

And this is not only proper to a lessee at will, that when the lessor who entitled t« determines his will that the lessee shall have the corn sown 8tc. but e'nbUmmt*to every particular tenant that has an estate uncertain, for that is the reason which Littleton expresses in these words (because he has no certain nor sure estate). And therefore if tenant for life Tenant for life. sows the ground, and dies, his executors shall have the corn, for that his estate was uncertain, and determined by the act of God. And the same law is of the lessee for years of tenant for life. Husband wised So if a man be seised of land in right of his wife, and sows the J ground, and dies, his executors shall have the corn, and if his wife die before him he shall have the corn. But if husband and Joint tenants. wife be joint tenants of the land, and the husband sows the ground, and the land survives to the wife, it is said, that she shall have the com. If tenant pur auter vie sows the ground, and cestui que Tenant pur tie dies, the lessee shall have the corn. If a man seised of lands auter vie' in tee has issue a daughter and dies, his wite being eusemt with a the. son, the daughter sows the ground, and a son is born, yet the daughter shall have the corn, because her estate was lawful, and defeated by the act of God, and it is good for the commonwealth that the ground be sown.

But if the lessee at will sow the ground with corn &c. and after A„ emblements he himself determine his will and refuses to occupy the ground, in '/nins^ dfa"t"\ that case the lessor shall have the corn, because he loses his rent. """' "<*• And if a woman who holds land durante viduitate sua sows the ground and takes husband, the lessor shall have the emblements, because the determination of her own estate grew by her own act. But where the estate of the lessee being uncertain is de- Derivative feasible by a right paramount, or if the lease determine by the act of the lessee, as by forfeiture, condition 8cc. there he who has the right paramount, or who enters for any forfeiture &c. shall have the corn.

If a disseisor sow the ground and sever the corn, and the dis- Disseisor not seissee re-enter, he shall have the corn, because he enters by a e'""

L

estates.

U«nenti though foimer title, and severance or removing of the corn alters not the severed- case, for the regress is a recontinuation of the freehold in him in

judgment of law from the beginning.

Tenant by
Statute.

If tenant by statute merchant sows the ground, and then a sudden and casual profit falls by which he is satisfied, he shall have the emblements.

What a determination of the

will.

Power not revocable without notice to attorney.

The lessor may put him out.] There is an express ouster, and an implied ouster: express, as when the lessor [at will] comes upon the land and expressly forewarns the lessee to occupy the ground any longer; implied, as if the lessor without the consent of the lessee enters into the land and cuts down a tree, this is a determination of the will, for that it should otherwise be a wrong in him, unless the trees were excepted, and then it is no determination of the will, for then the act is lawful and the estate continues. If a man leases a manor at will whereunto a common is appendant, if the lessor put in his beasts to use the common, this is a determination of the will. The lessor may by actual entry on the ground determine his will in the absence of the lessee, but by words spoken on the ground the will is not determined until the lessee has notice, no more than the discharge of a factor, attorney, or such like in their absence is sufficient in law until they have notice thereof.

Marriage of If a woman make a lease at will reserving a rent, and she takes

d^Jrmimulono} nusDana< this is no countermand of the lease at will, but the husthewiu. band and wife shall have an action of debt for the rent; and so it

is if a lease be made to a woman at will reserving a rent, and the lessee takes husband, this is no countermand of the lease, but the lessor may have an action of debt or distrain them for the rent. So if the husband and wife make a lease at will of the wife's land reserving a rent and the husband dies, yet the lease continues.

Same on death In like manner if a lease be made by two to two others at will, U«m'ifth»n an<* one of tne lessors or one of the lessees dies, the lease at will is are two. not determined in either of those cases; which are points necessary

to be known.

Emblements accrue when

After it is sown and before the corn is ripe.] Then put the case that the corn is ripe and ready to cut down, and the lessor, before the lessee reaps it, enters and puts out the lessee, whether shall the eon, u ripe but lessee have the corn? And it is without all question that the ""'c"'" lessee shall have it, for by the same reason that he shall have it when he is put out before it is ripe, he shall have it when he is [56 a] put out when it is ripe. Et ubi eadem est ratio, ibi idem jus.

And shall have free entry, egress and regress.] For when the law lessees preventives any thing to one, it gives impliedly whatsoever is neces- iJuZen'ts'-'ih sarv for the taking and enjoying: of the same: and the law in this rem^!): action case drives him not to an action for the corn, but gives him a speedy remedy to enter into the land and to take and carry it away, and compels him not to take it at one time, or to carry it before it be ready to be carried; and therefore the law gives all that which is convenient, viz. free entry, egress and regress [way and passage], as much as is necessary. If the lessee be disturbed in this [right of] way which the law gives him, he may have an action upon the case, and recover his damages; and this action the law does give him, for whensoever the law gives any thing, it gives also a remedy for the same.

But here may be observed a diversity between a private way, Prhauand whereof Littleton here speaks, and a common way. For if the way l'"bl'c. f '$* dls~,

1' J J iinguimea and

be a common way, then if any man be disturbed or prevented from remedy for ob

i i ttruction.

going that way, or it a ditch be made across the way so as he

cannot go, yet shall he not have an action upon his case; and this

the law provided for avoiding of multiplicity of suits, for if any one

man might have an action, all men might have the like. But the

law for this common nuisance has provided an apt remedy, and

that is by presentment in the court-leet, or in the torn [or court of

the hundred or county]. But if a man sustain any particular

damage by the nuisance, as if he and his horse fall into the ditch,

whereby he receive any hurt or loss, there for this special damage

which is not common to others, he shall have an action upon his

case. And where the inhabitants of Southwark had by custom a oistmciim of

watering-place for their cattle which was stopped up by Powel; in «'"«"»«->''"«•

that case it was adjudged that any inhabitant of Southwark might

have an action; for otherwise they should be without remedy,

because such a nuisance is not presentable in the leet or torn.

Note the diversity.

Three kindt of ways.

Grass not i bl- waits.

There are three kinds of ways, whereof you shall read in our ancient books. 1st. A foot way, 2dly. A foot and horse way. vulgarly called pack and prime way, because it is both a footway, which is the jirst or prime way, and a pack or drift way also. 3dly. A foot, horse, and cart way, which is twofold, viz. the king's highway for all men, and a common way belonging to a city or town, as between neighbours and neighbours.

If the lessee at will by good husbandry and industry, either by overflowing or trenching, or compassing of the meadows, or digging up of bushes or such like, make the grass to grow in more abundance, yet if the lessor put him out, the lessee shall not have the grass, because the grass is the natural profit of the earth, the same law is if he sows hay-seed, and thereby increases the grass.

Section 69.

Tenants at will Also, if a house be let to a man to hold at will, by force whereof

and exccutois J . . . .

allowed reason- the lessee enters into the house, and brings his household stuff into move their 'the same, and after the lessor puts him out, yet he shall have free goods from the enirv eqress and regress into the said house for a reasonable time

premises. J J J J

to take away his goods and utensils. As if a man seised of a messuage in fee-simple, fee-tail, or for life, has certain goods within the said house, and makes his executors and dies; whosoever after his decease has the house, his executors shall have free entry egress and regress for a reasonable time to carry out of the same house the goods of their testator.

House includes House, messuage, or mansion, contains the buildings, curtilage,

curtilage, , i . ,

orchard, and orchard, and garden.

garden.

[566] ...

Cottage, uAat. Cottage, cotagium, is a little house without land to it.

Neighbour If a man has a house near to mine, and he suffers his house

compellable to . .

repair his house, to be so ruinous that it is like to fall on my house, I may have a writ de domo reparanda, and compel him to repair his house. But a prtrcipe lies not de domo, but de messuagio.

Reasonable lime..] What is reasonable time shall be adjudged Reasonable time by the discretion of the justices before whom the cause depends; }'J)""f"dedfr-v and so it is of reasonable fines, customs, and services, upon the true state of the case depending before them: for reasonableness in these cases belongs to the knowledge of the law, and is therefore to be decided by the justices. And this being said of time, the like maybe said of things uncertain, which ought to be reasonable; for nothing that is contrary to reason, is consonant to law.

Section 70.

Also, if a man ?nake a deed of feoffment to another of certain To A. genelands, and delivers to him the deed, but does not deliver seisin; J? ^"f^if in this case, he to whom the deed is made, may enter into the land, livery. uutif

% without, an

and hold and occupy it at the will of him who made the deed, estate at will because it is proved by the words of the deed that it is his will oa J' that the other should have the land [though he has not perfected the feoffment by livery]; but he who made the deed may put out the tenant when he pleases.

Here it appears, that if the feoffee enters, he is tenant at Delivery of deed will, because he enters by the consent of the feoffor. And albeit Z'Jifn iTvlr'v the deed be delivered upon the ground [without any livery of seisin "J "<*ia;but of the land], yet that delivery of the deed on the ground does not livery of seUin. amount to a livery of seisin of the land; for it has its natural effect, viz. to make the deed. But if the deed be delivered in name [57a] of seisin of the land, or if the feoffor says to the feoffee, " Take and enjoy this land according to the deed;" or, " Enter into this land, and God give you joy;" these words do amount to a livery of seisin.

Section 71.

Also, if a house be leased to hold at will, the lessee is not bound Tenant at will to sustain or repair the house, as tenant for term of years is. But if repairTut'0 tenant at will commits voluntary waste, as bypullinq down houses liable to tres

J zr J pass for volun

or felling trees, it is said that the lessor may have an action of tary waste; trespass for this against the lessee. As if I lend one my sheep to

tathe [i. e. to feed, fold, and manure] his land, or my oxen to plough his land, and he kills my cattle, I may well have an action of trespass against him, notwithstanding the lending.

hut net for permissive uasle.

The statute of Gloucester extends not to a tenant at will, and therefore for permissive waste the lessor has no remedy at all.

Voluntary waste and assignment a determination of

vill.

But voluntary waste amounts in law to a determination of the will. So if tenant at will grants over his estate to another, and the grantes enters, he is a disseisor, and the lessor may have an action of trespass against the grantee; for albeit the grant was void, yet it amounts to a determination of the will [on the lessee's part, so as to deprive him of emblements.]

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Note, in the lowest and the highest offences there are no accessaries, but all are principals; as in riots, routs, forcible entries, and other transgressions vi et armis, which are the lowest offences; and so in the highest offence, which is crimen fa-sa majestatis, there be no accessaries; but in felonies there be accessaries both before and after.

Section 72.

Lessor at will Note, if the lessor upon a lease at will reserve a i/early rent, he

may distrain, .. . J J'

but impounding may distrain for the rent behind, or have an action of debt for the detominesmU. Same at his mon Action.

But if he impound the distress upon the ground let at will, the will is determined. Note, he may distrain for the rent, and yet it is no rent-service, for no fealty belongs thereto, but it is a rent

distrainable of common right.

Tenant at «uf- There is a great diversity between a tenant at will and a tenant as dhtingui&ed a' sufferance; for tenant at will is in [and continues in] by right, from temnt at Dut a tenant at sufferance enters by a lawful title, and holds over by wrong. A tenant at sufferance is he who at the first came in by lawful demise, and after his estate ended continues in possession and wrongfully holds over. As if tenant pur auter vie continues in possession after the decease of cestui que vie, or tenant for years holds over [after the determination of] his term [the tenant

so holding over is tenant at will by the landlord's laches and sufferance] and hath but a bare possession; but the lessor cannot bring an action of trespass against him before entry. Against the king there can be no tenant at sufferance, but he who holds over in like cases to the above, is an intruder upon the king, because there is no laches imputed to the king for not entering. If tenant in tail of a rent grant the same in fee and dies, yet the issue in tail may bring aformedon, and admit himself [that is, elect to be] out of possession, [and proceed accordingly with the formedon.] The like law is, if a man makes a lease at will and dies, now is the will determined; and if the lessee continues in possession, he is tenant at sufferance, and yet the heir by admission [or election] may have an assize of Mordancestor against him. But there is a Guardian condiversity between particular estates made by the terretenant, as ^"'fisan above said, and particular estates created by act in law: as if a abatorguardian after the full age of the heir continues in possession, he is no tenant at sufferance, but an abator, against whom an assize of Mordancestor lies. Et sic de simUibus.

CHAPTER IX. Section 73.

TENANT BY COPY OF COURT ROLL.

Copyhold, what.

Tenant by copy of court roll is where a man is seised of a manor within which manor there is a custom, which has been used lime out of mind of man, that certain tenants within the same manor have been accustomed to have lands and tenements' to hold to them and their heirs in fee-simple, or fee tail, or for term of life, &c. at the will of the lord according to the custom of the same manor.

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Tenant by copy, iSfc.] There is no tenant in the law that holds by copy but only this kind of customary tenant, for no man holds by copy of a charter, or copy of a fine, or such like, but this tenant holds by copy of court-roll. Bracton calls copyholders villanos sochnannos, not because they were bond, but because they held by base tenure, by doing all kinds of villein services. And Britton says, that some who are free of blood hold land in villenage; and Littleton himself in the next chapter calls them tenants by base tenure; and in the statute of 4 Edw. 1. they are called custumarii tenantes, and so Fleta calls them; and before him Ockam (who wrote in the reign of Hen. 2.) spake of them, and how, and upon what occasion they had their beginning.

Of the court baron, whieh cannot he held out of manor.

Court.] The court baron must be holden on some part of the land which is within the manor, for if it be holden out of the manor it is void; unless where a lord being seised of two or three manors has usually time out of mind kept at one of his manors courts for all the said manors, then by custom such courts are sufficient in law, albeit they be not holden within the several manors. And it is to be understood that this court is of two natures. The first is by the common law, and is called a court baron, as some have said, for that it is the freeholders' or freeman's court (for barons in one sense signify freemen), and of that court the freeholders being suitors* are the judges, and this may be kept from three weeks to three weeks. The second is a customary court, and that con- Ofthtmstomary cerns copyholders, and therein the lord or his steward is the judge. ^T/'old Now as there can be no court baron without freeholders, so there cannot be this kind of customary court without copyholders or customary holders. And as there may be a court baron of freeholders only without copyholders, and then is the steward the register, so there may be a customary court of copyholders only without [a court baron for the] freeholders, and then is the lord or his steward the judge. And when the court baron is of this double nature, the court roll contains as well matters appertaining to the customary court as to the court baron. And forasmuch as the title or estate of the copyholder is entered into the roll whereof the steward delivers him a copy, therefore he is called a copyholder. Concerning the institution of the court baron by the laws and ordinances of ancient kings, and especially of king Alfred, it appears that the first kings of this realm had all the lands of England in [58 i] demesne, and the grand manors and royalties they reserved to themselves, and of the remnant, for defence of the realm, they enfeoffed the barons of the realm with such jurisdiction as the court baron now has, and instituted the freeholders to be judges of the court baron. And herewith agreed the laws of Edward the Confessor. And it is to be observed that in those ancient laws, under the name of barons were comprised all the nobility.

There may be a customary manor granted by copy of court roll. WhatLordsmay So although the word be (seised) which properly betokens a free- ^unuovuholdt. hold, yet tenant for years, tenant by statute merchant, staple, elegit, and tenant at will, guardian in chivalry, &c. who are not properly seised but possessed, may be lords of manors pro tempore, not only to make admittance, but to grant voluntary copies of ancient copyhold lands which come into their hands [by escheat, forfeiture, or otherwise]. And therefore there is a diversity between disseisors, abators, intruders, and others who have defeasible titles; for their voluntary grants of ancient copyhold lands shall not bind the disseisees or others who have right. And voluntary grants by copy,

* Note, the word "suitors'" here does not mean parties to a suit, but the persons who owe suit and service to the court, that is, who serve on the homage, and purwe their remedies in that court for injuries done to their lands held of that manor.

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made by such particular tenants as aforesaid, shall bind him who has the freehold and inheritance, because all these are lawful lords for the time being; but so is not a tenant at sufferance, because he is in by wrong, as hath been said. But admittances made by disseisors, abators, intruders, tenants at sufferance, or others who have defeasible titles, stand good against those who have right, because it was a lawful act, and they were compellable to make such admittances. And yet in some special cases an estate may be granted by copy by one who is not dominus pro tempore, or who has not any thing in the manor. As if the lord of a manor by his will in writing devise, that his executor shall grant the customary tenements of the manor according to the custom of the manor for the payment of his debts, and dies, the executor having nothing in the manor, may make grants according to the custom of the manor.

O/thedemUahte quality of copyholds.

Custom.] To support which three things must concur. The first is time, and that must be out of the memory of man, and therefore a copyhold cannot begin at this day. The second is, that the tenements be parcel of and situate within the manor. The third is, that the copyhold tenements have been demised and are demisable by copy of court roll time out of mind; for it need not have [always] been demised [or let out as copyhold] time out of mind, if they have been always demisable [that is, always capable of beinggranted as copyholds] that is sufficient. For example: if a copyhold tenement escheat to the lord, and the lord keeps it in his hands for many years, during this time it is not demised, but still the demisable quality is not lost, for the lord has power to demise it again whenever he pleases.

At the will of the lord according to the custom.] So that a copyholder is not a bare tenant at will, but a tenant at will according to the custom of the manor.

What may be granted by copy,

Certain tenements.] What things may be granted by copy, is necessary to be known. 1st. A manor may be granted by copy. 2nd. Underwoods without the soil may be granted by copy to one and his heirs, and so may the herbage or vesture of land. 3rd. And generally all lands and tenements within the manor, and whatsoever concerns lands or tenements, may be granted by copy [provided they have always continued demisable as such] ; thus a fair appendant to a manor may be granted by copy &c.

Suction 74.

And such a tenant may not alien his land by deed, for then the Copyholds are lord may enter as into a thing forfeited unto him. But if he vnll surrender o^nly. alien his land to another, it behoves him after the custom to surrender the tenements in court into the hands of lite lord, to tlie use of him xchom he wishes to have the estate, in this for in, or to this effect.

A. of B. comes into this court, and surrenders in the same court Form of sura messuage be. into the hands of the lord to the use of C. of D. and his heirs, or the heirs issuing of his body, or for term of life &c. And upon tliat comes the aforesaid C. of D. and takes of the lord in the same court the aforesaid messuage &c. to Iiave and to hold to him and to his heirs, or to him and to his heirs issuing of his body, or to him for term of life, at the lord's will after the custom of the manor, to do and yield tlierefore the rents, services, and customs thereof before due and accustomed &c. and gives the lord for a fine Sfc and makes unto the lord his fealty &c.

And such a tenant must surrender.] This is true in case of aliena- But a right man tion, but when a man has but a right to a copyhold, he may re- e "rrq i lease it by deed or by copy to one who is admitted tenant de facto.

Alien by deed.] Here it appears by Littleton, that there must be Whataiienatwn an alienation; for the making of the deed alone, unless somewhat a'0TJtt m,% pass thereby, is no forfeiture. As if he make a charter of feoffment, or a deed of demise for life, and make no livery, this is no forfeiture, because nothing passes, and therefore no alienation; but otherwise it is of a lease for years. What shall be forfeitures of copyholds you may read at large in my Reports.

In court.] This is the general custom of the realm, that every ofiurnnden m copyholder may surrender in court, and need not to allege any"' '*""'' custom therefore. So if out of court he surrender to the lord himself, he need not allege in pleading any custom. But if he surrender out of court into the hands of the lord by the hands of two or three copyholders [tenants of the manor] or by the hands of the

bailiff or reeve, or out of court by the hands of any other, these customs are particular, and must therefore be pleaded.

Customary freeholds may pass hy surrender.

. [59 b]

But although it be incident to the estate of a copyhold to pass, as our author says, by surrender, yet so forcible is custom, that by it a freehold and inheritance may also pass by surrender (without the leave of the lord) in his court, and be delivered over by the bailiff to the feoffee, according to the form of the deed, to be enrolled in the court or the like.

Surremiereeisin A. B. comes into tltis court, and surrenders #c.] Here Littleton iH,t""'eraUur- puts an example of a surrender in court, and in this example three rmder gives ufe things are to be observed. 1st. That the surrender to the lord is

estate only. a

general without the expression of any estate, for the lord being but an instrument to admit the cestuique use, no more passes to him than is sufficient to serve the limitation of the use; and the cestuique use, when he is admitted, shall be in by him who made the surrender, and not by the lord. 2dly. If the limitation of the use be general, then the cestuique use takes but an estate for life, and therefore here Littleton expresses upon the declaration of the use, the limitation of the estate, viz. in fee-simple, fee-tail &c. 3dly. The lord cannot grant a larger estate than is expressed in the limitation of the use.

Surrender to will seversjointtenancy.

If two joint tenants be of copyhold lands in fee, and one of them out of court according to the custom surrenders his part into the lord's hands, to the use of his last will, and by his will devises his part to a stranger in fee, and dies, and at the next court the surrender is presented, by the surrender and presentment the jointure is severed, and the devisee ought to be admitted to the moiety of the lands, for now by relation the estate of the land was bound by the surrender.

Lord in remainder bound to admit on surrender to particular tenant.

If the lord of the manor for the time being be lessee for life or for years, guardian, or any who has a particular interest, or who is tenant at will of a manor (all of whom are accounted in law domim pro tempore), and takes a surrender into his hands, and before admittance the lessee for life dies, or the years, interest, or custody do end or determine, or the will is determined, though the lord comes in above the lease for life or for years, the custody or other

particular interest or tenancy at will, yet shall he be compelled to make admittance according to the surrender; and so was it holden in 17 Eliz. in the Earl of Arundel's case, which I myself heard.

And gives the lord for a fine.] Of fines due to the lord by the Fine may becopyholder, some are by the change or alteration of the lord, and e°TMd's7eath some by the change or alteration of the tenant. The change of the and m tenant's

. death or al'wn

lord ought to- be by the act of God, otherwise no fine can be due; atian. but by the change of the tenant either by the act of God, or by the act of the party, a fine may be due: for if the lord allege a custom within his manor to have a fine of every of his copyholders of the said manor at the alteration or change of the lord of the manor, be it by alienation, demise, death, or otherwise; this is a custom against law as to the alteration or change of the lord by the act of the party, for by that means the copyholders may be oppressed by multitude of fines by the act of the lord. But when the change grows by the act of God, there the custom is good, as by the death of the lord. And this, upon a case in the Chancery referred to Sir John Popham chief justice, and upon conference with Anderson, Periam, Walmesley, and all the judges of Serjeant's Inn in Fleet-street, was so resolved and certified into the Chancery. But upon the change or alteration of the tenant, a fine is due to the lord. Of fines taken of copyholders some are certain Fine mutt be by custom, and some are uncertain; but the fine, though it be uncertain, yet must it be reasonable. And that reasonableness shall be discussed by the justices upon the true circumstances of the case appearing unto them; and if the court where the cause depends, adjudges the fine exacted unreasonable, then the copyholder is not compellable to pay it. And so was it adjudged: for all [60a] excessiveness is abhorred in law. See more concerning fines of copyholders in my Reports, which are so plainly there set down, that they need not be rehearsed here.

Section 75.

And these tenants are called tenants by copy of court roll; Why called because they have no other evidence concerning their tenements but" only the copies of court rolls.

Section 76.

Copyholder's And such tenants shall neither implead, nor be impleaded for their cuTtomary"1 tenements by the king's writ. But if they will implead others for court. their tenements, they sJtall have a plaint entered in the lord's court

in this form, or to this effect: A. of B. complains against C. of D.of a plea of land, viz. of one messuage, forty acres of land, four acres of meadow &c. with the appurtenances, and makes protestation to follow this complaint in the nature of the king's writ of assize of mordancestor at the common law, or of an assize of novel disseisin, or formedon in the descender at the common law, or in the nature of any other writ >c. Pledges to prosecute F. G. &c.

Petition of emr Put the case that the demandant in a plaint in nature of a real action recovers the land erroneously, what remedy is there fo r the party grieved? He cannot have the king's writ of false judgment in respect of the baseness of the estate and tenure, being in the eye of the law but a tenant at will, and the freehold being in another; but he shall have a petition to the lord in the nature of a writ of false judgement, and therein assign errors, and have remedy according to law.

Special custom Formedon in the descender at the common law.] By the opinion of port entails, but Littleton, as there may be an estate tail by custom with the coTMa'ndmmai °Perati°n oi the statute of W. 2. cap. 1. so may the tenant in tail be barred by have z formedon in descender; but as the statute without a custom

surrender.

[60 A] extends not to copyholds, so a custom without the statute cannot create an estate tail. . Now it is not a sufficient proof that lands have been granted in tail, that they have been anciently and usually granted by copy to many men and to the heirs of their bodies, for that may be a fee-simple conditional as it was at common law. But if a remainder has been limited over on such grants and [such remainder has been] enjoyed, or if the issues in tail have avoided the alienation of the ancestor, or if they have recovered the same in writs of formedon in the descender, these and such like are proofs of a custom to entail. But if by custom the copyhold may be entailed, the same by like custom may be by surrender alone cut off and destroyed, [and such surrender will by custom bar the remainder and reversion also, but the natural way of barring a remainder in copyholds is by a customary recovery, though customs to bar by Bun-ender and recovery may be concurrent in the same manor].

Section 77.

And although some such tenants have an inheritance according to Copyholder the custom of the manor, yet they have but an estate at the will of ^^"and cat^ the lord according to the course of the common law. For it is said, not lie ejected at

lord's pleasure.

that if the lord doth oust them, they have no other remedy but to sue to their lords by petition; for if they should have any other remedy, they would not be tenants at will. But the' lord cannot break through the custom, which is reasonable enough. And Brian, chief justice, said, that if such tenant by custom paying his services be ejected by the lord, he shall have an action of trespass against him. H. 21 Ed. 4. And so was the opinion ofDanby, chief justice, in 7Ed.-i. For he saith, that tenant by the custom is as well entitled to have his inheritance according to the custom as he who hath a freehold at the common laio.

Here Littleton sets not down his own opinion, which seems rather to the contrary, as appears by the next chapter. [This however does not distinctly appear.] But now, without question, the lord cannot at his pleasure put out the lawful copyholder without some cause of forfeiture, and if he do, the copyholder may have an action of trespass against him; for albeit he is tenant at the will of the lord, yet is it according to the custom of the manor.

[61a] CHAPTER X. Section 78.

TENANT BY THE VEKCE.

Tenants by TENANTS by the verge are in the same nature as tenants by holder c"Py Copy of court roll. But the reason why they are called tenants by the verge, is, for that when they surrender their tenements into the hands of their lord to the use of another, they have a little rod (by the custom) in their hand, the which they deliver to the steward or to the bailiff', according to the custom of the manor, and he who has the land shall take up the same in court, and such taking shall be entered on the roll, and the steward or bailiff, according to the custom, shall deliver to him who lakes the land the same rod, or another rod, in the name of seisin; and for this cause they are called tenants by the verge, but they have no other evidence but by copy of court roll.

This tenant by the verge is a mere copyholder, and takes his name from the ceremony of the verge [which now is usually adopted in all copyhold manors.]

Steward may u Steward.] Every steward of courts is either by deed or without

retained without , _' . _

deed, and du- deed; tor a man may be retained a steward to keep his court baron ptemiTM.0* and also his court leet belonging to the manor without deed, and [61 b] that retainer shall continue until he be discharged.

Lord may ad- The lord of a manor may make admittances out of court and out

mit out of

manor. of the manor also, as at large appears in my Reports.

Section 79.

An D also in divers lordships and manors there is this custom, viz. Surrender to if a tenant who holds by custom, will alien his lands or tenements, anj tenants' he may surrender his tenements to the bailiff, or to the reeve, or to gooJby.customtiro honest men of the same lordship, to the use of him who shall have the land, to have in fee-simple, fee-tail, or for term of life, &c. And they shall present all this at the next court, and then he, who shall have the land by copy of court roll, shall have the same according to the intent of the surrender.

To the bailiff or to the reeve.] Littleton intends,' into the hands [62 a] of the lord by the hands of the bailiff or the reeve.' The custom guides these surrenders out of court, and the custom must be pursued.

At the next court.] By the surrender out of court, the copyhold Surrender not estate passes to the lord under a secret condition, that it be pre- £0'*'wid.' ""* sented at the next court according to the custom of the manor. And therefore if after such a surrender and before the next court, he who made the surrender dies, yet the surrender stands good; and if it be presented at the next court, cestuique use shall be admitted thereunto; but if it be not presented at the next court according to the custom, then the surrender becomes void; and so was it clearly holden Pasch. 14 Eliz. in the court of Common Pleas, which I myself heard.

Section. 80.

An D so it is to be understood, that in divers lordships, and in special customs divers manors, there be many and divers [different] customs, as to n?"stoe reason' taking tenements, pleading, and other things to be done ; and whatsoever is not against reason may [by these special customs] be well admitted and allowed.

For how long soever it has continued, if it be against reason, it is of no force in law. This however is not to be understood of every

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unlearned man's reason, but of artificial and legal reason warranted by authority of law: Lex est summa ratio.

Section 81.

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And these tenants who hold according to the custom of a lordship or manor, albeit they have an estate of inheritance according to the custom of the lordship or manor, yet because they have no freehold by the course of the common law, they are called tenants by base tenure.

Section 82.

(.'opyholden and tenants at will distinguish' ed. — "Heirs' rejected an to the latter.

And there are divers diversities between tenant at will who is in by lease of his lessor by the eourse of the common law, and tenant according to the custom of live manor in form aforesaid. For tenant at will according to the custom may liave an estate of inheritance at the will of the lord, according to the custom and usage of the manor. But if a man let [freehold] lands or tenements to another, to have and to hold to him and his heirs at the will of the lessor, these words (his heirs) are void. For in this case if the lessee dies, and his heir enters, the lessor shall have a good action of trespass against him; but not so against the heir of tenant by the custom in any case, &c. for that the custom of the manor in some cases may aid him to bar his lord in an action of trespass, Sec.

Section 83.

Copyholder must repair.

[63 a]

Waste a forfeiture.

Also, the one tenant by the custom in some places ought to repair and uphold his houses, and the other tenant at will ought not.

By the custom.'] For what a copyholder may or ought to do, or not do, the custom of the manor must direct it, for consuetudo tnanerii est observanda. But if there be no custom to the contrary, waste either permissive or voluntary of a copyholder is a forfeiture of his copyhold.

Section 84.

Also, the one, tenant by the custom, shall do fealty, and the other Fealty. not. And many other diversities there are between them.

And the doing of fealty by a copyholder proves that a copyholder, so long as he observes the custom of the manor and pays his services, has a fixed estate. For tenant at will, that may be put out at pleasure, shall not do fealty. For to what end should a man swear to be faithful and true to his lord, who may be put out at the pleasure of the lessor, or who may himself determine the tenancy at his pleasure. Of this kind of customary tenants, and of many things concerning them, you may read more in the Fourth Book of my Reports, fol.21, 22, 23, &c.

BOOK II.

[64a] CHAPTER I. Section 85.

HOMAGE.

Homage. Homage is the most honourable, at the same time the most humble

service of reverence that afranktenant may do to his lord. Forwhen the tenant performs homage to his lord, he shall be ungirt, and his head uncovered, and his lord shall sit, and the tenant shall kneel before him on both his knees, and hold his hands jointly together between the hands of his lord, and shall say thus: I become your man from this day forward of life and limb, and of earthly worship, and unto you shall be true and faithful, and bear to you faith for the tenements that I claim to hold of you, saving the faith that I owe unto our sovereign lord the king; and then the lord so silting shall kiss him.

Principle if For the tenements that 1 claim to hold of you.] For the better

""r65 /I understanding of that which shall be said hereafter, it is to be known first, that there is no land in England in the hands of any subject but what is holden of some lord by some kind of service, as partly has been touched before. Secondly, all the lands within this realm were originally derived from the crown, and therefore the king is sovereign lord, or lord paramount, either mediate or immediate of all and every parcel of land within the realm. Thirdly, in ancient time lords upon the creation of their tenures did not only reserve rents, services, and profit, &c. for which they might distrain and have other remedy, but also took an humble submission of their tenants by promise and oath (for to

homage fealty is incident), to be true and faithful to him for the tenements so holden of him, which submission is called homage and fealty, according to the tenure reserved.

One within the age of twenty-one years may do homage; but infant: Bracton says he cannot do fealty, because in doing of fealty he ought to be sworn, which an infant cannot be. But some opinions are in our books to the contrary, viz. that an infant shall do fealty; but I take it to be meant of homage, and herewith agrees Britton.

Glanvill says, women shall not do homage; but Littleton says Feme covert. that a woman shall do homage; but she shall not say. " I become your woman," but " / do to you homage; and so is Glanvill to be understood, that she shall not do complete homage.

Section 90.

Note, none shall do homage but such as have an estate in fee- Whomayper

simple or fee-tail, in his own right or in right of another. For rg(j£'i

it is a maxim in law, that he who has an estate but for term

of life, shall neither do homage or take homage. For if a woman

has lands or tenements in fee-simple, or in fee-tail, which she holds

of her lord by homage, and takes husband, and has issue, ihenjjthe

husband in the life of the wife shall do homage, because he has title

to have the tenements by the curtesy of England if he survives

his wife, and he also holds in right of his wife. But if the wife dies

before homage done by the husband in the life of his wife, and the

husband holds himself in as tenant by the curtesy, then he shall not

do homage to his lord, because he then hath an estate but for term

of life.

More shall be said of homage in the tenure of homage ancestral.

In the right of another.] As the husband and wife in the right of Corporation. his wife, the bishop in right of his bishopric, &c. the abbot or prior in right of his monastery, &c. But no corporation aggregate of many persons capable, be the same ecclesiastical or temporal, can do homage, as a dean and chapter, mayor and commonalty, and

such like, albeit they are seised in fee of lands held by homage, yet shall they not do homage. And the reason is, because that homage must be done in person, and a corporation aggregate of many cannot appear in person; for albeit the bodies natural, whereupon the body politic consists, may be seen, yet the body politic or corporate itself cannot be seen, nor can it do any act but by attorney, and homage must ever be done in person, &c. And albeit [67 a] an abbot and convent is a corporation aggregate of many, yet because the convent are all dead persons in law, the abbot alone in nature of a sole corporation shall do homage.

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Fealty is the same that fidelitas is in Latin. And when a free- Fealty.
holder doth fealty to his lord he shall hold his right hand upon a
book, and shall say thus: Know ye this, my lord, that I shall be
be faithful and true unto you, and faith to you shall bear for the
lands which J claim to hold of you, and that I shall lawfully do to
you the customs and services which I ought to do, at the terms as-
signed, so help me God and his Saints; and he shall kiss the book.
But he shall not kneel when he makes his fealty, nor shall he make
such humble reverence as is aforesaid in homage.

And tvhen a freeholder.] Every freeholder, except tenant in frankalmoigne shall do fealty. Fealty is a part of homage for all the words of fealty are comprehended within homage, and therefore fealty is incident to homage.

So help me God.] As homage is the more honourable service, so fealty is a service more sacred, because he is sworn thereunto. And the reason wherefore the tenant is not sworn in doing his homage to his lord is, for that no subject is sworn to another subject to become his man of life and member but to the king only, and that is called the oath of allegiance, or homagium ligeum,

Section 92.

And there is great diversity between the doing of fealty and of Who may tale. homage ; for homage cannot be done to any but to the lord himself; but the steward of the lord's court, or bailiff, may take fealty for the lord.

Section 93.

Who shall do. Also, tenant for term of life shall do fealty, and yet he shall not do homage. And divers other diversities there are between homage and fealty.

The tenant must do fealty in person; because he must be sworn unto it, and no man can swear by the common law by attorney or proctor.

Importance of. Now if lords knew what benefit they may reap by receiving of homage and fealty, they would not neglect them; for by the receiving of either, it is a sufficient seisin of all manner of services, as by the words of either appears.

CHAPTER III. Section 95. [686]

ESCUAGE.

EscuAGEts calledin latin Scutagium, that is, service of the shield; What it is. and the tenant, who holds his land by escuage, holds by knight's service. And also it is commonly said, that some hold by the service of one knight's fee, and some by the half of a knight's fee. And it is said, that when tfie king makes a voyage royal into Scotland to subdue the Scots, then he who holds by the service of one knight's fee, ought to be with the king forty days, well and conveniently arrayed for the war. And he who holds his land by a moiety of a knight's fee ought to be with the king twenty days; and he who holds his land by the fourth part of a knight's fee, ought to be with the king ten days; and so he who has more, more, and he who has less, less.

Every tenure by escuage is a tenure by knight's service; but [69a] every tenant that holds by knight's service, holds not by escuage, as shall be said hereafter.

The service of' one knight's fee.] There is great diversity of opinions Knight'ifee, concerning the contents of a knight's fee, that is, how much land Zanfhnd, &;c. goes to the livelihood of a knight. For some say that a knight's ^•"X"'"""!fee consists of eight hides, and every hide contains an hundred e<mt«w. acres, and so a knight's fee should contain eight hundred acres. Others say, that a knight'e fee contains six hundred and eighty acres. Others say, that an oxgang of land contains fifteen acres, and eight oxgangs make a ploughland; by which account a ploughland contains a hundred and twenty acres; and that virgata terra, or a yardland contains twenty acres. But I hold, that a knight's fee, an hide or ploughland, a yardland or oxgang of land, do not

Contents of a contain any certain number of acres, but that a knight's fee is properly

hiight'ifee; J . . a ,.

to be esteemed according to the quality, and not according to the quantity of the land, that is to say, by the value, and not by the content. Which antiquity I cite, for that it concurs with the act of parliament anno 1 E. 2, cle militibus; by which act census militam the estate of a knight is measured by the value of twenty pounds per annum, and not by a certain content of acres; and with this agrees the statute of W. 1. cap. 35, and F. N.B. fol. 82, where twenty pound of land in socage is put as equivalent to a knight's fee; and this is the most reasonable estimate, for one acre may be better than many others, so that he who has six hundred and eighty or eight hundred acres of barren land, had not according to the ancient account a sufficient revenue to maintain the degree of a knight, and he who had a less number of acres of some land of the value of twenty pound per annum, had a sufficient livelihood in those days for the maintenance of a knight. So antiquity thought that four hundred marks of land per annum was a competent livelihood for a baron, and four hundred pounds/ier annum ad sustinendum nomen et onus of an earl, and of late time eight hundred marks per annum of a marquis, and eight hundred pounds per annum of a duke; so that their yearly revenue was estimated by the value and not by the content. And one ploughland, carucata terra, or a hide of land, hida terra, which is all one, is not of any certain content, but as much as a plough can by course of husbandry plough in a year. And therewith agrees Lambard verbo Hide. And a ploughland may contain a messuage, wood, meadow, and pasture, because by them the ploughmen and the cattle belonging to the plough are maintained. And the venerable Beda calls a ploughland familiam, a family; because it contains necessary things for the maintenance of a familyAnd Prisot well says in 35 H. 6. fol. 29, that a plough may till more land in a year in one country than in another; and therefore it stands with reason, that a ploughland should be less in one place than in another. 41 E. 3. tit. Fine 40, and 13 E. 3. Fine 67. A Vim. Parcels, fine shall not be received de una virgatd terra for the uncertainty, vide 39 H. 6. 8. But an acre of land is certain by the statute de terris mensurandis. Note also, that every ploughland of ancient time was of the yearly value of five nobles per annum, and this was the living of a ploughman or yeoman; and ex duodecm carucatis constabat unum feodum militis, which amounts to twenty pounds per annum.

Ploughland, what.

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And it is to be observed, that the relief of a knight [that is, his Belief for payment or rent to his superior lord] and all above him which are. m"'fft' '■'" noble, is the fourth part of their yearly revenue, as of a knight five [69 b] pounds, which is the fourth part of twenty pounds. So a barony consists of thirteen knights' fees and one-third of another, which amounts to four hundred marks, and therefore his relief is the fourth part of this, viz. one hundred marks: and an earldom consists of twenty knights' fees, which amount to four hundred pounds (as before it appears by the said ancient record de modo tenendi parliamentum, fyc.) and therefore his relief is one hundred pounds. And this also appears by the statute of Magna Charta, cap. 2. and by the equity of this statute, insomuch that a marquisite, which consists of the revenue of two baronies, (which amounts to eight hundred marks,) shall pay according to that just proportion for his relief two hundred marks; and because a dukedom consists of the revenues of two earldoms, viz. eight hundred pounds per annum, a duke shall pay two hundred for a relief, which is also the fourth part of his revenue; and with this agrees the records of the Exchequer.

Note, at the time of the making the statute of Magna Charta, Titiesofnobility 9 H. 3. there was not any duke, marquis, or viscount in England, dUCed, and therefore the statute could not make mention of them, and Edward the eldest son of king Edw. 3, called the Black Prince, was the first duke in England after the Conquest, and Robert earl of Oxford in the reign of Richard 2. was the first marquis. And before the reign of Henry 6. there was not any viscount, a dignity of great antiquity in other realms.

A voyage royal.] A voyage royal is not only when the king What a voyage himself goes to war, as Littleton here says, but also when his lieutenant or deputy goes. And what shall be termed a voyage royal shall be adjudged in this case by the judges of the common law as an incident to escuage, and not by the constable and marshal, or any other: et sic de similibus.

There is also another kind of voyage royal, viz. when one goes with the king's daughter beyond sea to be married, &c. for such a voyage is for the good of the whole realm (for more profit for the realm cannot be than to make alliance with another nation); but of this voyage royal Littleton speaks not here, but only of the voyage royal to war; so that there is a voyage royal of war, and a voyage royal of peace and amity. And it is to be observed, that he who holds by castle guard or cornage holds by knights' service, and yet he shall pay no escuage, because he holds not to go with the king to war.

Into Scotland.] In Scotiam. This is put but for an example, for if the tenure be to go in Walliam, Hiberniam, Vasconiam, Pictaviam, tfc. it is all one. Sir Richard Rockesley knight held lands at Seaton by serjeanty to be vantrarius regis, that is, to be the king's fore-foot man when the king went into Gascony, donee perususfuit pari solearum pretii 4d., that is, until he had worn out a pair of shoes of the price of fourpence. And this service being admitted to be performed when the king went to Gascony to make war, is knight's service.

Term of unite: He who holds bj/ the service of one knight's fee, ought to be with the king forty days.] But this is to be understood of a tenant who holds of the king immediately; for every man is bound by his tenure to defend his lord, and both he and his lord the king and his country; and therefore if the lord goes not, the tenant is excused. But yet if the tenant peravail goes with the king, it excuses all the mesnes.

And it is to be observed, that for every pound of the ancient value of a knight's fee, accounting twenty pound as land, the tenant must go with the king two days, which comes just to forty days for a whole knight's fee.

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of substitutes. But it appears that it is not needful for him who holds by escuage, to go himself with tlie king, if he will find another able person for him conveniently arrayed for the war to go with the king. And this seems to be good reason. For it may be, that he who holds by such services is languishing, so that he can neither go nor ride. And also an abbot or other man of religion, or a feme sole, ivho hold by such services, ought not in such case to go in proper person. A nd Sir William Herle, chief justice of the Common Pleas, has said that escuage shall not be granted but where the king goes himself in his proper person.

Sir William Herle.'] A famous lawyer, constituted chief justice [71a] of the Common Pleas by letters patent dated die Martii anno 5 E. 3. It appears by Littleton, and by the records, that he was a knight, against the conceit of those who think that the chief justices of the court of Common Pleas were not knighted till long after.

Our student shall observe, that the knowledge of the law is like Lawadtep a deep well, out of which each man draws according to the "*"• strength of his understanding. He that reaches deepest, he sees the amiable and admirable secrets of the law, wherein, I assure you, the sages of the law in former times (whereof Sir William Herle was a principal one) have had the deepest reach. And as the bucket in the depth is easily drawn to the uppermost part of the water, (for nullum e lenient urn in suo proprio loco est grave) but take it from the water, it cannot be drawn up but with great difficulty; so albeit beginnings of this study seem difficult, yet when the professor of the law can dive into the depth, it is delightful, easy, and without any heavy burthen, so long as he keeps himself in his own proper element.

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And after such a voyage royal into Scotland, it is commonly said, that by authority of parliament the escuage shall be as- assessed. sessed and put in certain; scil. a certain sum of money how much every one who holds by a whole knight's fee who ivas neither by himself nor by any other with the king, shall pay to his lord of whom he holds his land by escuage. As put the case, that it was ordained by the authority of parliament, that every one who holds by a whole knight's fee who was not with the king, shall pay to his lord forty shillings; then he who holds by the moiety of a knight's fee, shall pay to his lord but twenty shillings; and he who holds by the fourth part of a knight's fee, shall pay but ten shillings; and he who hath mare, more; and who less, less.

[73„] Section 99.

Esc is* And if one speak generally of escuage, it shall be intended by tenure in fa common speech of escuage uncertain, which is knight's

service. And such escuage draweth to it homage, and homage draweth to it fealty; for fealty is incident to every manner of service, unless it be to the tenure in frankalmoigne, as shall be said afterwards in the tenure of frankalmoigne. And so he who holds by escuage, holds by homage, fealty, and escuage.

Section 100.

Sub-lords when And it is to be understood, that when escuage is so assessed by age, toescu' authority of parliament, every lord, of whom the land is held by escuage, shall have the escuage so assessed by parliament; [73 b] because it is intended by the law, that at the beginning such tenements were given by the lords to the tenant to hold by such services, to defend their lords as well as the king, and to put in quiet their lords and the king from the Scots aforesaid.

Section 101.

Distress. And because such tenements came first from the lords, it is

reason that they should have the escuage of their tenants. And the lords in such case may distrain for the escuage so assessed.

CHAPTER IV. Section 103. [746]

OF Knight's Service.

Tenure by homage, fealty, and escuage, is to hold by knight's of wardship service, and it draweth to it ward, marriage, and relief. For ^s^" when such tenant dies, and his heir male is within the age of twenty-one years, the lord shall have the land holden of him until the heir be twenty-one years of age; the which is called full age, because such heir, by intendment of law, is not able to do knights service before his age of twenty-one years. Also if such heir be not married at the time of the death of his ancestor, then the lord shall have the wardship and marriage of the heir. But if such tenant dies, his heir female being of the age of fourteen years or more, then the lord shall not have the wardship of the land, nor of the body; because that a woman of such age may have a husband able to do knights service. But if such heir female be within the age of fourteen years, and unmarried at the time of the death of her ancestor, the lord shall have the wardship of the land held of him, until such heir female be of the age of sixteen years; for it is given by the statute of W. 1. c. 22. that by the space of two years next ensuing the said fourteen years, the lord may tender convenable marriage without disparagement to such heir female. And if the lord within the said two years do not tender such marriage, fyc. then she at the end of the said two years may enter, and put out her lord. But if such heir female be married within the age of fourteen years in the life of her ancestor, and her ancestor dies, she being within the age of fourteen years, the lord shall have only the wardship of the land until the end of the fourteen years of age of such heir female, and then her husband and she may enter into the land and oust the lord. For this is out of the case of the said statute, because the lord cannot tender marriage

to her who is married, &c. For before the said statute of W. 1. such issue female, who was within the age of fourteen years at the time of the death of her ancestor, and after she had accomplished the age of fourteen years, without any tender of marriage by the lord unto her, such heir female might have entered into the land and ousted the lord, as appears by the rehearsal and words of the said statute; so that the said statute was made (as it seemeth) in such case altogether for the advantage of lords. But yet this is always intended by the words of the same statute, that the lord shall not have these two years after the fourteen years, as is aforesaid, only where such heir female is within the age of fourteen years and unmarried at the time of the death of her ancestor.

Origin of knight's service.

[756]

Knights service] was created and provided for the defence of the realm, to perform which service, heirs are not accounted in law able, till the age of one-and-twenty years. Therefore during their minority, the lord shall have the custody of them, not for benefit only, but that the lord might see that they in their young years are taught the deeds of chivalry, and other virtuous and worthy sciences.

Incidents thereto.

[76a]

And it draws to it ward marriage, and relief] So that regularly there are six incidents to knight's service, viz. two of honour and submission, as homage and fealty; and four of profit, viz. escuage, whereof he has treated before, ward (i. e. wardship of the land), marriage and relief; of all which our author has spoken. But there are other incidents to knight's service besides these; as aid for knighting the lord's eldest son, and aid for marriage of his eldest daughter, which at the common law were uncertain, and were called rationabilia auxilia, because if they were excessive and unreasonable in the judgment of the court where they were questioned, they ought not to be paid; but now as well in the king's case, as in the case of the subject, they are by acts of parliament reduced to certainty, which acts are worthy your reading.

Povcers of nwii and women at different ages.

178b)

But if such tenant dies, his heir female being of the age of fourteen years, £jc] A woman has seven ages for several purposes appointed to her by law: as, seven years for the lord to have aid fur file marier; nine years to deserve dower; twelve years to consent to marriage; until fourteen years to be in ward; fourteen years to be

out of ward if she attained thereunto in the life of her ancestor; sixteen years to tender her marriage if she were under the age of fourteen at the death of her ancestor; and one and twenty years to alienate her lands, goods, and chattels.

A man also by the law for several purposes has divers ages assigned unto him, viz. twelve years to take the oath of allegiance in the torn or leet; fourteen years to consent to marriage; fourteen years for the heir in socage to choose his guardian, and fourteen years is also accounted his age of discretion; fifteen years for the lord to have aid pur faire jitz chivuler; under one and twenty to be in ward to the lord by knight's service; under fourteen to be in ward to guardian in socage; fourteen to be out of ward of guardian in socage; and one and twenty to be out of ward of guardian in chivalry, and to alien his lands, goods, and chattels.

Section- 104. [79 a]

Note, that the full age of male and female, according to com- Age of marmon speech, is said the age of twenty-one years. And the age mon^iaw.0"i" of discretion is called the age of fourteen years; for at this age, the infant who is married within such age to a woman, may agree or disagree to such marriage.

Of full age, which is the age of one and twenty, and of the age of discretion, which is the age of fourteen, somewhat has been spoken before. But now to the point of agreement or disagreement in this case. The time of agreement, or disagreement, when they marry infra annos nubiles, is for the woman at twelve or after, and for the man at fourteen or after, and there need no new marriage, if they so agree; but disagree they cannot before the said [79 b'] ages, and then they may disagree, and marry again to others without any divorce; and if they once after give consent, they can never disagree after. If a man of the age of fourteen marry a woman of the age of ten, at her age of twelve he may disagree as well as she may, though he were of the age of consent; because in contracts of matrimony, either both must be bound, or equal

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election of disagreement given to both; and so e converio, if the woman be of the age of consent, and the man under.

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The service Id chivalry not always by escuage.

Also, divers tenants hold of their lords by knight's service, and yet they hold not by escuage, neither shall they pay escuage; as they who hold of their lords by castle-ward, that is to say, to ward a tower of the castle of their lord, or a door or some other place of the castle, upon reasonable warning, when their lords hear that the enemies will come, or are come in England. And in many other cases a man may hold by knight's service, and yet he holds not by escuage, nor shall pay escuage, as shall be said in the tenure by grand serjeanty. But in all cases where a man holds by knight's service, this service draws to the lord ward and marriage.

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Relief. And if a tenant who holds of his lord by the service of a whole

knights fee dies, his heir being then of full age, i. e. of twenty-one years, then the lord shall have one hundred shillings, for a relief, and of the heir of him who holds by the moiety of a knight's fee fifty shillings, and of him who holds by the fourth part of a knight's fee twenty-five shillings, and so he who holds more, more, and who less, less.

Relief is no service, but an improvement of the service, or an incident to the service, for the which the lord may distrain, but [836] cannot have an action of debt; but his executors or administrators may have an action of debt, and cannot distrain.

And it is to be understood, that feodum militis, a knight's fee, consists of twenty pound land, and he pays for his relief for a whole knight's fee the fourth part of his fee, viz. five pound, and so according to that rate. And so of a barony or earldom, as hath been said.

Section 113. [84a]

Also, a man may hold his land of his lord by the service of two Relief. knights' fees; and then the heir, being of full age at the time of the death of his ancestor, shall pay to his lord ten pound for a relief.

This is evident, and needs no explanation.

Section 114.

Note, if there be grandfather, father, and son, and the mother Wardship. dies, living the father of the son, and after the grandfather, who holds his land by knight's service, dies seised, and his land descends to the son of the mother as heir to the grandfather, who is within age; in this case the lord shall have the wardship of the land, but not of the body of the heir, because none shall be in ward of his body to any lord living his father, for the father during his life shall have the marriage of his heir apparent, and not the lord. Otherwise it is, if the father dies living the mother, where the land holden in chivalry descends to the son on the part of the father &c.

Son.] Yet the father shall have the marriage of his daughter if she be his heir apparent; and Littleton's reason extends to the daughter, for (says he) the father shall have the wardship of his heir apparent, within which words the daughter is included, so long as she continues heir apparent.

Of his heir apparent.] And therefore if the father be attainted of Felony. felony &c. then cannot the son or daughter be an heir apparent, L°4"J because the blood is corrupted between them, and consequently in the life of the father his son in that case shall be in ward.

A woman seised of lands in fee holden by knight's service takes Alton. husband who is an alien, and has issue, and the wife dies, the issue shall be in ward, and the father shall not have the custody, for

in the eye of the law such issue is not his heir apparent, as Littleton here speaks.

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Guardian in chivalry.

Note, there is guardian in right hi chivalry, and guardian in deed in chivalry. Guardian in right in chivalry is, where the lord by reason of his seigniory is seised of the wardship of the lands and of the heir, ut supra. Guardian in deed in chivalry is, where in such case the lord after his seisin grants, by deed or without deed, the wardship of the lands, or of the heir, or of both, to another, by force of which grant the grantee is in possession. Then is the grantee called guardian in fait, or guardian in deed.

Grant de novo, and alignment of thing granted, distinguished. Corporation.

By deed or without deed.] Here Littleton affirms, that the wardship of the body may be granted over without deed; and herein note a diversity between a chattel already created and which properly lies in grant, and a chattel derived out of the freehold of a thing that lies in grant. A corporation aggregate of many cannot make a lease for years without deed, in respect of the quality of the incorporation; but their lessee may assign it over without deed.

Advowson.
Neit presenta-
tion.

If an advowson be holden by knight's service, and the tenant dies, leaving an heir within age, the lord cannot grant the wardship of the advowson without deed; because it is derived out of an inheritance that lies in grant, and passes not by livery; for jus prasentandi tst incorporate, and so (albeit there be no diversity of opinion in our books) is the law taken at this day.

CHAPTER V. Section 117. [856]

OF SOCAGE. Tenure in socage is, where the tenant holds of his lord by Socage is a

tenure bv scr

certain service [that is, in lieu of] all manner of services, so vice certain. that the service be not knight's service. As where a man holds his land of his lord by fealty and certain rent for all manner of services; or else where a man holds his land by homage, fealty, and certain rent, for all manner of services; or where a man holds his land by homage and fealty for all manner of services; for homage by itself makes not knight's service.

Tenure in socage.'] Agriculture or tillage is of great account in Arable takes law, as being very profitable for the common wealth, wherein the Sure"" goodness of the habit is best known by the privation; for by laying lands used in tilth [as arable] into pasture, six main inconveniencies daily increase. 1st. Idleness, which is the ground and beginning of all mischiefs. 2d. Depopulation and decay of towns; for where in some towns two hundred persous were occupied and lived by their lawful labours, by converting of tillage into pasture there have been maintained but two or three herdsmen. 3d. Husbandry, which is one of the greatest commodities of the realm, becomes decayed. 4th. Churches are destroyed, and the service of God neglected by diminution of church livings (as by decay of tithes, &.c.) 5th. Injury and wrong is done to patrons and God's ministers. And 6th. The defence of the land against foreign enemies is enfeebled and impaired, the bodies of husbandmen being more strong and able and patient of cold, heat, and hunger, than any other.

The two consequences that follow these inconveniences, are, first, the displeasure of Almighty God; and secondly, the subversion of the polity and good government of the realm; and all this appears in our books. And the common law gives arable land, the pre-eminency and precedency over meadows, pastures, woods, mines, and all other grounds whatsoever; and averia caruca, the beasts of the plough, have in some cases more privilege than other cattle have. And amongst the Romans agriculture or tillage was of high estimation, insomuch as the senators themselves would put their hand to the plough; and it is said, that tillage never prospered better than when the senators themselves ploughed.

Etymology of socage.

[86 c]

Socagium.] Littleton in this chapter, Section 119, fetches this word from the original; Socagium, a soke, or plough. And Bracton agrees herewith. Dicitur socagium (says he) « socco, et inde tenentes dicuntur socmanni, eo quod deputati sunt tantummodo ad culturam. And it is to be observed, that in the book of Domesday, land held by knight's service was called Tainland, and land held by socage was called Reveland. And in that book they who held in socage were called by several names, as Sochemanni, or Sokemanni, which still continues. And note, that the legal termination of (agium) in composition signifies service or duty; as homagium, the service of man; escuagium, service by the shield.

Of the service in socage.

So that the service be not knight's service.] And in the next section he says, that every tenure which is not a tenure in chivalry is a tenure in socage. Here Littleton speaks of tenures of common persons : for grand serjeant is not knight's service, and yet it is not [a tenure in socage, as shall be said hereafter. Also here he means temporal services, and not frankalmoigne, as by the examples he puts is manifest, and as in its proper place shall appear more at large. Also here Littleton speaks of socage largely taken, and so called ab effectu; that is, all tenures that have the like effects and incidents belonging to them as socage has, are termed tenures in socage, albeit originally service of the plough was not reserved. As if originally a rose, a pair of gilt spurs, a rent, and such like, were reserved; these are said to be tenures in socage ab effectu, for that there shall be like guardian in socage, like relief, and such other effects and incidents as a tenure in socage has, and are so termed to distinguish the same from knight's service. Nay, the worst tenure that I have read of, of this kind, is to hold lands upon the service of performing the office of hangman or executioner. And it seems, in ancient times such officers were not to be hired, unless they were bound thereunto by tenure. And so note, that some tenures in socage are named a causa, and some, and the greater part, ab effectu.

For homage by itself makes not knight's service.] But it is a presumption, where homage is due, that the land is held by knight's service, as hath been said.

Section 118.

Also, a man may hold of his lord by fealty only, and such tenure Most tenures is tenure in socage; for every tenure which is not tenure in chivalry now in 50caSe' is a tenure in socage.

Section 119.

And it is said, that the reason why such tenure is called and has Etymology of the name of tenure in socage, is this: because socagium idem est socaSequod servitium socse, and soca idem est quod caruca, &c. i. e. a soke or a plough. In ancient time, before the limitation of time of memory, a great part of the tenants who held of their lords by socage, ought to come with their ploughs, every of the said tenants for certain days in the year, to plough and sow I he demesnes of the lord. And for that such works were done for the livelihood and sustenance of their lord, they were quit against their lord of all manner of services fyc. And because that such services weredone with their ploughs, this tenure was called tenure in socage. And afterwards these services were changed into money, by the consent of the tenants and by the desire of the lords, viz. into an annual rent, &c. But yet the name of socage remains, and in divers places the tenants yet do such services with their ploughs to their lords; so that all manner of tenures which are not tenures by knight's service, are called tenures in socage.

Time of memory.] Time of memory [or rather perhaps time out Tenure not of memory] is when no man alive has had any proof to the con- 'Jtlfntime of trary, or has any conusance to the contrary, as shall be hereafter said m'm'JrS'r in its proper place. And of necessity this change hereafter spoken

of, must be before time of memory; for within time of memory the services of the plough cannot be changed into money by consent of the tenant and the desire of the lords, scilicet, into an annual rent, neither by release or confirmation or other conveyance, so long as the seigniory remains, as shall be said in its due place.

Ploughland, i.e. arable, now includes every other sort.

Ought to come with their ploughs.] The plough is named propter excellentiam; but the sickle and the scythe, for the reaping in harvest, and such like, are also included. For as carucata terra, a ploughland, may contain houses, mills, pasture, meadow, wood, &c. as pertaining to the plough; so under the service of the plough, all services of tillage and husbandry are included.

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Socage and escuage distinguished.

Also, if a man holds of his lord by escuage certain, scil. in this manner, when the escuage runs and is assessed by parliament to a greater or lesser sum, that the tenant shall pay to his lord but half a mark for escuage, and no more nor less, to hoic great a sum, or to how little the escuage runs, &c. such tenure is tenure in socage, and not knight's service. But where the sum which the tenant shall pay for escuage is uncertain, scil. where it may be that the sum that the tenant shall pay for escuage to his lord, may be at one time more and at another time less, according as it is assessed, bc. such tenure is tenure by knight's service.

Section 121.

Rent certain is Also, if a man holds his land to pay a certain rent to his lord for castle-guard, this tenure is tenure in socage. But where the tenant ought by himself or by another to do castle-guard, such tenure is tenure by knight's service. [Note, all the holdings here spoken of are in fee.]

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So is all rentservice.

Also, in all cases where the tenant holds of his lord to pay unto him any certain rent, this rent is called rent-service.

It is called rent service, because it is accompanied with some corporal service, as fealty at the least; in respect whereof the lord may distrain for it of common right. See more of this matter in the Chapter of Rents.

Section 123.

Also, m such tenures in socage, if the tenant have issue and die, Guardian m his issue being within the age of fourteen years, then the next friend 5°caPi(le prochein amy) of that heir to whom the inheritance cannot descend, shall have the wardship of the land and of the heir until the age of fourteen years, and such guardian is called guardian in socage. For if the land descend to the heir of the part of the father, then the mother or other next cousin of the part of the mother, shall have the wardship. And if land descend to the heir of the part of the mother, then the father or next friend of the part of the father shall have the wardship of such lands or tenements. And when the heir comes to the age of fourteen years complete, he may enter and oust the guardian in socage, and occupy the land himself, if he will. And such guardian in socage shall not take any issues or profits of such lands or tenements to his own use, but only to the use and profit of the heir; and of this he shall render an account to the heir, wlien it jjleases the heir after he accomplishes the age of fourteen years. But such guardian upon his account shall have allowance for all his reasonable costs and expences in all things, he. And if such guardian marry the heir within the age of fourteen years, he shall account to the heir, or his executors, for the value of the marriage, although that he took nothing for the value of the marriage; for it shall be accounted his own folly, that he would marry him without taking the value of the marriage,, unless he marries the infant to such an inheritance as is equal in value to the marriage of the heir.

In such tenures in socage.] If a man be seised of a rent charge, Some incorporerent seek, common of pasture, or such like inheritances, which ^i"^TM'" do not lie in tenure, and dies, his heir within age of fourteen years; ani "fthaein~ in this case the heir may choose his guardian: but if he be of such his guardian. tender years as he can make no choice, then (if the father has made no disposition of the custody of the child) it were most fit, that the

next of kin, to whom the inheritance cannot descend, should have the custody of him. And whosoever takes the rent &c. the heir [88 a] shall charge him in an account. But if he hold any land in socage, in that case the guardian in socage shall take into his custody as well the rent charges &c. as the land held in socage, because he has the custody of the heir.

Collateral heir. If the tenant liave issue and die.] The same law it is if the tenant has no issue, but a brother or cousin within age of fourteen years at the time of his death. Also this extends as well to issue female, as to issue male.

Within the age of fourteen years.] Of this sufficient has been spoken in the next preceding chapter.

Prochein amy must be of the blood.

Then the next friend (le prochein amy) of that heir to whom the inheritance cannot descend."] The next friend of the heir &c. Here friend {amy) is taken for the next of blood. So the effect of it is, that the next of his blood to whom the inheritance cannot descend, whereby affinity without blood is excluded.

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The next.] If there be three brethren, and the youngest holds land in socage, and has issue and dies [leaving] his issue within age of fourteen years, both the uncles are in equal degree, and yet the eldest shall be guardian; because in equal degee the law prefers him. And yet if lands held in socage are given to a man and the heirs of his body, and he dies, his heir within age, the next cousin of the part of the father, albeit he be worthier, shall not be preferred before the next cousin of the part of the mother, but such of them as first seises the heir shall have his custody. But if lands be given in frankmarriage, and the donees have issue and die [leaving] their issue within age of fourteen years, the next of kin on the part of the mother shall have the custody of the body, and not the next of kin on the part of the father, albeit he first seised it, because the mother was the cause of the gift. If a man be seised of lands holden in socage of the part of his father, and of other lands holden in socage of the part of his mother, and dies, his issue being within the age of fourteen years, in this case such of the next of kin of either side as first takes the body of the heir, shall have him; but the next of blood of the part of the father shall enter into the lands of the part of the mother, and the next of kin of the part of the mother shall enter into the lands of the part of the father.

To whom the inheritance cannot descend.'] This does not only ex- Elder half elude an immediate descent, but all possibility of descent. As if a be guardian to man has issue two sons by several ventres, and having lands holden ^loro-'^uX in socage of the nature of burgh English dies, leaving his younger rContra Cr°

... r r . , i . - Elh- 825 • but

brother within the age of fourteen years, the elder brother of the see T. Jo. 17. half blood shall not have the custody of the land; because by possibility the elder may inherit the land; for if the youngest die without issue, and the land descend to an uncle, the elder brother of the half blood may be heir to him.

Then the mother.] Note, albeit land cannot descend to the mother Mother. from her son, (as hath been said) because inheritance cannot ascend, yet here it appears by Littleton, that she is next of blood, for that none (as hath been said) can be guardian in socage but the next of blood; and the like is to be said of the father, as hereafter next appears.

Then the father.] By this it appears, that the father in case of Father. a tenure in socage shall be guardian in socage, and shall not have the custody of his eldest son, in respect of his paternal natural custody (as he shall have in case of a tenure by knight's service, as before appears), but as guardian in socage. And the reason of the diversity is, for that in the case of a tenure in.socage, the father must by law be accountable to the son both for his marriage, and also for the profits of his lands, which he should not be if he had the custody of his eldest son in this case as his father in respect of nature, and the act of law never does any man wrong. But no lord or other person, in respect of any tenure by knight's service or otherwise, shall have the custody of any child who is heir apparent to his father, but the father only during his life, as hath been said before.

It is to be observed, that in the laws of England, there are Different sorts three kinds of guardians, viz. by the common law, by statute law, *"" and by custom. By the common law there are four sorts of guardians, viz. guardian in chivalry (whom Littleton has described before, Sect. 103, &c.) guardian by nature, as the father of the

eldest son, of whom Littleton has spoken Sect. 114, guardian in socage, treated of by Littleton in this Section, and guardian per cause de nurture; all frequent in our books. By statute, viz. the statute in 4 & 5 Ph. and Mary, of women children, which is either of the father or mother without assignation, or of any other to whom the father shall appoint the custody either by his last will or by any act in his life-time, whereof you shall read at large in Ratcliffe's case in my Reports. Lastly, by custom, as of orphans by the custom of the city of London and of other cities and boroughs.

Guardian (or Only to the use and profit of the heir.] And therefore guardian in

trustee) forfeit$ r p • 1 • • , i • j x>

nothing by socage shall not rorteit his interest by outlawry or attainder ot a'ualndeir felony or treason: because he has nothing to his own use, but only to the use of the heir.

f "!t'cj ""''" '^so ^ tne motner be guardian in socage, and takes husband, and [89a] dies, the husband shall not have this custody by survivorship: because the wife had it en auter droit in right of the heir.

Advowson. Guardian cannot present.

A guardian in socage shall not present to a benefice in right of the heir; because he cannot be accountable therefore, for he can make no benefit thereof,—the law abhorring simony and every corrupt contract for benefices; and therefore in that case the heir shall present himself. And Britton speaking of these guardians said well, that they are rather servants than guardians.

Account at 14. He shall render an account fyc. after the heir accomplishes the age of' fourteen years.] This point has been much controverted in our books; but it was adjudged in the court of common pleas, Pasch. 16 Eliz. Rot. 436, according to the opinion of Littleton, that the heir after the age of fourteen years shall have an action of account against the guardian in socage, when he will at his pleasure; and so is an ancient question well resolved.

Reasonable ex- Allowed his reasonable costs and expenses.] These latter are due to allowed" "" a" accountants by the common law. What other allowances shall the guardian have? If the guardian receive the rents and profits of the lands, and be robbed of the same, whether shall he be discharged thereof upon his account? And it seems, that if he be robbed without his default or negligence he shall be discharged thereof. As if a bailiff of a manor, or a receiver, or a factor of a merchant, or the like accountant, be robbed, he shall be discharged thereof upon his account. And seeing the guardian shall be charged as bailiff after the heir's age of fourteen, and be discharged upon his account if he be robbed, pari ratione if he be robbed before the age of fourteen. But otherwise it is of a carrier, for he has his hire, and thereby implicitly undertakes the safe delivery of the goods delivered to him, and therefore he shall answer the value of them if they be taken from him. Note the diversity, and so it was resolved in the King's Bench.

So it is if goods are delivered to a man to be safely kept, and Common law afterwards those goods are stolen from him, this shall not excuse ^t^v 'f deeds him; because by the acceptance he undertook to keep them safely, or other chattels. and therefore he must keep them at his peril. So it is if goods be delivered to one to be kept, for to be kept and to be safely kept is all one in law, [contra, 2 Ld. Ray. 911]. But if the goods are delivered to him to be kept as he would keep his own, there, if they be stolen from him without his default or negligence, he shall be discharged; so if goods are delivered to one as a gage or pledge, and they are stolen, he shall be discharged, because he has a property in them, and therefore he ought to keep them no otherwise than as his own; but if he who gaged them, tendered the money before the stealing and the other refused to deliver them, then for this default in him he shall be charged. If A. leave a chest locked with B. to be kept, and takes away the key with him, and acquaints not B. what is in the chest, and the chest together with the goods of B. are stolen away, B. shall not be charged *■ -• therewith, because A. did not trust B. with them, as this case is. And that which has been said before of stealing, is to be understood also of other like accidents, as shipwreck by sea, fire by lightning, and other like inevitable accidents. And all these cases were resolved and adjudged in the King's Bench. And by these diversities are all the books concerning this point reconciled. Note, it is necessary for any who receives goods to be kept, to receive them in this special manner, viz. to be kept as his own, or to keep them at the peril of the owner. But now is Littleton to be further heard.

He shall account to the heir.~\ He shall account for the marriage of the heir, viz. for so much as any man bon&Jide had offered for the marriage, or would give in marriage unto him.

At what age infant may make will of personalty.*

Or to his executors.] Not that an infant of the age of fourteen may make his will (as some hereupon have collected); but the meaning of Littleton is, that if after his marriage he accomplish his age of eighteen years, at what time he may make his testament and constitute executors of his goods and chattels, and the words are so to be understood, as may stand with law and reason.*

Executors may bring account now.

Note, executors could not have an action of account at the common law, in respect of the privity of the account; but the statute of W. 2. cap. 23. has given the action of account to executors, the statute of 25 E. 3. cap. 5. to executors of executors, and the statute of 31 E. 3. cap. 11. to administrators.

Guardian accountable/or laches.

That he would marry him without taking the value.] So that the guardian shall not account only for that which he shall receive in this case, but for that also which he might receive. And the guardian in socage is bound by law, that the heir be well brought up, and that his evidences [i.e. his vouchers] be safely kept.

Section 124.

AnD if any other man, who is not the next friend, occupies the lands or tenements of the heir as guardian in socage, he shall be compelled to yield an account to the heir, as well as if he had been next friend; for it is no plea for him in the writ of account to say, that he is not the next friend &c. but he shall answer whether he has occupied the lands or tenements as guardian in socage or no. But quaere, if after the heir has accomplished the age of fourteen years, and the guardian in socage continually occupies the land until the heir comes to full age, i. e. of twenty one years, if the heir at his full age shall have an action af account against the guardian, from the time that he occupied after the said fourteen years, as guardian in socage, or as his bailiff.

If a stranger occupies, he is guardian and must account.

* Mr. Hargrave has adduced several very strong reasons and authorities for proving that a female may make a will of personalty at twelve, and a male at fourteen; but Lord Coke's opinion has been too long promulgated and acquiesced in to render it prudent to rely on a contrary doctrine where it can be avoided; and there can be no doubt that all Lord Coke's opinions have had a very sensible influence in forming and establishing the practice of conveyancers, for all the old lawyers were educated almost exclusively on his principles and doctrines. When, therefore, from circumstances, it is deemed essential that an infant of the age of twelve or fourteen should make a will, it would be prudent if the case permit, to obtain a confirmation of the will on the testator's attaining the age of eighteen, as also on attaining twenty-one.

But quare #c] This quote came not out of Littleton's quiver; for it is evident, that after the age of fourteen years he shall be charged as bailiff, at any time when the heir will, either before his age of twenty-one years, or after.

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Section 125.

Also, if guardian- in chivalry make his executors and die, the Wardship.

heir being within age &c. the executors shall have the wardship

during the nonage fife. But if the guardian in socage make his

executors and die, the heirs being within the age of fourteen years,

his executors shall not have the wardship; but another next friend,

to whom the inheritance cannot descend, shall have the wardship Sfc.

Atvd the reason of this diversity is, because the guardian in chivalry

lias the wardship to his awn use, and the guardian in socage has not

the wardship to his own use, but to the use of the heir. And in

this case where the guardian in socage dies before any account made

by him to the lieir, of this the heir is without remedy, for that no

writ of account lies against the executors but for the king only.

To his own use.'] A tenant holds land of a bishop by knight's Advowsm next service, which seigniory the bishop has in right of his bishop- BiX;>." e«curic, the tenant dies, his heir within age, the bishop either before or — ^ . c ,.„, after seisure dies: neither the king, nor the successor of the bishop, shall have the wardship, but his executors. And yet if a bishop have an advowson, and the church becomes void, and the bishop dies, neither the successor nor the executors shall present, but the king: because it is but a chose in action.

[906] Section 126.

Relief ayear's Also, the lord, of whom the land is holden in socage shall, after death. the decease of his tenant, have of his heir a relief of one year's

rent. As if the tenant holds of his lord by fealty, and ten shillings rent payable at certain terms of the year, then the heir shall pay to the lord ten shillings for a relief, beside the ten shillings which he pays for the rent.

Aid for mar- Also it is to be noted, that beside relief, whereof Littleton here

nag»' speaks, there belongs to a tenure in socage of common right, aid

for making his eldest son a knight at the age of fifteen years, and to marry his daughter at the age of seven years.

Section 127.

Distress lies for And in this case, after the death of the tenant, such relief is due to the lord presently, of what age soever the heir be \ because such lord cannot have the wardship of the body, nor of the land of the heir. And therefore he may forthwith distrain after the death of his tenant for the relief.

Sections 128, 129.

Of reliefs where a rose, a pound of pepper, a capon, or such like articles are reserved for rent, there the heir must for the first year render double the rent reserved.

Section 130.

Escheats lost Also, if any will ask, why a man may hold of his lord by fealty

of7ealty.'5USe only for all manner of services, in so much as when the tenant shall

do his fealty, he shall swear to his lord that he will do to his lord

all manner of services due, and when he has done fealty, in this case no other service is due: to this it may be said, that where a tenant holds his land of his lord, it is necessary that he should do some service to his lord. For if the tenant or his heirs should do no manner of service to his lord or his heirs, then by long continuance of time it would grow out of memory, whether the land were holden of the lord and his heirs, or not, and then will men more often and more readily say, that the land is not holden of the lord, nor of his heirs, than otherwise; and hereupon the lord shall lose his escheat of the land, or perchance some other forfeiture or profit which he might have of the land. So it is reason, that the lord and his heirs have some service done unto them, to prove and testify that the land is holden of them.*

It is necessary that he should do some service to his lord.] For there Tenure. can be no tenure without some service; because the service makes \y*oj the tenure.

Lands may escheat to the lord two ways; one by attainder, Causes n/esthe other without attainder. By attainder in three ways. 1st. c""' Quia suspensus est per collum. 2dly. Quia abjuravit regnum. 3dly. Quia utlegatus est. Without attainder; as if the tenant dies without heir.

Or perchance some other forfeiture.] As if the land be aliened in and other/ormortmain; or when Littleton wrote, if the tenants had erected ■'" *"" crosses upon their houses or tenements that they might claim the privilege of the hospitalers to defend themselves against their lords, they had forfeited their tenancies. But since Littleton wrote, the hospitalers are dissolved, and consequently that forfeiture is gone.

* The want of attention to this advice of Littleton has, in the present day, occasioned great difficulty in proving that any freehold land is held of the manor within which it is situate. The statutes of limitation do not appear to include fealty, and therefore it is presumed lords of manors may even now require fealty to be done—that being an inseparable incident of tenure; but as this must be done in a court baron, and as a court baron cannot be holden without two tenants at the least, the king as lord paramount is now the principal person benefited by esrheats.

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l'oalty, A.SD for that fealty is incident to all manner of tenures, except the

tenure in frankalmoign (as shall be said in the chapter of frankalmoign), and for that the lord could not at the beginning of the tenure have any other service but fealty, it is reason, that a man may hold of his lord by fealty only; and when he has done his fealty, he has done all his services.

an inseparable incident of tenure.

Fealty is incident.] Of incidents there are two sorts, viz. separable, and inseparable. Separable, as rents incident to reversions, &c. which may be severed: inseparable, as fealty to a reversion or tenure, which cannot be severed: for as all lands and tenements within England are holden of some lord or other, and either mediately or immediately of the king; so to every tenure at the least fealty is an inseparable incident, so long as the tenure remains; and all other services, except fealty, are severable. But where the tenure is by fealty only, there is no relief due for the cause aforesaid.

Skction 132.

will, except copyholders.

Tenants for life Also, if a man lets to another lands or tenements for term of life, by fealty, but without naming any rent to be reserved to the lessor, yet he shall ""' ""' ■" do fealty to the lessor, because he holds of him. Also if a lease be made to a man for term of years, it is said, that the lessee shall do fealty to the lessor, because he holds of him. And this is well proved by the words of the writ of waste, when the lessor has cause to bring a writ of waste against him; which writ shall say, that the lessee holds his tenements of the lessor for term of years. So the writ proves a tenure between them. But he, who is tenant at wilt according to the course of the common law, shall not do fealty; because he has not any sure estate. But otherwise it is of tenant at icill according to the custom of the manor; for he is bound to do fealty to his lord for two causes. The one is by reason

of the custom; and the other is, for that he takes his estate expressly upon condition to do his lord fealty.

And this is well proved by the words of the writ <^c] Note, the Original writs

original writs are (as it were) the foundations and grounds of the evidmaMrfthe

law, and, as it appears, by Littleton, are of great authority for the common law. proof of the law in particular cases.

CHAPTER VI. Section 133.

FRANKALMOIGN.

What it is, [ex- TENANT in frankalmoign is, where an abbot, or prior, or other ETuUtr*1 man of religion or holy church holds of his lord in franki2Car.2.c.24. almoign; that is to say in Latin, in liberam eleemosinam, that is,

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in free alms. And such tenure began first in old time. When a man in old time was seised of certain lands or tenements in his demesne as of fee, and of the same land infeoffed an abbot and his convent, or prior and his convent, to have and to hold to them and their successors in pure and perpetual alms, or in frankalmoign, or by these words to hold of the grantor, or of the lessor, and his heirs in free alms: in such cases the tenements were holden in frankalmoign.

Since Littleton wrote, all abbeys, priories, monasteries, and other religious houses of monks, canons, friars, and nuns &c. have been dissolved, and their possessions given to the crown.

The ecclesiastical state of England, as it stands at this day (which is necessary for our student to know), is divided into two provinces, or archbishoprics, viz. of Canterbury and of York. The archbishop of Canterbury is stiled Metropolitanus et Primas totius Anglia, and the archbishop of York Primas Angliee. Each archbishop has within his province, suffragan bishops of several dioceses. The archbishop of Canterbury has under him within his province, of ancient foundations, viz. Rochester his principal chaplain, London his dean, Winchester his chancellor, Norwich, Lincoln, Ely, Chichester, Salisbury, Exeter, Bath and Wells, Worcester, Coventry and Litchfield, Hereford, Landaff, St. David, Bangor, St. Asaph, and four founded by king Henry 8. erected out of the ruins of dissolved monasteries (that is to say) Gloucester, Bristol, Peterborough, and Oxford. The archbishop of York has under him four, viz. the bishops of the county palatine of Chester, (newly erected by king Henry VIII. and annexed by him to the archbishop of York,) of the county palatine of Durham, Carlisle, and the Isle of Man, annexed to the province of York by Henry VIII., but this archbishop anciently had, a greater number which time has taken from him. The extent of every diocese you may elsewhere read, the which for brevity I here omit. All the said archbishoprics and bishoprics of England were founded by the kings of England, to hold by barony, as hereafter shall be said. And every archbishop and bishop has his dean and chapter, whereof more shall be said hereafter. The archbishop of Canterbury has the precedence, next to him the archbishop of York, next to him the bishop of London [next to him the bishop of Durham, 31 H. 8. c. 10. s.3.], and next to him the bishop of Winchester, and then all other bishops of both provinces after their antiquity. Every diocese is divided into archdeaconries, whereof there are sixty; and the archdeacon is called oculus epkcopi; and every archdeaconry is parted into deaneries; and deaneries again into parishes, towns and hamlets. And thus much, for the better understanding of our author, and how the state ecclesiastical stands at this day, shall suffice.

By the ancient common law of England, a man could not alien Frankaimoigne. such lands as he had by descent, without the consent of his heir; [94i] yet he might give a part to God in free alms, or with his daughter in free marriage, or to his servant in remuneratione servitii.

To have and to hold to them and their successors."] For in case of Sou andaggrean abbot or prior and con"-.it, regularly a fee-simple does not pass TatVmdistinwithout this word (successors): for the diversity stands thus between i""heda't0

v J the word" suc

a corporation aggregate of many persons capable, and a sole cor- ceaon," and

..».. . , ,, .. capacity of tak

poration. As it lands are given to a dean and chapter, they have a i„e />» dad »r fee-simple without this word (successors), for that body never u"'*uuf deeddies; but if lands are given to a bishop, parson, or any other sole corporation, who after their decease have a succession, there without this word (successors) nothing passes unto them but for life. But of corporations aggregate of many, there is a diversity when the head and body both are capable, as in the case of dean and chapter, and when one (as hath been said) is only capable, as in case of an abbot or prior and convent; also lands must be given to a corporation aggregate of many by deed, but to a sole corpor

ation it may be granted without deed; but yet out of these general rules, the case of frankalmoign is excepted for by these words, " to hold of the grantor or of the lessor and his heirs in free alms," a feesimple passes without this word (successors), albeit it be in case of a sole corporation. For as in case of a gift in frankmarriage, an estate tail passes to the donees without the words (of the heirs of their two bodies) as hath been said in the Chapter of Fee-Tail; so in case of a gift in frankalmoign (which may be resembled to a divine marriage), a fee-simple passes, though it be in case of a sole corporation, without this word (successors.) And besides, grants in frankalmoign are ancient grants, as hath been said, and therefore shall be allowed as the law was taken when such grants were were made.

[95a] Section 134.

Who may take In the same manner it is, where lands or tenements were granted moi^n. lrt ancient time to a dean and chapter and to their successors, or to

a parson of a church and his successors, or to any other man of holy church and to his successors, in frankalmoign, if he had capacity to take such grants or feoffments, &c.

Dean awl chap- Dean.] Decanus, is derived of the Greek word Stica, that signifies Ten, for that he is an ecclesiastical secular governor, and was anciently over ten prebends or canons at the least in a cathedral church, and is head of his chapter. Chapter. Capitulum est clericorum congregatio sub unodecano in ecclesid cathedrali. And chapters are twofold, viz. the ancient and the later. And the later are also of two sorts. First, those which were translated or founded by king Henry the eighth, in place of abbots and convents or priors and convents, which were chapters while they stood; and these are new chapters to old bishoprics. Secondly, where the bishopric was newly founded by Henry the eighth (as Chester, Bristol, &c.) there the chapters also are new. There is a great diversity between the coming in of the ancient deans and of the new. For the ancient come in, in much like sort as bishops do; for they are chosen by the chapter, by a conge de es/ier, as bishops are, and the king giving his royal assent they are confirmed by the bishop. But they who are either newly translated or founded, are donative, and by the king's

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letters patent are installed, which are matters necessary to be known.

If he had capacity to tuke.~\ For ecclesiastical persons have not WhateaUticapacity to take in succession, unless they be bodies politic; as "Ml.e cupa<!,(^ bishops, archdeacons, deans, parsons, vicars, 8cc. or lawfully incorporate by the king's letters patent, or prescription; as deans and chapters, colleges, &c. But a college of religious persons, chantry priests, and such like, who are not lawfully incorporated, but only consist in vulgar reputation, have no capacity to take in succession. Therefore Littleton added materially {if he had capacity to take.)

Section 135.

And they who hold in frankalmoign, are bound of right before Of what the God to make orisons, prayers, masses, and other divine services, frankalmoign for the souls of their grantors or feoffors and the souls of their conslstsheirs who are dead, and for the prosperity and good life and good health of their heirs tvho are alive. And therefore they shall do no fealty to their lord; because this divine service is better for them before God than any doing of fealty; and also because that these words {frankalmoign) exclude the lord to have any earthly or temporal service, but to have only divine and spiritual service to be done for him, &c.

In this section there appears a division of tenures, that is to say, DivUionof some are spiritual and some are temporal. And of spiritual some *'',',,,"". are uncertain, as tenures in frankalmoign; and some are certain, as tenures by divine service. Again, divine service is two-fold; cither spiritual, as prayers to God; or temporal, as distribution of alms to poor people.

To make orisons, prat/ers, masses, and other divine services.] Since of the tenice at Littleton wrote, the Liturgy or book of Common Prayer and of ' "ro^Ai celebrating divine service is altered. But notwithstanding this alteration the tenure in frankalmoign remains; and such prayers and divine service shall be said and celebrated, as now is authorized: yea, though the tenure be in particular, as Littleton hereafter says, viz. to tiitg a mats Sjc, or to sing a placebo ct dirige, yet if

the tenant says the prayers now authorized, it suffices. And as Littleton has said before in the case of socage, the changing of one kind of temporal services into other temporal services alters neither the name nor the effect of the tenure; so the changing of spiritual services into other spiritual services alters neither the name nor effect of the tenure. And albeit the tenure in frankalmoign is now reduced to a certainty contained in the book of Common Prayer, yet seeing the original tenure was in frankalmoign, and the change is by general consent by authority of parliament, whereunto every man is party, the tenure remains as it was before.

Section 136.

No distress for onperformce of service

And if they who hold their tenements in frankalmoign will not or fail to do such divine service as aforesaid, the lord cannot distrain them for not doing this fyc. because it is not put in certainty what services they ought to do. But the lord may complain of this to their ordinary or visitor, praying him that he will lay on them some punishment and correction and also provide that such negligence be no more done &c. And the ordinary or visitor of right ought to do this &c.

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except for divine service incertain.

But if an abbot or prior holds of his lord by a certain divine service, as to sing a mass every Friday this is not frankalmoign, but it is called tenure by divine service in certain. For in tenure in frankalmoign no mention is made of any manner of service; but for divine service in certain the lord may distrain.

Heads of monas. terics held by barony, as do bishtips and archbishopsnow.

[97 a]

There were within this realm of England one hundred and eighteen monasteries, founded by the kings of England; whereof such abbots and priors as were founded to hold of the king per baroniam, and were called to the parliament by writ, were lords of parliament, and had places and voices there. And of them there were twenty-seven abbots and two priors, as by the rolls of parliament appears. But since our author wrote, all these (as hath

been said) are dissolved. All the archbishops and bishops of England have been founded by the kings of England and hold of the king by barony, and have been all called by writ to the court of parliament and are lords of parliament. And the bishoprics of Wales were founded by the princes of Wales; and the principality of Wales was holden of the king of England, as of his crown. And the bishops of Wales are so called by writ to parliament, and are lords of parliament, as bishops of England are.

Section 138. [976]

Also, if it be demanded, if tenant in frankmarriage shall do Frankmamage fealty to the donor or his heirs before the fourth degree be past JJjjJ- TMr")1" b,c. it seems that he shall. For he is not like, as to this purpose, to tinguished at to tenant in frankalmoign ; for tenant in frankalmoign by reason of his tenure shall do divine service for his lord, as is said before; and this he is charged to do by the law of holy church, and therefore he is excused and discharged of fealty: but tenant in frankmarriage shall not do for his tenure such service; and if he does not fealty, he shall not do any manner of service to his lord, neither spiritual nor temporal, which would be inconvenient, for it is against reason that a man shall be tenant of an estate of inheritance to another and yet the lord shall have no manner of service of him. And so it seems he shall do fealty to his lord before the fourth degree be past. And when he has done fealty, he has done all his services.

Section 139. [98a]

And if an abbot holds of his lord in frankalmoign, and the abbot Alienee of and convent under their common seal alien the same tenements to a almoin holds secular man in fee-simple, in this case the secular man shall do fay fealtyfealty to the lord; because he cannot hold of his lord in frankalmoign. For if l/ie lord should not have fealty of him, he should have no manner of service, which would be inconvenient, where he is lord and the tenements are Itolden of him.

I'rincipl* of It is to be remembered that all lands and tenements in England

s'e'ned S'butPre' 'n tne hands of any subject, are holden of some lord or other, and every new tenure that every tenant must do some kind of service; and that all lands

is in socage. ...

and tenements are holden either mediately or immediately of the king, for originally all lands and tenements were derived from the crown. And it is to be observed, that when the law creates any new tenure, it is the lowest (viz. tenure in socage), and with the least service that can be done, and nearest to the freedom of the former service: as in this case a tenure in socage by fealty only is created by the law, which is the lowest and least service the law can create, because fealty is incident to every tenure except tenure in frankalmoign. It appears by our books, that a seigniory in frankalmoign may be granted over, and consequently the tenant shall hold of the grantee by fealty only.

[986] Section 140.

Frankalmoign Also, if a man grant at this day to an abbot or to a prior

auTatuiisday; londs or tenements in frankalmoign, these words (frankalmoign)

are void, for it is ordained by the statute quia emptores ter

rarum (which was made anno 18 E. 1.) that none may alien nor

grant lands or tenements in fee-simple to hold of himself.

eieept bu licence But '* is to De understood, that a man seised of lands may at this

jwmjhecroun. day gjve ^e same to a bishop, parson &c. and their successors in

frankalmoign, by the consent of the king, and the lords mediate

and immediate of whom the land is holden; for the rule is quilibet

potest renunciarejuri pro se introducto.

Sections 141, 142.

Tenure is of A.N i* note, that none may hold lands or tenements in frankalp'q,. moign, but only of the grantor or of his heirs, who is bound to indemnify the tenant against the distress of any lord paramount.

CHAPTER VII. Section- 143. [100 6]

HOMAGE ANCESTRAL.

Tenant by homage ancestral is, where a tenant holds his land This tenure is of his lord by homage, and the same tenant and his ancestors ^narntuave ichose heir he is, have holden the same land of the same lord and k*'i TT-T0'

'* nally held by

of his ancestors whose heir the lord is, time out of memory of descent. man, by homage, and have done to them homage. And this is called homage ancestral, by reason of the continuance which has been, by title of prescription, of the tenancy in the blood of the tenant, and also of the seigniory in the blood of the lord. And such service of homage ancestral draws to it warranty, that is to say, that the lord who is living and has received the homage of such tenant, ought to warrant his tenant when he is impleaded of the land holden of him by homage ancestral.

Section 147. [103a]

If a man who holds his land by homage ancestral, alien to How affected another in fee, the alienee shall do homage to his lord: but he by ahenali0Dholds not of his lord by homage ancestral, because the tenancij was not continued in the blood of the ancestors of the alienee; neither shall the alienee have warranty of the land of his lord, because the continuance of the tenancy in the tenant and to his blood is by the alienation discontinued. And so see, that if the tenant who holds his land of his lord by homage ancestral aliens in fee, though he takes an estate again of the alienee in fee, yet he holds the land by homage, but not by homage ancestral.

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Homage once performed endures for the tenant's life.

Also, it is said, that if a man holds his land of his lord by homage and fealty, and he has done homage and fealty to his lord, and the lord has issue a son, and dies, and the seigniory descends to the son; in this case the tenant who did homage to the father shall not do homage to the son, because that when a tenant has once done homage to his lord, he is excused for term of his life to do homage to any other heir of the lord. But yet he shall do fealty to the son and heir of the lord, although he did fealty to his father.

CHAPTER VIII. Section 153. [1056]

GRAND SERJEANTY.

Tenure by grand serjeanty is where a man holds his lands or what it is. tenements of our sovereign lord the king by such services as he ought to do in his proper person to the king, as to carry the banner of the king, or his lance, or to lead his army, or to be his marshal, or to carry his sword before him at his coronation, or to be his sewer at his coronation, or his carver, or his butler, or to be one of his chamberlains of the receipt of his exchequer, or to do other like services, &c. And the cause why this service is called grand serjeanty is, for that it is a greater and more worthy service than the service in the tenure of escuage.

Of our lord the king.] This tenure hath seven special properties. Incidents. 1st To be holden of the king only. 2d. It must be done, when the tenant is able, in proper person. 3d. This service is certain and particular. 4th. The relief due in respect of this tenure differs from knigbt's service. 5th. It is to be done within the realm. 6th. It is subject to neither aid purfairefitz chivaler, or file marier. And 7th. It pays no escuage. But it appears, that tenant by grand [107 a] serjeanty may in some cases make a deputy; and the diversity VJ" maymake seems to be, that where the grand serjeanty is to be done to the royal person of the king, or to execute any high and great office, there his tenant cannot make a deputy without the king's licence. But he who holds to serve him in his war within the realm or by cornage, may make a deputy.

[107 6] Section- 158.

Ward; mar- And note, that all who hold of the king by grand serjeanty, hold of the king by knight's service; and the king for this shall have ward, marriage, and relief; but he shall not have of them escuage, unless they hold of him by escuage.

CHAPTER IX. Section 159. [108,,]

PETIT SKRJEANTY.

Tenure by petit serjeanty is where a man holds his land of What it». our sovereign lord the king to yield to him yearly a bow, or a sword, or a dagger, or a knife, or a lance, or a pair of gloves of mail, or a pair of gilt spurs, or an arrow, or divers arrows, or to yield such other small things belonging to war.

Of our lord the king.] And so Littleton concludes this Chapter, itthi ouUj of that a man cannot hold by grand serjeanty or petit serjeanty but of the king, and of the king as of His person, and not of any honour or manor. And it is to be observed, that regularly a tenure of the king as of his person is a tenure in capite, so called propter excellentiam. And this tenure of the king in capite, is said to be a tenure of the king as of his crown. And therefore if a seigniory escheat to the king the tenant holds of the person of the king, and not in capite, because the original tenure was not created by the king. And therefore it is directly said that a tenure of the king in capite is when the land is not holden of the king as of any honour, castle, or manor &.c. but when the land is holden of the king as of his crown.

Section- 160. [1086]

And such service is but socage in effect; because such tenant itis in effect a

, ,i--i- socage tenure.

by hts tenure ought not to go nor to do any thing in his proper person touching the war, but to render and pay yearly certain things to the king, as a man ought to pay a rent.

That is, the dignity of the person of the king gives it the name of petit serjeanty, but if it were the case of a common person it would be called plain socage, ab effectu; for it shall have such effect or incidents as belong to socage, and neither ward nor marriage &c. for they belong to knight's service, and not to socage.

Section 161.

And note, that a man cannot hold by grand serjeanty, nor by petit serjeanty, but of the king &c.

CHAPTER X. Section 162.

TENURE IN BURGAGE.

TENURE in burgage is, where in an ancient borough the king is Whatitis. lord, and they who have tenements within the borough hold of the king their tenements at a certain rent by the year. And such tenure is but tenure in socage.

Section 163. [109a]

An D the same manner is, where another lord spiritual or temporal $*me. is lord of such a borough, and the tenants of the tenements in such borough hold of their lord to pay each of them yearly an annual rent.

Section 164.

And it is to wit, taat the ancient towns called boroughs are the most ancient towns in England; and from these towns come the burgesses of parliament, when lhe king has summoned his parliament.

Every borough incorporate that had a bishop within time of (''-"• **"'• memory, is a city, albeit the bishopric be dissolved; as Westminster had of late a bishop, and therefore it yet remains a city. The burgh of Cambridge, an ancient city, as it appears by a judicial record (which is to be preferred before all others) where mos civitatis Cantabrigia is found by the oath of twelve men, the recognitors of that assize; which (omitting many others) I thought good to men

tion, in remembrance of my love and duty alma matri academic Cantabrigia. There are within England two archbishoprics, and twenty-three other bishoprics. Therefore so many cities there are; and Cambridge and Westminster being added, there are in all twenty-seven cities within this realm, and may be more than at this time I can call to memory. It is not necessary that a city be a county of itself; as Cambridge, Ely, Westminster &c. are cities, but are no counties of themselves, but are part of the counties where they are.

of the purlin- Come the burgesses of parliament.] Parliament is the highest

tiqui'tti and and most honourable and absolute court of justice in England, poicer. consisting of the king, the lords of parliament, and the commons.

And again, the lords are here divided into two sorts, viz. spiritual and temporal. And commons are divided into three parts, viz. into knights of shires or counties, citizens out of cities, and burgesses [ 110«] out of boroughs. And as to the antiquity of this high court of parliament, it appears, that divers parliaments have been holden long Vtef.Ruff. before and until the time of the conqueror. The conclusion of

Stats. . .

that great parliament holden by king Ethelstan, at Grately, is very remarkable, which I have seen in these words. "All this was enacted in that great synod or council of Grately, whereat was the archbishop of Wolfehelm, with all the noblemen and wise men, which king Athelstan called together." There have been in the time of, and since the conquest, in the reigns of H. 1. king Stephen, H.2., R. 1., king John, H.3. &c. two hundred and eighty sessions of parliament, and at every session divers acts of parliament made, no small number whereof are in print. The jurisdiction of this court is so transcendant, that it makes, enlarges, diminishes, abrogates, repeals, and revives laws, statutes, acts, and ordinances, concerning matters ecclesiastical, capital, criminal, common, civil, martial, maritime, and the rest. None can begin, continue, or dissolve the parliament, but by the king's authority.

[1106] Section 1G5.

Boro English. Also, for the greater part such boroughs have divers customs and

Voungest son. usageSt M,/,^/, are nof Jtad in other towns. For some boroughs have

such a custom, that if a man has issue many sons and dies, the youngest son shall inherit all the tenements which were his father's within the same borough, as heir unto his falher by force of the custom; the which is called borough Ejiglish.

The youngest son shall inherit.] And by some customs the youngest Youngest brother shall inherit; for consuetudo loci est observanda.

All the tenements.] Either in fee-simple, fee-tail, or any other Estatepur auicr inheritance. If lands of the nature of borough English are let to a vie' man and his heirs during the life of I. S. and the lessee dies, the youngest son shall enjoy it.

Section 166.

Also, in some boroughs, by custom, the wife shall have for her Dower of Boro' dower all the tenements which were her husband's.

Which were her husband's #c.] Here is implied by (&c.) that in [111a] some places the wife shall have the moiety of the lands of her husband, so long as she lives unmarried; as in gavelkind. And of lands in gavelkind a man shall be tenant by the curtesy without having any issue. In some places the widow shall have the whole, or half, dum sola et casta vixerit, and the like.

Section 167.

Also, m some boroughs, by custom, a man may devise by his testa- rower of dement his lands and tenements which he has in fee-simple within the by'customTn same borough at the time of his death; and by force of such devise, some borough he to whom such devise is made, after the death of the devisor, Wills. may enter into the tenements so to him devised, to have and to hold to him, after the form and effect of the devise, without any livery of seisin thereof to be made to him &c.

Which he has in fee-simple.] For lands in tail are not devisable Estate tail not by will; and therefore Littleton in this place adds, (which he nua

fuis in fee-simple) which he purposely omitted in the clause concerning borough English; because there an estate tail is included.

Eiecutmi us- May enter.] Note, if a man devise either by special name or

bnfuefiafchat- generally, goods or chattels real or personal, and dies, the devisee ie.h, conira us to cannot tafce them without the assent of the executors. But when

Jiceholds.

a man is seised of lands in fee, and devises the same in fee, in tail, for life, or for years, the devisee shall enter; for in that case the executors have no meddling therewith. And in the case of a Sehi,, of devisee devisee by will of lands, whereof the devisor is seised in fee, the far* entry. freehold or interest in law is in the devisee before he enters, and in that case nothing (having regard to the estate or interest devised) descends to the heir. But if the heir of the devisor enters and holds the devisee out, he may either enter as Littleton here says, or have his writ called ex gravi quarela; and this writ (without any particular usage) is incident to the custom to devise; for otherwise, if a descent were cast before the devisee entered, the devisee would have no remedy. After an actual possession this writ lies not; for then the devisee may have his ordinary remedy by common law.

Lands notde- And well said Littleton, that lands and tenements were devisable

moniaw. m burghs by custom; for at common law no lands or tenements

[111 oJ Were devisable by last will or testament, nor could they be transferred

from one to another in any way except by solemn livery of seisin,

matter of record, or sufficient writing; but as Littleton here says,

that by certain private customs in some burghs they are devisable.

Secus nou by But now since Littleton wrote, by the statutes of 32 and 34 H. 8.

sl.it. of Wills. J

lands and tenements are generally devisable by the last will in writing of the tenant in fee-simple, whereby the ancient common law is altered ; whereupon many difficult questions, and most commonly disherison of heirs (when the devisors are pinched by the messengers of death) do arise and happen. But these statutes take not away the custom to devise; [and the statute of frauds, it should be remembered contains many regulations about the execution of wills, 29 Car. 2. c. 3.].

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Also, though a man may not grant, nor give, his tenements to his Husband may

• /• i /• i J- ■/• 7i i devise to his

wife during the coverture, for that his wije and he are but one wife.

person in law, yet by such custom lie may devise by his testament

his tenements to his wife, to have and to hold to her in fee-simple,

or in fee-tail, or for term of life, or years, for that such devise

takes no effect but after the death of the devisor. And if a man Tt,e last wi"

. / , , ,. , . preferred.

at divers limes makes divers testaments, and divers devises ofc.

yet the last devise and icill made by him shall stand, and the

others are void.

A man may not grant, nor give, his tenements to his wife 8fc] This Husband's am

... veyunce to his

opinion is clear, for by no conveyance at the common law a man wife \iad, unless

could during the coverture, either in possession, reversion, or re-" y us**"

mainder, limit an estate to his wife. But a man may by his deed

covenant with others to stand seised to the use of his wife, or make

a feoffment or other conveyance to the use of his wife; and now the

estate is executed to such use by the statute of 27 H. 8. for an use

is but a trust and confidence, which by such means may be limited

by the husband to his wife. But a man cannot covenant with his

wife to stand seised to her use; because he cannot covenant with

her for the reason that Littleton here yields.

One person in/aw.] If cestuique use had devised that his wife Wifehaving should sell his land, and made her executrix and died, and she wuu'i^mhuto took another husband, she might sell the land to her husband, for she did it in auter droit, and her husband should be in by the devisor.

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By his testament.'] Testamentum is (as said before) testatio mentis, wm. cw and is to be favourably expounded according to the meaning of the '"mio'/i testator.

To his wife.] And Littleton himself yields the reason; because Wife cannot dethe devise does not take effect till after the decease of the devisor. But albeit the last will does not take effect until after his decease, yet if a feme covert be seised of lands in fee, she cannot devise the same to her husband, because at the making of her will she had no power to devise the same, being sub poteslate viri; and the law will intend that it is done by coercion of her husband.

First grant; Divers testaments.] For voluntas testatoris est ambulatoria usque

lust tall. fla< mortem (as llath been said before) and the latter will counter

mands the first. And it is truly said, that the first grant and the last will is of the greatest force.

Section 169.

Devise that his Also, by such custom a man may devise by his testament, that his

they may make executors may alien and sell the tenements that he has in fee-simple,

Ltr0takeesntiUbUt for a certain sum to distribute for his soul. In this case, though

sale. the devisor die seised of the tenements, and the tenements descend

to his heir, yet the executors, after the death of the testator,

may sell the tenements so devised to them, and put out the heir,

and thereof make a feoffment, alienation and estate by deed, or

without deed, to those to whom the sale is made. And so may ye

here see a case, where a man may make a lawful estate, and yet he

has nought in the tenements at the time of the estate made. And

the cause is, for that the custom and usage is such. For a custom,

used upon a certain reasonable cause, deprives the common law.

And that, which in Littleton's time a man might do by custom in some particular places, he may now do by the statutes of 32 & 34 H. 8. generally.

Surviving«- The executors, after the death of the testator, mat/sell.] Here it

ecu.ors may « , . . . _.. .

eiercUe a gene- appears, that the executors having but a power, as Littleton puts

'v\hTMarfnT the Case, to Sell, they muSt a11 jo'n in the Sale- Then put the Case<

paiticniarifi that one dies, it is regularly true, that being but a bare authority,

nnmed, or if , . .

they have an the survivors cannot sell. But if a man devises his land to A. for

a^ow"."" "' term of l'fe, and that after his decease his lands shall be sold by

[2 s. b) s. 238.] ms executors generally (as Littleton here puts his case), and makes

three or four executors, and during the life of A. one of the

executors dies, and then A. dies, the other two or three executors

may sell, because the land could not be sold before, and the

plural number of his executors remains. But if they had been

named by their names, as I. S., I. N., I. D., and I. G., his execu

[113 a] tors, then the survivors could not sell the land, because the

words of the testator could not be satisfied; and I myself knew

this case adjudged. A special verdict was found, that A. was

seised of certain lands in fee, and devised the same in tail; and if the donee died without issue, that his said land should be sold by his sons in law, he in truth having five sons in law. One of his sons in law died in the lifetime of the donee, and after the donee died without issue, and then the four sons in law sold the land, and it was adjudged that the sale was good, because they were named generally by his sons in law, and the lands could not be sold by them all; and the words of the will in a benign interpretation are satisfied in the plural number, albeit they had but a bare authority: but if they had been particularly named, it had been otherwise. And if a man devises lands to his executors to be sold, and makes two executors, and the one dies, yet the survivor may sell the land; because as the estate survives, so shall the trust; and so note the diversity between a bare trust, and a trust coupled with an interest. And in both these cases the executors may sell part of the land at one time, and part at another, as they may find purchasers.

In Littleton's case admit that one executor had refused to sell, Concurrence of then, as the law stood when Littleton wrote, it was clear that the executors not others could not sell. But now by the statute of 21 H. 8. it is pro- "^7 '* vided, that where lands are willed to be sold by executors, that though part of them refuse, yet the residue may sell. And albeit the letter of the law extends only where executors have a power to sell, yet being a beneficial law, it is by construction extended where lands are devised to executors to be sold. Yet in neither of Executor re

.... nouncing cannot

those cases, albeit one refuse, can the other make sale to him that purchase.

refused, because he is party and privy to the last will, and remains

executor still. My advice to those who make such devises by will,

is, that [he direct] the sale [to] be made by his executors or the

survivors or survivor of them, if his meaning be so, or by such or

so many of them as take upon them the probate of his will, or the

like. And it is better to give them an authority than an estate.

unless his meaning be that they should take the profits of the land

in the mean time; and then he should devise that the mean profits Mesne profits

till the sale shall be assets in their hands, for otherwise they shall ""J'^,?''"'

net be so. But hereof thus much shall suffice.

And thereof make a feoffment.] For albeit the executors in this Fe.feeinbi case have no estate or interest in the land, but only a bare and naked power, yet this feoffment amounts to an alienation, to vest

Reversion devised to be sold.

the land in the feoffee, as it appears here, and the feoffee shall be in by the devisor.

By deed or without deed.] And therefore if by the custom a man devises that a reversion or any other thing which lies in grant shall be sold by his executors, they may sell the same without deed; for the vendee shall be in by the devisor, and not by the executors, as hath been said.

Section 170.

Customs must have been used time out of mind.

And note, that no custom is to be allowed, but such custom as hath been used by title of prescription, at common law, time out of mind.

Custom what essential to.

[1136] [1146]

To customs and prescriptions, these two incidents are inseparable, viz. possession or usage, and time. Possession must have three qualities: it must be long, continual, and peaceable; and note, if a man prescribes to have a rent, and likewise to take a distress for the same, it cannot be avoided by pleading, that the rent has always been paid by coercion, albeit it began by wrong.

What mail be claimed by prescription.

A title of prescription.] Seeing that prescription makes a title, it may be enquired, first, to what things a man may make a title by prescription without charter; and secondly, how it may be lost by interruption. And first, as to such franchises and liberties as cannot be seised when forfeited before the cause of forfeiture appears of record, no man can make a title by prescription, because prescription being but an usage in pais, it cannot extend to such things as cannot be had without matter of record: as for instance the goods and chattels of traitors, felons, felons of themselves, fugitives, outlaws, deodands &c. But to treasure-trove, waifs, estrays, wreck of sea, to hold pleas, courts leet, hundreds &c. to have a park, warren, royal fishes, as whales, sturgeons &c. fairs, markets, frank-foldage, the keeping of a gaol, toll, a corporation by prescription, and the like, a man may make a title by usage and prescription only without any matter of record. Vide Sect. 310. where a man shall make a title to lands by prescription. But it is to be observed, that although a man cannot, as is aforesaid, prescribe in the said franchise to have bona et catalla proditorum, felonum fyc, yet may they and the like be had obliquely, or by a kind of prescription; for a county palatine may be claimed by prescription, and by reason thereof to have bona et catalla proditorum, felonum fyc.

As to the second, by what means a title by prescription, or Custom of precustom, may be lost by interruption, it is to be known, that the TyXo'Zars'di!title, being once gained by prescription or custom, cannot be lost uie< *"*?'.*? by interruption of the possession for ten or twenty years, but by interruption in the right only; as if a man has a rent or common by prescription, unity of possession of as high and perdurable estate in the land is an interruption in the right. But if a man has a common by prescription, and takes a lease of the land for twenty years, whereby the common is suspended, after the years ended, he may claim the common generally by prescription.

Time of limitation, as it is taken in law, is a certain time pre- Statutes of cribed by statute, within which the demandant in the action must prove himself or some of his ancestors to be seised. Time of limit- fl 15a] ation is twofold: 1st. In writs; and that is by divers acts of parliament 2dly. To make a title to any inheritance; and that (as Littleton here says) is by the common law. Limitation of time in writs is provided for by the statutes of Merton, and W. 1. which limited the time from the first year of R. 1. and since Littleton wrote, the former limitation of time in a writ of right is changed and reduced to threescore years next before the teste of the writ, by the stat. 32 H. 8.

Time out of mind.] Is where there is no memory of man to the Memory of man contrary. But if there be any sufficient proof of record or writing ^ "m",(T.""'' to the contrary, albeit it exceed the memory, or proper knowledge of any man living, yet is it within the memory of man. And this is the reason, that regularly a man cannot prescribe or allege a custom against a statute, because that is matter of record, and is the highest proof and matter of record in law. But yet a man may prescribe against an act of parliament when his prescription or custom is saved or preserved by another act of parliament.

There is also a diversity between an act of parliament in the statutes, <•<<»negative and in the affirmative; for an affirmative act does not ^"t'jTMai«/ take away a custom; as the statutes of wills of 32 & 34 H. 8. do <#'.»»'«»• not take away a custom to devise lands, as hath often been ad

mtm

Statute law and

CUSliHIlS

judged. Moreover, there is a diversity between statutes that are in the negative; for if a statute in the negative be declarative of the ancient law, that is in affirmance of the common law, there as a man may prescribe or allege a custom against the common law, so a man may prescribe against such a statute; for, as our author says, consuetudo 6;c. privat commimem legem.

Municipal law Common law."] The law of England is divided, as hath been law: said before, into three parts; 1st. The common law, which is the

most general and ancient law of the realm, of part whereof Little[1156] ton wrote. 2dly. Statutes or acts of parliament. And 3dly. Particular customs (whereof Littleton also makes some mention). I say particular, for if it be the general custom of the realm, it is part of the common law. The common law has no controller in any part of it, but the high court of parliament; and if it be not abrogated or altered by parliament, it remains still. The common law appears in the statute of Magna Charta and other ancient statutes (which for the most part are affirmations of the common law) in the original writs, in judicial records, and in our books of terms and years. Acts of parliament appear in the rolls of parliament, and for the most part are in print. Particular customs are to be proved.

Section 171.

Also, every borough is a town, but not ti converso. More shall be said of customs in the tenure of villeinage.

CHAPTER XI. Section 172. [116*0

OP VILLEINAGE.

Tenure in villeinage is most properly, when a villein holds of his Tenure in vil

lord to whom he is a villein, certain lands or tenements according the service is

to the custom of the manor, or otherwise, at the will of his lord, !,en" e

and to do to his lord, villein service; as to carry and recarry the

dung of his lord out of the city, or out of his lord's manor unto the

land of his lord, and to spread the same upon the land, and such

Hie. And some freemen hold their tenements according to the

custom of certain manors, by such services. And their tenure also

is called tenure in villeinage, and yet they are not villeins; for no

land holden in villeinage, or villein land, nor any custom arising

out of the land, shall ever make a freeman villein. But a villein

may make free land to be villein land to his lord; as where a villein

purchases land in fee-simple, or in fee-tail, the lord of the villein

may enter into the land, and oust the villein and his heirs for ever;

and after, the lord (if he will) may let the same land to the villein,

to hold in villeinage.

Villeinage is the service of a bondman. And yet a free man may do the service of him that is bond. And therefore a tenure in villeinage is twofold; one, where the person of the tenant is bond, and the tenure servile; the other, where the person is free, and the tenure servile.

Section 175. [1176]

Also, every villein is either a villein by title of prescription, to Villeins are Kit, that he and his ancestors have been villeins time out of mind gcnptionor" of nuin; or he is a villein by his own confession in a court of c°nfesslonrecord.

Records and In a court of record.'] A record or enrolment is a memorial or

?iTMm*ivesSV"'Ve monument of so high a nature, as it imports in itself such an absolute verity, as if it be pleaded that there is no such record, it shall not receive any trial by witness, jury, or otherwise, but only by itself.

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And every court of record is the king's court, albeit another may have the profit, wherein if the judges do err, a writ of error lies. But the county court, the hundred court, the court baron, and such like, are no courts of record; and therefore the proceedings therein may be denied, and tried by jury, and upon their judgments a writ of error lies not, but a writ of false judgment, for that they are no courts of record, because they cannot hold plea of debt or trespass, if the debt damage amounts to forty shillings, or of any trespass vi et artnis.

Section 177.

Lord has no title till entiy.

Also, if a villein purchase land, and alien the land to another before the lord enters, then the lord cannot enter ; for it shall be adjudged his folly that he did not enter when the land was in the hands of the villein.

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What if villein In the same manner it is, where a villein purchases an ailvotvson of advowson!n a church full of an incumbent, the lord of the villein ma y come to

the said church, and claim the said advowson, and by this claim the

advowson is in him.

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If a villein at this day purchases an advowson in fee, and the church becomes void, and the lord for one hundred pounds given by A. B. clerk presents him to the church, and his clerk is admitted, instituted, and inducted; yet this gains not the advowson to the lord. And so it is in that case, if any on behalf of A. B. had given or contracted with the lord in consideration of any valuable thing to present A. B. to the said church, albeit it had been without the consent or knowledge of A. B. yet it should not have vested the advowson in the lord. But this was not law when Littleton wrote. But now by the statute of 31 Eliz. the presentation, admission, institution, and induction in both the said cases, and in the like are made void, where before the said statute they were but voidable by deprivation. And if a man present by usurpation to a benefice, by reason of any corrupt contract, agreement, Sec, that presentation and the institution and induction thereupon are void; for that act extends to all patrons as well by wrong as by right But where any presents by usurpation, the rightful patron, and not the king, shall present; for otherwise every rightful prtron may lose his presentation. And such an incumbent who comes in by reason of any such corrupt agreement, is so absolutely disabled for ever after to be presented to that church, as the king himself, to whom the law gives the title of presentation in that case, cannot present him again to that church; for the act being made for the suppression of simony and such corrupt agreements, so binds the king in that case, that he cannot present him whom the law has disabled; for the words of the act are, " shall thereupon and from tbenceforth be adjudged a disabled person in law to have or enjoy the same benefice." And the party being disabled by the act of parliament (which being an absolute and direct law) cannot be dispensed withall by any grant &c, with a non obstante; as it may be, when any thing is prohibited sub modo, as upon a penalty given to the king. And the said act does not only extend to benefices with cure, but to dignities, prebends, and all other ecclesiastical livings.

Note, if the church becomes void, albeit the present avoidance Praent avoidbe not by law grantable over, yet may the lord of the villein present °fc"o«rf tTi'ii in his own name, and thereby gain the inheritance of the advowson ««ri11'« '•*«»to him and his heirs; for albeit it be not grantable over, yet it is pen in wife's not merely a chose in action; for if a fifime covert be seised of an * TM' advowson, and the church becomes void, and the wife dies, the husband shall present to the advowson; but otherwise it is of a bond made to the wife; because that is merely in action.

Section 181. [1206]

Also, there is a villein regardant, and a villein in gross. A villein Villeins regar

reyardanf is, as if a titan be seised of a manor to which a villein is „„!» distinguished.

regardant, and he who is seised of the said manor, or they whose estate he has in the same manor, have been seised of the villein and of his ancestors as villeins and neifs regardant to the same manor time out of memory of man. And villein in gross is, where a man is seised of a manor whereunto a villein is regardant, and grants the same villein by his deed to another, then he is villein in gross, and not regardant.

[121a] Section 183.

Presciiption in A.ND here note, that such things, which cannot be granted nor plies to those aliened without deed or fine, a man who will have such things by which wi/not prescription cannot otherwise prescribe but in him and in his pass at common ancesiors whose heir he is, and not by these words (in him and them

law without *

deed. whose estate he has), for that he cannot have their estate without

deed or other writing, the which ought to be shewn to the court, if he will take any advantage of it.

Whose estate (que estate), #c] quorum statutn, as much as to say, whose estate he has. Here Littleton declares an excellent rule, that a man cannot prescribe for any thing by a que estate, which lies in grant and which cannot pass without deed or fine; but in him and his ancestors he may, because he comes in by descent without any conveyance. Neither can a man plead a que estate in himself of any thing that cannot pass without deed ; but in another he may, as in bar of an avowry, the plaintffinay plead a que estate in the seigniory in the avowant. But Littleton's words are to be observed, (a man who will have such things by prescription.) Therefore when a thing that lies in grant is but a conveyance to the thing claimed by prescription, there a que estate may be alleged of a thing that lies in grant; as a man may prescribe, that he and his ancestors, and all those whose estate he has in an hundred, have time out of mind, &c. had a leet &c. this is good, &c,

Vrofertre- The which ought to be shewn to the court.] The reason why every

'deed*'nifaded. deed tnat is pleaded ought to be shewn to the court is, because [1216] every deed must prove itself to have sufficient words in law, whereof the court only can judge: and also to be proved by others, as bywitnesses or other proofs, if the deed be denied, which is matter of fact [to be tried by the jury].

By alienation without deed, Jfc] Here by (Sec.) is implied, that what things whatsoever passes by livery of seisin, either in deed or in law, may j*"","^TM0" pass without deed; and not only the rents and services parcel of deedof the manor shall with the demesnes, as the more principal and worthy, pass by livery without deed, but all things regardant, appendant, and appurtenant to the manor, as incidents or adjuncts to the same, shall, together with the manor, pass without deed ; all Appurtenances. which, as here it appears and elsewhere is said, shall pass without saying cum pertinentiis.

Section 184.

And it is to be understood, that nothing is named regardant to a Appendant and manor, &c. but a villein. But certain other things, as an advowson tinguished. 'S and common of pasture, &c. are named appendant to the manor, or to the lands and tenements.

Appendant.'] Appendant is any inheritance belonging to another Appendant and that is superior or more worthy. Appendants are always by pre- avvurtfnartt scription; but appurtenants may be created in some cases at this <"■<* exemplified. day. As if a man at this day grant to a man and his heirs, common in such a moor for his beasts levant or couchant upon his manor; or if he grant to another common of estovers or turbary in feesimple to be burnt or spent within his manor; by these grants these commons are appurtenant to the manor, and shall pass by the grant thereof. If A. be seised of a manor, whereunto the franchise of waifs estrays and such like are appendant, and the king purchases the manor with the appurtenances, now are the royal franchises re-united to the crown and not appendant to the manor. But if he grant the manor in as large and ample manner as A. had &c. it is said, that the franchises shall be appendant (or rather appurtenant) to the manor.

Concerning things appendant and appurtenant, two things are Same.

implied. First, that prescription (which regularly is the mother Corporeal can

thereof) does not make any thing appendant or appurtenant, unless "*' ^ °S£w

the thing appendant or appurtenant agree in quality and nature to TM inc>»poreal the thing whereunto it is appendant or appurtenant: as a thing corporeal cannot properly be appendant to a thing corporeal, nor a

Common oftur harit uppin tenant to house

Villi},

Vciv appurtenant to house only.

[122a]

thing incorporeal to a thing incorporeal. But things incorporeal which lie in grant, as advowsons, villeins, commons, and the like, may be appendant to things corporeal, as a manor-house or lands; or things corporeal to things incorporeal, as lands to an office. But yet (as hath been said) they must agree in nature and quality; for common of turbary or of estovers cannot be appendant or appurtenant to land, but to a house to be spent there. Nor a leet, that is temporal, to a church or chapel, which is ecclesiastical. Neither can a nobleman, esquire, &c. claim a seat in a church by prescription as appendant or belonging to land, but to a house only, for that such a seat belongs to the house in respect of the inhabitancy thereof; and therefore if the house be part of a manor, yet in that case he may claim the seat as appendant to the house for the reason aforesaid.

Attnncson may Ix appurtenant to manor.

Coparcenary of advowson after partition.

Secondly, that nothing can be properly appendant or appurtenant to any thing, unless the principal or superior thing be of perpetual subsistance and continuance. For example, an advowson that is said to be appendant to a manor, is in rei veritate appendant to the demesnes of the manor, which are of perpetual subsistance and continuance, and not to rents or services, which are subject to extinguishment and destruction. An advowson is appendant to the manor of Dale, of which manor the manor of Sale is holden, the manor of Sale is made parcel of the manor of Dale by way of escheat, the advowson is only appendant to the manor of Dale. Note, that an advowson at one turn may be appendant, and at another turn in gross. As if the manor be divided between coparceners, and every one has a part of the manor without saying any thing of the advowson appendant, the advowson remains in coparcenary, and yet, in every of their turns, it is appendant to that part which they have; and so it is, if they make composition to present against common right, yet it remains appendant. But if upon such a partition an express exception be made of the advowson, then the advowson remains in coparcenary and in gross, and so are the books reconciled.

Common appendant.

Common of pasture.] There are four kinds of common of pasture, viz. common appendant, which is of common right (and therefore a man need not prescribe for it) [i. e. the prescription is implied] for beasts commonable (that is) for such as serve for the maintenance of the plough, as horses and oxen to plough the land, and for kine and sheep to compester the land, and is appendant to arable land.

The second is common appurtenant, that is, for beasts not com- Common sppur

tenant.

monable; as swine, goats, and the like. If a man purchase part of the land wherein common appendant is to be had, the common shall be apportioned, because it is of common right; but not so of a common appurtenant, or of any other common of what nature soever. But both common appendant and appurtenant shall be apportioned by alienation of part of the land to which common is appendant or appurtenant; and for common appurtenant one must prescribe [not, however, if there be a grant, Cro. Car. 482.]

The third is common per cause de vicinage, which differs from Common of both the other commons, for that no man can put his beasts t"c""'£e• therein, but they must escape thither of themselves by reason of vicinity: in which case one may inclose against the other, though it has been so used time out of mind, for that it is but an excuse for trespass.

The last is common in gross, which is so called, because it ap- Common in pertains not to land, and it must be by writing or prescription. zross'

Of common appendant, appurtenant, and in gross, some are cer- Common sans tain, that is, for a certain number of beasts; some certain by con- nombre* sequence, viz. for such as are levant and couchant upon the land; and some are uncertain, as commons sauns nomber in gross, and yet the tenant of the land may pasture or feed there also.

There are also divers other commons, as of estovers, of turbary, other commons. of piscary, of digging for coals, minerals, and the like.

If common appendant be claimed to a manor, yet in rei veri- r^rd's commonlate it is appendant to the demesnes, and not to the services; and 2f'i« Ms^t therefore if a tenancy escheat, the lord shall not increase his common by reason of that.

If a man claim by prescription any manner of common in another Common which

man's land, and that the owner of the land shall be excluded to ["wo/the *>u

have pasture, estovers, or the like, this is a prescription or custom bad, but hemas

Q

sent to an ad

he excluded for against the law, to exclude the owner of the soil; for it is against the nature of this word common, and it was implied in the first grant that the owner of the soil should take his reasonable profit there, as it has been adjudged. But a man may prescribe or allege a custom to have and enjoy so/am vesturam terra, from such a day to such a day, and hereby the owner of the soil shall be excluded to pasture or feed there; and so he may prescribe to have separalem pasturam, and exclude the owner of the soil from feeding there. So a man may prescribe to have separalem piscariam in such a water, and the owner of the soil shall not fish there; but if he claim to have communiam piscaria, or Uberam piscariam, the owner of the [1226] soil shall fish there. And all this has been resolved. And therefore it is necessary for every man by learned advice to plead according to the truth of his case; for parolsfont plea.

Disseisee can- A man seised of land whereunto common is appendant is dis

not use common, ...... , ...

but he man pre- seised, the disseissee cannot use the common, until he enters into the land whereunto it is appendant. But if a man be disseised of a manor whereunto an advowson is appendant, he may present to the advowson before he enters into the manor; and the reason of this diversity is, because in the case of the common it would be a prejudice to the tenant of the soil: for if the disseisee might do it, the disseissor also might put on his cattle, which would be a double charge to the tenant, but not so of the advowson.

[1286] Section 198.

Alien, Also, if an alien, who is born out of the allegiance of our sove

reign lord the king, will sue an action real or personal, the tenant or defendant mag sag, that he teas born in such a countrg which is out of the king's allegiance, and ask judgment if he shall be answered.

Who u, and of Note, here Littleton says not out of the realm, but out of the alle

tlenaaiion, *

naturalization, giance; for he may be born out of the realms of England, yet within the allegiance. And he that is born within the king's allegiance

and descent.

[129a]

is called sometimes a denizen. But many times in acts of parliament, denizen is taken for an alien born, that is, enfranchised or denizated by letters patent. There is also another kind, and that is an alien naturalized, which must be by act of parliament. And this alien naturalized is to all intents and purposes the same as a natural born subject, and naturalization differs much from denization; for if the alien had issue in England before his denization, that issue is not inheritable to his father; but if his father be naturalized by parliament, such issue shall inherit. So if the issue of an Englishman born beyond sea be naturalized by act of parliament, he shall inherit his father's lands: but if he be made denizen by letters patent, he shall not; and many other differences there be between them.

Real or personal.] In this case the law distinguishes between Alien friend an alien who is the subject of a prince an enemy to the king, and ^emV"1 one who is the subject of a prince in league with the king; and true [129 b] it is that an alien euemy shall maintain neither real nor personal action, donee terra fuerint communes, that is until both nations are in peace; but an alien who is in league shall maintain personal actions; for an alien may trade and traffic, buy and sell, and therefore of necessity he must be of ability to have personal actions; but he cannot maintain' either real or mixt actions. An alien who is condemned in an information, shall have a writ of error to relieve himself. Et sic de similibus.

Out of the allegiance of our sovereign lord the king.] Here Little- Out of realm ton does not say, out of the realm or beyond the sea (as he does "aMe^dMn-^'' Sect. 439,440, 441. 677.) but out of the allegiance; for (as hath euW«ibeen said before) a man may be born out of the realm, viz. of England, as in Ireland, Jersey, and Guernsey, &c. and yet seeing he is not born out of the allegiance of the king, as Littleton here speaks, he is no alien.

Section 200. [132a]

Also, where a man enters into religion, and is professed, he is A pureon enterdead in the law, and his son, or next cousin incontinent shall in- becomes dead herit him, as well as though he were dead indeed. And when he m '*wenters into religion he may make his testament and his executors; and they may have an action of debt due to him before his entry into religion, or any other action that executors may have, as if he were dead indeed. And if he make no executors when he

enters into religion, then the ordinary may commit the administration of his goods to others, as if he were dead indeed.

Natural and He is dead in the law.] Civiliter mortttus, or mortuus seculo.

illgutCd.''"' There is a deata in deed, and there is a civil death or a death in law, mors civilis and mors naturalis, as here it appears: and therefore to prevent all doubts, leases for life are usually made during natural life.

Effect of civil As well as though he were dead indeed.] But yet to some pur"ri'ort.-i poses, profession of religion hath not the effect of a natural death. As if tenant in tail makes a feoffment in fee, and enters into religion, his issue shall have no formedon during his life; because that would be in derogation of his own grant. 2d. His wife shall not be endowed until his natural death. 3d. If the disseisor enters into religion and is professed, so that the land descends to his heir, yet this descent shall not toll the entry of the disseisee. A woman cannot be professed a nun during the life of her husband. But if one joint-tenant be professed in religion, the land shall survive to the other.

Abjuratumand And here is to be observed, that an abjuration, that is, a deportlZ"ideVi'h".Ure at'on for ever mto a foreign land, like to profession, (whereof our [I33a] author here speaks) is a civil death: and that is the reason why the wife may bring an action, or may be impleaded during the natural life of her husband. And so it is, if by act of parliament the husband be attainted of treason or felony, and saving his life, is banished for ever, as Belknap &,c. was, this is a civil death, and the wife may sue as a feme sole. And hereby you may understand your books which treat of this matter. But if the husband, by act of parliament, have judgment to be exiled but for a time, which some call a relegation, that is no civil death, [but the wife may act as a widow in the mean time; 1 Com. Dig. 10.]

dueen treated But by the common law, the wife of the king of England is an exas a eme so e. empt person from the king, and has capacity to take of lands or tenements of the gift of the king which no other feme covert has; and she may sue and be sued without the king, for the wisdom of the common law would not have the king (whose continual care and study is for the public, et circa ardua regni) to be troubled and disquieted with such private and petty matters: so that the wife of the king of England has ability and capacity to grant and to take, and to sue and be sued as a feme-sole by the common law.

, Note, there is annus minor and major. The lesser year consists Computation«/ of three hundred and sixty-five days and six hours, whereby in [\3Sabl every fourth year there is dies excrescens, which makes that year to have in ret verilate, three hundred and sixty-six days, and that is called annus major. A quarter of a year contains by legal computation ninety-one days, and half a year contains one hundred and eighty-two days; for the odd hours in legal computation are rejected; and by the statute de anno bisseitili, it is provided, quod computentur dies ilk excrescens el dies proxinu) precadens pro unico die, so that in computation that excrescent day is not accounted. A month, mensis, is regularly accounted in law twenty-eight days, and not according to the solar month, nor according to the calendar, unless it be for the account of a lapse in a uuare impcdit, There is mensis Solaris, and mensis lunaris. Solaris est 12 pars mini, viz. spatium 30 dierum horarum 10 et minutorum 30, el lunaris est spatium 28 dierum.

Also there was a time, when idiots, madmen, and such as were deaf and dumb naturally, were disabled to sue, because they wanted reason and understanding (tales enim non mult-Urn distant u brutis.) But at this day they all may sue; for the suit must be in their name, but it shall be followed by others. And note, that when an idiot does sue or defend, he shall not appear by guardian or prochein ami or attorney, but only in person; yet an infant or minor shall sue by prochein ami, and defend by guardian.

Section 210. [140a]

In the county of Kent, where lands and tenements are holden in Gavelkind. gavelkind, the custom to fine on tlie daughter's marriage seems allowable ; for every son is as great a gentleman as the eldest, and perchance will grow to greater honour and valour if he has any thing by his ancestors.

In the county of Kent.] For that in no county of England lands at this day are of the nature of gavelkind of common right, saving

in Kent only. But yet in divers parts of England, within divers manors and seigniories, the like custom is in force. And gavelkind, comes from gave all kind: for this custom gives to all the sons alike. But the general custom extends only to sons. Yet by custom, when one brother dies without issue, all the other brethren may inherit.

[1406] Now by the statute of 31 H. 8. a great part of Kent is made

descendable to the eldest son, according to the course of the common law, because by means of that custom, divers ancient and great families after a few descents came to very little or nothing.

Section 211.

BoroEnglish, Also, by the custom of Borough English, where the youngest son inherits all the tenements, this custom stands with some reason; because the younger son (if he lack father and mother) can least of all his brethren help himself, &c.

extends to

By the custom called Borough English.] Of this custom Littleton has spoken before in the Chapter of Burgage. And in our books daughtert. there is a special kind of Borough English; as it shall descend to the younger son, if he be not of the half-blood; and if he be, then to the eldest son. Within the manor of B. [Bray, 2 Watlo cap. 410.] in the county of Berks, there is such a custom, that if a man have divers daughters, and no son, and dies, the eldest daughter only shall inherit; and if he have no daughters, but sisters, the eldest sister by the custom shall inherit, and sometimes the youngest. And divers other customs there be in like cases.

[141a] Section 212.

No man can be But if a man prescribe, to distrain cattle doinq damage on the his own judge. . * *

demesnes of his manor, and the distress to retain till fine were

made to him for the damage at his will, this prescription is void;

became it is against reason, that if wrong be done any man, that

he thereof should be his own judge.

And therefore a fine levied before the bailiffs of Salop was re- Fine taken beversed, because one of the bailiffs was party to the fine, quia non ^aparty potest essejudex et pars.

And by this rule cited by our author, at the parliameut holden inland. About Kilkenny in Ireland, Lionel duke of Clarence being then lieu- l\i,m "fBrfm

J ° law, aud substi

tenant of that realm, the Irish customs called there the Brehon tutimofEngihh law (for that the Irish call their judges Brehons) was wholly abolished, for that (as the parliament said) it was no law, but a lewd custom, et mains usus abolendus est. But our student must know, that king John in the twelfth year of his reign went into Ireland, and there, by the advice of grave and learned men in the laws whom he carried with him, by parliament de commutii omnium de Hibernia consensu, ordained and established, that Ireland should be governed by the laws of England, which of many of the Irishmen, [141 i] according to their own desire, was joyfully accepted and obeyed, and of many the same was soon after absolutely refused, preferring their Brehon law before the just and honourable laws of England. And by an act of parliament (called Poyning's law) holden in Ire- j/^at E,i»thh land in the tenth year of Henry the seventh, it is enacted, that all ''"'"'" aFect statutes made in this realm of England before that time, should be of force and be put in use within the realm of Ireland; which (though it be by way of digression) is not unnecessary for our student to know.

CHAPTER XII. Section 213.

OF RENTS.

Rent service, distress incident to.

Three manner of rents there be, that is to say, rent service, rent charge, and rent seek. Rent service is, where the tenant [of the fee or freehold] holds his land of his lord by fealty and certain rent, or by homage fealty and certain rent, or by other services and certain rent. And if rent service at the day it ought to be paid, be behind, the lord may distrain for it of common right.

Some have divided rents into four kinds, viz. rent service, rent charge, rent distrainable of common right (whereof somewhat shall be said in this chapter,) and rent seek.

Of the service.

[142 a]

Rent service.] It is called a rent service, because it has some corporal service incident to it, which is fealty at least, as here appears.

Out of what it must issue.

His land.] A rent service cannot be reserved out of any inheritance but such only as is manurable, whereinto the lord may enter and take a distress, as in lands and tenements, reversions, remainders, and, as some have said, out of the herbage of lands, and regularly not out of any inheritances incorporeal, or which lie in grant. But by act of law one rent or service may issue out of another.

Profits cannot be reserved as rent.

Certain rent.] For the rent must be certain, or which may be reduced to a certainty; for id certum est quod cert urn reddi potest. But a man upon his feoffment or conveyance cannot reserve to him parcel of the annual profits themselves, as to reserve the vesture or

herbage of the land or the like, for that would be repugnant to the grant.

May distrain for it..] For where there is fealty, there is a dis- Vistreu in night

tress incident thereunto. But it is to be understood, that for a rent damage feasant,

or service, the lord cannot distrain in the night, but in the day-time not/<M' ""'• only; and so it is of a rent charge. But for damage done feasant one may distrain in the night, otherwise it may be the beasts will be gone before he can take them.

Of common right.] That is, by the common law, without any particular reservation or provision of the party.

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And if a man give lands or tenements to another in tail, This rem may yielding to him certain rent by the year, he of common right estates tail for may distrain for the rent behind, though such gift be made lifeoryearswithout deed, because the rent is rent service. In the same manner it is, if a lease be made to a man for life, or the life of another, rendering to the lessor certain rent, or for term of years rendering rent.

Without deed,.] For it is a rule in law, that a rent service may and be reserved

, i .., .j j u-ithout deed.

be reserved without deed.

In the same manner it is, if a lease be made, fyc.] For these are Distress. rent-services, because fealty is incident to them; for (as it hath been said before) a lessee for life or years shall do fealty. And if a man make a lease at will reserving a rent, the lessee shall not do fealty, and yet the lessor may distrain for the rent of common right.

Section 215.

But in such case, where a man upon a gift or lease reserves To a rent serto himself a rent service, it is necessary, that the reversion of the must^etain'a lands and tenements be in the donor or lessor. For if a man reversion.

makes a feoffment in fee, or gives lands in tail, with remainder over in fee simple, without deed, reserving to himself a certain rent, this reservation is void, because no reversion remains in the donor, and such tenant holds his land immediately of the lord of whom his donor held, &c.

Of the tenure. It is necessary that the reversion, &c. be in the donor or lessor.] This

is to be understood only of the ultimate reversion. For if a man

makes a gift in tail, with remainder in tail, reserving a rent, and

[143 a] keeps the reversion in himself, this is a rent service. And it is to

be understood, that in the case of a gift in tail, lease for life or

years, fealty is an incident inseparable to the reversion, so that

the donor or lessor cannot grant the reversion over and save to

The reversion himself the fealty, or such like service. But the rent he may

may be granted excep(;. because the rent, althoHgh it be incident to the reversion,

over, excepting r' 'o'

the rent. is not inseparably incident. If a man makes a gift in tail with

out any reservation, the donee shall hold of the donor by the same services that he held over. But otherwise it is of an estate for life or years; for there if he reserves nothing, he shall have fealty only, which is an incident inseparable to the reversion, as hath been said.

Remainder The remainder over m fee-simple without deed.] Here it appears,

good. that if a man makes a gift in tail, with remainder in fee, without

deed, the remainder is good, and passes out of the donor by the livery of seisin ; and so it is of a lease for life or years, with remainder over in fee; for the particular estate and the remainder, to many intents and purposes, make but one estate in judgment of law. Vide Sect. 60.

Remainder mutt Remainder, in legal Latin, is remanere, coming of the Latin word

same time us renutneo; for that it is a remainder or remnant of an estate in lands

estute"lar or tenements expectant upon a particular estate created together

with the same at one time, as in the cases here of Littleton appears.

Section 216. Before stat. An D this is by force of the statute of quia emptores terrarum.

O, E. fcoftcc

bcid of feoffor. For before that statute, if a man had made a feoffment in fee

simple, by deed or without deed, yielding to him and to his heirs a certain rent, this was a rent service, and for this he might have distrained of common right; and if there were no reservation of rent, nor of any service, yet the feoffee held of the feoffor by the same service as the feoffor held over of his lord next paramount.

By deed or without deed, <Sfc.] For all rent services may be reserved without deed (as hath been said), and as it appears here. And at the common law if a man had made a feoffment in fee by parol, he might upon that feoffment have reserved a rent to him and his heirs; because it was a rent-service, and a tenure was thereby created.

Section 217. . [1436]

But if a man, by deed indented, at this day makes such a gift Rent charge is

in fee-tail, the remainder over in fee; or a lease for life, the ^heeXprc^}re^_

remainder over in fee; or a feoffment in fee; and by the same served. Rent

seek where it is

indenture he reserves to him and to his heirs a certain rent, and not.' Person that if the rent be behind it shall be lawful for him and his

to whom these rents are reserv

heirs to distrain, be. such a rent is a rent charae; because such f1 need not

* have a rever

lands or tenements are charged with such distress by force of sion. To the writing only, and not of common right. And if such a man, tress incident. upon a deed indented, reserve to him and to his heirs a certain rent, without any such clause put in the deed that he may distrain, then such rent is rent seck; because he cannot have the rent, if it be denied, by way of distress; and if in this case he were never seised of the rent, he is without remedy, as shall be said hereafter.

By deed indented.] It cannot be a deed indented unless it be Indenture,. actually indented; for albeit the words of the deed be h(ec indentura fyc. yet if it be not indented indeed, it is no indenture. But if the deed be indented, albeit the words of the deed be not hoc indentura, yet it is an indenture.

And it is holden that if a feoffment in fee be made by deed poll iktenatim by

» m deed poll good.

reserving a rent, this reservation is good: for when the feoffee accepts the deed and livery of the land, he agrees to the rent, and

the rent is reserved by the words of the feoffor, and not by the grant of the feoffee.

Reservation must be to grantor.

Reserves to him.] Note, it is a maxim in law, that the rent must be reserved to him from whom the estate of the land moves, and not to a stranger. But some hold, that otherwise it is in the case of the king.

Fee-farm rent,

what;

Such a rent is a rent charge.] It is called a rent charge because the land for payment thereof is charged with a distress. If it be to the whole value of the land, or to the fourth part of the value, then the rent is called a fee-farm.

and though distress not incident, feoffor entitled to writ of annuity, if grunt be by deed.

[144 a]

He istvithout remedy.] Note, that upon a reservation of a rent upon a feoffment in fee by deed indented, the feoffor shall not have a writ of annuity, because the words of reservation, as reddendo, solvendo, faciendo, tenendo, reservando, SfC. are the words of the feoffor, and not of the feoffee, albeit the feoffee by acceptance of the estate is bound thereby.

Rent may be reserved on a conveyance to uses, or out of' reversion.

And where Littleton puts his case, when a reservation is made upon an estate that passes by livery, the same law it is, if a man at this day bargains and sells his land by deed indented and enrolled according to the statute, a rent may be reserved thereupon; for albeit an use had only passed by the common law, yet now by the statute of 27 H. 8. cap. 10, the use and possession pass together, and so it was adjudged. And so it is of a grant of a reversion or remainder, and any other conveyance of lands or tenements, whereby any estate passes.

Section 218.

Same. Rent charge and rent seek.

Also, if a man seised of certain land grant by a deed poll or by indenture a yearly rent to be issuing out of the same land, to another in fee, or in fee-tail, or for term of life, be. with a clause of distress, &c. then this is a rent charge; and if the grant be without clause of distress, then it is a rent seek. And note, that rent seek idem est quod redditus siccus; for that no distress is incident unto it.

Seised of land.] Note, that a rent cannot be granted out of a Rent not grantpiscary, a common, an advowson, or such like incorporeal inherit- "o^onaUimances, but out of lands or tenements whereunto the grantee may ditaments,arm

. the release of a

have recourse to distrain, or which may be put in view to the right.
recognitors of an assizers hath been said before in this chapter.
And though it be out of lands or tenements, yet it must be out of
an estate that passes by the conveyance (as by all Littleton's ex-
amples appears), and not out of a right; as if the disseisee release
to the disseisor of the land, reserving a rent, the reservation is
void, et sic de similibus.

Section 219. [144/;]

Also, if a man grant by his deed a rent charge to another, and Writ of anthe rent is behind, the grantee mag choose whether he 'will sue a person, but writ of annuity for this against the grantor, or distrain for the ch'arles tlie disrent behind, and the distress detain until he be paid. But he can- tress. not do, or have, both together &c. For if he recovers by a v:rit of a nnuity, then the land is discharged of the distress &c. And if he does not sue a writ of annuity but distrains for the arrearages, and the tenant sues his replevin, and then tlie grantee avows tlie taking of the distress in the land in a court of record, then is the land charged, and the person of the grantor discharged of the action of annuity.

Rent charge."] And so it is of a rent seek.

A man grant.] Put the case, that A. be seised of lands in fee, If owner and and he and B. grant a rent charge to one in fee, this prima facie is a 'TMu?lot'h" the grant of A. and the confirmation of B. but yet the grantee may have a writ of annuity against both.

suable in writ of annuity.

Two men grant an annuity of twenty pounds per annum to another Grant by t«x> although tlie persons be several, yet he shall have but one annuity. annuity, when. But if the grant be,obligamus nos et utrumque nostrum, the grantee may have a writ of annuity against either of them; but he shall have but one satisfaction.

A writ of annuity, is a writ for the recovery of an annuity. Annuity An annuity is a yearly payment of a certain sum of money granted ^ersanoniu.

whom.

to another in fee for life or years, charging the person of the grantor only.

Who entitled to But not only the grantee, but his heir and his and their grantee

writ of annuity, , , ,, . _ . r. • **

and against' also shall have a writ of annuity. But if a rent charge be granted to a man and his heirs, he shall not have a writ of annuity against the heir of the grantor, albeit he has assets, unless the grant be for him and his heirs.

Claim of eia- May choose.] But if one man grants a rent charge to another

tion bars not - - . , . _ . „ .

dower. and Ins heirs, and [the grantee of the rent charge] dies, and his

wife brings a writ of dower against the heir, the heir cannot in bar of her dower claim the same to be an annuity and no rent charge; but the wife shall recover her dower; for he cannot determine his election by claim, but by suing a writ of annuity.

Writ of an- Neither can the heir have after the endowment an annuity for

forjmrTnorfor the two parts: for that would not be according to the deed of

owelty rem. grant, for either the whole must be a rent charge or the whole an

annuity. But Littleton is to be understood with some limitation:

for of a rent granted for owelty of partition, a writ of annuity does

[145a 6] not lie, because it is of the nature of the land descended.

In what other Also of such a rent as may be granted without deed a writ of annuity fc«not. annuity lies not, thought it be granted by deed.

[146a] If a rent charge be granted to A. and B. and their heirs; A dis

trains the beasts of the grantor, and he sues a replevin; A. avows for himself, and makes conusance for B.; A. dies and B. survives: B. shall not have a writ of annuity; for in that case, the election and avowry for rent of A. bars B. of any election to make it an annuity, albeit he assented not to the avowry. But here is another diversity to be observed between the case aforesaid of the grant of the rent where he (as hath been said) may make it either real or personal, and when a man may have election to have several remedies for a thing that is merely personal or merely real from the beginning. As if a man may have an action of account or an action of debt at his pleasure, and he brings an action of account and appears to it, and after is nonsuited, yet may he have an action of debt afterwards; because both actions charge the person. The like law is of an assize, and of a writ of entry in the nature of an assize, and the like.

Section 220.

Also, if a man would that another should have a rent charge Provisodis

issuing out of his land, but would not that his person be charged g00^ngpers0n

in any manner by a writ of annuity, then he may have such a

clause in the end of his deed as this. "Provided always, that this

present writing, nor any thing therein specified, shall not in any

way extend to charge my person by a writ or an action of annuity,

but only to charge my lands and tenements with the yearly rent

aforesaid &c. Then the land is charged, and the person of the

grantor discharged.

But where the grantee has but one remedy, there that remedy if there be only cannot be barred by any proviso; for such a proviso would be re- ""IhTprmiso pugnant to the grant. Therefore if a man by his deed grants a badrent charge out of the manor of Dale (wherein the grantor has nothing) with such a proviso that it shall not charge his person; albeit the repugnancy does not appear in the deed, yet the proviso takes away the whole effect of the grant, and therefore is in judgment of law repugnant; for upon tbe matter it is but a grant of an annuity, provided that it shall not charge his person [which is bad]. For which cause our author puts his case of a rent charge issuing truly out of land.

But if a man by his deed grant a rent charge out of land, pro- Proviso to divided that it shall not charge the land, albeit the grantee has a cbhJfe the Umd double remedy, as hath been said, yet the proviso is repugnant; because the land is expressly charged with the rent, but the writ of annuity is but implied in the grant, and therefore that may be restrained without any repugnance, and sufficient remedy left for the grantee; for which cause our author puts his case of the restraint of bringing a writ of annuity.

And yet in some cases where there is this proviso, that the and the person

grantee shall not-in any sort charge the person of the grantor EiecZfn'are

generally, still, notwithstanding that proviso, the person of the ""'"'"."J!"/-. grantor shall be charged. As if a man grant a rent charge out of certain lands to another for life, with such a proviso; the rent is

behind; the grantee dies; the executors of the grantee shall have an action of debt against the grantor, and charge his person for the arrearages in the life of the grantee; because the executors have no other remedy against the grantor for the arrearages; for distrain they cannot, because the estate in the rent is determined, and the proviso cannot leave the executors without remedy, as appears by that which has been said. And therefore our author puts his case of a rent charge continuing.

Proviso operates how.

And here it is to be observed, that this word (proviso) has divers operations. Sometimes it works a qualification or limitation, and so it is taken here, and often in our books; sometimes a condition; and sometimes a covenant: whereof you shall read more hereafter, Sect. 320.

Drfemance. In the end of his deed.] Here Littleton puts his case of one deed.

But though the grant be general and contain no such proviso, yet may the grantee by another deed by way of defeasance grant that he shall not charge the person of the grantor and that if he bring a writ of annuity the rent shall cease.

Had grammar vitiates not the deed.

Nor any thing fyc. shall not.] Here is to be observed a double negative, nee and non, which in grammatical construction amounts to an affirmative. Yet the law, that principally respects substance, judges the proviso to be a negative according to the intent of the parties, and not according to grammatical construction, to the end the proviso may take effect; and the like you shall find hereafter in Littleton. Mala grammatica Mom vitiat car tarn.

Effect of this proviso on grant by (to.'.

Here our author puts his case of one grantor. Put then the case, that A. and B. being joint tenants of lands in fee by their deed grant a rent charge out of those lands, provided that the grantee shall not charge the person of A.; in this case if the grantee brings a writ of annuity, he must charge the person of B. only.

Section 221.

Power of distress in gross good.

Also, if one grants by deed to A. that if he be not yearly paid at Ike feast of Christmas for term of his life twenty shillings of lawful money, that then it shall be lawful for him to distrain for this in the manor of F. be. this is a good rent charge; because the manor is charged with the rent by way of distress; and yet the person of him who makes the deed is discharged in this case of an action of annuity, because he does not grant by his deed any annuity to the said A. but grants only that he may distrain for such annuity ttc.

But in judgment of law the manor is charged with the rent; Whichua though the person of the grantor cannot be charged, because he Xrg*.'*" expressly grants no rent, for that only would charge his person. As [147 a] if a man by deed, grant a Tent of forty shillings to another out of his manor of Dale to have and to perceive to him and his heirs, and grants over by the same deed that if the rent be behind that the grantee shall distrain in the manor of Sale (be the manor of Sale in the same county or in another county, and be this grant by one deed or divers deeds), the rent is only issuing out of the manor of D. and it is but a pain [i. e. a penalty] that he shall distrain in Pmaity, 7 Co. the manor of S.; but both the manors are charged, the one with the rent, and the other with a distress for the rent; the one issuing out of the land, and the other to be taken upon the land. And whereas our author puts his case of a grant for life; so it is if I grant to you, that you and your heirs, or the heirs of your body shall distrain for a rent of forty shillings within my manor of S., this, by construction in law, shall amount to a grant of a rent out of my manor of S. in fee-simple or fee-tail; for if this shall not amount to a grant of a rent, the grant would be of little force or effect if the grantee shall have but a bare distress and no rent in him; for then he shall never have an assize of this &c. And this is the reason why it is so often ruled and resolved, that this amounts to a grant of a rent by construction of law, ut res magis valeat.

If a man seised of lands in fee, and possessed of a term for many Pent fir life years, grant a rent out of both for life in tail or in fee, with clause hoi'/andUwof distress out of both, this rent being a freehold issues only out JS 2TMJ of the freehold, and the lands in lease are only charged with a [1476] distress. But if he had granted the rent only out of the lands in lease for term of the life of the grantee, this had issued out of the term, and the land had been charged during the term if the grantee lived so long.

R

Om rent out of If a man be seised of twenty acres of land, and grant a rent of rmi'^ealh" twenty shillings percipiend, de qualibet acru terra mea (that is), out of every acre of my land, this is a several grant out of every several acre, and the grantee shall have twenty pound in all.

Grant by B. A. bargains and sells land to B. by indenture, and before enrol

lated bTxemd ment they both grant a rent charge by deed to C. and after the grant with a indenture is enrolled: some have said, that this rent charge is

surety by deed. . °

avoided; for, say they, it was the grant of A. and by the enrolment it has relation to the delivery, which (say they) shall avoid the grant, notwithstanding the confirmation of the other who had nothing in the land at the time. But the grant is good, and after enrolment it shall by operation of the statute be the grant of B. and the confirmation of A. But if the deed had not been enrolled, it had been the grant of A. and the confirmation of B. and so quacunquc via data the grant is good.

Section 222.

Merger of rent Also, if a man has a rent charge to him and to his heirs issuchaKpof partof *n9 out °f certa^n I" nd, if he purchase any parcel of this to him

land, because it antj to his heirs, all the rent charge is extinct, and the annuity

cannot be ap

portioned, con- also; because the rent charge cannot by such manner be appor

rao^ ren ser- ifa^ ]}uf y a mant wJi0 has a rent service purchase parcel of the land out of which the rent is issuing, this shall not extinguish all, but [only] for the parcel. For a rent service in such case may be apportioned according to the value of the land. But if one holds his land of his lord by the service to render to his lord yearly at such a feast a horse, a golden s]>ear, or a clove, gilliflower, and such like; if in this case the lord purchase parcel of the land, such service is taken away; because such service cannot be severed or apportioned.

Retu charge The reason of this extinguishment is, because the rent is entire,

cannot be ap

portioned, but and against common right, and issuing out of every part of the

totio'n n^y' land, and therefore by purchase of part it is extinct in the whole,

amount to a new an(j cannot be apportioned. But by act in law it may, as hereafter

shall be said. If the grantee of a rent charge purchase parcel of

[148fl] the land, and the grantor by his deed reciting the said purchase of part grants that he may distrain for the same rent in the residue of the land, this amounts to a new grant, and the same rent shall be taken for the like rent or the same in quantity. And so it is if a man by deed grants a rent charge out of his land to a man for life, and grants further by the same deed that he and his heirs may distrain in the land for the same rent, this amounts to a new grant of a rent in fee-simple.

But yet a rent charge by the act of the party may in some cases But owner of be apportioned. As if a man has a rent charge of twenty shillings, release fart of he may release to the tenant of the land ten shillings, or more or"' less, and reserve part; for the grantee deals only with that which is his own, viz. the rent, and deals not with the land, as in the case of purchase of part. So, if the grantee of an annuity or rent charge of twenty pounds, grant ten pounds, parcel of the same annuity or rent charge, and the tenant attorn, hereby the annuity or rent charge is divided.

And when the rent charge is extinguished by his purchase of Ifr*nt charge be

° ° J . r . determinedly

part of the land, he shall never have a writ of annuity; because it act of law or by was by the grant a rent charge, and he has discharged the land of utie^Zritof^ the rent charge by his own act by purchase of part And therefore """"''y '"'• he cannot by writ of annuity discharge the land of the distress, as Littleton has before said. But if the rent charge be determined by the act of God or of law, yet the grantee may have a writ of annuity. As if tenant for another man's life by his deed grant a rent-charge to one for twenty-one years, cestui que vie dies, the rent charge is determined; and yet the grantee may have during the years a writ of annuity for the arrearages incurred after the death of cestui que vie, because the rent charge determined by the act of God and by the course of law. Actus legis nulli facit injuriam. The like law is, if the land out of which the rent charge is granted be recovered by an elder title, and thereby the rent charge is avoided, yet the grantee shall have a writ of annuity, for that the rent charge is avoided by the course of law.

For a rent service in such case may be apportioned.] As if a man Surrender <-f make a lease for life or years reserving a rent, and the lessee sur- p^tumabie'fu renders part to the lessor, the rent shall be apportioned. So if the m ruovtr!1''

r rr part for waste.

lessor recovers part of the land in an action of waste, or enters for a forfeiture in part, the rent shall be apportioned.

So on Uaieor So likewise if the lessor grants part of the reversion to a stranger,

the nvenim. tne rent shall be apportioned; for the rent is incident to the reversion. So it is if tenant by knight's service by his last will and testament in writing devises the reversion of two parts of the lands, the devisee shall have two parts of the rent, [and the same it is premised may be said at this day in the case of a devise of socage lands.]

But if reversioner accepts under-lease or grant from his tenant, that suspends the whole rent.

[148 6]

[Contra Poll. 141. 1 Vent. 277.]

D(neress must pay a third part if rent.

Purchase parcel of the land.] This is intended of a fee-simple, for if there be a lord and tenant [in fee] of forty acres of land by fealty and twenty shillings rent, if the tenant makes a gift in tail, or a lease for life or years of parcel thereof to the lord, in this case the rent shall not be apportioned for any part, but the rent shall be suspended for the whole: for a rent service (says Littleton) may be extinct for part, and apportioned for the rest; but a rent service cannot be suspended in part by the act of the party, and be in esse for other part. So it is if the lessor enter upon the lessee for life or years into part, and thereof disseise or put out the lessee, the rent is suspended in the whole, and shall not be apportioned for any part. And where our books speak of an apportionment in the case where the lessor enters upon the lessee in part, they are to be understood where the lessor enters lawfully, as upon a surrender, forfeiture, or such like, where the rent is lawfully extinct in part. And yet by act of law a rent service may be suspended in part, and be in esse for part. As when the guardian in chivalry enters into the land of his ward within age, now is the seigniory suspended; but if the wife of the tenant be endowed of a third part of the tenancy, now shall she pay to the lord a third part of the rent. And so it is if the tenant give a part of the tenancy to the father of the lord in tail, and the father dies, whereby the tenancy descends to the lord; in this case by act of law the seigniory is suspended in part and in esse for part, and the same law is of a rent charge.

Seignory suspended.

Likewise a seigniory may be suspended in part by the act of a stranger. As if two joint tenants or coparceners be of a seigniory, and one of them disseises the tenant of the land, the other joint tenant or coparcener may distrain for his or her moiety.

Grant and re- Concerning the apportionment of rents, there is a difference be"i'Sguished Ts to tween a grant of a rent,' and a reservation of a rent: for if a man

be seised of two acres of land, of one in fee-simple, and of another apportionment

on evietion by

in tail, and by his deed grants a rent out of both in fee, in tail, for elder title. life &c. and dies, the land entailed is discharged, and the land in fee-simple remains charged with the whole rent: for against his own grant he shall not take advantage of the weakness of his estate in part. But if he make a gift in tail, or a lease for life or for years of both acres, reserving a rent, and the donor or lessor dies, and the issue in tail avoid the gift or lease, the rent shall be apportioned; for seeing the rent is reserved out of and for the whole land, it is reason that when part is evicted by an elder title, that the donee or lessee should not be charged with the whole rent, but that it should be apportioned rateably according to the value of the land, as Littleton here says. If a man grant a rent charge out of two acres, and after the grantee recovers one of the acres against the grantor by a title paramount, the whole rent shall issue out of the other acre: but if the recovery be by a faint title by covin, then the rent is extinct for the whole, because he claims under the grantor. If a man in feoffs B. of one acre in fee upon condition, and B. being seised of another acre in fee grants a rent out of both acres to the feoffor, who enters into the one acre for condition broken, the whole rent shall issue out of the other acre; because his title is paramount the grant. But if a man makes a lease of Black Acre and White Acre, reserving two shillings rent, upon condition that if the lessee does such an act &c. that then he shall have the fee in Black Acre, and the lessee performs the condition, albeit now by relation he has the feesimple ab initio, yet shall the rent be apportioned, for that the reversion of one acre whereunto the rent was incident is gone from the lessor; and so note a diversity between a rent in gross and a rent incident to a reversion, concerning the apportionment thereof. And yet in some cases a rent charge shall not be wholly extinct, where the grantee claims from and under the grantor. As if B. makes a lease of one acre for life to A. and A. is seised of another acre in fee, and A. grants a rent charge to B. out of both acres, and commits waste in the acre which he holds for life, and B. recovers in waste; the whole rent is not extinct, but shall be apportioned; and yet B. claims the one acre under A. And so it is if A. had made a feoffment in fee, and B. had entered for the forfeiture, the rent is to be apportioned and is not wholly extinct: and the reason hereof is, for that it is a maxim of law, that no man shall take advantage of his own wrong, and therefore seeing the waste and forfeiture were

committed by the act and wrong of the lessee, he shall not take advantage thereof to extinguish the whole rent: and the whole rent cannot issue out of the other acre only, because the lessor has the one acre under the estate of the lessee, and therefore it shall be apportioned.

Comoion, apportionment of, on descent of part of soil to ouiter of common.

[149a]

A. has common of pasture sauns nombre in twenty acres of land, and ten of those acres descend to A. [in fee-smple]: the common sauns nombre is entire and uncertain and cannot be apportioned but shall remain. But if it had been a common certain (as for ten beasts), in that case the common should be apportioned. And so it is of common of estovers, of turbary, of piscary &c. And yet in none of these cases, the descent, which is an act of law, shall work any wrong to the terre-tenant; for he shall have that which belongs to him, for the act in law shall work no wrong.

Heriot tern- e indivisible and extinct by lord's purchase of part of land: contra of heriot custom.

[1496]

Because that such services are not yearly services Sfc.] This is ratio una, but not unica, as it appears by that which has been said. If there be lord and tenant by fealty and heriot service, and the lord purchase part of the land, the heriot service is extinct, (and yet it is not annual, but to be paid at the death of the tenant) because it is entire and valuable. But where our author speaks of services, it is implied that a heriot custom, though it be entire, valuable, and not annual, yet by the purchase of part it shall not be extinguished.

Entire services multiplied by tenant's alien* at ion in parcels.

On the other part, when the tenure is by an entire, service, and the tenant aliens part of the tenancy, in what cases the rent shall be multiplied, (that is) where the feoffor and the alienee shall pay the entire rent severally, (for regularly it holds, that qua in partes dividi nequeunt solida a singulis prastantur) and where not, you may read at large in my Reports. [6 Co. 1. 8 Co. 104].

Apportionment And by this (sjc.) is also implied, that the apportionment shall "a^no'tfuan- not De according to the quantity of the land, but according to the HtS' quality or value thereof, as by that which has been said appears.

Section 224.

Also, if a man has a rent charge, and his father purchases parcel If partde

of the tenements charged in fee, and dies, and this parcel descends of rent-charge,

to his son who has the rent charge, now this charqe shall be <»> merger of

•f' * the whole rent,

apportioned according to the value of the land, as is aforesaid of but same may

i -i-tii iiii°e apportioned.

rent service; because such portion of the land purchased by the

father comes not to the son by his own act, but by descent and by

course of law.

Arid so it is if the tenant gives to the father of the grantee part &> if rent deof the land in tail, and this descends to the grantee, the rent shall be ^^0n^. apportioned; hence by act of law a rent charge may be suspended for one part, and be in esse for another. And so it is, if the father dies, after whose death the rent descends to the son, the rent shall be apportioned; and so it is if the grantee grant the rent to the tenant of the land and to a stranger, the rent is extinct but for a moiety. If a man has issue two daughters, and grants a rent charge out of [150a] his land to one of them, and dies, [whereby the land charged with the rent descends to the two daughters in coparcenary], the rent shall be apportioned [as to the daughter to whom the rent is not granted]; and if the grantee [of the rent] enfeoffs another of her part of the land, yet the moiety of the rent remains issuing out of her sister's part, because the part of the grantee in the land by the descent was discharged of the rent.

But in all these cases where the rent charge is apportioned Writ of annuity by act in law, yet the writ of annuity fails; for if the grantee t^J^^"' should bring a writ of annuity, he must ground it upon the grant by deed, and then must he, as it hath been said, bring it for the whole. Also in respect of the realty the rent is apportioned. But the personalty is indivisible, and by act in law shall not be divided.

If execution be sued of body and lands upon a statute merchant statute avoided or staple, and after the inheritance of part of those lands descends *" deseent'"

* ' conusct*

to the conusee, all the execution is avoided; for the duty is personal, and cannot be divided by act in law.

flwoien/ <m Comes not to the son by his own act, but by descent and by course

fan^timacy, of ia'o-l If the father within aSe purchase part of the land the party h in charged, and aliens within age and dies, the son recovers in a writ

6j/ act of law, 3 b . .

not by hit own of dum fuit infra atatem, or enters; in this case the act of law is mixed with the act of the party, and yet the rent shall be apportioned; for after the recovery or entry the son has the land by descent. So it is in case the son recovers part of the land upon an alienation by his father dum non fuit compos mentis, the rent shall be apportioned for the cause aforesaid.

Dowrex accept- A man seised of lands in fee takes a wife, and afterwards makes ma "tliidalm a feoffment in fee, and the feoffee grants a rent charge of ten dower ami< have pound out of the land to the feoffor and his wife and to the heirs

an apportion- .

meat of thereat, of the husband, the husband dies, the wife recovers the moiety of her dower by custom; the rent charge shall be apportioned, and she may distrain for five pounds, which is the moiety of the rent. In which case two notable things are to be observed. 1st. Albeit the dower be by relation or fiction of law above the rent, yet when the wife recovers her dower, she shall not have her entire rent out of the residue; for a relation of fiction of law shall never work wrong or charge to a third person, but in fktwne juris semper est aquitas. 2d. That albeit her own act concurs with the act in law, yet the rent shall be apportioned.

[\5\ab'] Section 228.

Rent on lease Also, if a man let lands to another for term of life, reserving seek on lessors '° n*m certain rent, if he grant the rent to another by his deed, granting away saving to him the reversion of the land so let, &ac. such rent is

reversion re- * "*

serving rent. but a rent seck; because the grantee had nothing in the reversion of the land, Sac. But if he grant the reversion of the land to another for term of life, and the tenant attorn, &ac. then has the grantee the rent as a rent service, for that he has the reversion for term of life.

Rentp«sses by And the reason hereof is, because the rent is incident to the fim"but not" reversion, and passes by a grant of the reversion as with the superior, e converse without saying cum pertinentiis. But by the grant of the rent the reversion does not pass.

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And So it is to be intended, that if a man give lands or tene- Same-
ments in tail yielding to him and to his heirs a certain rent, or
lets land for term of life rendering a certain rent, if he grant
the reversion to another, &c. and the tenant attorn, all the rent
and service pass by this word (reversion) because such rent
and are service in such case incident to the reversion, and pass
by the grant of the reversion. But albeit he grants the rent
to another, the reversion does not pass by such grant.

Section 231.

Also, if there be lord mesne and tenant, and the tenant holds of Mesnaiiy exthe mesne by the service of five shillings, and the mesne holds {JJIfMrLnount over by the service of twelvepence, if the lord paramount pur- purchasing chases the tenancy in fee, then the service of the mesnalty is extinct? because when the lord paramount has the tenancy, he holds of his lord next paramount, and if he should hold this of him who was mesne, then he should hold the same tenancy immediately of divers lords by divers services, which would be inconvenient, and the law will sooner suffer a mischief than an inconvenience, and therefore the seigniory of the mesnalty is extinct.

For one man cannot be both lord and tenant, nor can one and Same perxm the same land be immediately holden of divers lords. So if the ior^ ami tenant. lord release to the tenant, the mesnalty is extinct. For whether [152 o] the lord purchase the tenancy, or the tenant the seigniory, the same consequence must ensue.

Section 232.

But inasmuch as the tenant holds of the mesne by five shillings, But mesne and the mesne holds but by twelvepence, so that he has more in at^aiast*0'

advantage by four shillings than he pays to his lord, he shall have the said four shillings as a rent seek yearly of the lord who purchased the tenancy.

lUnt-seck taken in execution, distress incident.

[153a]

And therefore if a man makes a lease for life reserving a rent, and binds himself in a statute, and [the conusee] has the rent extended and delivered to him, he shall distrain for the rent, because he comes to it by course of law. But if a rent service be made a rent seek by the grant of the lord, the grantee shall not distrain for it, for that the distress remains with the fealty.

Section 233.

Remedy for Also, if a man who has a rent seck be once seised of any parcel

rent-seek is by . .

real action, re- of the rent, and afterwards the tenant will not pay the rent beWa/issei- behind, this is his remedy. He ought to go by himself or by sin- others to the lands or tenements out of which the rent is issuing,

and there demand the arrears of the rent; and if the tenant deny [i. e. refuse] to pay it, this denial is a disseisin of the rent. Also, if the tenant be not then ready to pay it, this is a denial, which is a disseisin of the rent. Also, if the tenant, or any other man, be not remaining upon the lands or tenements to pay the rent when he demands the arrears, this is a denial in law and a disseisin in deed, and of such disseisins he may have an assize of novel disseisin against the tenant and shall recover the seisin of the rent, and the arrears with damages, and the costs of his writ and plea. And if after such recovery (and execution had), the rent be again denied unto him, then he shall have a re-disseisin, and shall recover double damages, be.

Demand on land when sufficient.

To the lands.] For a demand of the tenant out of the land is not sufficient j but if there be a house and land, a demand on the land is sufficient; but for a condition broken, it ought to be at the house, as hath been said before.

Demandofcon- Arrear.] This word arrear is to be observed, for it is not neces

dition and rent ,

distinguished, sary that the grantee of the rent should demand it at the very time

[163 b] when it becomes due, but at any time after is sufficient. For

this is not like a demand of a rent upon a condition; because that is penal and overthrows the whole estate: and therefore the time of demand must be certain, to the end the lessee, donee, or feoffee may be there to pay the rent. But a demand of a rent seek or rent charge is but a formal means to recover that which is due; and therefore in that case it may be demanded after it is behind at any time, whether the tenant be present or no, for remedies for rights are ever favourably extended.

This is a denial in law.J For wheresoever there is a lawful de- Demand and mand of a rent, and the same is not paid, whether the tenant be „d"S."16" present or absent, yet this is a denial in law, albeit there be no words of denial. It appears here, that the demand must be made upon the land, and albeit the tenant nor any for him be there, yet must the grantee demand it, because without a demand there can be no denial in deed or in law.

Assize of novel disseisin.] It is called assiza nova disseisina, for Novel disseisin that the justices of eyre, before whom these assizes were taken in *" their proper counties, rode their circuits from seven years to Amiesformerly seven years, and no disseisin before the eyre if it were not complained of in the eyre could be questioned after the eyre; and therefore a disseisin committed before the last eyre was called an ancient disseisin, and a disseisin after the last eyre was called a new disseisin, or nova disseisina.

And shall recover seisin of the rent.] But if the land out of which Remedy for rent the rent issues be in two counties, albeit it be but one entire rent, Xtuljaemt'of yet he must sue two writs of assize. But he shall have these seve- l"nd y» tm>

counties.

ral assizes in confinio comitatus, and in either county shall make his [154a] plaint of the whole rent by the statute 7 R. 2. cap. 10. But for common of pasture, of turbary, of piscary, of estovers, and the like in one county, appendant or appurtenant to land in another county, an assize in confinio comitates lies at the common law; and so it is of a nuisance done in one county to lands lying in another county, the like assize lies at the common law. And albeit the counties do not adjoin, but there be twenty counties mean between them, yet the assise in confinio comitatus lies, and the justices shall sit between the said counties.

held once in seven years.

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Auize means a jury.

And memorandum, that this word assize is nomen equivocum; for sometimes it is taken for a jury. And sometimes for the whole writ of assize. But it seems, that the reason why such writs at the beginning were called assizes was, for that by every such writ it is commanded to the sheriff, quod summoneat twelve, which is as much to say,.that he ought to summon a jury.

[Note, here follows in Coke a long dissertation on the constitution of juries in real actions, which actions being now rarely used, the subject is become one of minor importance.]

Impropriate tithes are now temporal inherilances.

[159a]

As to tithes and other ecclesiastical duties, which came to the crown by the statutes of 27 H. 8., 31 H. 8., 37 H. 8., and 1 E. 6., these are by those statutes and that of 32 H. 8. and 1 &2 Ph. and Mar. now become temporal inheritances in the hands of laymen, and shall be accounted [real] assets [for payment of their debts], and husbands shall be tenants by the curtesy and wives endowed of them, and shall have other incidents belonging to temporal inheritances.

Remedy for subtraction.

Only this ecclesiastical quality they have, that the owner or possessor thereof may sue for the subtraction of the same in the ecclesiastical court. And by another statute [2 Ed. 6. c. 13.] remedy is given as well to the lay person as to the ecclesiastical person for subtraction of all manner of predial tithes; and he shall recover the treble value if they are not justly divided or set forth; and albeit the treble value is not expressly given to the proprietor of the tithes, yet forasmuch as he is the party aggrieved, and he has the property and interest in the tithes, the treble value is given to him; and whensoever a statute gives a forfeiture or penalty against him who wrongfully detains or dispossesses another of his duty or interest, in that case he who sustains the wrong shall have the forfeiture or penalty, and shall have an action therefore upon the statute at the common law, and the king shall not have the forfeiture in that case. But if the proprietor will sue for such subtraction of tithes in the ecclesiastical court, then he shall recover but the double value by the express words of the act. Hence they have election either to sue for the treble value at the common law, or for the double value in the ecclesiastical court, or for subtraction of tithes there also.

Assize of mortd'ancester.] This writ a man may have after the ^«" martdan

- .. . ,. i • « i cester what,

decease of his immediate ancestor; as where his father, mother, brother, sister, uncle or aunt, dies seised of any lands, and a stranger abates &c.

Section 235. [1596]

Also, if there be lord and tenant, and the lord grants the rent of Rent and serhis tenant by deed to another, saving to him the other services, becomes seek. and the tenant attorns, that is a rent seek, as is aforesaid. Payment of

J penny in name

But if the rent be denied him at the next day of payment, he has of seisin. no remedy; because he had not any possession thereof. But if the tenant when he attorns to the grantee, or afterwards, will give a penny or a halfpenny to the grantee in name of seisin of rent, then if at the next day of payment the rent be denied, he shall have an assize of novel disseisin. And so it is if a man grant by his deed a yearly rent issuing out of his land to another &c., if the grantor then or after pay to the grantee a penny, or a halfpenny, in the name of seisin of the rent, then, if after the next day of payment the rent be denied, the grantee may have an assize, or else not &c.

Here it is to be observed, that payment of any money in name Payment of of seisin of the rent, before any rent becomes due, is a good seisin tf"^i"i"TM* of the rent to maintain an assize when it is due; and that which is «*««'«««"«» «»

. . „, which only real

given in the name of seism of the rent, works this effect to give acucmfor rent seisin, and yet is no part of the rent, nor shall be abated out of the ""rifio'/j' rent: but you shall read more hereof hereafter, Sect. 565. The grant and delivery of the deed is no seisin of the rent; but only a seisin in law, which is not sufficient to maintain an assize or any other real action, but there must be an actual seisin.

Section 236.

Remedy for rent-seek.

Also, of rent seek a man may have an assize of mort'dancester, or a writ of ayel or cosinage, and all other manner of actions real as of any other rent.

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Disseisin of rent service.

Also, there are three causes of disseisin of rent service, tluit is to say, rescous, replevin, and enclosure. Rescous is, when the lord distrains in the land holden of him for his rent behind, if the distress be rescued from him, or if the lord conies upon the land to distrain and the tenant or another man will not suffer him &c. Replevin is, when the lord has distrained, and replevin is made of the distress by writ or by plaint. Enclosure is, if the lands and tenements are so enclosed, that the lord may not come within the lands and tenements to distrain. And the cause, why such things are disseisins is that the lord is thereby disturbed of the means by which he may come to his rent, i. e. of his distress.

Arrears and current rent diitingvished.

Rescous when justified.

[161a]

For his rent behind.'] Here Littleton decides an ancient question in pur books, viz. that the rent must be behind: for if no rent be behind when the distress is taken, how can the rescous amount to a disseisin of the rent when none is due? And that which the tenant may do when there is no rent behind, may a stranger do, if his beasts are distrained. So if the tenant tender the rent to the lord when he is to take the distress, if notwithstanding the lord will distrain, the tenant may make rescous. If the rent of the lord is behind, and the lord distrain the cattle of the tenant in the high way within his fee, the tenant may make rescous, for that it is forbidden by law to distrain in the highway. And by the same reason if the lord will distrain averia caruca, where there is a sufficient distress to be taken besides, or if the lord distrain any thing that is not distrainable, either by the common law or by any statute, the tenant may make rescous.

Note, there is a rescous in deed and a rescous in law. Of a res- iuuxnui* law. cous in deed somewhat has already been spoken. A rescous in law is, when a man has taken a distress, and the cattle distrained as he is driving of them to the pound go into the house of the owner, if he that took the distress demand them of the owner, and he deliver them not, this is a rescous in law, and so of the like.

If the lord comes to distrain cattle which he sees then within his if the lord du

n ii i I i I T . i • train off kis own

fee, and the tenant or any other, to prevent the lord to distrain, drives land, tenant

the cattle out of the fee of the lord into some place out of his fee; may maker"

yet may the lord freshly follow, and distrain the cattle, and the

tenant cannot make rescous, albeit the place wherein the distress

is taken is out of his fee, for now in judgment of law the distress

is taken within his fee, and so shall the writ of rescous suppose.

But if the lord coming to distrain had no view of the cattle within

his fee, though the tenant drive them off purposely, or if the cattle

of themselves after the view go out of the fee, or if the tenant after

the view remove them for any other cause than to prevent the lord

of his distress, then cannot the lord distrain them out of his fee,

and if he does the tenant may make rescous.

If a man come to distrain for damage feasant sees the beasts in Datreafor his soil, and the owner chases them out for the purpose of avoid- \"Z"av/idMe". ing the distress, the owner of the soil cannot distrain them, and if he does the owner of the cattle may make rescue; for the beasts must be damage feasant at the time of the distress; and so note a diversity.

And so it is of an enclosure, or where the lord cannot come at Diverting his distress; for he that disturbs a man of the means [whereby he «TMfnmJt^* may obtain his rights] disseises him of the thing itself, as the """• turning of the stream that runs to a mill is a disseisin of the mill itself. So it is if a man be prevented from manuring his land, this is a disseisin of the land itself.

Section 238. [1616]

And there are four causes of disseisin of a rent charge: scil. res- Disseisin of

cous, replevin, inclosure, and denial; for denial is a disseisin of a rent charge. rent charge, as is said before of a rent seek.

Detain*r when a disseisin.

To which you may add a fifth, viz. resistance to a distress [which however is a denial.] Nota, that when books say that a detainer of a rent charge or seek is a disseisin, it must be intended upon a demand made.

Rescous bu one joint-tenant makes both disseisors.

If there be two joint-tenants, and the grantee of a rent charge distrains for the rent, and one of them makes rescous, they are both disseisors; for a distress for the rent is a demand in law, and then the non-payment is a denial and a disseisin; but he that made the rescous is the only disseisor with force.

Section 239. Disseisin of And there are two causes of disseisin of a rent seek ; that is to say,

riiiij. S4.M_' If

denial and enclosure.

The reason wherefore enclosure is a disseisin of a rent seek, is because the grantee cannot come upon the land to demand it. .

Section 240.

Disseisin of rent by forcible prevention of distress.

And it seems, that there is another cause of disseisin of all the three services aforesaid; that is if the lord is going to the land holden of him to distrain for the rent behind, and the tenant hearing this encounters with him, and forestals him in the way by force and arms, or menaces him in such form that he dare not come to the land to distrain for fear of death or bodily hurt, this is a disseisin, for that the lord is disturbed of the means whereby he might come to his rent. And so it is, if by such forestalling or menacing, he who has a rent charge or rent seek is forestalled, or dare not come to the land to ask for the rent behind, &c.

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Now has Littleton spoken of remedies for the recovery of the arrearages of rents. But since Littleton's time a right profitable statute, in the 32d year of H. 8., has been made for the recovery of arrearages of rents in certain cases where there lay no remedy at the common law,and it gives further remedy in some cases where at the common law there was some remedy before, which statute has

been well and beneficially expounded; and hereupon eight things are to be observed.

1st. When Littleton wrote, the heirs, executors, or administra- Kieeutor's tors of a man seised of a rent service, rent charge, rent seek, or fee- r<medvf"rrentfarm, in fee-simple or fee-tail, had no remedy for the arrearages incurred in the life of the owner of such rents. But now a double remedy is given to the executors or administrators for payment of debts, &c. viz. either to distrain or to have an action of debt.

2d. That the preamble of the statute concerning executors or Eiecutort ■/ administrators of tenant for life is to be intended of tenant pur outer nTd.Uay. vie, so long as cestui que vie lives, who are also helped by the said 172-1 double remedy. But after the estate for life determined, his executors or administrators might have had an action of debt by the common law; but they could not have distrained, which now they [1626] may do by force of this statute; for in that point it adds another remedy than the common law gave. 3d. If a man make a lease for life or lives, or a gift in tail, reserving a rent, this is a rent service within this statute.

4th. The distress is the more plain and certain remedy than the Distress ^refraction of debt; for the action of debt must be brought against debt, asd tire* those who took the profits when the rent became behind, or against "'"H be ma/lebi>

'° "assigns.

theii executors or administrators; but the distress may be taken upon the land be it either in the tenant's own hands or in the hands of any other who claims by or from him (i. e. by interpretation under him) as by purchase, gift, or descent. And these words, claiming only by him and from him, are to be understood claiming only from or under him by purchase, gift, or descent, and not para- Verand Pott mount or above him; as the lord by escheat claims not under the "'"'g'"5'* • tenant by purchase, gift, or descent, but by reason of his seigniory, which is a title paramount.

5th. If there be lord and tenant and the rent is behind, and the Execute?, lord grant away his seigniory, and dies, the executors shall have no remedy for these arrearages; because the grantor himself had no remedy for them when he died in respect of his grant, and the statute is (in like manner as the testator might or ought to have done) et sic de similibus; for the act gives no remedy when the tes

tator himself has dispensed with the arrearages, or had no remedy when he died.

titcuton. 6th. If the tenant makes a lease for life, the remainder for life,

the remainder in fee; the tenant for life pays not the rent due to the lord; the lord dies; the tenant for life dies: the executors cannot distrain upon him in remainder, because he claims not by or from the tenant for life. And so it is of a reversion for the cause aforesaid. But if a man grant a rent charge to A. for the life of B. and lets the lands to C. for life, the remainder to D. in fee, the rent is behind by divers years, B. dies, and after C. dies: A. may distrain D. in remainder for all the arrearages, by the latter branch of the statute of 32 H. 8. And this diversity rises upon the several penningsof the former branch and of this latter clause, which gives the lesser estate the greater remedy.

Xomine poenm descends to heir, but arrears belong to eiecutors.

7th. For the arrearages of a nomine poena, this statute gives no remedy. For such arrearages the grantee himself may have an action of debt, and consequently his executors or administrators may have such an action, and yet the nomine pana as an incident to the rent shall descend to the heir.

Of husband's rentedu for rent during coverture.

8th. A feme sole is seised of a rent in fee, &c. which is behind and unpaid; she takes husband; the rent is behind again; the wife dies: the husband by the common law should not have the arrearages due before the marriage, but for the arrearages become due during the coverture the husband might have an action of debt by the common law. But now this statute by a particular clause gives the husband the arrearages due before marriage, and the said double remedy for the same, that he may distrain for the arrearages accruing during the coverture. So it gives him that which he could not have before, and further remedy for that which the common law gave him. And so it has been adjudged.

BOOK III.

CHAPTER I. Section 241. [163«]

OF PARCENhRS.

Parceners are of two sorts; to wit, parceners according to the Parcenen. course of the common law, and parceners according to the custom. Parceners after the course of the common lav; are, where a man or woman, seised of certain lands or tenements in fee-simple or in tail, has no issue but daughters, and dies, and the tenements descend to the daughters, and they enter into the lands or tenements so descended to them, then they are called parceners, and are but one heir to their ancestor. And they are called parceners, because by the writ, which is called breve de partitione fucienda, the law will constrain them, that partition shall be made among them. And if there be two daughters to whom the land descends, they are called three parceners; and if there be three daughters, they are called three parceners; and four daughters, four parceners; and so forth.

Our author having treated in his two former books, first of estates Division. and second of tenures, now in his third book teaches us the qualities of these estates, which he divides, 1st into absolute, 2d, conditional. Under absolute estates he classes coparcenery, jointtenancy, and tenancy in common. Conditions he divides into express or in deed, and conditions at law. Then speaks he of [163//] descents, whereby the entry of him that has right may be taken away. And next to that, of the remedy how to preserve the same, viz. by continual claim. Then he teaches how a man, having a

defeasible or an imperfect estate, may perfect and establish the same by three means, viz. by release, by confirmation, and attornment, where that is requisite. Having spoken of a descent, he then speaks of a discontinuance. And next to that, he teaches in what cases the same may be avoided by remitter. And lastly, he sets forth the learning of warranties (a curious and cunning kind of learning I assure you). And thus have you an account of the thirteen several chapters of his third book. And now his method being understood, let us hear what our author will say unto us concerning parceners.

Puree iters are but one heir.

Parceners.] Are altogether but one heir to one person, for albeit they have moieties in the lands, yet are they both but one heir; and one of them is not the moiety of an heir, but both of them are but units hares.

Descent and .purchase dis' tinguiihed.

Attainder.

And it is to be observed, that there is a diversity between a descent, which is an act of the law, and a purchase, which is an act of the party. For if a man be seised of lands in fee, and has issue two daughters, and one of the daughters is attainted of felony, and the father dies, both daughters being alive; the one moiety shall descend to the one daughter, and the other moiety shall escheat. But if a man make a lease for life, the remainder to the right heirs of A. being dead, who has issue two daughters, whereof the one is attainted of felony; in this case some have said, that the remainder is not good for a moiety, but void for the whole, for that both the daughters should have been, as Littleton says, but one heir.

Complete heir.

[164a]

And when the right heir claims by purchase, he must be (say they) a complete right heir in judgment of law. And therefore if lands be given to a man and to the heirs female of his body, and he has issue a son and a daughter, and dies, the daughter shall have the land by descent; but if a remainder be limited to the heirs female of the body of I. S. and he has issue a son and a daughter, his daughter shall never take it by purchase, for that she is not heir female of the body of I. S. because he has a son.

Unity of estate. And as they are but one heir, and yet several persons, so have they one entire freehold in the land in respect of strangers, as long as it remains undivided. But between themselves to many purposes they have in judgment of law several freeholds; for the one of them may enfeoff the other of her part, and make livery.

And this coparcenery is not severed or divided in law by the death Descent. of either of them; for if one die, her part shall descend to her issue. And it is to be observed that herein the descent is sometimes in stirpes, viz. to stocks or roots; and sometimes in capita, to heads. As if a man has issue two daughters and dies, this descent is in capita, viz. that each shall inherit alike, as Littleton here says. But if a man has issue two daughters, and the eldest daughter has [1646] issue three daughters, and the youngest one daughter, all these four shall inherit, but the daughter of the youngest shall have as much as the three daughters of the eldest. Also if a man has issue two daughters, and the eldest has issue divers sons and divers daughters, and the youngest has issue divers daughters, the eldest son of the eldest daughter only shall inherit; for this descent is not in capita, but all the daughters of the youngest shall inherit, and the eldest son is coparcener with the daughters of the youngest, and shall have one moiety, viz. his mother's part; so that men descending of daughters may be coparceners as well as women, and in this last case the descent is in stirpes.

Of lands or tenements.] It is to be considered of what inheritances Subdhitim. daughters shall be coparceners, and how and in what manner partition shall be made between them. Wherein it is to be observed, that of inheritances some are entire and some are several; again, of entire, some are divisible, and some are indivisible.

An advowson is an entire inheritance; and yet in effect the same Advewson. may be divided between coparceners, for they may divide it to piesent by turns.

A rent charge is entire, and against common right; yet may it Rent charge. be divided between coparceners, and by act in law the tenant of the land is subject to several distresses, and partition may be made before seisin of the rent.

Entire inheritances not divisible are those which yield an uncer- [165a]

tain profit, as estovers, common, corodies, homage, fealty, piscary Partition oj

uncertain, or common sans nombre, and if such an uncertain inherit- inheritances

ance descends to two coparceners, it cannot be divided between ,,gj,^i

them; but then it may be demanded, what shall become of these inheritances? The answer is, that it appears in our books, that regularly the eldest shall have the reasonable estovers, common, piscary, corody uncertain, &c. and the rest shall have a contribution, that is, an allowance of the value in some other of the inheritances, and so of the like. But what if the common ancestor left no other inheritance to give any thing in allowance, what contribution or recompense shall the younger coparceners have? It is answered, that if the estovers or piscary or common be uncertain, then shall one coparcener have the estovers, piscary, or common, &c. for a time, and the other for the like time; as the one for one year, and the other for another, or greater or less time, whereby no prejudice can grow to the owner of the soil. Or in case of the piscary, the one may have one fish and the other the second, &c. or the one may have the first draught, and the other the second draught, &c. And if it be of a park, one may have the first beast, and the second the second, Sec. And if of a mill, one may have the mill for a time, and the other for the like time; or the one one toll-dish, and the other the second.

Dignititt. But now let us turn our eye to inheritances of honour and dignity.

If there be more daughters than one, the eldest shall not have the dignity; but the king, who is the sovereign of honour, may for the uncertainty confer the dignity upon which of the daughters he pleases. But if an earl who has this dignity to him and his heirs dies, having issue one daughter, the dignity shall descend to the daughter, for there is no uncertainty, being only one daughter, and the dignity shall descend unto her and her posterity, as well as any other inheritance. But the dignity of the crown of England is without all question descendible to the eldest daughter < lone, and to her posterity, and so has it been declared by act of parliament. And if a castle that is used for the necessary defence of the realm descend to two or more coparceners, it shall not be divided, for as one says, propter jus g/adii dividi non potest. But castles of habitation for private use, that are not for the necessary defence of the realm, ought to be parted between coparceners as well as other houses; and wives may thereof be endowed, as hath been said in the Chapter of Dower.

Section 242. [1656]

Also, if a man seised of tenements in fee-simple or in fee-tail dies Collateral*. without issue of his body begotten, and the tenements descend to his sisters, they are parceners, as is aforesaid. And in the same manner, where he has no sisters, but the lands descend to his aunts, they are parceners, &c. But if a man has but one daughter, she shall not be called parcener, but she is called daughter and heir, &c.

Or in fee-tail.] This must be intended of an estate tail made to the father and to the heirs of his body; for otherwise if the estate tail were made to a man and to the heirs of his body, his sisters cannot inherit. And not only daughters shall be coparceners, but sisters, aunts, great-aunts, &c.

Section 243.

And it is to be understood, that partition may be made in divers Partition. ways. One is, when they agree to make partition, and do make partition of the tenements; as if there be two parceners to divide between them the tenements in two parts, each part by itself in severalty and of equal value; and if there be three parceners, to divide the tenements in three parts by itself in severalty, &c.

By this section it is to be understood, that there are two kinds of Equal partition partitions between coparceners; the one in deed or express, and the other in law or implicit [implied]. Of partitions in deed or express, some are voluntary, whereof Littleton enumerates four kinds; and one compulsory, that is, by writ of partition. Ifco- [166a] parceners make partition, at full age and unmarried, and of sane memory, of lands in fee-simple, it is good and firm for ever, albeit the values are unequal; but if it be of lands entailed, or if any of the parceners are of non-sane memory, it shall bind the parties themselves, but not their issues unless it be equal; or if any are covert, it shall bind the husband, but not the wife or her heirs; or if any are within age, it shall not bind the infant; as shall be said more fully hereafter.

Section 244.

By friends. Another .partition there is, viz. to choose, by agreement between themselves, certain of their friends to make partition of the lands or tenements inform aforesaid. And in this case, after such partition, the eldest daughter shall choose first one of the parts so divided, which she will have for her part, and then the second daughter next after her another part, and then the third sister another part &c. unless it is otherwise agreed between them. For it may be agreed between them, that one shall have such tenements, and another such tenements &c. without any primer election.

Agreement overrules law.

Here by this (&c.) is implied divers rules of law proving the conclusion of Littleton in this Sect. viz. modus et conventio vincunt legem. Pacta aliquid licitum est, quod sine pacto non admitlilnr. Quilibet potest renunciare juri pro se introducto: but with this limitation, that these rules extend not to any thing which is against the common-wealth or common right. For conventio privatorum non potest publico juri derogare.

[1666] Section 245.

By lot. And the part which the eldest sister has, is called in Latin initia

pars. But if the parceners agree that the eldest sister shall make partition of the tenements in manner aforesaid, and if she do this, then it is said that the eldest sister shall choose her part last after every one of her sisters &'c.

Advowson.

By Fleta, it appears that initia pars is personal to the eldest, and that this prerogative or privilege descends not to her issue, but the next eldest sister shall have it. And here is a diversity to be observed between this case of a partition in deed by the act of the parties, for there the privilege of election of the eldest daughter shall not descend to her issue; but where the law gives the eldest any privilege without her act, there that privilege shall descend. As if there are divers coparceners of an advowson, and they cannot agree to present, the law gives the first presentment to the eldest; and this privilege shall descend to her issue; nay her assignee shall

have it; and so shall her husband who is tenant by the curtesy have it also.

Then it is said that the eldest sister shall choose last £r.] By this and the &c. in the end of this section is implied that the rule of law is, cujus est divisio, a/terius est electio. And the reason of this law is for the avoiding of partiality.

Section 24G.

Another partition or allotment is, as if there are four par- By balls. ceners, and after partition of the lands are made, every part of the land by itself is written in a little scroll and is covered all in wax m manner of a little ball, so that none may see the scroll, and then the four balls of wax are put into a hat to be kept in the hands of an indifferent man, and then the eldest daughter shall first put her hand into the hat, and take a ball of wax with the scroll [167a] within the same ball for her part, and then the second sister shall put her hand into the hat and take another, the third sister the third ball, and the fourth sister the fourth ball &c. and in this case every one of them ought to stand to their chance and allotment.

Section 247.

Also, there is another partition. As if there are four par- % writ. ceners^ and they will not agree to a partition to be made between them, then the one may have a writ of partitione facienda against the other three, or two of them may have a writ of partitione facienda against the other two, or three of them may have a writ o/"partitione facienda against the fourth, at their election.

Here follows the fourth partition in deed. Littleton having Reversion ou

, _ . . ... , estate for years

spoken of voluntary partitions, or partitions by consent: now he distinguished speaks of a partition by the compulsory means of law where no {TMTM,^^J."" partition can be had by consent. Now the word (tenet) in the life as to mit

• of partition.

writ of partition always implies a tenant of a freehold. And therefore if one coparcener makes a lease for years, yet a writ of partition lies. But if one or both make a lease for life, a writ of partition does not lie between them: because they do not hold the freehold together, and the writ of partition must be against the tenant of the freehold, if one coparcener disseise another, during this disseisin a writ of partition does not lie between them; for that non tenent insimul et pro indiviso.

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But there are other partitions in deed than here have been mentioned. For a partition made between two coparceners, that the one shall have and occupy the land from Easter until the first of August in severalty by himself, and that the other shall have and occupy the land from the first of August until the feast of Easter yearly to himself and their heirs, this is a good partition. Also, if two coparceners have two manors by descent, and they make partition, that the one shall have the one manor for one year and the other the other manor for the next year, and so altemis vicibus to them and their heirs, this is a good partition. The same law is, if the partition be made in form aforesaid for two or more years, and each coparcener has an estate of inheritance and no chattel, albeit they have the occupation alternis vicibus but for a certain term of years.

Severances -, If one coparcener makes a feoffment in fee of her part, that is a

severance of the coparcenary, and several [i. e. nol joint] writs of pracipe shall lie against the other coparcener and the feoffee.

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If two coparceners are, and each of them takes husband and has issue, and the wives die, the coparcenary is divided, and here is a partition in law; [i. e. the husbands are tenants in common.]

Section- 248.

Judgment on writ of partition.

And when judgment shall be given upon this writ, the judgment shall be thus; that partition shall be made between the parties, and that the sheriff in his proper person shall go to the lands and tenements &c. and that he by the oath of twelve lawful men of his bailiwick &c. shall make partition between the parties, and that one part of the lands and tenements shall be assigned to the plaintiff, or to one of the plaintiffs, and another part to another parcener &e, not making mention in the judgment of the eldest sister more than of the youngest.

By Littleton it appears, that the forms of j udgments, pleas, and Final and inother legal proceedings, do conduce much to the right understand- uVigo^l ing of the law and of the reason thereof; as here Littleton rightly collects upon the form of the judgment, that the sheriff shall deliver to them such parts as he thinks good, and that the eldest coparcener shall have no election when partition is made by the sheriff. And it is to be observed, that there are two judgements in a writ of partition. Of the former Littleton speaks in this place. And when partition is made by the oath of twelve men, and assignment and allotment thereof, and so returned by the sheriff, then the latter judgment is, ideo consideratum est, qitddparlilio pnedicta jirma el stabilis in perpetuum teneatur, and this is the principal judgment. And of the other, before this is given, no writ of error lies.

Section 249. [1686]

And of the partition which the sheriff has so made, he shall give Same.
notice to the justices under his seal, and the seals of every of (he
twelve &e. And so in this case you may see, that the eldest sister
shall not have the first election, but the sheriff shall assign to her
her part which she shall have &e. And it may he that the sheriff
will assign first one part to the youngest &e, and lust to the
eldest bc.

Section 250. [169a]

An D note, that partition by agreement between parceners may be Partitions good made by law between them, as well by parol without deed, as by wiihoutdTOd*TM

deed. [contra now by

stat.of Fiauds.J

Here it appears, that not only lands and other things which pass by livery without deed, but things also that lie in grant, as rents, commons, advowsons and the like, which cannot pass by grant without deed, whether they are in one county or in several counties, may be parted and divided by parol without deed. But a partition between joint tenants is not good without deed, albeit it be of lands, for they are compellable to make partition by the statutes of 31 H.8. c. 10. and 32 H.8. c.32. and they must pursue that act by writ de partitione faciendd; and a partition between joint tenants without writ remains as at the common law, which could not he done by parol. And so it is, and for the same reason, of tenants in common. But if there be two tenants in common, and they make partition by parol, and execute the same in severalty by livery, this is good and sufficient in law. And therefore where the books say that joint tenants may make partition without deed, it must be intended of [a partition by] tenants in common executed by lively.

Of the privity Note, between joint tenants there is a twofold privity, viz. in "hint'"state"/. estate and in possession: between tenants in common, there is privity only in possession, and not in estate: but parceners have a threefold privity, viz. in estate, in person, and in possession.

Section 251.

Owelty of partition.

Also, if two messuages descend to two parceners, and the one messuage is worth twenty shillings per annum, and the other but ten shillings per annum, in this case partition mag be made between them in this manner; to wit, the one parcener to have the one messuage, and the other parcener the other messuage; and she who has the messuage worth twenty shillings per annum and her heirs shall pay a yearly rent of Jive shillings issuing out of the same messuage to the other parcener and to her heirs for ever, because each of them should have equality in value.

Section 252.

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And such partition made by parol is good enough; and that parcener who shall have the rent and his heirs, may distrain of common right for the rent in the said messuage worth twenty shillings, if the rent of Jive shillings be behind at any time, in whose hands soever the same messuage shall come, although there never were any writing of this made between them for such a rent.

Bu parol.] Note, here a rent may be granted for owelty of par- jviiiiTM and tition without deed, even as a rent in case of a lease for years, for "c'""^e f'-,

J * ttuguished as to

life, or a gift in tail, may be reserved, without deed; and so may a owel'y rentrent be assigned to a woman out of the land, whereof she is dowable &c. without deed. But albeit an exchange for lands in the same county may be without deed; yet a rent granted for equality of the same exchange cannot be without deed. And the cause of the difference is apparent; for coparceners are in by descent, and compellable to make partition.

Issuing out of the same messuage #c] For if it be granted out of [169 A] other lands then descended to the coparceners, there must be a 0atltyrtnt

1 mml be out oj

deed. But if the rent be granted generally (out of no land in same lauds. certain) for owelty of partition, pro residuo terra, it shall be intended out of the property of her who grants it.

If there are three coparceners, and they make partition, and one Owelty rent «of them grants twenty shillings per annum out of her part to her '(l-j/j„ Coparcetwo sisters and their heirs for equality of partition, the grantees '"""•''• are not joint tenants of this rent; but the rent is in nature of coparcenary, and after the death of the one grantee the moiety of the rent shall descend to her issue in course of coparcenary, and shall not survive to the other, for that the rent comes in recompence of the land, and therefore shall ensue the nature thereof; and if the grant had been made to the two of a rent of twenty shillings, viz. to the one ten shillings and to the other ten shillings, yet shall they have the rent in course of coparcenary, and join in an action for the same. And if two coparceners by deed indented alien both their parts to another in fee, rendering to them two and their heirs a rent out of the land, they are not joint tenants of this rent, but they shall have the rent in course of coparcenary; because their right in the land, out of which the rent is reserved, was in coparcenary.

If one coparcener be married, and for owelty of partition the Fem* covert. husband and wife grant a rent to the other two out of the part of the feme covert, this partition being equal shall charge the part of the feme covert for ever.

Mat/ distrain of common right Sfe.] That is, in this case the law Distress. gives a distress, lest the grantee should be without remedy for that

which upon the partition she has given a valuable recompense for in land which descended &c.

Section 253.

Owelty-rent is In the same manner it is of all manner of lands and tenements &c. where such rent is reserved to one or to divers parceners upon such partition &c. But such rent is not rent service, but a rent charge of common right had and reserved for equality of partition.

Lands and tenements #c] Here (&,c.) implies a caution, viz. that [170a] they are such lands and tenements out of which a rent for equality of partition may be granted, whereof sufficient has been said before.

Reservation u Reserved to one.] Here reservation is taken for a grant; and if "gran. ugej Upon a partition it amounts to a grant, which is worthy

the observation.

Section 254.

Parcenary only And note, that none are called parceners by the common law but females or the heirs of females who come to lands or tenements by descent; for if sisters purchase lands or tenements, of this they are called joint-tenants, and not parceners.

This needs no explanation.

Section 255.

Unequal par- Also, if two parceners of land in fee-simple make partition onlTunfettered between themselves, and the part of the one values more than the tenants in fee. parf 0f the other, if they were at the time of the partition of full age, i. e. of twenty-one years, then the partition shall always remain, and be never defeated. But if the tenements (whereof they make partition) are to them in fee-tail, and the part of the one is better in yearly value than the part of the other, albeit they are concluded during their lives to defeat the partition; yet if the parcener who has the lesser part in value, has issue and dies, the issue may disagree to the partition, and enter and occupy in common the other part which teas allotted to her aunt, and so the other may enter and occupy in common the other part allotted to her sister Sic. as if no partition had been made.

Then the partition shall always remain <5fc] Hereby it appears, that the inequality of value shall not impeach a partition made of lands in fee-simple between coparceners of full age, no more than it shall do in case of an exchange.

They are concluded during their lives.] This unequal partition does so conclude the parceners themselves, as that she who has the unequal part shall not avoid it during her life.

Concluded.'] This word is derived of con and claudo, and in this Estoppel wtH sense signifies to close or shut up her mouth, that she cannot ecemp speak to the contrary.

Husband and wife tenants in special tail of certain lands in fee [1706] have issue a daughter; the wife dies; the husband by a second wife has issue another daughter; both the daughters enter (where the eldest is only inheritable) and make partition, the eldest daughter is concluded during her life to impeach the partition, or to say that the youngest is not heir, and yet she is a stranger to the tail, but in respect of privity in their persons the partition shall conclude, for a partition between mere strangers in that case is void, but the issue of the eldest may avoid this partition as issue in tail.

I. S. seised of lands in fee has issue two daughters, Rose and Anne, bastard eigne and mulier puisne, and dies. Rose and Anne enter and make partition. Anne and her heirs are concluded for ever.

Section 256.

Also, if two parceners of lands in fee take husbands, and they Unequal partiand their husbands make partition between them, if the part of ftme covert the one be less in value than the part of the other, during the lives of their husbands the partition shall stand in its force. But albeit

it shall stand during the lives of their husbands, yet after the death of the husband, the woman who has the lesser part may enter into her sister's part as is aforesaid, and shall defeat the partition.

They and their husbands.] Here it appears, that the wife must be party to the partition, and so are the books to be intended that speak of this matter.

And shall defeat the partition.] Note, the partition shall not be defeated for the surplusage only to make the partition equal, but here it appears that it shall be avoided for the whole. But of this Partitimnvoid more shall be said hereafter in this chapter, Section 264. And though the partition be unequal, yet is not the partition void, but voidable; for if after the decease of the husband, the wife enters into the unequal part and agrees thereunto, this shall bind, and [171a] therefore Littleton used the word (defeat), which proves it to be voidable.

Section 257.

But equal par- But if the partition made between them were thus, that each part dme covert. o-t the time of the allotment made was of equal yearly value, then it cannot afterwards be defeated in such cases.

At the time of'the allotment.] Hereby it appears that if the parts at the time of the partition be of equal yearly value, neither the wives nor their heirs shall ever avoid the same; and the reason hereof is, for that the husbands and wives were compellable by law to make partition, and that which they are compellable to do in this case by law, they may do by agreement without process of law. If the annual value of the land be equal at the time of the partition, and after become unequal by any matter subsequent, as by surrounding, ill husbandry, or such like, yet the partition remains So does parti- good. But if the partition be made by force of the king's writ, uon by writ. and ju(]gment, thereof given, it shall bind the feme coverts for ever, albeit the parts be not of equal value; because it is made by the sheriff by the oath of twelve men by authority of law; and the judgment is, that partition shall remain firm and stable for ever, as hath been said.

Section 258.

ALSO, if two coparceners be, and the youngest being within the age Infants.
of twenty-one years, partition is made between them, so that the part
which is allotted to the youngest is of less value than the part of
the other, in this case the youngest, during the time of her nonage,
and also when she comes to full age, i. e. of twenty-one years, may
enter into the part allotted to her sister, and shall defeat the par-
tition. But let such parcener take heed when she comes to her
full age, that she takes not to her own use all the prof ts of the
lands and tenements which were allotted unto her; for then she
agrees to the partition at such age; in which case the partition
shall stand and remain in force. But peradventure she may take
the profits of the moiety, leaving the profits of the other moiety to
her sister.

As before in the case of fe'me covert, so it is in the case of the Void and voidinfant; for if the partition be equal at the time of allotment, it L^w." shall bind him for ever, because he is compellable by law to make partition, and he shall not have his age in a partitione facienda; [1716] and though the partition be unequal, and the infant has the lesser part, yet is not the partition void but voidable by his entry; for if he take the whole profits of the unequal part after his full age, the partition is made good for ever. And therefore Littleton here gives him a caveat, that in that case he take not the whole profits of his unequal part. But a partition made by the king's writ de partitione facienda by the sheriff by the oath of twelve men, and judgment thereupon given, shall bind the infant, though his part be unequal, causa qua supra.

Section 259.

And it is to be understood, that when it is said, that males orfe- oftliedisamales be of full age, this shall be intended of the age of twenty-one bilii)'ofinfanlsyears ; for if before such age any deed or feoffment, grant, release, confirmation, obligation, or other writing, be made by any of them bc. or if any within such age be bailiff or receiver to any man &c.

T

all serve for nothing, and may be avoided. Also a man before the said age shall not be sworn in an inquest Sec.

The law has so provided for the safety of an infant's estate, that before the age of twenty one years neither a man nor woman can bind themselves by any deed, or alien any land, goods, or chattels.

Age of twenty one years.] Before this age a man or woman is [172a] called an infant. An infant may bind himself to pay for his necessary meat, drink, apparel, necessary physic, and such other necessaries, and likewise for his good teaching or instruction whereby he may profit himself afterwards: but if he bind himself in an obligation or other writing with a penalty for the payment of any of these, that obligation shall not bind him. Also other things of necessity shall bind him, as a presentation to a benefice, for otherwise the lapse shall incur against him. Also if an infant be an executor upon payment of the debt due to the testator, he may make an acquittance; but in that case a release without payment is void: and generally whatsoever an infant is bound to do by law, the same shall bind him albeit he does it without suit of law. But one under the age of twenty-one years shall not be charged in an account; because, by intendment of law, before his full age he has not skill or ability [to perform any office or] to raise or make any improvement or profit.

[1726] Section 260.

Partition when Also, if lands or tenements be given to a man in tail, who hath as in tail descend much land infee-simple, and has issue two daughters and dies, and teisWanda"ne his tw0 daughters make partition between them, so that the land in takes the fee fee-simple is allotted to the younger daughter in allowance for the the tail. lands and tenements in tail allotted to the elder daughter, if, after

such partition made, the younger daughter aliens her land in fee-simple to another in fee, and has issue a son or daughter and dies, the issue may enter into the lands in tail and hold and occupy them in purparty with her aunt. And this is for tioo causes. One is, for that the issue can Jiave no remedy for the land sold by the mother, because the land was to her in fee-simple; and inasmuch as she is one of the heirs in tail, and lias no recompence for that which belongs to her of the lands in tail, it is reason that she

have her portion of the lands entailed, especially as such partition does not make any discontinuance.

The land in fee-simple is allotted to the younger daughter.] It is first to be observed upon this whole case, that the fee-simple land is allotted to the youngest daughter, and the land entailed to the eldest. This partition primd facie is good; and herein the partition differs from exchange where the estates must be equal.

But yet this partition by matter subsequeut may become void- Such partition able (as Littleton here puts the case). The eldest coparcener has TM£J"* *'""' by the partition and the matter subsequent barred herself of her right in the fee-simple lands, insomuch that when the youngest sister aliens the fee-simple lands and dies, and her issue enters into half the lands entailed, yet shall not the eldest enter into half of the lands in fee-simple upon the alienee; for by the alienation, the privity of estate is destroyed.

The younger daughter aliens her land in fee-simple &c.] The same Reversion on law it is, if the youngest daughter had made a gift in tail, for cVpher. the reversion expectant upon an estate tail is of no account in law, [173 a] for that it may be cut off by the tenant in tail. Otherwise it is of an estate for life or years. If in this case the youngest daughter alien part of the land in fee-simple, and dies, so as full recompense for the land entailed descends not to her issue, she may waive the taking of any profits thereof and enter into the land entailed; for the issue in tail shall never be barred without a full recompense, though there be a warranty in deed or in law descended. If on the other side the eldest coparcener alien the land entailed and dies, her issue shall have a formedon alone for the whole land entailed; for so long as the partition continued in force she is only inheritable to the whole land entailed.

Such partition does not make any discontinuance.] And the reason Partition mnkti thereof is, for that it passes not by livery of seisin, but the partition is in truth less than a grant, for it makes no degree, but each coparcener is in by descent from the common ancestor.

Section 261.

Further reason for Sect. 260.

Another reason is, that it shall be accounted the folly of the eldest sister, that she would suffer or agree to such partition, where she might if she would have had the moiety of the land in fee-simple and a moiety of lands entailed for her part, and so to be sure without loss.

Further reason.

Jointure.
Election.

A moiety of lands entailed.] For if a writ of partition had been brought, the eldest should not have been compelled to take the whole estate in tail, for the prejudice that might after ensue, but might have challenged one moiety of the lands in tail, and another moiety of the lands in fee-simple, and this she might do ex provisione kgis. But when she will not submit to the policy and provision of the law, but betakes herself to her own policy and provision, there the law will not aid her, as here by Littleton it manifestly appears; and so it is in the other case. As if a man be seised of three manors of equal value in fee, and takes wife, and charges one of the manors with a rent charge, and dies, she may by the provision of the law take a third part of all the manors and hold them discharged; but if she will accept the entire manor charged, it is holden that she shall hold it charged.

Partition of estate tail binds issue.

[173 6]

Every one presumed conusant of his rights.

A partition of lands entailed between parceners, if it be equal at the time of the partition, shall bind the issue in tail for ever, albeit the one aliens her part. But here it may be demanded, that seeing Littleton says, that it shall be taken to be the folly of the eldest parcener &c. what, if the eldest does not know of the estate tail, either in respect of the antiquity thereof, or for want of having the evidence, or for any other cause, what folly can be imputed to her? The answer is that it is presumed in law, that every one is conusant of her right and title to her own land; and on the other side it should be reckoned great folly in her to be ignorant of her own title. And therefore the reason of Littleton firmly holds.

Section 262.

Also, if a man be seised in fee of an acre of land by just title, and Eviction for .... . . .. j. . . , . defective title

he disseise an infant within age of another acre, and has issue two before sale

daughters, and dies seised of both acres, the infant being then with- tition!Paf' in age, and the daughters enter and make partition, so that the one acre is allotted to the part of the one viz. of the youngest in allowance of the other acre which is allotted to the purparty of the other' if afterward the infant enter into the acre whereof he was disseised upon the possession of the parcener who has the same acre, then tlie same parcener may enter into the other acre which her sister has, and hold in parcenary with her. But if the youngest alien the same acre to another in fee before the entry of the infant, and after the infant enter upon the possession of the alienee, then she cannot enter into the other acre; because, by her alienation, she has altogether prevented herself from having any part of the tenements as parcener. But if the youngest before the entry of the infant make a lease of this for term of years, or for term of life, or in feetail saving the reversion to her, and after the infant enters, there peradvenlure otherwise it is; because she has not disposed of all that was in her, but has reserved the reversion and the fee &c.

Before it appears that when the privity of the estate is destroyed Privity not «v by the feoffment of one coparcener, that upon eviction of a moiety JjJ3. * T"T_ by force of an entail against the other, she shall not enter upon the alienee. But in the case that Littleton puts here, when the privity of estate remains, and the part of the one is evicted, she shall enter and hold in coparcenary with her other coparcener; and so it is in the case of an exchange. By reason of the^c. in the end of this Section there may two questions be justly demanded.

What if the whole estate in part of the purparty of one parcener Partition. be evicted by a title paramount; whether is the whole partition finfrlm'lulr avoided, for Littleton here puts the case that the whole purparty ft of either of the one is defeated? The second question is, whether if but part of the estate of one coparcener be evicted, as an estate in tail, or for life, leaving a reversion in the coparcener, whether that shall avoid the partition in the whole? To the first it is answered,

that if the whole estate in part of the purparty be evicted, that shall avoid the partition in the whole, be it of a manor, that is entire, or of acres of ground, or the like, that are several; for the partition in that case implies for this purpose both a warranty and a condition in law, and either of them is entire, and gives an entry [174 «] in this case into the whole. And so has it been lately resolved, both in the case of an exchange and a partition. To the second, if any estate of freehold be evicted from the coparcener in all or part of her purparty, it shall be avoided in the whole. As if A. be seised in fee of one acre of land in possession, and of the reversion cf another expectant upon an estate for life, and he disseise the lessee for life who makes continual claim; A. dies seised of both acres, and has issue two daughters; partition is made, so that the one acre is allotted to the one, and the other acre to the other; the lessee enters: the partition is avoided for the whole, and so likewise has it been lately resolved.

Warranty on partition and excliunge distinguished.

Yet there is a diversity between the warranty upon an exchange and upon a partition. For upon the exchange he shall recover a full recompence for all that he loses. But upon the partition she shall recover but the moiety, or half of that which is lost, to the end that the loss may be equal.

Privity of par- But if the youngest before the entry of the infant make a lease.] "'""'""'ImM This (upon that which has been said) needs no explanation. Only

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this is to be observed, that, albeit it is in the power of tenant in tail to cut off the reversion, yet if the infant enter before it be cut off, the law has such consideration of this reversion, that she who loses it shall enter into her sister's part, and hold with her in co-parcenary, for the privity between them was not wholly destroyed.

Section 263.

Paction de- Also, if there be three or four coparceners, &c. who make

tion'flom either partition between them, if the part of the one parcener is de

purparty. feated by such lawful entry, she may enter and occupy the other

lands with all the other parceners, and compel them to make

new partition between them of the other lands, be.

Between them of the other lands, fa.] This &c. implies, that so it is between the surviving parceners and the heirs of the other, or between the heirs of parceners, all being dead.

Section* 264.

Also, if there be two parceners, and the one takes husband, Husband of on* and the husband and wife have issue between them, and the wife comMUabk to dies, and the husband keeps himself in as tenant by the curtesy, make'but he,

■* "J cannot compel

in this case the parcener who survives, and the tenant by the partition. curtesy may well make partition between them, fa. And if the tenant by the curtesy will not agree to make partition, then the parcener who survives may have against the tenant by the curtesy a writ de partitione facienda, &c. and compel him to make partition. But if the tenant by the curtesy would have partition to be made between them, and the parcener who survives will not have this, then the tenant by the curtesy cannot have any remedy to have partition, >c. For he cannot have a writ of partitione facienda, because he is no parcener. For such a writ lies for parceners only. And so you may see, that a writ of partitione facienda lies against tenant by the curtesy, and yet he himself cannot have the like writ.

The husband keeps himself'in as tenant by t/ie curtesy] This is no Husband and

severance of the state in coparcenary, for the other coparcener and tdaeu0\t^r are

the tenant by the curtesy shall be jointly impleaded; for he does /»««»«•«• continue the estate of coparcenary, as the other parcener did.

Against the tenant bu the curtesy a writ de partitione facienda, fa.] Writ of parHere by the fa. is implied, albeit that the tenant by the cur- '^J"'enant tesy is a stranger in blood, yet the writ de partitione facienda by curtesy, or clearly lies against the tenant by the curtesy, because he continues coparcener; the estate of coparcenary. If there be two coparceners, and one U'«aJ aliens in fee, they are tenants in common, and several wiits of pracipe must be brought against them; and yet the parcener shall have a writ of partition against the alienee at the common law, which is a far stronger case than the case put of tenant by the curtesy.

but neither of Suc/i writ lies for parceners only.'] Hereby it appears, that neither $uch writ at the tenant by the curtesy, nor (much less) the alienee of a cocommon law. parcener shall have a writ of partitione facienda at the common law; for Littleton says here, that such writ lies only for parceners, but it may be brought by a parcener against strangers, as appears before.

Hutband in If three coparceners be, and the eldest purchases the part of the

entitled to writ youngest, the eldest, having one part by descent and the other oj partition. jjy pUrcnase> shall have a writ of partition at the common law against the other middle sister, el sic tie similibus. And so it is in a far stronger case, if there are three coparceners, and the eldest takes husband, and the husband purchases the part of the youngest, the husband for his part is a stranger and no parcener, and yet he and his wife shall have a writ of partition against the middle sister at the common law, because he is seised of one part in the right of his wife who is a parcener.

Andnowbustat. To have partition, t)c] Here by this S;c. is included all others tenant by cur- that are strangers in blood, whether they come to their estates by

ttsy and alienee . . *

of coparcener, purchase or by act in law. Since Littleton wrote, by the statutes writ. "C 31 H. 8. c. 1. and 32 H. 8. c. 32. one joint-tenant or tenant in common may have a writ of partition against the other; and therefore at this day the alienee of one parcener may have a writ of partition against the other parcener, because they are tenants in common: and the like had been attempted in former parliaments, but prevailed not until these latter statutes. The tenant by the curtesy [1756] shall have a writ of partition upon the statute of 32 H. 8. c. 32. for albeit he is neither joint-tenant, nor tenant in common, for that a precipe lies against the parcener and tenant by the curtesy, as hath been said, yet he is in equal mischief as another tenant for life. If there be three coparceners, and a stranger purchase the part of one of them, he and one other of the coparceners shall not join in a writ of partition, neither by the common law, nor by force of the statute; for the words of the preamble of the statute are (and none of them by the law does or may know their several parts, fyc. and cannot by the laws of this realm make partition thereof, without other of their mutual assents, &c.) Now in this case one of the plaintiffs, viz. the parcener, may have a writ of partition at the common law, and the other parcener being a purchaser may have it by the statute; and therefore they shall not join in one writ.

CHAPTER II. Section 265.

PARCENERS BY CUSTOM.

Parceners by the custom are, where a man seised in fee- Gavelkind. simple or in fee-tail, of lands or tenements which are of the tenure called gavelkind within the [county of Kent, and has issue divers sons and dies, such lands or tenements shall descend to all the sons by the custom, and they shall equally inherit and make partition by the custom, as females shall do, and a writ of partition lies in this case as between females. But it is necessary in the declaration to make mention of the custom. Also such custom is in other places of England, and also such custom is in North Wales, &c.

But it is necessary in the declaration to make mention of the custom.] That is, the custom of gavelkind as also the custom of Borough English must be alleged generally; for the law, when they are generally alleged, takes knowledge of all their special rules and differences, which is not the case with other customs.

Parceners by the custom, <Sfc] It is well said, " by the custom," [176a] for sons are parceners in respect of the custom of the fee or inheritance, and not in respect of their persons, as daughters and sisters, &c. are.

Section 266.

Also, there is another partition which Is of another nature Frankmamage. and of another form than any of the partitions aforesaid. As if a man seised of certain lands in fee-simple has issue two

daughters, and the eldest is married, and the father gives part of his lands to the husband with his daughter in frankmarriage, and dies seised of the remnant, which remnant is of a greater yearly value than the lands given in frankmarriage.

Section 267.

Hotchpot. In this case, neither the husband, nor wife, shall have any thing for their purparty of the said remnant, unless they will put their lands given in frankmarriage in hotchpot with the remnant of the land with her sister. And if they will not do so, then the youngest may hold and occupy the same remnant, and take the profits only to herself. And it seems, that this word (hotchpot) is in English a pudding; for in this pudding is not commonly put one thing alone, but one thing with other things together. And therefore it is necessary in this case to put the lands given in frankmarriage with the other lands in hotchpot, if the husband and wife will have any part in the other lands.

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In this case neither the husband, nor wife, shall have any thing for their purpart)/, $fc.] This gift in frankmarriage shall prima facie be intended a sufficient advancement; and therefore the remnant shall descend to the other coparcener, only with this provision in law tacite annexed, that if the donees will put the land into hotchpot, then she shall out of the remnant make up her part equal. But the donees must do the first act, and in the mean time the whole fee-simple land descends to the other. And here are three things (that I may speak once for all) to be observed. First, that in this special case, where there are two daughters, one of them only shall inherit the lands in fee-simple. Secondly, that in this case there lies no writ of partition; because non tenent insimul et pro indiviso. Thirdly, if the parcener, to whom the land in fee-simple descends, will not put the lands in hotchpot, then may the donees enter into the fee-simple lands, and hold them in coparcenary with her.

Custom of
London.

Note, the custom of London is, that if the father advance any of his children with any part of his goods, that shall bar them to demand any further part, unless the father under his hand or in his last will do express and declare, that it was but in part of advancement, and then that child so partly advanced shall put his part in hotchpot with the executors and widow, and have a full third part of the whole, accounting that which was formerly given him as part thereof;

Section 268. [177a]

And this term (hotchpot) is but a term similitudinary, and is Mode of paras much to say, that the lands in frankmarriage and the other ing'Trankmar-5" I amis in fee-simple shall be put together; and this is for this intent, JJ^IJJ* to know the value of all the lands, i. e. of the lands given in frankmarriage, and of the remnant which were not given, and then partition shall be made in form following: As, put the case that a man is seised of thirty acres of land in fee-simple, every acre of the annual value of twelve pence, and that he has issue two daughters, land the one is covert baron, and the father gives ten acres of the thirty acres to the husband with his daughter in frankmarriage, and dies seised of the remnant, then the other sister shall enter into the remnant, viz. into the twenty acres, and shall occupy them to her own use, unless the husband and wife will put the ten acres given in frankmarriage with the twenty acres into hotchpot, that is to say together; and then when the value of every acre is known, to wit, what every acre values by the year, and it is assessed or agreed between them, that every acre is worth by the year twelve pence, then the partition shall be made in this manner, viz. the hus- [177 b] band and wife shall have besides the ten acres given to them in frankmarriage five acres in severalty of the twenty acres, and the other sister shall have the remnant, i. e. fifteen acres of the twenty acres for her purparty, so that accounting the ten acres which the baron and feme have by the gift in frankmarriage, and the other five acres of the twenty acres, the husband and wife have as much in yearly value as the other sister.

And herewith in express terms agrees Bracton, Britton, and Fleta, and all the books abovesaid and many others. And it is worthy observation, that after this putting into hotchpot and partition made, the lands given in frankmarriage are become as the other lands which descended from the common ancestor, and of these lands if she be impleaded she shall have aid of the other parceners as if the same lands had descended. So the coparcener that has a rent granted to her for owelty of partition, as is aforesaid, hath the rent as if it had descended to her from the common ancestor.

Section 269. FranVmarriage And so always upon such partition the lands given in frank

is an advance- , , ,.,.

ment. marriage remain to the donees and to their heirs according to

the form of the gift: for if the other parcener should have any of that which is given in frankmarriage, of this would ensue an inconvenience and a thing against reason, which the law will not suffer. And the reason why the lands given in frankmarriage shall be put in hotchpot is this. When a man gives lands or tenements in frankmarriage with his daughter, or with his other cousin, it is intended by the law, that such gift made by this word (frankmarriage) is an advancement, namely that [178a] the donor and his heirs shall have no rent nor service of them, but fealty, until the fourth degree be past. And for this cause the law is, that she shall have nothing of the other lands or tenements descended to the other parcener, &c. unless she will put the lands given in frankmarriage into hotchpot. And if she will not put the lands given in frankmarriage into hotchpot, then she shall have nothing of the remnant, because it shall be intended by the law, that she is sufficiently advanced, to which advancement she agrees and holds herself content.

Section 270.

Right of hotch- The same law is between the heirs of the donees in frankmarpot^escen s o jfag^ anc[ ine 0ther parceners, &c. if the donees in frankmarriage die before their ancestor, or before such partition, 5fc. as to put in hotchpot, &c.

By these three fyc. in this Section is implied, that if either the donees die before the ancestor, or survive the ancestor and die before such partition, or if the donees and all the parceners die before such partition, upon the putting into hotchpot, their issues

shall have the same benefit to put the lands into hotchpot; for that benefit is inheritable and descends to the issues.

Section 271.

And note, that gifts in frankmarriage were by the common law Frankmarriage before the statute of Westmin since used and continued, &c.

before the statute of Westminster second, and have been always Btat> west?"

Continued, 3fc] By this Sfc. is to be understood, that before the statute it was a fee-simple, and since the statute a fee-tail. So that [1786] it is true, that the gifts do continue (as our author here says) but not the estates; for the estate is changed, as at large appears in the •

chapter of Estates Tail. And albeit our author here says, that such gifts have been always since used and continued, yet now they are almost grown out of use, and serve now principally for moot cases and questions in law that thereupon were wont to rise.

Section 272.

Also, such putting in hotchpot, &c. is, where the other lands or Does not apply tenements which were not given in frankmarriage descend from te^m game1 the donors in frankmarriage only; for if the land descend ancestor. to the daughters by the father of the donor, or by the mother of the donor, or by the brother of the donor or other ancestor, and not by the donor, &c. there it is otherwise; for in such case she, to whom such gift in frankmarriage is made, shall have her part, as if no gift in frankmarriage had been made, because that she teas not advanced by them, &c, but by another, be.

Section 273.

Also, if a man be seised of thirty acres of land, every acre of No hotchpot equal annual value, and has issue two daughters as aforesaid, ^"ded'are and gives fifteen acres hereof to the husband with his daughter in °f equal value, frankmarriage, and dies seised of the other fifteen acres, in this

case the other sister shall have the fijteen acres so descended to Iter alone, and the husband and wife shall not in this case put the fifteen acres given to them in frankmarriage into hotchpot; because the tenements given in frankmarriage are of as great and good yearly value as the other lands descended be. For if the lands given in frankmarriage are of equal or of more yearly value than the remnant, in vain and to no purpose shall such tenements given in frankmarriage be put in hotchpot be, for that she cannot have any of the other lands descended be, for if she should have any parcel of the lands descended, then she shall have more in yearly value than her sister, which the law will not allow. And as it is spoken in the cases aforesaid of two daughters or of two parceners, in the same manner it is in the like case, where there are more sisters or more parceners, according as the case and matter is be

By this section and the &>c. herein some have gathered, that the value of the lands shall be accounted as they were at the time of [179a] the gift in frankmarriage. But it is clear, that the value shall be tainMNi'f'tim* accounted as it was at the time of the partition; for if the donor of partition.) purchase more land after the gift, or if the land given in frankmarriage be by the act of God decayed in value, or if the remnant of the lands in fee-simple be improved after the gift, or e converso, the law shall adjudge of the value as it was at the time of the partition (unless it be by the proper act or default of the parties), as hath been said before in the former Chapter. And some have collected upon this Section, that the reversion in fee of the lands given in frankmarriage shall only descend to the donee; for otherwise the other sister shall have more benefit than the donee, which should be against the reason of our author.

[179ft] Section* 274.

orutMtaiM. AND it is to be understood, that lands or tenements given in frankmarriage shall not be put in hotchpot but only where lands dasctnd in fet-simple; for of lands descended in fee-tail partition shall be made, as if no such gift in frankmarriage had been made.

For of lands entailed, the donee in frankmarriage shall have as much part a» the other coparcener, because, over and besides the land given in frankmarriage, the issue in tail claims performam doni, and both of the parceners must equally inherit by force of the gift, et voluntas donatoris &c. observetur.

Section 275.

Also, no lands shall be put in hotchpot with other lands, but Hotchpot aplands given in frankmarriage only: for if a woman have any other jy^marriage. lands or tenements by any other gift in tail, she shall never put such lands so given in hotchpot, but she shall have her purparty of the remnant descended &c. (videlicet) as much as the other parcener shall have of the same remnant.

Section 276.

Also, another partition may be made between parceners, which One of three

varies from the partitions aforesaid. As if there are three par- separate by

ceners, and the youngest will have partition, and the other two ^"writ'the

will not, but will hold in parcenary that which to them belongs, whole co

i • •/• i ii i i parceuaiy is

without partition, in this case, if one part be allotted in severalty dissolved.

to the youngest sister according to that which she ought to have, i^o\)a\

then the others may hold the remnant in parcenary, and occupy in

common without partition; if they will, and such partition is good

enough. And if afterwards the eldest or middle parcener will

make partition between them of that which they hold, they may

well do this when they please. But if the partition be made by force

of a writ o/partitione facienda, there it is otherwise ; for there it

is necessary that every parcener have her part in severalty bc.

More shall be said of parceners in the Chapter of Joint Tenants, and also in the Chapter of Tenants in Common.

Here it is to be observed, that this partition is good by consent, for consensus tollit errorem; but if it be by the king's writ, then every parcener must have his part. And here you may see that modus et conventio vincunt legem.

CHAPTER III. Section 277.

OF JOINT-TENANTS.

Joint-tenants. Joint TENANTS are, as if a man be seised of certain lands or tenements &c. and infeoffs two, three, four, or more, to have and to hold to them [and their heirs, or leased to them—per Coke] for term of their lives, or for term of another's life, by force of which feoffment or lease they are seised, these are joint-tenants.

Rent.

[1806]

There are also joint-tenants by other conveyances than Littleton here mentions, as by fine, recovery, bargain and sale, release, confirmation, &c. So there are divers other limitations than Littleton here speaks of; as if a rent charge of ten pounds be granted to A. and B. to have and to hold to them two, viz. to A. until he be married, and to B. until he be advanced to a benefice, they are joint-tenants in the mean time, notwithstanding the several limitations; and if A. die before marriage, the rent shall survive, but if A. had married, the rent should have ceased for a moiety, et sic i converso on the other side.

Aiun. Littleton having spoken of one kind of tenants pro indiviso, viz.

of parceners, comes now to another, viz. joint-tenants: and first, of joint-tenants of freehold. If an alien and a subject purchase lands in fee, they are joint-tenants, and the survivorship shall hold place, sed nullum tempusoccurrit regi, upon an office found.

Joint-tenants.] So called, because the lands or tenement, &c. are conveyed to them jointly, and are distinguished from sole or several tenants, from parceners, and from tenants in common. And these joint-tenants must jointly implead and jointly be impleaded by others, which property is common between them and Survicorihip. coparceners; but joint-tenants have a sole quality of survivorship, which coparceners have not. Littleton, having now spoken of parceners and of joint-tenants of right, next speaks of joint-tenants by wrong.

Section 278.

ALSO, if two or three &c. disseise another of any lands or tenements By disseisin. to their own use, then the disseisors are joint-tenants. But if they disseise another to the use of one of them, then they are not jointtenants; but he to whose use the disseisin is made is sole tenant, and the others have nothing in the tenancy, but are called coadjutors to the disseisin &c.

If A. disseise one to the use of B. who knows not of it, and B. assent to it, in this case till the agreement, A. was tenant of the land, and after agreement B. is tenant of the land, but both of them are disseisors.

A man disseises tenant for life to the use of him in reversion, Disseisin bg and afterwards he in the reversion agrees to the disseisin, it is said £"*'" that he in the reversion is a disseisor in fee, for by the disseisin made by the stranger, the reversion was divested, which (say they) cannot be revested by the agreement of him in the reversion, for [181a] that makes him a wrong doer, and therefore no relation of an estate by wrong can help him.

Section 279.

And note, that disseisin is properly where a man enters into any Disseisin, what lands or tenements where his entry is not congeable, and ousts him who has the freehold &c.

This description of a disseisin and the &c. in this place is understood only of such lands and tenements whereunto an entry may be made, and not of rents, commons, &c. whereof sufficient has been said before in the Chapter of Rents. And note here, that entry is not a disseisin, unless there be an ouster also of the freehold. And

therefore Littleton does not set down an entry only but an ouster also, as an entry and claim, or taking of profits, &c.

Now as there are joint-tenants by disseisin, so are there jointtenants by abatement, intrusion, and usurpation, all which are included in the latter fyc.

Section 280.

Survivorship. And it is to be understood, that the nature of joint-tenancy is, that he who survives shall have the entire tenancy, according to such estate as he has, if the jointure be continued &c. As if three joint-tenants be in fee-simple, and one has issue and dies, yet they who survive shall have the whole tenements, and the issue shall have nothing. And if the second joint-tenant has issue and dies, yet the third who survives shall have the whole tenements to him and to his heirs for ever. But otherwise it is of parceners ; for if three parceners be, and before any partition made the one has issue and dies, that which to him belongs shall descend to his issue. And if such parcener die without issue, that which belongs to her shall descend to her co-heirs, so that they shall have this by descent, and not by survivorship, as joint-tenants shall have &c.

If the jointure be continued, fyc.] Here by this 4fc. many points of learning are to be observed. As that it is proper to joint-tenants only to have lands by survivorship; and this is called in lav/jus accrescendi. But although survivorship be proper to joint-tenants, [1816] yet there may be joint-tenants though there be not equal benefit of survivor on both sides. As if a man lets lands to A. and B. during the life of A., if B. dies, A. shall have all by the survivor, but if A. dies, B. shall have nothing.

When trusts and Two or more may have a trust or an authority committed to them jointly, and yet it shall not survive. But herein are divers diversities to be observed. First, there is a diversity between a naked trust or an authority, and a trust or authority joined to an estate

Power to execu- or interest. Secondly, there is a diversity between authorities created by the party for private causes, and an authority created by law for execution of justice. As for example, if a man devise that his two executors shall sell his land, if one of them die, the survivor shall not sell it; but if he had devised his lands to his executors to be sold, there the survivor shall sell it; which diversity is implied by our author, for he says, that he who survives shall have the entire tenancy.

If a man make a letter of attorney to two to do any act, if one of Power of them die, the survivor shall not do it. If a charter of feoffment be " orn'li' made, and a letter of attorney given to four or three jointly or severally to deliver seisin, two of them cannot make livery; because it is neither by the four or three jointly, nor any of them severally.

And dies.} Note, there is a natural death and a civil death, and Littleton's case is to be intended of both; and therefore if two jointtenants be, and one of them enters into religion, the survivor shall have the whole.

Section 281.

And as the survivor holds place between joint-tenants, in the same Survivorship manner it holds place belioeen those icho have a joint estate and pos- chattels real session with another of a chattel, real or personal. As if a lease aRj personal. of lands or tenements be made to many for term of years, he who survives of the lessees shall have the tenements to him alone during the term by force of the same lease. And if a horse or any other [182 a] chattel personal be given to many, he who survives shall have the horse alone.

Section 282.

In the same manner it is of debts and duties, fyc. for if an obli- And to bonds gation be made to many for one debt, he who survives shall have the whole debt or duly. And so it is of other covenants and contracts, &f.c.

and covenants.

turen mer

Debts and duties, ^c] Here by force of this &>c. an exception is Except as beta be made of two joint merchants; for the wares, merchandises, dl",^ debts, or duties that they have as joint merchants or partners, shall

not survive, but shall go to the executors of him that dies; and this is per legem mercatoriam, which (as hath been said) is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico; for the rule is. that jus accrescendi inter mevcatores pro benejicio commercii locum imu luibet.

Section 283.

Joint-tenants for lives, with several inheritances in tail as tenants in common.

Also, there may be some joint-tenants, who may have a joint estate, and be joint-tenants for term of their lives, and yet have several inheritances. As if lands be given to two men and to lhe heirs of their two bodies begotten, in this case the donees have a joint estate for term of their two lives, and yet they have several inheritances; for if one of the donees has issue and dies, the other who survives shall have the whole by survivorship for term of his life, and if he who survives has also issue and dies, then the issue of the one shall have the one moiety, and the issue of the other shall have the other moiety of the land, and they shall hold the land between them in common; and they are not joint-tenants, but are tenants in common. And the cause why such donees in such case have a joint estate for term of their lives is, for that at the beginning, the lands were given to them two, which words, without more saying, make a joint estate to them for term of their lives. For if a man will let land to another by deed or without deed, not making mention what estate he shall have, and of this makes livery of seisin, in this case the lessee has an estate for term of his life; and so, inasmuch as the lands were given to them, they have a joint estate for term of their lives. And the reason why they shall have, several inheritances is this, inasmuch as they cannot by any possibility have an heir between them ingendered, as a man and woman may have, &c. the law wills that their estate and inheritance be such as is reasonable, according to the form and effect of the words of the gift, and this is to the heirs which the one shall beget of his body by any of his wives, and to the heirs which the other shall beget of his body by any of his wives, fyc. so that it behoves by necessity of reason that they have several inheritances. And in this case, if the issue of one of the donees after the death of the donee dies, so that he has no issue alive of his body begotten, then the donor or his heir may enter into the moiety as in his reversion &c. although the other donee has issue alive &c. And the reason is, forasmuch as the inheritances are several &c. the reversion of them in law is several &c. and the survivor of the issue of the other shall hold no place to have the wliole.

Thei/ have a joint estate for term of their two lives, ^c] Note, sheUey'tcme. albeit they have several inheritances in tail, and a particular estate for their lives, yet the inheritance does not execute [that is, coalesce] so as to hreak the joint-tenancy, but they are joint-tenants for life, and tenants in common of the inheritance in tail.

As a man and woman may have, <§fc] Here a diversity is implied, What appiiwhen the estate of inheritance is limited by one conveyance, as in [1826] this case it is, there are no several estates to drown one in another. But when the estates are divided in several conveyances, their particular estates are distinct and divided, and consequently the one drowns the other. As if a lease be made to two men for term of their lives, and afterwards the lessor grants the reversion to these two and to the heirs of their two bodies, the jointure is severed, and they are tenants in common in possession. But it is further implied in the case put by Littleton, that there is no division between the estate for lives and the several inheritances; [i.e. that although there is no consolidation of the two estates to break the joint-tenancy and survivorship, yet the estates are not several and distinct, for the issue must take by descent and not by purchase ;] nor can they convey away the inheritances after their decease, [reserving to themselves the estates for life], for the estates are divided only in supposition and consideration of law, and to some purposes the inheritance is said to be executed, as shall be said hereafter.

If a man make a lease for life, and afterwards grants the reversion to the tenant for life and a stranger and to their heirs, they are not joint-tenants of the reversion, but the reversion is by act of law executed for the one moiety in the tenant for life [in fee], and for the other moiety he holds it still for life, with reversion of that moiety to the [other] grantee [in fee].

And so it is, if a man makes a lease to two for their lives, and afterwards grants the reversion to one of them in fee, the jointure is severed, and the reversion is executed for the one moiety, and

for the other moiety there is tenant for life with reversion to the grantee.

If lessee for life grants his estate to him in the reversion and to a stranger, the jointure is severed and the reversion executed for one moiety by the act of law.

A lift. If a man makes a lease for life and grants the reversion to two in

li. # C.fe: fee, the lessee grants his estate to one of them, they are not jointB. I B.nfeofA. tenants of the reversion; for there is an execution of the estate for

fee Cfee.

ri83fll the one moiety, and an estate for life with reversion to the other in the other moiety.

To tuowomen Here Littleton has well resolved a doubt; for of ancient time it their bodies? has been said, that when lands have been given to two women and Curtesy. ^o tne heirs of their two bodies begotten [whereby, as appears by

this and the next Section, they are joint-tenants for life with several inheritances], that the husband having issue should be tenant by the curtesy living the other sister; for that as some held the inheritance was executed, and that the sisters were tenants in common in possession, and consequently the husband [was entitled] to be tenant by the curtesy, which he could not be if the women had a joint estate for term of their lives; and likewise it was said, that the issue of the one should recover the moiety in a formedon living the other sister. But these are mere words, and Littleton, grounding himself upon good authority in law, has cleared this doubt [and shewn the contrary].

Habendum Not making mention what estate he shall have.] Here Littleton

operative part. adds materially (not making mention of what estate); for if in the premises lands be let, or a rent granted, the general intendment is that an estate for life passes; but if the habendum limit the same for years or at will, the habendum qualifies the general intendment of the premises. And the reason of this is, because it is a maxim in law, that every man's grant shall be taken by construction of law most forcibly against himself.

Assignment by And therefore if tenant for life makes a lease generally, this shall or^tenaniinLil be taken by construction of law an estate for his life who made

EJ." hU the lease; for if k should be a lease for the 1ife of the lcssee, U [1836] would be a wrong to him in the reversion. And so it is if tenant

in tail make a lease generally, the law shall construe this to be such a lease as he may lawfully make, and that is for term of his own life; for if it should be for the life of the lessee, it would be a discontinuance, and consequently the estate which would pass by construction of law would work a wrong.

And so inasmuch as the lands were given to them, they have a joint Habendum exestate for term of their lives.] This is plain, but with this exception, r""'" i're""iei unless the habendum otherwise limits the same. And therefore if a lease be made to two, habendum to the one for life, the remainder to ,

the other for life, this alters the general intendment of the premises, and so has it been oftentimes resolved. And so it is if a lease be made to two, habendum the one moiety to the one and the other moiety to the other, the habendum makes them tenants in common; and so one part of the deed explains the other, and no repugnancy between them, et semper expressumfacit cessare taciturn.

By any possibility,] Here it is to be observed, that where the x)eedif youMe grant is impossible to take effect according to the letter, there the to be construed law shall make such a construction as the gift by possibility may take effect, which is worthy of observation. Vt res magis valeat '/iii) in per eat.

So it behoves by necessity of reason.] The reason of the law is the Reasons of the life of the law; for though a man can tell the law, yet if he know yTM'" * TM"e not the reason thereof, he shall soon forget his superficial knowledge. But when he finds the right reason of the law, and so brings it to his natural reason and thereby comprehends it as his own, this will not only serve him for the understanding of that particular case, but of many others; for cognitio legis est copulata et complicata; and this knowledge will long remain with him. All which is plainly implied by the words (and fyc.) of our author in this Section.

The reversion of them is several, S,-c] The law terms a re- Reversion part version to be expectant upon the particular estate, because the "J^Jdh^aa'; t. donor or lessor, or their heirs, after every determination of any tenancy may be

.... created therein

particular estate, expects or looks to enjoy the lands or tene- and in ultimate ments again. Hereby, and by this &c. is implied, that upon one joint or entire gift or lease there is one joint or entire reversion, and upon several gifts or leases there are several reversions. And this is to.be understood of the reversion in the donor

remainder.

or his heirs. But albeit the gifts or leases be several, yet if the donors or lessors grant the reversion to two or more persons and their heirs, they are joint-tenants of the reversion. And so it is of a remainder. And therefore if a gift be made to two men and the heirs of their two bodies begotten, the remainder to them two and their heirs, they are joint-tenants for life, tenants in common of the [184a] estate tail, and joint-tenants .of the fee-simple in remainder: for they are joint purchasers of the fee-simple, and the remainder in fee is a new-created estate, but the reversion remaining in the donor or his heirs is a part of his ancient fee-simple.

Section 284.

Gift to two And as it is said of males, in the same manner it is where land is man and given to two females and to the heirs of their two bodies engendered.

woman who are prohibited from

marrying, same If a man gives lands to two men and one woman, and the heirs

as gift to two .

men. of their three bodies begotten, in this case they have several

inheritances; for albeit it may be said, that the woman may by

possibility marry both the men one after another, yet first, she

cannot marry them both in precsenti, and the law will never intend

a possibility upon a possibility, as first to marry the one and then

to marry the other; secondly, the form of the gift is, to the heirs of

their three bodies, which is not possible, and therefore they shall

have several inheritances. And so it is, if a gift be made to one

man and to two women, mutatis mutandis. In the same manner, if

a gift in tail be made to a man and his mother, or to a man and

his sister, or to him and his aunt, &c.; in this and like cases, albeit

the gift is made to a man and a woman, yet they have several

inheritances, because they cannot marry together, and are within

the rule and reason of our author.

Section 285.

Gift to two and Also, if lands be given to two and to the Iieirs of one of them, this heirs of one. ^ fl g00d j0{nture t and the one has a freehold and the other a feesimple. And if he who has the fee dies, he who has the freehold shall have the entirely by survivorship for term of his life. In the same manner it is, where tenements are given to two and the heirs of the body of one of them engendered, the one has a freehold and the other a fee-tail &c.

By this Section, and the c\x. at the end of it, they are jointtenants for life, and the fee-simple or estate tail is in one of them; and because it is by one and the same conveyance, they are jointtenants, and the fee-simple is not executed to all purposes as hath been said before.

If a fine be levied to two, and to the heirs of one of them, by force Gift to two and whereof he is seised, and he that has the fee dies, and afterwards j*^'^")^. the joint-tenant for life dies, and a stranger abates, in this case the heir may either suppose the fee-simple executed, and have an assize of Mordancester (the words of which writ are, that the ancestor was at his death seised in his demesne as of fee, which cannot be said of him who has but a remainder expectant upon an estate for life; but in respect that he is seised of a fee-simple and of a joint estate in possession, the words in the writ are true, that he was seised in his demesne as of fee) or a writ of right, which also in some sort proves the fee-simple executed. Or the heir may have a scire facias to execute the fine, by which the heir supposes that [ 184 61 the fee was not executed, or he may maintain a writ of intrusion where the heir makes the like supposition, and shall term it a remainder; [and therefore it appears, that the fee-simple is executed to some purposes and not to others]. And yet when land is given to two and to the heirs of one of them, he in the remainder cannot grant away his fee-simple, as hath been said, [that is, the estates are so far united that he cannot grant away the one estate reserving to himself the other]. *

* Where lands were limited to the use of A. for life, remainder to trustees during the life of A. to preserve contingent remainder; remainder to his sons successively in tail male, and for default of such issue, to the right heirs of A.; Mr. Fearne was of opinion that it was doubtful whether A.'s life estate and remainder or reversion in fee were not so consolidated as to render it impossible for A. to convey his remainder or reversion in fee separately and distinctly from his life estate. To obviate this doubt he recommended that the land should be conveyed to the proposed releasee and his heirs, to the use of A. for life; remainder to die trustees for preserving contingent remainders during his. life, remainder to

Section 286.

Of rent charge granted by one of two jointtenants or parceners in fee.

Also, if two joint-tenants be seised of an estate in fee-simple, and the one grants a rent charge by his deed to another out of that which belongs to him, in this case during the life of the grantor the rent charge is effectual; but after his decease the grant of the rent charge is void so as to charge the land, for he who has the land by survivorship shall hold the whole land discharged. And the cause is for that he who survives claims and has the land by survivorship, and has not nor can claim any thing by descent from his companion &e. But otherwise it is of parceners, for if there be two parceners of tenements in fee-simple, and before any partition made the one charges that which to her belongs by her deed with a rent charge fyc. and afterwards dies without issue, by which that which belongs to Iier descends to the other parcener, in this case the other parcener shall hold the land charged bc. because she came to this moiety by descent as heir frc.

Judgment binds joint-tenancy, when.

Claim any thing by descent from his companion $c.] By which fyc. is implied, that so it is if one joint-tenant acknowledge a recognizance or a statute, or suffers a judgment in an action of debt, &c. and dies before execution had, it shall not be executed afterwards. But if execution be sued in the life of the conusor, it shall bind the survivor. And it is further implied, that both in case of the charge and of the recognizance statute and judgment, if he that charges &c. survive, it is good for ever.

Husband's charge binds wife s term, when.

And so it is if a man be possessed of certain lands for term of years in right of his wife, and grants a rent charge, and dies, the wife shall avoid the charge; but if the husband had survived, the charge would have been good during the term.

Jmnt-teiuints of If two joint-tenants be of a term, and the one of them grants to Michaelmas, that then he [I. S.] shall have his term, and the [185a] grantor dies before the day, and 1. S. pays the sum to his executors at the day, yet he shall not have the term, but the survivor shall hold place; for it was but in nature of a condition; but if he had made a lease for years, to begin at Michaelmas, it should have bound the survivor, [post Sect. 289 and Noy's Rep. 157].

o term, what . . °

charge or lease I. S. that if he [I. S.J pay to him [the grantor] ten pounds before

of one binds

the sons of A. successively in tail male, by way of [confirmation or establishment of those uses under the settlement, with the proposed remainders over. [Note to the 17th edition.]

And where Littleton puts the case of a rent charge, it is so like- charge preferwise implied, that if one joint-tenant grants a common of pasture, ^i'rontra"/" or of turbary, or of estovers, or a corody, or such like, out of his afimatim.

Wtvuy.

part, or a way over the land, this shall not bind the survivor: for it is a maxim in law, that jus accrescendi prafertur oneribus; and there is another maxim, that alienatio reiprafertur juri accrescendi.

If one joint-tenant in fee-simple be indebted to the king, and Crown debt. dies, after his decease no extent shall be made upon the land in the hands of the survivor.

If a recovery be had against one joint-tenant, who dies before Recovery. execution, the survivor shall not avoid this recovery: because the right of the moiety is bound by it.

If one joint-tenant in fee take a lease for years of a stranger by Estoppel. deed indented and dies, the survivor shall not be bound by the conclusion; because he claims above it, and not under it.

And the cause is, for that he who survives claims and has the land Survicor claims by the survivor, i\c."] Here again Littleton shews the reason: and '""'"""""' the cause wherefore the survivor shall not hold the land charged is, for that he claims the land from the first feoffor, and not by his companion, which is Littleton's meaning when he says (that he claims by survivor), for the surviving feoffee may plead a feoffment to himself without any mention of his joint feoffee.

And this is the reason, that if two joint-tenants be in fee, and the ttau by jointone makes a lease for years [by deed Co. Litt. 47a.] reserving a rent ^TM'^"«pro and dies, the surviving feoffee shall have the reversion by survivor- taBt0« ship, but he shall not have the rent, because he claims in from the first feoffor who is paramount the rent.

Sent charge made good by release to com'jmnion.

Surrender.

If there be two joint-tenants in fee, and the one joint-tenant grants a rent charge out of his part, and after releases to his joint companion and dies, he shall hold the land charged, for that he is out of the reason and cause set down by Littleton, because he claims not by survivor, inasmuch as the release prevented the same. And of this opinion was Littleton himself before the edition of his book. But all men agree, that if A. B. and C. are joint-tenants in fee, and A. charges his part and then releases to B. and his heirs, and dies, that the charge is good for ever; because in that case B. cannot be in from the first feoffor, because he has a joint companion at the time of the release made, and several writs of praecipe must be brought against them. And albeit the release of one jointtenant to the residue of the joint-tenants makes no degree in supposition of law, neither is there any several estate between them, but the estate of him that releases is as it were extinguished and drowned in their estate and possession, so that onepracipe lies against them; yet shall they hold the land charged as is aforesaid. As if tenant for life grant a rent charge, and after surrenders his estate to the lessor, albeit the estate charged be drowned, and the lessor is not in by him, yet he shall hold it charged.

Parcenert may charge.

But otherwise it is of' parceners, for if there be two parceners iyc.] This is to be intended as well of parceners by custom as of parceners by the common law; and here is implied the reason of the diversity, for that the survivor claims above the charge, and the heir by descent under the charge.

Section 287.

Will of jointtenant void.

Also, if there be two joint-tenants of land in fee-simple within a borough where lands and tenements are devisable by testament, and if the one of the said two joint-tenants devises that which to him belongs by his testament &c. and dies, this devise is void. And the cause is, for that no devise can take effect till after the death of the devisor, and by his death all the land presently comes by the law to his companion, which survives by the survivor; the which he does not claim, nor has any thing in the land by the devisor, but in his own right by the survivor according to the course of law bc. and for this cause such devise is void. But otherwise it is of parceners seised of tenements devisable in like case of devise &c. causa qua supra.

By his testament #c.] Either in writing or nuncupative, according to the custom.

And the cause is, for that no devise can take effect till after the death [1856] ofthe devisor,.] Here both their claims commence atone instant; and although an instant is one indivisible moment, which has not in itself either term or part of time; yet in consideration of law there is a priority of time in an instant, as here the survivor is preferred before the devisee; for Littleton says, that the cause is that no devise can take effect till after the death of the devisor, and by his death all the land presently comes by law to his companion. Whereby it appears, that Littleton, by these words post mortem et per mortem, though they jump at one instant, yet allows priority of time in the instant which he distinguishes by per and post. And the reason of this priority is, that the survivor claims by the first feoffor (as hath been said) and therefore in judgment of law his title is paramount the title of thedevisee, and consequently the devise [is] void, and the rule of law is, that jus accrescendi prafertur ultima voluntati.

Two femes joint-tenants of a lease for years, one of them takes Two femes husband and dies, yet the term shall survive; for though all chat- Ja'"en'"mar. tels real are given to the husband, if he survive, yet the survivor nagtafmum

", _ * . severance; con

between the joint-tenants is the elder title, and after the marriage tn of personthe feme continued solely possessed; for, if the husband dies, the feme shall have it, and not the executors of the husband. But otherwise it is of personal goods.

If a man be seised of a house, and possessed of divers heir-looms Heir-boms, which by custom have gone with the house from heir to heir, and by p^ ,„,i ,y„! his will devises away the heir-looms, this devise is void; for as Lit- Pmstn •lev<i"1tleton here says, the will takes effect after his death, and by his death the heir-looms by ancient custom are vested in the heir, and the law piefers the custom before the devise.

And so it is if the lord ought to have a heriot when his tenant B«riot. dies, and the tenant devises away all his goods, yet the lord shall have his heriot for the reason aforesaid. And it has been anciently said, that the heriot shall be paid before the mortuary.

But otherwise it is of parceners.] The reason is evident, for that there is no survivorship between coparceners, but the part of the one is descendible, and consequently may be devised.

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Section 288.

Also, it is commonly said, that every joint-tenant is seised of the land which he holds jointly per my et per tout; and this is as much to say, as he is seised by every parcel and by the whole, &c. and this is true, for in every parcel, and by every parcel and by all the lands and tenements, he is jointly seised with his companion.

Also it is commonly said, &c.] That is, it is the common opinion; and communis opinio is of good authority in law.

Per my et per tout.] Et sic totum tenet et nihil tenet, scil. totum conjunctim, et nihil per se separatim. And albeit they are so seised (as for example, where there are two joint-tenants in fee) yet to divers purposes each of them has but a right to a moiety; as to enfeoff, give, or demise, or to forfeit or lose by default in a prtecipe.

And where all the joint-tenants join in a feoffment, every of them in judgment of law gives but his part. If an alien and a subject purchase lands jointly, the king upon office found shall have but a moiety. And Littleton afterwards in this chapter says, that one joint-tenant has one moiety in law, and the other the other moiety. And therefore if two joint-tenants are, and they both make a feoffment in fee upon condition, and that for breach thereof one of them shall enter into the whole, yet he shall enter but into a moiety, because no more in judgment of law passed from him: and so it is of a gift in tail or a lease for life, &c.

Yet every joint-tenant may warrant the whole: because a man may warrant more than passes from him.

If two joint-tenants make a feoffment in fee and one of the feoffors die, the feoffee cannot plead a feoffment from the survivor of the whole, because each of them gave but his part; but otherwise it is on the part of the feoffee, as hath been said before.

And where two joint-tenants are, the one of them may make Onejoiut

the other his bailiff of his moiety, and have an action of account Uaxtolwcom

against him. And one joint-tenant may let his part for years or at J*""0"will to his companion.

If two joint-tenants be of certain lands, and the one of them by Conveyance by

j j • i 11 • iii ii i • • one passes onlu a

deed indented bargains and sells the lands, and the other joint- moiety, though

tenant dies, and then the deed is enrolled, there passes nothing but c*"ri,",ethe moiety which the bargainor had at the time of the bargain.

Section 289.

Also, if two joint-tenants be seised of certain lands in fee-simple, Lease and rent

and the one lets that which to him belongs to a stranger for term tenant distin

of forty years, and dies before the term begins, or within the term, P11*"TM

in this case after his decease the lessee may enter and occupy the

moiety let to him during the term &c. although the lessee had

never tlie possession thereof in the life of the lessor by force of the

same lease &c. And the diversity between the case of a grant of a

rent charge [aforesaid, and this case, is that in the grant of a

rent charge by] a joint-tenant, the tenements remain always

as they were before, without this, that any has any right to have

any parcel of the tenements but they themselves, and the tenements

are in the same plight as they were before the charge &c. But

where a lease is made by a joint-tenant to another for term of

years i^c. presently by force of the lease the lessee has right in the

same land, (videlicet) of all that which belongs to the lessor, and

to have this by force of the same lease during his term. And this

is the diversity.

By force of the same lease.] By this &c. is implied, that where Leasehy one our author speaks of joint-tenants seised in fee, that so it is if two ^ Vohwt' be seised for life, and one makes a lease to begin presently or in TMnce P.ro t,tl"t0

3 ■ J butnojurtnvr.

futuro, and dies, this lease shall bind the survivor, as hath been [186 6] adjudged. And if one joint-tenant grant vesturam terra or herbagium terra, for years, and dies, this shall bind the survivor; for such a lease has right in the land. So it is if two joint-tenants be of a water, and the one grants the several piscary.

Mvomon. The one lets.] If two joint-tenants be of an advowson, and the

one presents to the church, and his clerk is admitted and instituted, this in respect of the privity shall not put the other out of possession; but if that joint-tenant who presents dies, it shall serve for a title in a quare impedit brought by the survivor. But yet if one joint-tenant or tenant in common present, or if they present severally, the ordinary may either admit or refuse to admit such a presentee, unless they join in presentation, and after the six months he may in that case present by lapse.

Advinoson.
Parceners.
Curtesy.

But if there be two or more coparceners, and they cannot agree to present, the eldest shall present; and if her sister disturbs her, she shall have a quare impedit against her; and so shall the issue and the assignee of the eldest, and yet he is tenant in common with the youngest. And in the same manner the tenant by the curtesy of the eldest shall present. But if there be four coparceners, and the eldest and the second present [jointly] and the other two present jointly or severally, the ordinary may refuse them all; for the eldest did not present alone, but she and one other of her sisters with her.

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Section 290.

Also, joint-tenants (if they will) may make partition between them, and the partition is good enough; but they shall not be compelled to do this by law; but if they will make partition of their own will and agreement, the partition shall stand in force.

May make partition.'] This partition must be by deed, as hatli been said before. But joint-tenants for years may make partition without deed.

Cornpulsoru partitum.

They shall not be compelled.] This is true regularly; but, by the custom of some cities and boroughs, one joint-tenant or tenant in common may compel his companion, by writ of partition grounded upon the custom, to make partition. And since Littleton wrote joint-tenants and tenants in common generally are compellable to make partition by writ framed upon the statutes of 31 & 32 H. 8. as before hath been said. And albeit they are now compellable to

make partition, yet seeing they are compellable by writ, they must pursue the statutes, and cannot make partition by parol, for that remains at the common law.

If two joint-tenants be of land with warranty, and they make Warranty. partition by writing [i. e. by consent] the warranty is destroyed; but if they make partition by writ of partition upon the statute, the warranty remains, because they are compellable thereunto.

Section 291.

Also, if a joint estate be made of land to a husband and wife and Husband and to a third person, in this case the husband and wife have in law one moiety, and in their riqht but one moiety, [and the third person shall have as companion the

•> . ""iei moiety.

much as the husband and wife, viz. the other moiety &c.] And the cause is, for that the husband and wife are but one person in law, and are in like case as if an estate be made to two joint-tenants, where the one has by force of the jointure the one moiety in laio, and the other, the other moiety &c. In the same manner it is where an estate is made to the husband and wife and to two other men, in this case the husband and wife have but the third part, and the other two men the other two parts &c. causa qua supra.

More shall be said of the matter touching joint-tenancy, in the Chapter of tenants in common, and tenant by elegit, and tenant by statute merchant.

The husband and wife have in law in their right but one moiety £fc.] And «f what William Ocle and Joan his wife purchased lands to them and metenunis by their heirs; after, William Ocle was attainted of high treason for en(u'eUet* the murder of the king's father E. 2. and was executed; Joan his wife survived him; E. 3. granted the lands to Stephen de Bitterly and his heirs; John Hawkins the heir of the said Joan in a petition to the king discloses the whole matter, and upon a scire facias against the patentee has judgment to recover the lands, for the [lo/oj reason here yielded by our author.

But if an estate be made to a man and a woman and their heirs An estate which before marriage, and after they many, the husband and wife have except they are

man and wife moieties between them, which is implied in these words of our «(the lime. &uthor, husband and wife.

Limitation to man and woman makes them joint-tenants, though they after inter

But one person in law.] Bracton says, vir et uxor sunt quasi unica persona, quia caro una et sanguis units. It has been said, that if a reversion be granted to a man and a woman and their heirs, and before attornment they intermarry, and then attornment is made, that the husband and wife shall have no moieties in this case, no more than if a charter of feoffment be made to a man and a woman, with a letter of attorney to make livery, they intermarry, and then livery is made secundum formam charta, in which case it is said, that they have no moieties, [but only entireties, that is that they are not joint-tenants, but tenants by entireties]. But certain it is, that if a feoffment were made before the stat. of 27 H. 8. of uses to the use of a man and a woman and their heirs, and they intermarry, and then the statute is made, if the husband alien it is good for a moiety; for the statute executes the possession according to such quality, manner, form, and condition, as they had in the use, [and of the use they were joint-tenants, inasmuch as at the time it was limited they were not unica persona, united in marriage] so that though the use vests during the coverture, yet the act of parliament executes several moieties in them, seeing they had several moieties in the use, [i. e. they were joint-tenants or tenants in moieties and not tenants by entireties, as they would have been if the use had been limited during the coverture].

But to tenancy A man makes a lease to A. and to a baron and feme, viz. to A. estat'es'musTbe f°r ''&> to tne husband in tail, and to the feme for years, in this ofsamequatity. caae jt js said, that each of them has a third part in respect of the severalty of their estates.

Conveyance by If a feoffment be made to a man and a woman and their heirs joint-tenant' w'tn warranty> ar>d tney intermarry, and after are impleaded and estate taken hack vouch and recover in value, moieties shall not be between them;

is held by entireties.' for though they were sole when the warranty was made, notwithstanding at the time when they recovered and had execution they were husband and wife, at which time they cannot take by moieties for they are married.

Huron and feme Albeit baron and feme (as Littleton here says) be onej)erson in '"""right cm- 'aw> so tnat "either of them can give any estate or interest to the

other, yet if a charter of feoffment be made to the wife, the hus- vey to each band as attorney to the feoffor may make livery to the wife; and so""""'' a fSme covert who has power to sell land by will, may sell the same to her husband, because they are but instruments for others, and the estate passes from the feoffor or devisor.

If husband and wife and a third person had purchased lands to them Suniumhip of and their heirs, and the husband before the statute of 32 H. 8. cap. 1. "ftJef,, bam,"* had aliened the whole land to a stranger in fee, and died, the wife a'"'Jeme«'"'»

° 'stranger.

and the other joint-tenant were joint-tenants of the right, and if the [188a] wife had died, the other joint-tenant should have had the whole right by survivor, for that they might have joined in a writ of right, and the discontinuance should not have barred the entry of the survivor, for that he claimed not under the discontinuance but by the title paramount above the same by the first feoffment, which is worthy of observation. But if the husband had made a feoffment in fee but of the moiety, and he and his wife had died, their moiety should not have survived to the other.

And for the better understanding of this diversity divers things are worthy of observation.

First, that a right of action and a right of entry may stand in Rights of action jointure; tor at the common law the alienation ot the husband was be held in jointa discontinuance to the wife of the one moiety and a disseisin of te"anen' the other, so that after the death of the husband the wife has a right of action to the one moiety and the other joint-tenant a right of entry into the other, but they are joint-tenants of the right, because they may join in a writ of right.

Secondly, that a right of action or a bare right of entry cannot But not a right stand in jointure with a freehold or inheritance in possession, and therefore if the husband make a feoffment of the moiety, this was a discontinuance of that moiety,* and the other joint-tenant remained in possession of the freehold and inheritance of the other moiety, which for the time was a severance of the jointure; and so are all the books, which seemed to vary amongst themselves, clearly reconciled.

"Vide the statute of 32 II. 8. c.2. It is no discontinuance at this day.

Joint-tenancy And this is to be observed, that there shall never be any survivorZ'VmZnt'of' sn'p unless tne thing be in jointure at the instant of the death of death to give him who first dies: for the rule is. nihil de re accrescit ei. qui nihil

lUTviuorthip. _ *

in re quandojus accresceret habet. s'o joint-tenon- Also if a man demise lands to two, to have and to hold to the

cy of freehold - - .

and chattel one for life and the other for years, they are no joint-tenants; for an estate of freehold cannot stand in jointure with a term for years,

nor ofpostcMon and a reversion upon a freehold cannot stand in jointure with a freehold and inheritance in possession; as shall be said in the

or politic with next Chapter. Neither can a seisin in the right of a politic capacity

naiura y. stand in jointure with seisin in a natural capacity; as shall be said hereafter.

Unity of time. If lands be demised for life, with remainder to the right heirs of I. S. and of I. N.; I. S. has issue and dies; and after I. N. has issue and dies, the issues are not joint-tenants because the one moiety vested at one time, and the other moiety vested at another time. And yet in some cases there may be joint-tenants and yet the estate may vest in them at several times, as if a man makes a feoffment in fee to the use of himself and of such wife as he should afterwards marry for term of their lives, and after he takes wife, they are jointtenants, and yet they come to their estates at several times; and so it is if I disseise one to the use of two, and the one agrees at one time and the other at another, yet they are joint-tenants.

CHAPTER IV. Section 292. [1886]

OP TENANTS In Common.

Tenants in common are they who have lands or tenements in fee- Creation and simple, fee-tail, or for term of life, bc. and they have such lands e niUonor tenements by several titles, and not by a joint title, and none of them knows his own in severalty, but they ought by law to occupy these lands or tenements in common, and pro indiviso to take the profits in common. And because they came to such lands or tenements by several titles, and not by one joint title, and their occupation and possession shall be by law between them in common, they are called tenants in common. As if a man infeoff two joint-tenants in fee, and the one of them aliens that which to him belongs to another in fee, now the alienee and the other joint-tenant are tenants in common; because they are in such tenements by several titles,for the alienee comes to the moiety by the feoffment of one of the jointtenants, and the other joint-tenant has the other moiety by force of the first feoffment made to him and to his companion, &c. And so they are in by several titles, that is to say, by several feoffments, &c.

Littleton, having spoken of parceners, which are only by descent, and of joint-tenants, which are only by purchase and by joint-title, speaks now of tenants in common, which may be by three means, viz. by purchase, by descent, or by prescription, as hereafter in this chapter shall appear.

Or for term of life, <$fc.] Here &c. implies pur terme d'autervie, [189«] or for term of years, or for other fixed estate in the land.

And here it appears, that the essential difference between joint- Tenants in comtenants and tenants in common is, that joint-tenants have the lands 7re«WdiM""' by one joint title and in one right, and tenants in common by several

Possession only thing in common.

titles, or by one title, and by several rights; which is the reason, that joint-tenants have one joint freehold, and tenants in common have several freeholds. Only this property is common to them both, viz. that their occupation is undivided, and neither of them knows his part in severalty.

Section 293.

Fee means feesimple.

And it is to be understood, that xchen it is said in any book that a man is seised in fee, without more saying, it shall be intended in feesimple; for it shall not be intended by this word (in fee) that a man is seised in fee-tail, unless there be added to it this addition, fee-tail, &c.

Section 294.

Alienation by one of three joint- tenants.

Also, if three joint-tenants be, and one of them aliens that which to him belongs to another man in fee, in this case the alienee is tenant in common with the other two joint-tenants: but tlie other two joint-tenants are seised of the two parts which remain jointly, and of these two parts survivorship between the two holds place, &c.

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Alienation in tail.

Also, if there be two joint-tenants in fee, and the one gives that [ivhich] to him belongs to another in tail, and the other gives that [which'] to him belongs to another in tail, the donees are tenants in common, &c.

Section 296.

Issue in tail.

Corporation.

But if lands are given to two men and to the heirs of their two bodies begotten, the donees have a joint estate for term of their lives; and if each of them has issue and dies, their issues shall hold in common, &c. But if lands are given to two abbots, as to the abbot of Westminster and to the abbot of Saint Albans, to have and to

Itold to them and to their successors, in this case they have presently at the beginning an estate in common, and not a joint estate. And the reason is, for that every abbot or other sovereign of a house of religion, before that he was made abbot or sovereign, &c. was but as a dead person in law, and when he is made abbot, he is as a man personable in law only to purchase and have lands or tenements or other things to the use of his house, and to his own proper use, as another secular man may, and therefore at the beginning of their purchase they are tenants in conanon; and if one of I hem dies, the abbot who survives shall not have the whole by survivorship, but the successor of the abbot who is dead shall hold the moiety in common nith the abbot that survives, &c.

The fyc. in the end of this section implies, that so it is, of any body politic or corporate, be they regular as dead persons in law (whereof our author here speaks) or secular: as if lands are given Bishops. to two bishops to have and to hold to them and their successors: [190m] albeit the bishops were never dead persons in law but had always capacity to take ; yet seeing they take this purchase in their politic capacity, as bishops, they are presently tenants in common, because they are seised in several rights, for the one bishop is seised in the right of his bishopric of the one moiety, and the other is seised in the right of his bishopric of the other moiety, and so by several titles and in several capacities, whereas joint-tenants ought to have it in one and the same right and capacity, and by one and the same joint title. The like law is, if lands are given to two parsons and Parsons. their successors, or to any other such like ecclesiastical bodies politic or incorporate, as hath been said.

Section 297.

Also, if lands be given to an abbot and a secular man, to have Gift to natural and to hold to them, viz. to the abbot and his successors, and to the MrsonsToUiUv secular man and his heirs, they have an estate in common, causa qua supra.

And so it is, if lands be given to the parson of Dale and to a lay man to have and to hold to them, that is to say, to the parson and his successors, and to the layman and his heirs, they are presently tenants in common for the causes abovesaid. So of a bishop, &c. Et sic de similibus.

King and subject.

If lands are given to the king and to a subject, to have and to hold to them and to their heirs, yet they are tenants in common and not joint-tenants; for the king is not seised in his natural capacity, but in his royal and politic capacity, in jure corona, which cannot stand in jointure with the seisin of the subject in his natural capacity. So likewise if there be two joint-tenants, and the crown descend to one of them, the jointure is severed, and they are become tenants in common.

Tii bishop in natural capacity.

But if lands are given to A. de 13. bishop of N. and to a secular man, to have and to hold to them and their heirs, in this case they are joint-tenants; for each of them take the lands in their natural capacity.

One may be tenant in common with himself.

If lands are given to John bishop of Norwich and his successors, and to John Overall doctor of divinity and his heirs, being one and the same person, he is tenant in common with himself.

Chattels cannot go to heirs or successor*.

But our author's rules do not hold in chattels real or personal; for if a lease for years be made or a ward granted to an abbot and a secular man, or to a bishop and a secular man, or if goods be granted to them, they are joint-tenants, because they take not in their politic capacity, [for no chattel can go in succession to a sole corporation any more than it can to the heirs of a natural person.]

[1904]

Habendum ii moieties.

Section 298.

Also, if lands are given to two, to have and to hold, i. e. the one moiety to the one and to his heirs, and the other moiety to the other and to his heirs, they are tenants in common.

And the reason is, because they have several freeholds and an occupation pro indiviso.

Here it is to be observed, that the habendum severs the premises which prima facie seemed to be joint; for an express estate controls an implied estate as hath been said.

Section 299.

Also, if a man seised of certain lands enfeoff another of the Grant of a moiety of the same land without any speech of assignment or 'y' limitation of the same moiety in severalty at the time of the feoffment, then the feoffee and the feoffor shall hold their parts of the land in common.

And the like law is, if the feoffment be made of a third part or Advowson. a fourth part, &c. And if there be an advowson appendant, they are also tenants in common of the advowson. And albeit it is said, that such a feoffment of a moiety or a third part, &c. is not good without writing, for that (as they say) a man cannot create an uncertain estate in land by parol; yet is the law clear, that such a Feoffment by

Darot

feoffment is good by parol without writing, and such an uncertain estate shall pass by livery, and so it appears in our books.

But if a man be seised of a manor whereunto an advowson is De«d necessary

. to grant of ad

appendant, and makes a feoffment of three acres, parcel of the vowum in commanor, together with the advowson to two, to have and to hold the appendant to one moiety, together with the moiety of the advowson to the one land dividedand his heirs, and the other moiety together with the other moiety of the advowson to the other and his heirs, this cannot be good without deed; for the feoffor cannot annex the advowson to these three acres, and disannex it from the rest of the manor, without deed. ._,

Section 300.

And it is to be understood, that in the same manner as is afore- Assignees of

int-tenants nl tenants ii immon. [191a]

said of tenants in common of lands or tenements in fee-simple, and tenants in

or in fee-tail, in the same manner may it be of tenants for term of life. As if two joint-tenants be in fee, and the one lets to one man that whish belongs to him for term of life, and the other joint-tenant lets that which belongs to him to another for term of life, 3fc. the said two lessees are tenants in common for their lives, &c.

Vide Sect. 295. where this is sufficiently explained before.

Section 301.

Assignee of one Also if a man let lands to two men for term of their lives, and a"nd his com- the one grants all his estate of that which belongs to him to

pamon are tenants in common.

another, then the other tenant for term of life, and he to whom the grant is made, are tenants in common during the time that both the lessees live.

And memorandum, that in all other such like cases, although it be not here expressly moved or specified, if they be in like reason, they are in the like law.

Joint-tenants for lives, disadvantage of severance.

And so it is if lands be let to two for term of their lives and the life of the longer liver of them, and one of them grants his part to a stranger, whereby the jointure is severed, and dies, here shall be no survivor, but the lessor shall enter into the moiety, and the survivor shall have no advantage of these words, (and the life of the longer liver of them,) for two causes. 1st. For that the jointure is severed. 2dly. For that those words are no more than the common law would have implied without them, and expressio eorum qua taciti irnunt nihil operatur. Hereby it appears that in case of leases for life it is more beneficial for the lessor to have the jointure severed than to have it continue [sed d converse* as to the lessee].

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Section 302.

Also if there be two joint-tenants in fee, and the one lets that which to him belongs to another for term of his life, the tenant for term of life during his life, and the other joint-tenant who did not let, are tenants in common. And upon this case a question may arise; as admit that the lessor has issue and dies, living the other joint-tenant his companion, then living the tenant for life, the question may be this, Whether the reversion of the moiety which the lessor has shall descend to the issue of the lessor, or shall the other joint-tenant have this reversion by survivorship. Some have said in this case, that the other joint-tenant shall have this reversion by the survivor, and their

reason is this, scil. That umen the joint-tenants were jointly seised in fee-simple, although the one of them make an estate of that belonging to him for term of life, and although he has severed the freehold of this which to him belongs by the lease, yet he has not severed the fee-simple, but the fee-simple remains to them jointly as it was before. And so it seems to them, that the other joint-tenant who survives shall have the reversion by the survivor, &c. And others have said the contrary, and this is their reason, scilicet, That when one of the joint-tenants leases that belonging to him to another for term of his life, by such lease the freehold is severed from the jointure. And by the same reason the reversion which is depending upon the same freehold is severed from the jointure. Also if the lessor has reserved to him an annual rent upon the lease, the lessor only should have had the rent, fyc. the which is a proof, that the reversion is only in him, and that the other has nothing in (he reversion, ftc. Also if the tenant for term of life were impleaded, and makes default, after default the lessor only shall be received to defend his right, and his companion in this case in no manner shall be received, the which proves the reversion of the moiety to be in the lessor only; and so by consequence, if the lessor dies living the lessee for term of life, the reversion shall descend to the heir of the lessor, and shall not come to the other joint-tenant by the survivor, Ideo quaere. But in this case if that joint-tenant who has the freehold has issue and dies living the lessor and the lessee, then it seems that the same issue shall have this moiety in demesne and in fee by descent, for that a freehold [or estate in possession] cannot by nature of jointure be annexed to a reversion. And it is certain, that he who leased was seised of the moiety in his demesne as of fee, and none shall have any jointure in his freehold, therefore this shall descend to his issue, &c. Sed quaere.

And upon this case a question may arise #c.] Here Littleton makes a question, and shews the reason on both sides, and concludes with a quaere. When Littleton makes a question, and shews the reason on both sides, the latter is ever his own and the better. But time has made this question clear; for now all agree, that the jointure is severed for the time, according to the latter opinion here set down in Littleton, whose reasons are unanswerable: for many times the change of the freehold makes

an alteration or change of the reversion. As if tenant in tail, or the husband seised in right of his wife, or tenant for life, make a lease for life of the lessee, in every of these cases the lessor gains a new reversion by wrong, as shall be said more at large in the chapter of Discontinuance ; and if the elder brother grant the reversion (expectant upon a freehold) for life, it shall cause possessio fratris, as hath been said.

Lease for life by ]$y {he same reason the reversion which is depending upon the same

hatha severance , , ... o -i xr* .• • r

«/ the reversion, freehold is severed Jrom the jointure dSfc.J It two joint-tenants in tee be, and they both join in a lease to an abbot and a secular man for term of their lives, here the reversion that is dependant upon several freeholds is severed. And so it is if they join in a lease to two [192a] secular men, to have and to hold the one moiety to the one for life, and the other moiety to the other for life, for both these cases are warranted by the authority of Littleton.

Joint-tenants If two joint-tenants be of a lease for twenty-one years, and the

for'vears, under n , , . . „ . _ . .

lease bo one, one ot them lets his part tor certain years, part ot the term, the

Thoie'otnLre jomture is severed, and survivor holds not place, for a term for a

small number of years is as high an interest as for many more

years; and so was it resolved, Hil. 18 Eliz. Regina, in Communi

Banco, which I myself heard.

Lease for life no If two coparceners be in fee, and the one makes a lease for life, this is no severance of the coparcenary, for lord shall make one avowry upon them both.

severance of co- . . , , . .

parcenary. this is no severance ot the coparcenary, tor notwithstanding the

Contra of joint- But if two joint-tenants be, and one makes a lea9e for life, this is a severance of the jointure, as Littleton here takes it, and several avowries shall be made upon them.

Letseforlifeby Also if the lessor had reserved an annual rent, the lessor onlu should ranee of join- have had the rent fyc.] But if two joint-tenants make a lease for life, reserving a rent to one of them, the rent shall enure to them both, because the reversion remains in jointure, unless the reservation be by deed indented, and then he only to whom it is reserved shall have it. But if they make a lease by deed indented, reserving or saving the reversion to one of them, that is void, because they had the reversion before, but the rent is newly created.

aire.

And so it is if such a lessee for life [that is, a lessee of the en- Hence surrentirety by both] should surrender to one of them, it shall enure to them both, for that they have a joint reversion. But if the lessee grant his estate to one of them [whereby that one becomes tenant pur outer vie of the whole], no part of it [i. e. no part of the grant] shall enure to his companion, because as to the moiety [which in the supposition that any part does] belong to his companion, that is [already] in esse in him to whom the grant is made [for term of life [1926] with] reversion [therein] to the other in fee. [Thus if A. and B. are joint-tenants in fee, and they both join in a lease to C. for his life, with livery, this is no severance of the joint-tenancy in the reversion, and if C. re-grants his life estate to A., then A. becomes tenant pur outer vie of the entirety with reversion to himself and B. in joint tenancy.]

If two joint-tenants make a lease for life with remainder [as to Remainder. one] to his companion in fee, this is a good remainder of his moiety to his companion.

Section 303. t193a]

But if it be that the law in this case is such, that if the lessor if lease for life

by one be in «

die living the lessee and living the other joint-tenant who has uvemnce, [as it the freehold of the other moiety, that the reversion shall descend gurvivoreiiip is to the issue of the lessor, then is the jointure and title which any entirely deof them may have by survivorship and right of the jointure taken away and altogether defeated for ever. In the same manner it is, if that joint-tenant who has the freehold dies living the lessor and the lessee, if the law be so that his freehold and fee which he has in the moiety shall descend to his issue, then the jointure shall be defeated for ever.

Then is the jointure and title fyc. and the right of the jointure taken Contra ;/«• if away #c.] And the reason of this is, for if the jointure be severed both their ujiat the time of the death of him who dies first, the benefit of the tim"J"'""-.

'tenancy revives.

survivorship is utterly destroyed for ever, as hath been said before in the Chapter of Joint Tenants. But in the case aforesaid, if the tenant for life dies in the lifetime of both the joint tenants, they are joint tenants again as they were before.

Effect of one joint-tenant's lease for his own life.

If two joint-tenants be in fee, and the one lets his part to another for the life of the lessor, and the lessor dies, some say that his part shall survive to his companion, for by his death the lease was determined. And others hold the contrary; and their reason is, first, for that at the time of his death the jointure was severed, for so long' as he lived the lease continued. And secondly, that notwithstanding the act of any one of the joint-tenants there must be equal benefit of survivor as to the freehold. But here if the other joint-tenant had died first, there had been no benefit of survivor to the lessor without question.

Section 304.

Three jointtenants. Effect of release by one to one companion.

And, if three joint-tenants be, and the one release by his deed to one of his companions all the right which he has in the land, then hath he to whom the release is made, the third part of the lands by force of the said release, and he and his companion shall hold the other two parts in jointure. And as to the third part, which he has by force of the release, he holds that third part with himself and his companion in common.

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Upon this case these two things are to be observed. 1st. That this release enures by way of mitter testate, and not by way of extinguishment, for then the release should enure to his companion also, and he is in the per by him who makes the release. But if he had released to the other two, then had it wrought no degree, [i.e. a degree in the devolution of the title, as is explained in the Chapter on Descents] but in supposition of law for many purposes they to whom the release is made (as hath been said) shall be supposed in from the first feoffor, as they shall deraign the first warranty for the whole. The second thing to be observed is, that he to whom the release is made has a fee-simple without this word (heirs), as hath been touched in the first chapter of the first book, for that he to whom the release is made is seised per my et per tout of the fee and inheritance, as hath been said in the Chapter of Joint Tenants. And note, the like law is between coparceners: and further, if there are two coparceners, and the one has issue twenty daughters and dies, the other may release to any one of the daughters, her whole part, albeit she to whom the release is made hath not an equal part; for by the privity and indivisibility of the estates, the release is good.

But if two joint-tenants be of twenty acres, and the one makes a feoffment of his part in eighteen acres, the other cannot release his entire part, but only in two acres, for that the jointure is severed for the residue.

Section 305.

And it is to be observed, that sometimes a deed of release shall Husband, wife, take effect and enure to pass the estate of him who makes the ,TMDMenant«!

release to him to whom the release is made, as in the case Effect of stranger s release, aforesaid, and also as if a joint estate be made to husband 1st to husband,

and wife and a third person, and the third person releases all his right in the tenements to the husband, then has the husband the moiety which the stranger had, and the wife has nothing. And if in such case the stranger release to the wife, not naming the husband in the release, then has the wife the moiety which the stranger had, &c. and the husband has nothing but in right of his wife, because the release enures to make [i. e. to pass] an estate to the person to whom it is made, viz. all that which belongs to him who makes the release, fyc.

This is evident upon that which has been said before. And it is FourfaUi o)wto be understood, that a release may enure four manner of ways. "^'. First, by way of mitter Vestate, as here it appears. Secondly, by way of mitter le droit. Thirdly, by way of extinguishment. Fourthly, by way of creation or enlargement of an estate, as hereafter in this chapter shall appear. And it is to be observed, that upon a release which creates or enlarges an estate, or enures by way of mitter testate, a rent may be reserved, but not upon a release that enures by way of mitter le droit, or which enures by way of extinguishment.

The (Sfc.) in the end of this section implies a diversity between a [194a] release which enures by way of mitter restate (whereof Littleton here speaks) and a release that enures by way of extinguishment; for of a release enuring by way of extinguishment made to the husband, the wife shall take benefit, or to the wife, the husband shall take benefit, as hereafter shall more at large appear.

Section 306.

carries the whole.

Release to ore And m some cases a release shall enure to pass all the right which

of two disseisors

he who makes the release has to him to whom the release is made. As if a man seised of certain tenements is disseised by two disseisors [who are joint-tenants^, if the disseisee by his deed release all his right, &c. to one of the disseisors, then he to whom the release is made shall have and hold all the tenements to him alone, and shall oust his companion of all occupation in this. And the reason is, for that the two disseisors were in against the lav>, and when one of them happens to get the release of him who has right of entry, be. this right in such case shall vest in him to whom the release is made, and he is in like plight as if he who has the right had entered and enfeoffed him. And the reason is, for that he icho before had an estate by wrong, i. e. by disseisin, &c. has now by the release a rightful estate.

Here Littleton pursues the second part of his division, viz. where a release shall enure by way of mitter le droit.

Usurpation of ailvowwn.

Disseised by two disseisors, 3rc] The like law is, where there are two joint abators or intruders, who come in merely by wrong. But if two men usurp [an advowson] by a wrongful presentation to a church, and their clerk is admitted, instituted and inducted, and then the rightful patron releases to one of them, this shall enure to them both, for they come not in merely by wrong, for their clerk is in by admission and institution, which are judicial acts. And therefore an usurpation shall work a remitter to one that has a former right.

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Then he to whom the release is made shall have and hold all the tenements, <S)c] Here by operation of law presently upon the delivery of the release the whole freehold and inheritance is vested in him to whom the release is made, and all the estate that the other disseisor had is thereby wholly devested : for right and wrong cannot consist together but the wrongful estate gives place to the rightful. And the reason hereof is for that, as hath been said, the disseisor to whom the release was made, was seised per my et per tout, whereunto when the right comes it excludes the wrong; for right which is lawful, and wrong that is contrary to law, cannot stand together.

In like plight as if' he who has the right had entered and enfeoffed him, <Sfc.] The (bc.) implies that this is true secundum quid, but not simpliciter: for as to the holding out of the joint disseisor, it amounts to as much as if he had entered and enfeoffed him to whom the release is made, but it does not amount to an entry and feoffment simplicity to all purposes, as shall be said hereafter its proper place in the Chapter of Releases.

Section 307.

And in some cases a release shall enure by nay of extinguishment; Release to one and in such case the release shall aid the joint-tenant to whom the ^Ju^, to both. release was not made as well as him to whom the release was made. As if a man be disseised, and the disseisor makes a feoffment to two men in fee, if the disseisee release by his deed to one of the feoffees, this release shall enure to both the feoffees, for that the feoffees have an estate by law, i. e. by the feoffment, and not by wrong done to any, &c.

Section 308.

in remainder.

[195a]

In the same manner it is, if the disseisor makes a lease to a man Release to parfor term of his life, the remainder over to another in fee, if the enures t0 him disseisee release to the tenant for term of life all his right, fyc. this release shall enure as well to him in the remainder as to the tenant for term of life. And the reason is, for that the tenant for life comes to his estate by course of law, and therefore this release shall enure and take effect by way of extinguishment of the right of him who releases, &c. And by this release the tenant for life has no ampler or greater estate than he had before the release made to him, and the right of him who releases is altogether extinct. And inasmuch as this release cannot enlarge the'estate of the tenant for life, it is reason that the release should enure to him in remainder, &c.

More shall be said of releases in the Chapter of Releases.

Y

Section 309.

Alienation by Also, if two parceners be, and the one aliens that which belongs makes tenant to her to another, then the other parcener and the alienee are in common. tenants in common.

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Prescription. Also note, that tenants in common may be by title of prescription. And in divers other ways may men be tenants in common ivhich are not expressed here, &c.

But joint-tenants cannot be by prescription, because there is survivorship between them, but not between tenants in common.

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[Treat of the remedies of tenants in common and joint-tenants by real action, in the which tenants in common are for the most part entitled to several actions, but joint-tenants must sue in all their names.]

And it is to be further known, that if there be two tenants in com

Grant of rent

hv tenant in ,

common is a mon, and they grant a rent ot twenty shillings per annum out of their

grant of two rents; contra

land, the grantee shall have two rents of twenty shillings, for that of reservation to every man's grant shall be taken most strongly against himself, [197a] and therefore they [shall] be [construed as] several grants in law. But if they make a gift in tail, a lease for life, &c. reserving twenty shillings rent to them and their heirs, they shall have but one twenty shillings, for they shall have no more than they themselves reserved: and the donee or lessee shall pay but twenty shillings, according to their own express reservation.

Quare impedit.

[197ft]

And tenants in common shall join in a quare impedit, because the presentation to the advowson is entire.

Section 315.

Also, tenants in common may have actions personal jointly in all Actions real tlieir names, as of trespass, for breaking their closes, fishing in distinguished. ilteir piscary, and such like. In this case tenants in common shall have one action jointly, and shall recover jointly their damages, because the action is in the personalty, and not in the realty.

And it is to be observed, that where damages are to be recovered Tenants in com

r , , . mow and parce

tor a wrong done to tenants in common, or parceners in a per- ners arej0i„tsonal action, and one of them dies, the survivor shall have the te"ants "J P""

'' sonat actions.

action; for albeit the property or estate be several between them, [198«] yet the personal action is joint. And here is implied a diversity between a chattel in possession, and a personal chose in action belonging to them. As if two tenants in common be of land, and one [i. e. a stranger] commits a trespass therein, of this action they are joint-tenants, and the survivor shall hold place. So it is if two tenants in common be of a manor, and they make a bailiff thereof, and one of them dies, the survivor shall have the action of account, for the action given to them for the arrearages upon the account was joint. So it is if two tenants in common sow their land, and one [i. e. a stranger] eats the same off with his cattle, though they have the corn in common, yet the action given to them for trespass in the same is joint, and shall survive. For the trespass and damage done to them was joint, all which is here implied by Littleton, who says, that they shall have an action jointly, and the same law is of coparceners.

But if two tenants in common be of goods, as of a horse or of Contra ofperany other goods personal, there if one die, his executors shall be tenant in common with the survivor.

survwts.

And not in the realty, fyc] If two tenants in common be of an Qua.imp. advowson, and a stranger usurps, so that the right is turned to an action, and they bring a writ of guare impedit which concerns the realty, and the six months pass, and one dies, the writ shall not abate, but the survivor shall recover, otherwise there would be no remedy to redress this wrong. And so it is of coparceners, and this is one exception out of our author's rule.

So does elegit. But if three coparceners recover land and damages by force of an elegit, and two of them die; the third shall have the whole by survivorhip, till the whole damages are paid.

Damages in waste.

If the aunt and niece join in an action of waste for waste done in the life of the other sister, the aunt shall recover the damages only, because the same belongs not by law to the niece. And some hold the damages in that case to be the principal.

Section 316.

Debt for rent not several.

[198 6]

Also, if two tenants in common make a lease of their tenements to another for term of years, rendering to them a certain rent yearly during the term, if the rent be behind, &c. the tenants in common shall have one action of debt against the lessee, and not divers actions, for that the action is in the personalty.

Section 317.

Avowry. But in an avowry for the said rent they ought to sever, for this

is in the realty, as the assize is above.

This being an addition to Littleton, albeit it be consonant to law yet I omit [any comment upon] it.

Section 318.

Partition not compulsory.

Also, tenants in common may well make partition between them if they will, but they shall not be compelled to make partition by the law, but if they make partition between themselves by their agreement and consent, such jiarlition is good enough, as is adjudged in the book of assize.

Section 319.

Chattels real. Also, as there be tenants in common of lands and tenements &c. as aforesaid, in the same manner there [»i«y] be [tenants in com

mon] of chattels, real and personal. As if a lease be made of

certain lands to two men for term of twenty years, and when they

are possessed of this, one of the lessees grants that which to him [199a]

belongs to another during the term, then he to whom the grant is

made and the other shall hold and occupy in common.

Grants that which to him belongs.] The same law is if the one lessee in this case makes a lease for part of the term, the second lessee and the other are tenants in common, as hath been said in the Chapter of Joint-tenants.

Section 320.
[Treats of wardship.]

Section 321.

In the same manner it is of chattels personal. As if two have Chattels pcrjoinlly by gift or by buying a horse or an ox, &c. and the one grants that which to him belongs of the same horse or ox to another, the grantee and the other who did not grant, shall have and possess such chattels personal in common. And in such cases, where divers persons have chattels real or personal in common, and by divers titles, if one of them dies, the others who survive shall not have nop,/,'] this as survivors, but the executors of him who dies shall hold and occupy with them who survive, as their testator did or ought to have done in his lifetime, &<c. because their titles and rights in this were several, &c.

Section 322.

Also, in the case aforesaid, if two have an estate in common for Ejectment for term of years, &c. and the one occupies all and puts the other out of par,ion. possession and occupation, he who is put out of occupation shall have against the other a writ o/'ejectione firmae of the moiety, &c.

Section 323.

[Of wardship.]

iicceipt of all The one occupies ail and puts the other out of possession.'] These are

'ulanan'loZ words materially added, for albeit one tenant in common take the mon no ouster whole profits, the other has no remedy by law against him, for the

of companion. . _ .

taking of the whole profits is no ejectment. But if he drive out ot the land any of the cattle of the other tenant in common, or will not suffer him to enter or occupy the land, this is an ejectment or expulsion, whereupon he may have ejectione firma. for the one moiety, and recover damages for the entry, but not for the mesne profits.

Remedy agaimt Ejcctione firma of the moiety, fyc] Here by this fyc. is to be un

cnmpanion as to

chattels per- derstood this diversity between chattels real and chattels personal; '""conn -] for if one tenant in common takes all the chattels personal, the other has no remedy by action, but he may take them again.

Waif; Estray. As if two tenants in common be of a manor to which waif and stray belong, and an estray happens, they are tenants in common of the same, and if the one takes the estray the other has no remedy by action but to take again. But if by prescription the one is to have the first beast happening as an estray, and the other the second, there an action lies if the one takes that which

Dove-house; pertains to the other. If two tenants in common be of a dove

trespass.

house, and the one destroys the old doves, whereby the flight is wholly lost, the other tenant in common shall have an action of trespass, for the whole flight is destroyed, and therefore he cannot

Deer- in bar plead tenancy in common. And so it is if two tenants iu

common be of a park, and one destroys all the deer, an action in

Mete stones. trespass lies. If two tenants in common be of land and of mete stones, pro metis et bundis, and the one takes them up and carries them away, the other shall have an action of trespass quare vi et armis against him, in like manner as he shall have for the destruction of doves. If two several owners of houses have a river in common between them, if one of them corrupt the river, the other shall have an action upon his case.

Remedy for If two tenants in common, or joint-tenants, be of a house or

repairs of houses mill, and it fall in decay, and the one is willing to repair the same, """'■ and the other will not, he that is willing shall have a writ de repa

ratione facienda; and the writ says, ad reparationem et sustentaI ion cm ejusdem domus teneantur; whereby it appears, that owners are in that case bound pro bono publico to maintain houses and mills which arc for the habitation and use of man.

If one joint-tenant or tenant in common of land makes his com- Actwncfacpanion his bailiff of his part, he shall have an action of account ^",",',",1"""' against him, as hath been said. But although one tenant in com- bailiffmon or joint-tenant without being made bailiff take the whole profits, no action of account lies against him; for in an action of account he must charge him either as guardian, bailiff, or receiver, as hath been said before, which he cannot do in this case, unless his companion constitute him his bailiff. And therefore all those books which affirm that an action of account lies by one tenant in common, or joint-tenant, against another, must be intended when the one makes the other, his bailiff, for otherwise "never his bailiff to render an account" is a good plea.

If there be two tenants in common of a wood, turbary, piscary, Action of waste or the like, and one of them commits waste against the will of his ZZVeTa'mcompanion his companion shall have an action of waste, and he P""""'who did the waste before judgment, has election either to take his part in certainty by the sheriff and the oath of men, &c. or grant that from thenceforth he shall not do waste but according to his portion, &c. and if he make choice of a certain place, then the place wasted shall be assigned to him. But this extends not to coparceners, because they were compellable to make partition by the common law : and this, as it is said, extends as well to tenants in common and joint-tenants for life as of inheritance.

But if one tenant in common, or joint-tenant of a dove-house, Dove-home. destroy tbe whole flight of doves, no action of waste lies in that case upon the said statute, as some hold.

If lands are given to two and to the heirs of one of them, and Life estate. the tenant for life doth waste, he who has the inheritance shall have no action of waste by the statute of Gloucester, but upon the statue of W. 2. he may have an action of waste.

And it is to be known, that one tenant in common may enfeoff Feoffment and

, _ , ., . . release distin

his companion, but not release, because the freehold is several. gnishedasu, Joint-tenants may release, but not enfeoff, because the freehold is *"^TM joint; but coparceners may both enfeoff and release, because their teiumts, and seisin to some intents is joint, and to some several.

Section 324.

Seised and possessed distinguished.

Al6o, when a man pleads a feoffment made to him, or a gift in tail, or a lease for life of any lands or tenements, then he shall say, by force of which feoffment, gift, or lease, he was seised, &c. but when he pleads a lease or grant made to him of a chattel real or personal, then he shall say, by force of which he was possessed, &c.

More shall be said of tenants in common in the Chapters of Releases and Tenant by Elegit.

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Seisin is a word of art, and in pleading is only applied to a freehold at least, as possessed for distinction sake is to a chattel real or personal. And this holds not only in case of lands or tenements which lie in livery, but also of rents, advowsons, commons, &c. and other things that lie in grant, whereof a man has an estate for life or inheritance, [in all which he is said to be seised though he can have no corporal possession.]

Entry to be pleaded, when.

Also when a man pleads a lease for life, or any higher estate which passes by livery, he is not to plead any entry, for he is in actual seisin by the livery itself. Otherwise it is of a lease for years, because there he is not actually possessed until entry.

CHAPTER V. Section 325.

OF ESTATES UPON CONDITION.

Estates which men have in lands or tenements upon condition Condition are of two sorts, viz. either upon condition in deed or upon condition in law. Upon condition in deed is, as if a man by deed indented enfeoffs another in fee-simple, reserving to himself and his heirs yearly a certain rent payable at one feast or divers feasts per annum, on condition that if the rent be behind &c. that it shall be lawful for the feoffor and his heirs into the same lands or tenements to enter &c, or if land be aliened to a man in fee rendering to the feoffor certain rent, and if it happen that the rent be behind by a week, month, or half year, after any day of payment named for it, that then it shall be lawful for the feoffor and his heirs to enter; in these cases, if the rent be not paid at such time, or before such time limited and specified within the condition comprised in the indenture, then may the feoffor or his heirs enter into such lands or tenements, and have and hold the same in his former estate, and the feoffee quite to oust thereof. And this is called an estate upon condition, because the estate of the feoffee is defeasible if the condition be not performed 8fC.

Upon condition.] Littleton having before spoken of estates absolute, now begins to treat of estates upon condition. And a condition annexed to the realty, whereof Littleton here speaks in the legal understanding, est modus, a quality annexed by him who has an estate, interest, or right to the same, whereby an estate 8tc. may either be defeated or enlarged, or created upon an uncertain event.

Upon condition in deed] — qua est facti, that is, upon a condition expressed by the party in legal terms of law.

Or upon condition in law #c] qua est juris, that is, tacite created by law without any words used by the party. Again, Littleton subdivides conditions in deed (though not in express words) into conditions precedent and conditions subsequent. Again, of conditions in deed some are affirmative, and some in the negative; and some in the affirmative, which imply a negative: some make the estate whereunto they are annexed voidable by entry or claim, and some make the estate void ipso facto, without entry or claim- Also of conditions in deed, some are annexed to the rent reserved out of the land, and some to collateral acts &c.; some are single, some in the conjunctive, some in the disjunctive, as shall evidently appear in this chapter, where the examples of these divisions shall be explained in their proper place.

Upon condition in deed is, as if a man by deed indented fyc] Here Littleton puts one example of six several kinds of conditions. That is, 1st. Of a single condition in deed. 2dly. Of a condition subsequent to the estate. 3dly. A condition annexed to the rent &c. 4thly. A condition that defeats the estate. 5thly. A condition that defeats not the estate before an entry. And lastly, a condition in the affirmative, which implies a negative, (as behind or unpaid implies a negative) viz. not paid. All which appears by the express words of Littleton.

Condition of re-entry.

In these cases if the rent be not paid at such time Sfc. then mau the feoffor or his heirs enter #c] By this section, and by the (&c.) therein contained, six things are to be understood.

Demand must be made,

First, where our author says, if the rent be behind, that though the rent is behind and not paid, yet if the feoffor doth not demand the same &c. he shall never re-enter, because the land is the principal debtor.

»" <'<«<<"ui; Secondly, the demand must be made upon the land, because the

land is the debtor, and that is the place of demand appointed by law.

If the king makes a lease for years, rendering a rent payable at his receipt at Westminster, and after the king grants the reversion to another and his heirs, the grantee shall demand the rent upon the land, and not at the king's receipt at Westminster; for as the law without express words appoints the lessee in the king's case to pay it at the king's receipt, so in case of a subject, the law appoints the demand to be on the land.

If there be a house upon the land, he must demand the rent at at the house',* the house. And he cannot demand it at the back door of the fjedooll' house but at the fore door, because the demand must ever be made at the most notorious place. And it is not material whether any person be there or no. Albeit the feoffee be in the hall or other part of the house, yet the feoffor need only come to the fore door, for that is the place appointed by law, albeit the door be open.

If the feoffment be of a wood only, the demand must be made orgateofa at the gate of the wood, or at some highway leading through the [202 «] wood or other the most notorious place. And if one place be as notorious as another, the feoffor has election to demand it at which he will, and albeit the feoffee be in some other part of the wood ready to pay the rent, yet that shall not avail him. Et sic de similibus.

Thirdly, and if the feoffor demand it on the ground at a place VM demand. which is not the most notorious, as at the back door of a house &C., and in pleading the feoffor allege a demand of the rent generally at the house, the feoffee may traverse the demand, and upon the evidence it shall be found for him, for that it was a void demand.

Fourthly, if the rent be reserved to be paid at any place off puce «pthe land, yet it is in law a rent, and the feoffor must demand it at '*"""' the place appointed by the parties, observing that which has been said before concerning the most notorious place.

Fifthly, and all this is to be understood when the feoffee is Tender. absent; for if the feoffee comes to the feoffor at any place upon any part of the ground at the day of payment, and offer the rent, albeit they be not at the most notorious place, nor at the last instant, the feoffor is bound to receive it, or else he shall not take advantage of any demand of the rent for that day.

Sixthly, therefore the place of demand being now known, it is Demand ami further to be known what time the law has appointed for the same. ,»ad7hef"re JnThis partly appears by that which has been last said. For albeit "i on last day.

the last time of demand of the rent is such a convenient time before the sun setting of the last day of payment as the money may be numbered and received, notwithstanding, if the tender be made to him that is to receive it upon any part of the land at any time of the last day of payment, and he refuses, the condition is saved for that time, for by the express reservation the money is to be paid on the day indefinitely, and convenient time before the last instant, is the uttermost time appointed by law, to the intent that then both parties should meet together, the one to demand and receive, and the other to pay it, so that the one should not prevent the other. But if the parties meet upon any part of the land whatsoever on the same day, the tender shall save the condition for ever for that time.

If a week ai- And if the reservation of the rent be (as here Littleton puts the

ment, demand case) at certain feasts, with condition that if it happen that the rent

Z mall*raTa% be Denind by tne sPace of a week after any day of payment &c., time before hat jn this case the feoffor needs not demand it on the feast day, but the

dau. t p J

uttermost time for the demand is a convenient time (as hath been said) before the last day of the week, unless before that the feoffee meet the feoffor upon the land and tenders the rent as is aforesaid. [See a distinction on this subject, Cro. Eliz. 48. 10 Co. 129 a.]

Demand at any If a rent be granted payable at a certain day and if it be behind

'dhtreu!""" anc^ (lemanded then that the grantee shall distrain for it, in this case

the grantee need not demand it at the day; but if he demand it at

any time after he may distrain for it, for the grantee has election in

this case to demand it when he will to enable him to distrain.

l-Wmer estate And the land in Ms former estate to hold &jcj] Regularly it is true,

that he who enters for condition broken shall be seised in his first estate, or of that estate which he had at the time of the estate made upon condition, but yet this fails in many cases.

liuibaud'sfe- In respect of impossibility. As if a man seised of lands in 'ett'ate'oncon-'' right of his wife makes a feoffment in fee by deed indented, upon ditim. condition that the Jjeoffee should demise the land to the feoffor for

his life &c.; the husband dies; the condition is broken, in this case the heir of the husband shall enter for the condition broken, but it is impossible for him to have the estate that the feoffor had at the time of the condition made: for therein he had but an estate in right of his wife, which by the [determination of the] coverture was dissolved. And therefore when the heir has entered for the condition broken and defeated the feoffment, his estate vanishes, and presently the estate is vested in the wife.

In respect of necessity. If cestui que use after the statute of Feoffment by

r , cestui que trust

R.3., and before the statute of 27 H. 8. [that is, if cestui que trust m condition, since the statute], had made a feoffment in fee upon condition, and l".'mc"h\ 7deLs after had entered for condition broken; in this cashee had but frustc'an use [trust] when the feoffment was made, but now he shall be seised of the whole estate of the land. So that as in the former case [of husband and wife] the ancestor had somewhat at the making of the condition and the heir shall have nothing when he has entered for the condition broken, so in this case the feoffor had no estate or interest in the land at the time of the condition made but a bare use; yet after his entry for the condition broken he shall be seised of the whole estate in th eland, and that of necessity, for by the feoffment in fee of cestui que use [or cestui que trust] the whole estate and right was divested out of the feoffees. And therefore of necessity the feoffor must gain the whole estate by his entry for the condition broken.

Tenant in special tail has issue, and his wife dies, tenant in tail Feoffment <m makes a feoffment in fee upon condition, the issue dies, [whereby the ct°"f,'TM' t„u feoffor becomes tenant in tail after possibility of issue], the condition "'"' «/*«'&«is broken, the feoffor re-enters, he shall have but an estate for life [2026] as tenant in tail after possibility of issue extinct by the re-entry, and yet he had an estate tail at the time of the feoffment, and that also of necessity.

In some cases the feoffor by his re-entry shall be in his former Feoffment bu

tenant in tail on condition.

estate, but not in respect of some collateral qualities. As if tenant''""

in tail make a feoffment in fee upon condition [which is a discontinuance and a conversion of the estate tail into a base fee] and dies; the issue in tail within age enters for thecondition broken, he shall be first in as tenant in fee-simple [that is of the base fee and] as heir to his father, and [then being in of a wrongful and rightful estate] he shall be instantly remitted to his rightful title. But if the Effect ofi heir be of full age, he shall not be remitted, because he might have e"try' had his/ortnedoti against the feoffee, and the entry for the condition

is his own act; but more shall be said hereof in its proper place in the Chapter of Remitter.

Entry into part when good.

If a man make a feoffment in fee of Black Acre and H hite Acre upon condition &c. and for breach thereof that he shall enter into Black Acre, this is good.

Feoffment by If tenant for life make a feoffment in fee upon condition, and

forfeiture n't enters for the condition broken, he shall be tenant for life again,

purged by entry t>ut subject to a forfeiture, for though the estate is reduced the for

Jor condition J °

'nvken. feiture is not purged.

Section 326.

In the same manner it is if lands be given in tail, or let for term of life or years, upon condition.

Section 327.

Power of <lis- But where a feoffment is made of certain lands reserving a certress and entry. tain renf ^c Up0H condition tliat if the rent be behind that it shall be lawful for the feoffor and his heirs to enter and to hold the land until he be satisfied or paid the rent behind 5fc, in this case if the rent be behind, and the feoffor or his heirs enter, the feoffee is not altogether excluded from this, but the feoffor shall have and hold the land and thereof take the profits until he be satisfied the rent behind, and ivhen he is satisfied, then may the feoffee re-enter into the same land and hold it as he held it before. For in this case the feoffor shall have the land as for a distress until he be satisfied the rent &c, but he shall take the profits in the mean time to his own use &c.

Tender of part good.

And to hold the land until he be satisfied or payed the rent behind 4fc] By this it is implied, that if such a feoffment be made, reserving (for example) eight marks rent at the feast of Easter, with such a condition as is aforesaid ; the feoffor at the feast day demands the rent; the feoffee pays unto him six marks, parcel of the rent; the feoffor enters into the lands and takes the profits towards satisfaction; afterwards the feoffee tenders the two marks residue of

the rent to the feoffor upon the land, who refuses it; it has been [203a] adjudged that the feoffee upon the refusal may enter into the land; for when the feoffor is satisfied either by perception of the profits or by payment or tender and refusal, or partly by the one and partly by the other, the feoffor may re-enter into the land. And this is within the words of Littleton, viz. (until he be satisfied.) And albeit the feoffor had accepted part of his rent, yet he may enter for the condition broken, and retain the land until he be satisfied the whole. All which is worthy of observation.

For in this case the feoffor shall have the land as for a distress until Power of entry he be satisfied.] By this it appears that the feoffor by his re-entry £<£ TM"""' gains no estate of freehold, but an interest by the agreement of the parties to take the profits in nature of a distress.

And therefore if a man makes a lease for life with a reservation N„ action 0f of rent and a condition [of re-entry on non-payment, then] if he d*btafterentryenter [upon] condition broken and takes the profits of the land quousque fyc. he shall not'have an action of debt for the rent in arrear, for the freehold of the lease continues.

But herein also a diversity worthy of observation is implied, When this conviz, if a man makes a lease for years reserving a rent with a condi- n'a£" tion, that if the rent be behind the lessor shall re-enter and take the profits until thereout he be satisfied, there the profits shall be accounted as parcel of the satisfaction, and during the time that he so takes the profits he shall not have an action of debt for the rent for the satisfaction whereof he takes the profits. But if the condition be, that he shall take the profits until the lessor be satisfied or paid the rent, without saying thereout or to the like effect, there the profits shall be accounted no part of the satisfaction [but the condition shall be considered as a penalty] to hasten the lessee to pay the rent, and as Littleton here says, that until he be satisfied he shall take the profits in the mean time to his own use, [that is without account, although he be afterwards paid the full rent.]

Section 328.

Also, divers vmrds there be, which by virtue of themselves make Condition, »hat estates upon condition; one is the word (sub condilione): as if A. woi s mo e'

infeoff B. of certain land, to have and to hold to the said B. and his heirs, upon condition that the said B. and his heirs do pay or cause to be paid to the aforesaid A. and his heirs yearly such a rent &c. In this case without any other words the feoffee has an estate upon condition.

Rent put only Such rent cSfc] This ($r.) implies any other rent or sum in gross, [203 b] or any c°l'ateral condition whatsoever, either to be performed by the feoffee (whereof our author here puts his case) or by the feoffor, and extends to all kinds of conditions in deed, before specified.

Section 329.

Provided always. So that.

Also, if the words are these, Provided always that the aforesaid B. do pay or cause to be paid to the aforesaid A. such a rent &c. or these, So that the said B. do pay or cause to be paid to the said A. such a rent &c.; in these cases without more saying, the feoffee has but an estate upon condition, so that if he does not perform the condition, the feoffor and his heirs may enter 8fc.

Proviso and covenant blend"

ed.

Provided alwai/s.'] Our author puts his case where a proviso comes alone. And so it is if a man by indenture lets land for years, provided always and it is covenanted and agreed between the said parties, that the lessee shall not alien, this has been adjudged to be a condition by force of the proviso, and a covenant by force of the other words. This word proviso, also, shall be taken as a limitation or qualification, as hereafter in its proper place shall appear. And sometimes it shall amount to a covenant.

Clause of entry makes a condition.

[204«]

To enter #c] Hereby it is evident, that some words of themselves do make conditions, and some other (whereof our author here and in the next Section puts an example) do not of themselves make a condition without a conclusion and clause of re-entry: and many times (si) makes a condition, and sometimes a limitation, as hereafter shall be said in this Chapter.

Section 330.

Also, there are other words in a deed which cause tlie tenements to <■ inthappen."

be conditional. As if upon such feoffment a rent be reserved to

the feoffor he. and afterwards these words are put into the deed;

tliat if it happen (Quod si contingat) the aforesaid rent be behind

in part or in all, that then it shall be lawful for the feoffor and his

heirs to enter &c, this is a deed upon condition.

And sometimes in case of lands or tenements (causa) shall make Sodoafeoffa condition. As if a woman give lands to a man and his heirs, ment y, s'"e...

& 'uomanto avian,

causa matrimonii preelocuti, [in consideration of marriage proposed causa.matr>

or agreed upon] in this case if she either [refuse to] marry the man,

or the man refuse to marry her, she shall have the land again to her

and her heirs. But on the other hand, if a man give lands to a

woman and her heirs, causa matrimonii pralocuti, though he does

not marry her, or the woman refuse, he shall not have the lands

again, for it stands not with the modesty of women in this kind to

ask advice of learned connsel, as the man may and ought: and the

rather, for that in the case of the woman she may aver the cause,

(for the reason aforesaid) although it be not contained in the deed,

yea though the feoffment be made without deed, [post 226a].

But for the avoiding of a lease for years, such precise words of tease for years, condition are not so strictly required as in the case of a freehold ""'^ /LTrict. and inheritance. For if a man by deed make a lease of a manor for years, in which there is this clause (and the said lessee shall continually dwell upon the capital messuage of the said manor upon pain of forfeiture of the said term) these words amount to a condition,

Section 331. [2046]

But there is a diversity between this word si contingat &c. and Clause ofiethe words next aforesaid fife. [i. e. provided always]. For these cessary. words si contingat 8cc. are nought ivorlh to such a condition, unless they have these words following: That it shall be lawful for the feoffor and his heirs to enter fyc. But in the cases aforesaid, the law implies that they contain in themselves a condition that the feoffor

z

and his heirs may enter fyc.. Yet it is commonly used in all I lie cases aforesaid to put such a clause in the deed to declare and exI?ress to common people, who are not learned in the law, concerning the manner and condition of the feoffment. As if a man seised of land lets the same land to another by deed indented for term of gears, rendering to him a certain rent, it is customary to put into the deed [a clause] that if the rent be behind at tlie day of payment, or by the space of a week or a month fyc. that then it shall be lawful for the lessor to distrain c\c. yet the lessor may distrain of common right for the rent behind <JfC. though these words were not inserted in the deed be.

Distress may be made before the time specified.

[205a]

Or a month, #c.] Here albeit the clause of distress be added that if the rent be behind by the space of a week or a month that the lessor may distrain, yet he may distrain within the week or month, because a distress is incident of common right to every rent service. And the words are in the affirmative, and therefore cannot restrain that which is incident of common right.

Section 332.

Mortgage what. It EM, if a feoffment be made upon condition, that if the feoffor pay to the feoffee at a certain day &c. forty pounds of money, that then the feoffor may re-enter, &c. in this case the feoffee is called tenant in mortgage, which is in Latin mortuum vadium. And it seems that the cause why it is called '.mortgage is, for that it is doubtful whether the feoffor will pay at the day limited such sum or not: and if he does not pay, then the land which is put in pledge upon condition for payment of the money, is taken from him for ever, and so dead to him upon condition, &c. And if he pays the money, then the pledge is dead as to the tenant, &c. [thai is to the feoffee,]

[ocr errors]

Mortgage] Is derived of two French words, viz. mori, that is mortuum, and gage, that is vadium, or pignus. And it is called in Latin mortuum vadium, to distinguish it from that which is called vivum vadium, which is where a man borrows a sum of money of another, and makes over an estate to him [to hold] until he has received the said sum [out] of the rents and the profits of the land;

iu which case neither money nor land dies oris lost, (whereof Littleton has spoken before in this Chapter) and therefore it is called vivum vadium. [And this is sometimes called a Welsh mortgage.]

Section 333. [2056]

Also, as a man may make a feoffment in fee in mortgage, so a Mortgages may man may make a gift in tail in mortgage, and a lease for term of for life or jeara. life, or for term of years in mortgage. And all such tenants are called tenants in mortgage, according to the estates which they have in the land, &c.

Section 334.

Also, if a feoffment be made in mortgage upon condition that Mortgagor'a the feoffor shall pay such a sum at such a day as is between them jeem^rfourii by their deed indented agreed and limited, although the feoffor dies not named< before the day of payment, fyc. yet if the heirs of the feoffor pay stranger. the sum of money to the feoffee on the day, or tender to him the money, and the feoffee refuses to receive it, then may the heir enter into the land; and yet the condition is, that if the feoffor shall pay such a sum at such a day, fyc. not making mention in the condition of any payment to be made by his heir, but because the heir has interest of right in the condition, 8fc. and the intent was that the money should be paid at the day assessed, 8;c. and the feoffee has no more loss if it be paid by the heir than if it were paid by the father, &c. therefore if the heir pay the money, or tender the money at the day limited, &c. and the other refuse it, he may enter, be. But if a stranger of his own head, who has not any interest, 6;c. will tender the aforesaid money to the feoffee at the day appointed, the feoffee is not bound to receive it.

That the feoffor shall pay at such a day, fyc.] Albeit conditions So may extevior be not favoured, yet they are not always taken literally. And Z^ntClr'diwhere it is said, that the heir may tender at the day limited, fyc. naTVherein is implied, that the executors or administrators of the mort- [206a)

gagor, or in default of them the ordinary [who before the statute of distributions was entitled to the surplus] may also tender, as shall be said hereafter in this Chapter.

Mortgagor'! But if the mortgagor die before the day without an heir, so that

death uithout . . J

htin. the condition is become impossible to be performed, here, as the

condition is become impossible by the act of God, the estate of the feoffee shall not be avoided, as shall be said hereafter in this Chapter.

fustible and And as to impossible conditions divers diversities are worthy of

intpiissible con- , . _ J

dithnt in bond observation. First, between a condition annexed to an estate iu "JLtmguithed. 'ands on a feoffment, and a condition of a bond, obligation, recognizance, or such like. For if a condition annexed to lands be possible at the making of the condition, and becomes impossible by the act of God, yet the estate of the feoffee &c. shall not be avoided, [but he shall take the lands absolutely discharged of the condition.] On the other hand, if a man be bound by recognizance or bond, with condition that he shall appear the next term in such a court, and before the day the obligor dies, the recognizance or obligation is saved; and the reason of the diversity is, because the estate of the land is executed and settled in the feoffee, and cannot be redeemed back again but by matter subsequent, viz. the performance of the condition. But the bond or recognizance is a thing in action, and executory, whereof no advantage can be taken until there be a default in the obligor; and therefore in all cases where the condition, of a bond recognizance, &c. is possible at the making of the condition and before the same can be performed the condition becomes impossible by the act of God, by the act of law, or by the act of the obligee &c. there the obligation, &c. is saved. But if the condition of a bond, &c. be impossible at the making of-the condition, the obligation, &c. is single, [that is without any condition, and good for the penal sum.] And so it is in case of a feoffment in fee with a condition subsequent which is impossible, the estate of the feoffee is absolute: but if condition precedent be impossible, r20661 no estate or interest shall grow thereupon; [i. e. as the feoffee cannot perform the condition he can take no estate or interest the in land.]

^oVibTemidim- ^nc* to uulstrate these by examples you shall understand :—If a fotiibUcen- man be bound in an obligation &c. with condition that if the obligor go from the church of St. Peter in Westminster to the church of St. Peter in Rome within three hours, that then the obligation shall be void; the condition is void and impossible, and the obligation stands good. And so it is if a feoffment be made upon condition that the feoffee shall go as aforesaid, the estate of the feoffee is absolute, and the condition impossible and void. If a man make a lease for life upon conditi6n that if the lessee go to Rome as aforesaid, that then he shall have a fee, the condition precedent is impossible and void, and therefore no feesimple can grow to the lessee. And this is true in all cases that a man shall never take advantage of a condition rendered impossible by his own act.

ditient.

But it is commonly holden that if the condition of a bond &c. Condition be against law, that the bond itself is void. But herein the law "ff""" distinguishes between a condition against law for the doing of any act that is malum in se, and a condition against law (which concerns not any thing that is malum in se) but is against law because it is either repugnant to the estate, or against some maxim oxrule in law. And therefore the common opinion is to be understood of conditions against law for the doing of some act that is malum in se, and yet therein also the law distinguishes. As if a man be bound upon condition that he shall kill I. S.,the bond is void. But if a man make a feoffment upon condition that the feoffee shall kill I. S., the estate is absolute and the condition void.

If a man make a feoffment in fee upon condition that he shall Condition not to

.. .. .... . .. alien or take

not alien, this condition is repugnant and against law, and the profits, bad in estate of the feoffee is absolute (whereof more shall be said in the {£,"''gowl proper place.) But if the feoffee be bound in a bond that the feoffee or his heirs shall not alien, this is good, for he may notwithtanding alien if he will forfeit the bond which he himself has made. So it is if a man make a feoffment in fee upon condition that the feoffee shall not take the profits of the land, this condition is repugnant and against law, and the estate is absolute. But a bond with a condition that the feoffee shall not take the profits is good.

If a man be bound with a condition to enfeoff his wife, the con- Condition for ditiou is void and against law, because it is against a maxim in feof irife bad. law, and yet the bond is good: but if he be bound to pay his wife

money, that is good. Et sic de similibus, whereof there are plentiful authorities in our books.

Tender to person good.

Guardian may redeem.

Tender the money at the day limited, 8fc] Note, hereby is implied that albeit a convenient time before sun-set be the last time given to the feoffor to tender, yet if he tender it to the person of the mortgagee at any time of the day of payment, and he refuses" to accept it, the condition is saved for that time.

But if a stranger of his own head, who has not any interest, Sfc. will tender.] Nota, by this is implied that if the mortgagor die leaving his heir within the age of fourteen years (the land being holden in socage), the next of kin to whom the land cannotdescend, being his guardian in socage, may tender in the name of the heir, cause he has an interest as guardian in socage.

And miv person But jf tne heir be an idiot of what age soever, any man may

foranideot. ° J J

make the tender for him in respect of his absolute disability, and the law in this case is grounded on charity, and so in like cases.

Stranger's lender in mortgagor's name good if accepted.

[207 a]

The feoffee is not bound to receive it.] And note that Littleton says that he is not bound to receive it at a stranger's hand. But if a stranger in the name of the mortgagor or his heir (without his consent or privity) tender the money, and the mortgagee accepts it, this is a good satisfaction, and the mortgagor or his heir agreeing thereunto may re-enter into the land; omnis ratihabitio retro trahitur et mandato aquiparalur. But the mortgagor or his heir may disagree thereunto if he will.

Section 335.

After tender and refusal mortgages no remedy for money.

And be it remembered that in such case, where a tender of the money is made, fyc. and the feoffee refuses to receive it, by the which the feoffor or his heir enters, fyc. then the feoffee has no remedy by the common law to recover his money, because it sltall be accounted his own folly that he refused the money when a lawful tender of it ivas made to him.

Tender of the money is made Sfc] Here is implied at the due time and place according to the condition.

Then the feoffee has no remedy by the common law to recover his money #c.] And the reason is, because the money is collateral to the land, and the feoffee has no remedy thereof.

If a bond in the penal sum of one hundred pounds be made with Tender and condition for the payment of fifty pounds at a day; and at the day' the obligor tenders the money, and the obligee refuses the same, yet in an action of debt upon the bond [by the obligee], if the defendant [obligor] pleads the tender and refusal, he must also plead that he is yet ready to pay the money and tender the same in court. But if the plaintiff will not then receive it, but takes issue upon the tender, and the same be found against him, he has lost his money for ever. But if a man make a single bond, or acknowledge a statute or recognizance, and afterwards makes a defeasance for tiie payment of a lesser sum at a day, if the obligor or conusor tenders the lesser sum at the day, and the obligee or conusee refuses it, he shall never have any remedy by law to recover it, because it is no parcel of the sum contained in the obligation, statute, or recognizance, being contained in the defeasance made at the time or after the obligation, statute, or recognizance. And so it is if a man make an obligation of an hundred pound with a condition for the delivery of corn, or timber &c. or for the performance of an arbitrement, or the doing of any act &c. This is collateral to the obligation, that is to say, is not parcel of it, and therefore a tender and refusal is a perpetual bar.

But if a man be bound to make a feoffment in fee to the obligee, tteUan equivaand he make a lease and release to him and his heirs, albeit this ietitt0Jea3'"e"t

in performance

be a collateral condition, yet it is well performed, because this «j condition. amounts in law to a feoffment.

Money.] Lawful money of England, either in gold or silver, is lawful money. of two sorts, viz. the English money coined by the king's authority, [2076] or foreign coin made current by proclamation within the realm.

Section 336.

Also, if a feoffment be made on this condition, that if the feoffee Feoffee's conpay to the feoffor at such a day the sum of twenty pounds, that Condition broTM

en good, and second feoffee may tender.

then the feoffee shall have the land to him and to his heirs, but if he fail to pay the money at the day appointed, that then it shall be lawful for the feoffor or his heirs to enter be. and afterwards, before the day appointed the feoffee sells the land to another, and of this makes a feoffment to him; in this case if the second feoffee will tender the sum of money at the day appointed to the feoffor, and the feoffor refuses the same be. then the second feoffee has an estate in the land clearly without condition. And the reason is, for that the second feoffee has an estate in the condition for the safeguard of his tenancy. And in this case it seems that if the first feoffee after such sale of the land will tender the money at the day appointed kc. to the feoffor, this shall be good enough for the safeguard of the estate of the second feoffee, because lhe first feoffee was privy to the condition, and so the tender of either of the two is good enough be.

Alternative when (« be ei pre,ted.

And if he fail to pay the moiiet/ bc.] If a man make a feoffment of lands to have and to hold to the feoffee and his heirs upon condition that if the feoffee pay to the feoffor at such a day twenty pounds that the feoffee shall have the lands to him and his heirs; if the condition had not proceeded further it had been void, for the feoffee had a fee-simple by the first. words, and therefore words subsequent are materially added (and if he fail to pay the money &c.)

Privies in estate may perform condition.

The second feoffee will tender the sum of money bc.] Albeit the second feoffee be not named in the condition, yet shall he tender the sum because he is privy in estate, and in judgment of law has an estate and interest in the condition, (as Littleton here says) for the salvation of his tenancy. Vid. Sect. 334. And note, he who has an interest in the condition on the one side, or in the land on the other, may tender.

Tender in bagi good.

[208 a]

Tender the sum.] The feoffee may tender the money in purses or bags without showing or telling the same, for he does that which he ought, viz. to bring the money in purses or bags, which is the usual way to carry money, and then it behoves the party who is to receive it to put it out and tell it.

First feoffee If the first feoffee.] Here it appears that the first feoffee may

notwithstanding his feoffment pay the money to the feoffor, because

he is party and privy to the condition, and by his tender may save the estate of his feoffee, which in all good dealing he ought to do.

Section 337.

Also, if a feoffment be made upon condition that if the feoffor Heir cannot pay a certain sum of money to the feoffee, then it shall be lawful to aition unless he the feoffor and his heirs to enter: in this case if the feoffor die ^"'"j10^,' before the payment made, and the heir tenders to the feoffee pointed for pay

, , , • ., i 7 • • ,. >., ,. ment, then he

the money, such tender is void, because the time within vmich this or the executors ought to be done is past. For when the condition is, that if the mayten erfeoffor pay the money to the feoffee &c. this is as much to say, that if the feoffor during his life pay the money to the feoffee &c. and when the feoffor dies, then the time of tender is past. But othencise it is where a day of payment is limited and the feoffor dies before the day, then may the heir tender the money as is aforesaid, for the time of tender is not past by the death of the feoffor. Also it seems, that in such case where the feoffor dies before the day of payment, if the executors of the feoffor tender the money to the feoffee at the day of payment, this tender is good enough; and if the feoffee refuse it, the heirs of the feoffor may enter. And the reason is because the executors represent the person of their testator Sfc. •

This diversity is plain and evident and agrees with our books, Comiirion on and yet somewhat shall be observed herereupon: for here it ap- m"ntafuJher pears, that seeing no time is limited the law appoints the time, and distinguished. that is during the life of the feoffor. Wherein divers diversities are worthy of observation.

First, between this case that Littleton here puts of the condition \st. where, no of a feoffment in fee for the payment of money where no time is 'i"^^£I^j."" limited, and the condition of a bond for the payment of a sum of money where no time is limited: for in such a condition of a bond the money is to be paid presently, that is, in convenient time. And yet in the case of a condition on a bond there is a diversity between a condition of an obligation which concerns the doing of a transitory act without limitation of time, as payment of money, delivery of charters, or the like (for there the condition is to

be performed presently, that is, in convenient time); and a con12086] dition on an obligation where the act to be done is in its nature local, for there the obligor (no time being limited) has time during his life to perform it, as to make a feoffment &c. if the obligee does not hasten the same by request. And in the case where the condition of the obligation is local, there is also a diversity, when the concurrence of the obligor and the obligee is requisite, (as in the said case of a feoffment) and when the obligor may perform it in the absence of the obligee, as to acknowledge satisfaction in the court of King's Bench [on a judgment or recognizance] there, although the acknowledgment is local, yet because he may do it in the absence of the obligee, he must do it in convenient time, and has not time during his life.

2. When the Another diversity is between a condition of an obligation, and a condition u to condition of a feoffment, where the act which is local is to be done to

reirifeojf, and

no time limited, a stranger, and where to the obligee or feoffor himself. As if one makes a feoffment in fee upon condition that the feoffee shall infeoff a stranger, and no time is limited, the feoffee shall not have time during his life to make the feoffment, for then he should lake the profits in the mean time to his own use, which the stranger ought to have, and therefore he ought to make the feoffment as within convenient time; and so it is of the condition on an obligation. But if the condition be that the feoffee shall re-infeoff the feoffor, there the feoffee has time during his life, on account of the privity between them, unless he be hastened by request, as shall be said hereafter. Another diversity is, when the obligor or feoffee is to enfeoff a stranger, as hath been said, and when a stranger is to enfeoff the feoffee or obligee: as if A. enfeoff B. of Black Acre, upon condition that if C. enfeoff B. of White Acre, A. shall reenter, C. has time during his life, if B. does not hasten it by request, and so of an obligation.

3d. Condition to But in some cases albeit the condition be collateral, and is to be ^7TM (i^e''y performed to the obligee, and no time is limited, yet in respect of the named. nature of the thing the obligor shall not have time during his life to

perform it. As if the condition of an obligation be to grant an annuity or yearly rent to the obligee during his life, payable yearly at the feast of Easter, this annuity or yearly rent must be granted before Easter, or else the obligee shall not have it at that feast during his life, et sic de similibus; and so was it resolved by the judges of the Common Pleas in the argument of Andrews' case, which I myself heard.

Lastly, when the obligor, feoffor, or feoffee is to do a sole act or 4n. To go to labour, as to go to Rome, Jerusalem &c. in such and the like cases, timt^amidH' the obligor, feoffor, or feoffee, has time during his life, and cannot [209 a] be hastened by request. And so it is if a stranger to the obligation or feoffment were to do such act, he has time to do it during his life.

If the executors of the feoffor tender #c] So as now it appears Executor, adthat either the heir of the feoffor, or his executors, may (when a "diniTM'TMTM day is limited) pay the money; and so also may the administrator redeem > of the feoffor, if the feoffor dies intestate; and this may the ordinary do if there be neither executor or administrator as hath been said.

And if the feoffee refuse it, the heirs of the feoffor may enter Sec] but it mil be for Nota; a tender by the executors or administrators and a refusal tht1uiiT'>oenefit. gives the heir of the feoffor a title to entry, for he and the executors are privies in law.

The person of the testator &c] This is to be understood concern- Executors are ing goods and chattels either in possession or in action; but the l^'f t'"0" n executor represents the person of the testator more than the heir "<" named,

, contra of heiri

does the person of the ancestor, tor if a man binds himself, his in a feoffment. executors are bound though they are not named, but it is not so of the heir: furthermore, here the administrators and the ordinary also are implied, as before hath been said.

Section 338.

And note, that in all cases of condition for payment of a certain Refusal of turn in gross touching lands or tenements, if lawful tender be once J^"a fgje^"nt* refused, he who ought to tender the money is quit of this and fully discharged for ever afterwards.

This is to be understood, that he who ought to tender the except in eau of money is of this discharged for ever to make any other tender; but where the debt

remains, though if it were a duty before, though the feoffor enter by force of the

land discharged

[209 b]

condition, yet the debt or duty remains. As if A. borrow a hundred pounds of B. and afterwards mortgages land to B. upon condition for payment thereof; if A. tenders the money to B. and he refuses it, A. may enter into the land, and the land is freed for ever of the condition, but yet the debt remains and may be recovered by action of debt. But if A. without any loan, debt, or duty preceding infeoff B. of land upon condition for the payment of a hundred pounds to iB. in nature of a gratuity or gift; in that case if he tender the hundred pound to him according to the condition, and he refuse it, B. has no remedy thereof; and so is our author in this and his other cases of like nature to be understood.

Section 339.

Mortgagee's executors entilled to money, not his heir.

Also, if the feoffee in mortgage before the day of payment makes his executors and dies, and his heir enters into the land as he ought 5fc, it seems in this case that the feoffor ought to pay the money at the day appointed to the executors and not to the heir of the feoffee, because the money at the beginning appertained to the feoffee in manner of a duty, and it shall be intended that the estate was made by reason of the lending of the money by the feoffee or for some other duty; and therefore the payment shall not be made to the heir, as it seems; but the words of the condition may be such that the payment shall be made to the heir. As if the condition were, that if the feoffor pay to the feoffee or to his heirs such a sum at such a day &c. there after the death of the feoffee, if he dies before the day limited, the payment ought to be made to the heir at the day appointed.

Unless heir specially named.

[210,/]

By this section also it appears, that the executors do more represent the person of the testator than the heir does the ancestor; for though the executor be not named, yet the law appoints him to receive the money, but so does not the law appoint the heir to receive the money unless he be named. But when he is named and before the day of payment the mortgagee dies, the feoffor cannot pay the money to the executors of the mortgagee, for Littleton here says, that in this case the payment ought to be made to the heir. Et in hoc casu designalio tmius personce est eiclnsio alterius, et expression jacit cessare taciturn; and the law shall never seek out a person when the parties themselves have appointed one.

But if the condition be to pay the money to the feoffee his heirs Heir, or eiecuor executors, then the feoffor has election to pay it either to the heir or executor.

If a man make a feoffment in fee upon condition that the feoffee Hantranignt. shall pay to the feoffor his heirs or assigns twenty pounds at such a day, and before the day the feoffor makes his executors and dies, the feoffee may pay the same either to the heir or to the executors, for they are his assigns in law to this intent.

But if a man makes a feoffment in fee upon condition that if the Auigm— E«feoffor pay to the feoffee his heirs or assigns twenty pounds before ^^'the'atate. such a feast, and before the feast the feoffee makes his executors and dies, the feoffor ought to pay the money to the heir and not to the executors, for the executors in this case are no assigns in law; and the reason of this diversity is, that in the first case the law must of necessity find out assigns, because there cannot be any assigns in deed, for the feoffor has but a bare condition and no estate in the land which he can assign over. But in the other case the feoffee has an estate in the land which he may assign over; and where there may be assigns in deed, the law shall never seek out or appoint any assigns in law. And albeit the feoffee made no assignment of the estate, yet the executors cannot be assigns, because assigns were only intended by the condition to be assigns of the estate: and so was it resolved, Mich. 23 &, 24 Eliz. by the two chief justices in the court of wards between Randall and Brown, which I observed.

But if the condition be to pay the money to the feoffee his heirs Mortgagor not or assigns, and the feoffee makes a feoffment over, it is in the elec- notiee Jf tne tion of the feoffor to pay the money to the first feoffee or to the mortgagee',

i J J conveyance be

second feoffee; and if the first feoffee dies, the feoffor may either fore oonditwn pay the money to the heir of the first feoffee, or to the second feoffee, for the law will not force the feoffor to take knowledge of the second feoffment, nor of the validity thereof, whether the same be effectual or not, but at his pleasure, and the first feoffee and his heirs are expressly named in the condition.

Section 340.

Place of tender, Also, upon such case of a feoffment in mortgage, a question has person or on the been demanded in what place the feoffor is bound to tender the money to the feoffee at the day appointed Inc. And some have said, upon the land so holden in mortgage, because the condition is depending upon the land. And they have said that if the feoffor be upon the land there ready to pay the money to the feoffee at the day set, and the feoffee be not there, then the feoffor is quit and excused of the payment of the money, for it was no default in him. But it seems to some that the law is contrary, and that there was default in him ; for that lie is bound to seek the feoffee if he be in any other place within the realm of England. As if a man be bound in an obligation of twenty pounds upon condition endorsed upon the same obligation, that if he pay to him to whom the obligation is made at such a day ten pounds, then the obligation of twenty pounds shall lose its force and be holden for nothing; in this case it behoves him who made (he obligation to seek him to whom the obligation is made if he be in England, and at the day set to tender to him the said ten pounds, otherwise he shall forfeit the sum of twenty pounds comprised within the obligation Sf,c. And so it seems in the other case &c. And albeit that some have said that the condition is depending upon the land, yet this proves not that the performance of the condition ought to be made upon the land &c, Ho more than as if the condition were that the feoffor at such a day shall do some special corporeal service to the feoffee, not naming the place where such corporeal service shall be done. In this case the feoffor ought to do such corporeal service at the day limited to the feoffee in what place soever of England the feoffee be, if he will have advantage of the condition &c. So it seems in the other case. And it seems to them that it shall be more properly said, that the estate of the land is depending upon the condition, than to say that the condition is depending upon the land &c. Sed quaere &c.

Tender of mart- Also, upon such case of a feoffment in mortgage, a question has been m£$t'be't?the demanded #c] Here and in other places, that I may say once for permit; other- an wnere Littleton makes a doubt and sets down several opinions and the reasons, he ever sets down the better opinion and his own last, and so he does here. For at this day this doubt is settled, having been oftentimes resolved, that seeing the money is a sum [210 6] in gross and collateral to the title of the land, the feoffor must tender the money to the person of the feoffee according to the latter opinion, and it is not sufficient for him to tender it on the land; otherwise it is of a rent that issues out of the land. And if the condition of a bond or feoffment be to make a feoffment, there it is sufficient for him to tender it upon the land, because the estate must pass by livery.

wife of rent.

Within the realm of England.] For if he be out of the realm of El"7" mortgaEngland he is not bound to seek him or to go out of the realm tea. unto him. And for that the feoffee is the cause that the feoffor cannot tender the money, the feoffor shall enter into the land as if he had duly tendered it according to the condition.

If a man be bound to pay twenty pounds at any time during his if time of pay life at a place certain, the obligor cannot tender the money at the notice mutt bt place when he will, for then the obligee would be bound to perpe- ^'^n',, -, tual attendance, and therefore the obligor in respect of the uncertainty of the time must give the obligee notice that on such a day at the place limited, he will pay the money, and then the obligee must attend there to receive it: for if the obligor then and there tender the money, he shall save the penalty of the bond for ever, and so it is of a feoffment. But if at any time, the obligor or feoffor meet the obligee or feoffee at the place, he may tender the money.

Section 341. [2116]

But if a feoffment in fee be made,reserving to the feoffor a yearly Tenderofrent

rent, and for default of payment a re-entry 8rc., in this case the mus

tenant need not tender the rent when it is behind only upon

the land, because this is a rent issuing out of the land, which is

a rent seck. For if the feoffor be seised once of this rent, and

after he comes upon the land &c., and the rent is denied him, he

may have an assize of novel disseisin. For albeit he may enter Party having

by reason of the condition broken bc., yet he may choose either J^eUbwenter

to relinquish his entry, or to have an assize be. And so there "bringaction. is a diversity, as to the tender of a rent which is issuing out of the land, and of the tender of a sum in gross, which is not issuing out of any land.

Yet he may choose, either to relinquish his entry, or to have an assize.] Here it appears, that if the condition he broke for nonpayment of the rent, yet if the feoffor brings an assize for the rent due at that time, he shall never enter for the condition broken, because he affirms the rent to have a continuance, and thereby DUtreu pre- waives the condition. And so it is if the rent had had a clause of condition brok- distress annexed unto it, if the feoffor had distrained for the rent, Tt'ceiirtorre- ^or non-payment whereof the condition was broken, he should never **"*• enter for the condition broken, but he may receive that rent and

acquit the same, and yet enter for the condition broken. But if he accept a rent due at a day after, he shall not enter for the condition broken, because he thereby affirms the lease to have continuance.

Section 342.

Place should An D therefore it will be a good and sure thing for him who pointedinmoru makes such feoffment in mortgage, to appoint an especial pg« «>«<M°n. place where the money shall be paid, and the more especial it be Condition. put the better it is for the feoffor. As if A. infeoff B. to hold to him and his heirs, upon such condition that if A. pay to B. on the feast of Saint Michael the archangel next coming in the cathedral church of St. Paul's in London within four hours next before the hour of noon of the same feast at the rood loft of the rood of the north door within the same church, or at the tomb of Saint Erkenwald, or at the door of such a chapel, or at such a pillar within the same church, that then it shall be lawful to the aforesaid A. and his heirs to enter &c, in this case he need not seek the feoffee in any other place, or be in any other place, but only in the place mentioned in the indenture, nor be there longer than the time specified in the same indenture, to tender or pay the money to the feoffee &c.

Advice of c<mn- Here is good counsel and advice given, to set down in conveyances every thing in certainty and particularity, for certainty is the mother of quietness and repose, and uncertainty the cause of variance and contentions; and for obtaining the one, and avoiding the other, the best mean is, in all assurances, to take counsel of learned and well-experienced men who do not trust to memory only [but have recourse to] precedents.

Section. 343.

Also, in such case, where the place of payment is limited, the if a mortgagee feoffee is not bound to receive the money in any other place *^ly M than that so limited. But yet if he do receive the pay- another place,

J J * •* or before the

ment in another place, that is good enough and as strong for time, it is a

the feoffor as if the receipt had been in the place named. ance of the con

dition.

Hereby it appears that the place is but a circumstance; and therefore if the obligee receives it at any other place, it is sufficient, though he be not bound to receive it at any other place. And so it is if the money be to be paid on such a feast, yet if the [2126] money be tendered and received at any time before the day, it is sufficient.

Section 344.

Also, in the case of a feoffment in mortgage, if the feoffor So, if he accept pays to the feoffee a horse, or a cup of silver, or a ring of for°the money. gold, or any such other thing in full satisfaction of the money, and the other receives it, this is good enough, and as strong as if he had received the sum of money, though the horse or the other thing be not of the twentieth part of the value of the sum of money, because the other has accepted it in full satisfaction.

Hereupon are many diversities worthy of observation. First, Condition/or

there is a diversity, when the condition is for payment of money; „","«'"/■ oS

and when for the delivery of a horse, a robe, a ring, or the like: for """" sTM*'

■* . . secus i/ c con

where it is for payment of money, there if the feoffee or obligee verso.

accept a horse &c. in satisfaction, this is good : but if the condition

were for the delivery of a horse, or a robe, there, albeit the obligee or

feoffee accept money or any other thing for the horse &c, it is no

performance of the condition. The like law is, if the condition be to acknowledge a recognizance of twenty pounds 8tc, if the obligee or feoffee accept twenty pounds in satisfaction of the condition, it is not sufficient in law, but notwithstanding such acceptance, the condition is broken. And so it is of all other collateral conditions, though the obligee or feoffee himself accept it.

Condition to granger.

Secondly, if the condition be for payment of money to a stranger, there if the stranger accept a horse or any collateral thing in satisfaction of the money, it is no performance of the condition, because the condition in that case is strictly to be performed.

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Thirdly, where the condition is for payment of twenty pounds, the obligor or feoffor cannot at the time appointed pay a lesser sum in satisfaction of the whole, because it is apparent that a lesser sum of money cannot be a satisfaction of a greater. But if the obligee or feoffee do at the day receive part, and thereof make an acquittance under his seal in full satisfaction of the whole, it is sufficient, for the deed amounts to an acquittance of the whole. If the obligor or lessor pay a lesser sum either before the day, or at another place than that limited by the condition, and the obligee or feoffee receives it, this is a good satisfaction.

Collateral satisfaction.

Fourthly, not only things in possession may be given in satisfaction, (whereof Littleton puts his case,) but also if the obligee or feoffee accept a statute or a bond in satisfaction of the money, it is a good satisfaction.

Balance of account.

[213a]

If the obligor or feoffor be bound by condition to pay a hundred marks at a certain day, and at the day the parties account together, and because the feoffee or obligee owes twenty pounds to the obligor or feoffor, that sum is allowed, and the residue of the hundred marks is paid, this is a good satisfaction, and yet the twenty pounds was a chose in action, and no payment was made thereof, but by way of retainer or discharge.

Section 345.

Also if a man enfeoff another upon condition that he and his Rent of a lieirs shall render to a stranger and to his heirs a yearly rent of no rJ^,^y for< twenty shillings, &c. and if he or his heirs fail in payment thereof, that then it shall be lawful to the feoffor and his heirs to enter, this is a good condition: and yet in this case, albeit such annual payment is in the indenture called a yearly rent, this is not properly a rent. For if it be a rent, it must be either a rent service, a rent charge, or a rent secke, and it is not either of these. For if the stranger were seised of this, and after it were denied him, he shall never have an assise, because it is not issuing out of any tenements [of his,] and so the stranger is without remedy if such yearly rent be behind, but the feoffor or his heirs may enter, &c. And yet if the feoffor or his heirs enter for default of payment, then such rent is taken away for ever. And so such a rent is but a pain [or penalty] set upon the tenant and his heirs, that if they will not pay tlie rent according to the form of the indenture, they shall lose the land by the entry of the feoffor or his heirs for default of payment. And in this cuse it seems that the feoffee and his heirs ought to seek the stranger and his heirs if they be within England, because there is no place limited where the payment shall be made and such rent is not issuing out of any land.

Shall render to a stranger a yearly rent, fyc] This reservation is Resenatim to merely void for the reasons hereafter in this section alleged by Lit- simply void. tleton, and also because that no estate moves from the stranger and he is not party to the deed. And albeit it be a void reservation and no rent, yet the words of the condition being, that if the feoffee or his heirs fail of payment then, &c, the condition is good, and the words ' annual rent' shall be taken for a sum of money in gross, and not in their proper signification of a rent issuing out of land; and it is to be observed, that words in a condition may be taken out of their proper sense, ut res magis valeat quam pereat, and so in like cases it is holden in our books.

But if A. be seised of certain lands, and A. and B. join in a feoff- If a party to ment in fee, reserving a rent to them both and their heirs, and the ltra„ger, and power of du- feoffee grants that it shall be lawful for them and their heirs to distress is equiva- t

lent to a gram train for the rent, this is a good grant of a rent to them both, be° roiTn cause B. is a party to the deed, and the clause of distress is a grant

of the rent to A. and B. as it appears before in the chapter of Rents.

But if B. had been a stranger to the deed, then B. would have

taken nothing. And upon this diversity are all the books, which

prima facie seem to vary, reconciled.

Demand of sum For default of payment.] Note that seeing it is but a sum in

cesMry. gross, there need no demand of the rent; for Littleton here says,

that the feoffee ought to seek the person of the stranger to pay him

the sum of money because it is a sum in gross and not issuing out

of the land.

Section 346.

Reserration And here note two things: one is, that no rent {properly so grantor and liis called) can be reserved upon any feoffment, gift, or lease, but '"" only to the feoffor, or to the donor, or to the lessor, or to their

heirs, and in no manner may it be reserved to any strange person. But if tivo joint-tenants make a lease by deed indented, reserving to one of them a certain yearly rent, this is a good reservation to him to whom the rent is reserved, for he is privy to the lease and not a stranger thereto, &c.

To the feoffor, donor, fyc. or to their /wirsJ] Hereby it should seem that if a man makes a feoffment, gift, or lease, he may [omitting himself] reserve a rent to his heirs. But Littleton is not so to be understood; his meaning is, that either the feoffor, &c. may reserve the rent to himself only, or to himself and his heirs. And yet it is holden in our books, that a man may make a feoffment in fee, reserving a rent of forty shillings to the feoffor for term of his life, [214 a] and after his decease, a pound of cumming to his heirs.

To him or hit If a man make a feoffment in fee, reserving a rent to him or his

heirs, gwd only j^TM jt ja g00(j t0 \yim for term of his life, and void as to his heir.

Jot nis life. 'o'

Reservation to But if two joint-tenants make a lease bij deed indented, #c] This "emiies'ta'huT, case being by deed indented, is evident, and it has been touched before; but if two joint-tenants without a deed indented make a lease for life, reserving a rent to one of them, it shall enure to both in respect of the joint reversion.

when.

And so it is of a surrender to one of them, it shall enure to them Surrender to

• , onejoiut-teimnt

lX'tn. enures to both.

If two joint-tenants, the one for life, and the other in fee, join in Reservation to"

a lease for life, or a gift in tail, reserving a rent, the rent shall ''rmemUy ennres

enure to them both; for if the particular estate determine, they t0bvthshall be joint-tenants again in possession.

But if tenant for life, and he in the reversion join in a lease for Lease by tenant life, or a gift in tail by deed, reserving a rent, this shall enure to the jTM^,'^TM tenant for life only, during his life, and after to him in the reversion, for every one grants that which he may lawfully grant: And if at the common law they had made a feoffment in fee generally, the feoffee should have holden of the tenant for life, during his life, and after of him in reversion, and so it was ruled in the King's Bench.

Section 347. The second thing is, that no entry or re-entry (which is all Re-entry re

* scrvable to

one) may be reserved or given, to any person, but only to the grantor and his feoffor, or to the donor, or to the lessor, and their heirs: and 'eirs on y' such re-entry cannot be given to any other person. For if a man It cannot be in

gross.

lets land to another for term of life by indenture, rendering

to the lessor and to his heirs a certain rent, and for default of

payment a re-entry, 8?c. if afterward the lessor by a deed grants

the reversion of the land to another in fee, and the tenant for term

of life attorns, &c. if the rent be afterwards behind, the grantee of Grantee of re

the reversion may distrain for the rent, because the rent is euteTi Dut may

incident to the reversion; but he may not enter into the land and '1'strain.

oust /lie tenant as the lessor or his heirs might have done, if the

reversion had been continued in them, fyc. And in this case the

entry is taken away for ever; for the grantee of the reversion

cannot enter, causa qua supra. And neither can the lessor or his

heirs enter; for if the lessor might enter, then he ought to be in

Right of action or entry not grantable. Champerty.

his former estate, 8jc, which he cannot be, because he has aliened away the reversion.

That no entry, <3fc] Here Littleton recites one of the maxims of the common law; and the reason hereof is, for avoiding of maintenance, suppression of right, and stirring up of suits; and therefore nothing in action, entry, or re-entry can be granted over; for so under colour thereof pretended titles might be granted to great men, whereby right might be trodden down, and the weak oppressed, which the common law forbids; [so that none may] grant before they be in possession.

Condition and conditional limitation distinguished at to grantee's right of entry.

[2146]

For default of payment a re-entry, fyc.~\ Hereupon is to be collected divers diversities. First, between a condition that requires a re-entry, and a limitation that ipso facto determines the estate without any entry. Of this first sort no stranger, as Littleton says, can take advantage. But of limitations it is otherwise. As if a man make a lease quousque, that is, until I. S. comes from Rome, and the lessor grants the reversion over to a stranger, then I. S. comes from Rome, the grantee shall take advantage of it and enter, because the estate by the express limitation was determined. So it is if a man make a lease to a woman quamdiu casta vixerit, or if a man make a lease for life to a widow si tamdiu in purd viduitate viveret. So it is if a man make a lease for a hundred years if the lessee lives so long, and the lessor grants over the reversion, and the lessee dies, the grantee may enter, causa qua supra.

So bttteeen con- 2. Another diversity is between a condition annexed to a free'to'frtthMmi no'^» an(l a condition annexed to a lease for years. For if a man terms for yean, make a gift in tail or a lease for life upon condition that if the donee or lessee goes not to Rome before such a day the gift or lease shall cease or be void, the grantee of the reversion shall never take advantage of this condition, because the estate cannot cease before an entry; but if the lease had been for years, [i.e. to A. for years upon condition that if he do not go Rome before such a day the lease shall be void, as distinguished from a clause that then the lessor shall re-enter,] there the grantee may take advantage of the condition, because the lease for years is by breach of the condition ipso facto void without any entry; for a lease for years may begin without ceremony, and so may it end without

ceremony; but an estate of freehold cannot neither begin nor end Void and voidwithout ceremony. And of a void thing a stranger may take rule'.5 benefit, but not of a voidable estate by entry.

To the feoffor, or to the donor, Sfc. or to their heirs, jfc] Here is Reservation to to be observed a diversity between a reservation of a rent and a re- f£TM "condition entry: for (as hath been said) a rent cannot be reserved to the '"h,me<wd> heir of the feoffor, but the heir may take advantage of a condition which the feoffor could never do. As if 1 enfeoff another of an acre of ground upon condition that if my heir pays to the feoffee, &c. twenty shillings, that he and his heir shall re-enter, this condition is good: and if after my decease my heir pays the twenty shillings, he shall re-enter, for he is privy in blood, and enjoys the land as heir to me.

But only to the feoffor, c\x. or to their heirs.] Our author speaks Lease by cohere of natural persons only by way of example, for if a bishop, arch- pf'""^ mc~ deacon, parson, prebend, or any other body politic or corporate eccle- 'nurfor cmsiastical or temporal, make a lease, Sec. upon condition, his successor may enter for the condition broken, for they are privy in right.

And so if a man have a lease for years and demises or grants the So may exeeusame upon condition, &c. and dies, his executors or administrators £££ un"' may enter for the condition broken, for they are privy in right and represent the person of the dead.

If cestuique use had made a lease for years, &c. upon condition, Lease by cestui the feoffees should not enter for the condition broken, for they are ^"ec^J £["£. privy in estate, but not privy in blood. [215a]

Another diversity is in case of a lease for years, where the con- Grantee may dition is that the lease shall cease and be void, as is aforesaid, and beVOid, seCus if where the condition is, that the lessor shall re-enter, for there the ta"T **'""'

''enter.

grantee, as Littleton says, shall never take benefit of the condition. [What if it bo both, see6M. fcS. 121. 6 B. &C.519. 4B.&A. 401. 2 Russ. 174.]

And it is to be observed, that where the estate or lease is ipso Void lease not

facto void by the condition or limitation, no acceptance of the '""^atce ^

rent afterwards can give it continuance, [because the acceptance r«"'>contr* "f

Uase voidabu of rent cannot make a new lease, and the old one is determined]:

by entry. !_•••/•

otherwise it is of an estate or lease voidable by entry.

Grantee mat/ Another diversity is between conditions in deed, whereof suf

ofco>«ntiaTM't ficient has been said before, and conditions in law. As if a man

Umel'a^'i/aL make a lease for life' there is a condition in law annexed unto nant for uf, it, that if the lessee makes a greater estate, 8cc. that then

make a larger ,

estate, ifc. the lessor may enter. Of this and the like conditions in law, which give an entry to the lessor, the lessor himself and his heirs shall not only take the benefit of it, but also his assignee and the lord by escheat, every one for the condition in law broken in his own time.

And now by Another diversity there is between the judgment of the common

rererfioTrZy 'aw> whereof Littleton wrote, and the law at this day by force of the take advantage statute of 32 H. 8. c. 34. For by the common law no grantee or

"J re-entries and J 6>

forfeitures. assignee of the reversion could (as hath been said) take advantage of a re-entry by force of any condition. For at the common law, if a man had made a lease for life reserving a rent, &c. and if the rent be behind a re-entry, and the lessor grants the reversion over, the grantee should take no benefit of the condition, for the cause before rehearsed. But now by the said statute of 32 H. 8., the grantee may take advantage thereof, and upon demand of the rent and nonpayment, he may re-enter. By this act it is provided, that as well every person who 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 heirs, executors, successors, and assignees shall have like advantage against the lessees, &c. by entry for non-payment of the rent, or for doing of waste or other forfeiture, &c. as the said lessors or grantors themselves ought or might have had. Upon this act divers resolutions and judgments have been given, which are necessary to be known.

Act extends to 1. That the said statute is general, viz. that the grantee of the not to gifts in' reversion of every common person, as well as of the king, may take advantage of conditions. 2. That the statute extends to grants made by the successors of the king, albeit the king be only named in the act. 3. That where the statute speaks of lessees, the same docs not extend to gifts in tail.

4. That where the statute speaks of grantees and assignees of Alto to gnmte the reversion, an assignee of part of the estate of the reversion „tatt;

may take advantage of the condition. As if lessee for life be, &c. and the reversion is granted for life, &c. So if lessee for years, &.c. be, and the reversion is granted for years, the grantee for years may take benefit of the condition in respect of this word (executors) in the act.

5. That a grantee of part of the reversion shall not take advan- not to grantee tage of the condition: as if the lease be of three acres, reserving °{J£

a rent upon condition, and the reversion is granted of two acres, the rent shall be apportioned by the act of the parties, but the condition is destroyed, for that it is entire and against common right.

6. That with respect to the king, the condition [in case of an Except in king't assignment of the reversion in part of the land] is not destroyed, but still remains in the king.

caie;

7. By act in law a condition may be apportioned in the case of °rgrantt»be

n r. inoy law*

a common person; as if a lease for years be made of two acres, one of the nature of Borough English, the other at common law, and the lessor having issue two sons, dies, each of them may enter for the condition broken; and likewise a condition may be apportioned by the act and wrong of the lessee, as hath been said in the chapter of Rents.

8. If a lease for life be made, reserving a rent upon a condition, 8cc. Uuor [in tail] and the lessor levies a fine of the reversion, he is a grantee or assignee ^^'ftf^ of the reversion; but without attornment he shall not take advantage """•

of the condition, for the makers of the statute intended to have all necessary incidents observed, otherwise it might be mischievous to the lessee. [Contra now attornment taken away.]

9. There is a diversity between a condition that is compulsory, Power and conand a power of revocation that is voluntary: for a man who has a mMedaVtoeipower of revocation may by his own act extinguish his power of '"'guUhment m revocation in part, as by levying of a fine of part; and yet the

power shall remain for the residue, because it is in nature of a limitation, and not of a condition; and so it was resolved in the Earl of

Shrewsbury's case in the Court of Wards. Pasch. 39 Eliz. and
Mich. 40 & 41 Eliz.

Statute eiunds 10. If the lessor bargains and sells the reversion by deed indented

to cestui que

u«. and inrolled, the bargainee is not in the per by the bargainor,* and

[2156] yet he is an assignee within the statute. So if the lessor grant the

reversion in fee to the use of A. and his heirs, A. is a sufficient

assignee within the statute, because he comes in by the act and

limitation of the party, albeit he is in the pos/,and the words of the

statute be, to or by, and they be assignees to him, although they

be not in by him: but such as come in merely by act in law, as the

lord by escheat, for forfeiture on mortmain, or the like, they shall

not have the benefit of this statute.

Notice of as- 11. If the lessor in the case before [mentioned] bargain and sell

$ignment to he

::iin, to lessee, the reversion by deed indented and inrolled, or if the lessor make a feoffment in fee, and the lessee [commits a breach of the condition] the grantee or feoffee shall not take advantage of the condition without giving notice [of the assignment] to the lessee.

stat.eitendsnat 12. Albeit the words of the statute be, for non-payment of not incident to rent> or for doing of waste or other forfeiture, yet the grantees estate, as mms QI assignees shall not take benefit of every forfeiture by force of a condition, but only where the condition is incident to the reversion, as rent, or for the benefit of the estate, as for preventing waste, for keeping houses in repair, for maintaining fences, scouring ditches, preserving woods, or such like, and not [where the condition is] for payment of a sum in gross, delivery of corn, wood, or the like; so that the words "other forfeiture" shall be taken for other forfeitures like to those which are there put, (videlicet) payment of rent, not doing of waste, 8tc. which are for the benefit of the reversion.

Section 348.

Lord by escheat Also, if lord and tenant be, and the tenant makes a lease for term rent, but can-"' °f ltfe> rendering to the lessor and his heirs such an annual rent, and for default of payment a re-entry, &c. if after the lessor dies without heir during the life of the tenant for life, whereby the reversion comes to the lord by way of escheat, and after the rent of the tenant for life is behind, the lord may distrain the tenant for the rent behind; but he may not enter into the land by force of the condition, &c. because he is not heir to the lessor, cjc.

not enter for

breach of con- "''"

dition. • There is some obscurity in the law concerning the bargainee being in the post

of the bargainor; see Gilb. Uses, 102, and Cov. Watk. Prin. 301.

To the lord by way of escheat, <5fc.] Note, here it appears, that Ue,n includes

.... , . ... assigns indeed

the lord by escheat shall distrain for the rent, and yet the rent was and in law.

reserved to the lessor and his heirs; but both assignees in deed and

assignees in law shall have the rent, because the rent being reserved

of inheritance to the lessor and his heirs, is incident to the reversion,

and goes with the same. But if the rent were reserved to him and his Reservation of

assigns, and the lessor assigned over the reversion and died, the 'illLr* ano^nti

assignee shall not have the rent after his decease, because the rent 5OTf"*" mtn

. . for life.

determined by his death, for that it was not reserved to him his heirs and assigns.

But he may not enter into the land by force of the condition, #c] Assigns could Hereby it appears, that at the common law neither assigns in deed common uiW. nor assigns in law could have taken the benefit of either entry or re-entry by force of a condition.

Because that he is not heir to the lessor, 6fc.~\ The guardian in Guardian may chivalry or in socage shall in the right of the heir take benefit of a d"itionZoken. condition by entry or re-entry, by the common law, and so it is here implied.

Section 349. [216a]

Also, if land be granted to a man for term of two years upon Condition precondition that if he shall pay to the grantor within the said f^emtohwe two years forty marks, then lie shall have the land to him and to fee on payment

,. , T /• of a sum good,

his heirs Sfc. in this case if the grantee enter by force of the grant, if with livery.

without any livery of seisin made to him by the grantor and

after he pays the grantor the forty marks within the two years,

yet he has nothing in the land but for term of two years, because no

livery of seisin was made to him at the beginning. For if he

should have a freehold and fee in this case, because he has per

formed the condition, then he would have a freehold by force of the first grant, where no livery of seisin was made to him, which would be inconvenient. But if the grantor had made livery of seisin to the grantee by force of the grant, then should the grantee have the freehold and the fee upon the same condition.

Here six things are to be observed. First,"that Littleton here puts example of a condition precedent. Secondly, that such a condition which creates an estate may be made by parol without deed. Livery toteimut Thirdly, that livery of seisin in this case must be made before the iviST"*' lessee enter (as Littleton here says at the beginning), for after entry livery made to tenaut in possession is void, as hath been said. Fourthly, that if no livery of seisin be made, no feesimple passes, although the money be paid. Fifthly, that it is inconvenient that the fee-simple jshould pass in this case without livery of seisin. Sixthly, that ab argumentum ab inconvenient! is forcible in law, as often hath been and shall be observed. See more of this kind of condition in the Section next following.

[2166] Section 350.

Tenant to have Also, if land be granted to a man for term of five years, upon

fee on payment '. J / ....

of a sum, if condition, that if lie pay to the grantor within the two first years has thefaf sub- forty marks, that then he shall have the fee, or otherwise but for

ject to be de- ierm 0f five years, and livery of seisin is made to him by force of

vested on non- J •/ J J J J J J

payment. the grant, now lie has a fee-simple conditional, &c. And if in this

case the grantee does not pay to the grantor the forty marks within the first two years, then immediately after the said two years past, the fee and the freehold is and shall be adjudged in the grantor, because the grantor cannot after the said two years presently enter upon the grantee, for that the grantee has yet title by three years to have and occupy the land by force of the same grant. And so because the condition on the part of the grantee is broken, and the grantor cannot enter, the law will put the fee and the freehold in the grantor. For if the grantee in this case makes waste, then, after breach of the condition, &c. and after the two 'years, the grantor may have his writ of waste. And this is a good proof that the reversion is in him, &c.

[peculiar reason, as he could not maintain waste if he had not the reversion in fee.]

Now he has a fee-simple conditional, fyc] The like is of an estate in tail, or for life. Many are of opinion against Littleton in this case, and their reason is, because the fee-simple is to commence upon a condition precedent, and therefore cannot pass until the condition be performed; and that here Littleton of a condition precedent doth (before the performance thereof) make it subsequent; and for proof of their opinion they vouch many authorities that that no fee-simple should pass before the condition performed. But notwithstanding this there are those that defend the opinion of Littleton, both by reason and authority. By reason, for that by the rule of law a livery of seisin must pass a present freehold to some person, and cannot give a freehold infuturo, as it must do in this case,, if after livery of seisin made the freehold and inheritance should not pass presently but expect until the condition be performed; and therefore if a lease for years be made to begin at Michaelmas, the remainder over to another in fee, if the lessor make livery of seisin before Michaelmas, the livery is void, because if it should work at all it must take effect presently, and cannot expect. 2dly. They say that when the lessor makes livery to the lessee, it cannot stand with reason that against his own livery of seisin a freehold should remain in the lessor, seeing there is a person able to take it. But if a man by deed make a lease for Contingent «years, the remainder to the right heirs of I. S., and the lessor make nwindrrmttrm livery to the lessee secundum formam chartee, this livery is void, because during the life of I. S. his right heir cannot take (for nemo est hares viventis), and in that case the freehold shall not remain in the lessor and expect the death of I. S. during the term; for albeit I. S. die during the term, yet the remainder is void, because a livery of seisin cannot expect. And it is not rare, say they, in our books, |"217i] that words shall be transposed and marshalled so that the feoffment or grant may take effect. As if a man in the month of February make a lease for years, reserving a yearly rent payable at the feasts of Saint Michael the archangel, and the annunciation of our Lady, during the term, the law (in this case of reservation) will make transposition of the feasts, viz. at the feasts of the annunciation and of Saint Michael the archangel, that the rent may be paid yearly during the term. And further they take a diversity in this case between a lease for life and a lease for years. For in case of

a lease for life with such a condition to have the fee, they agree that the fee-simple passes not before the performance of the condition, for that the livery may presently work upon the freehold; but otherwise it is [they contend] in the case of a lease for years. Also they take a diversity between inheritances that lie in grant and inheritances that lie in livery. For they agree that if a" man grant an advowson for years upon condition, that if the grantee pay twenty shillings 8cc. within the term, that then he shall have the fee, the grantee shall not have the fee until the condition be performed. Et sic de simi/ibus. But otherwise it is [say they] where livery of seisin is requisite, and therefore if the king make such a lease for years upon such a condition, the fee-simple shall not pass presently, because in that case no livery is made.—Learned reader, draw your own conclusion; there is nothing decisive on the point. A condition in benefit of the estate is construed largely, according to the intention of the parties; but a condition which destroys the estate is construed strictly and taken according to the literal meaning of the words.

Voidable estate not avoided without entry or claim, but avoidance mat] be waived.

Because the grantor cannot enter Sfc] Regularly when any man will take advantage of a condition, if he may enter he must enter [or claim to avoid the estate], and when he cannot enter he must make a claim, and the reason is, for that a freehold and inheritance shall not cease without entry or claim, and also the feoffor or grantor may waive the condition at his pleasure. As if a man grant an advowson to another and his heirs upon condition, that if the grantor &c. pay twenty pounds on such a day &c, the estate of the grantee shall cease or be utterly void, and the grantor pays the money, yet the estate is not revested in the grantor before a claim, and that claim must be made at the church. And so it is of a reversion or remainder of a rent, or common, or the like, there must be a claim before the estate be revested in the grantor by force of the condition, and that claim must be made upon the land. A Jortiori, in case of a feoffment where the land passes by livery of seisin there must be a re-entry by force of the condition before the estate be void.

Though estate If a man bargains and sells land by deed indented and enrolled

void, it does not .. . , . - . - . „ .. .

re-veii tilt entry with a proviso, that it the bargainor pay &c, that then the estate

or claim. shall cease and be void, and he pays the money, the estate is not

revested in the bargainor before re-entry; and so it is if a bargain and sale be made of a reversion, remainder, advowson, rent, common &c. And so it is if lands be devised to a man and his heirs upon condition that if the devisee pay not twenty pounds at such a day, that his estate chall cease and be void, and the money is not paid, the estate shall not be vested in the heir before entry. And so it is of a reversion or remainder, an advowson, rent, common, or the like.

But the said rule hath divers exceptions. First, in this case Exceptions. of Littleton [in the text, where the tenant has the fee subject to be divested on his not performing the condition within half the term, there as the lessor] can make no entry [by reason of the tenant's right to the possession during the residue of the term], he shall not be driven to make any claim to the reversion: for seeing by construction of law the freehold and inheritance passes immediately and together out of the lessor; by like construction the freehold and inheritance by the default of the lessee shall be revested in the lessor without entry or claim.

Secondly, if I grant a rent charge in fee out of my land upon H"" charge. condition, there, if the condition be broken, the rent shall be extinct, because I (that am in possession of the land) need not make a claim upon the land, and therefore the law will adjudge the rent void without any claim.

Thirdly, if a man make a feoffment to roe in fee upon condition if land be re

LTin i_ . i in ii/. leased to feoffor.

that I shall pay unto him twenty pounds at a day &c., and before he, bcmginposthe day I let to him the land for years, reserving a rent, and after """'''caanot fail in payment, the feoffor shall retain the land to him and to his [2186] heirs, and the rent is determined and extinct, for the feoffor could not enter nor need he claim upon the land, for he himself is in possession, and the condition being collateral is not suspended by the lease, otherwise it is of rent reserved.

Fourthly, if a man by his deed in consideration of fatherly love Power of moke, covenant to stand seised to the use of himself for life, and after caiwnhis decease, to the use of his eldest son in tail, the remainder to his second son in tail, the remainder to his third son in fee, with a proviso of revocation &c. and the father makes a revocation according to the proviso, the whole estate is immediately revested in him without entry or claim for the cause aforesaid.

Suspension. The grantee has yet title by three years.] By this it appears that

albeit the lessee had pro tempore a fee-simple, yet after that feesimple is divested out of him, and vested in the lessor, he shall hold the lands for three years by the express limitation of the parties.

Merger of one If a man make a lease for forty years, and the lessee afterwards the una in re-' takes a lease for twenty years upon condition that if he does such wtludkeZed an act' tnat ^en t'ie ^ease ror twenty years shall be void, and after by condition, the lessee break the condition, by force whereof the second lease is

and 10 both lost; . '*

void, notwithstanding this, the lease for forty years is surrendered, for the condition was annexed to the lease for twenty years, but the surrender was absolute. So it is if a man make a lease for forty years, and the lessor grants the reversion to the lessee upon condition, and after the condition broken, the term is absolutely but mrrender surrendered. And the diversity is when the lessor grants the redu'ionai.soas version to the lessee upon condition, and when the lessee grants mbrmcV""" or surrenders his estate to the lessor; for a condition annexed to a surrender may revest the particular estates, because the surrender is conditional. But when the lessor grants the reversion to the lessee upon condition, there the condition is annexed to the reversion, and the surrender is absolute.

Running leate A man makes a lease for terra of life by deed, reserving the first

— J.tote has a , ,

term only for seven years a rose, and if the lessee will hold the land after the seven whkhZ'elects years> to pay a rent in money; and the lessee will not hold over, to take. DUj surrenders his term: in this case in judgment of law he had but

a term for seven years. And so it is if a man makes a lease for life, and if the lessee within one year pay not twenty shillings, that he shall have but a term for two years, if he pay not the money the estate for life is determined, and he shall have the land but for two years.

Plaintiffs m This is a good proof then, that the reversion is in him &c] Here

waste must have ...... , . « .,

immediate estate 1S implied that no man can have an action ot waste, unless the reof inheritance. versjon De m him, an(j by j^e authority of our author the reason of a case, and well applied, is a good proof in law.

Section 351.

But in such cases of feoffments on condition, where the feoffor Freehold reway lawfully enter for the condition broken &c., there the feoffor entry.ony "n has not the freehold before his entry &c.

Section 352.

Also if a feoffment be made upon condition that the feoffee Condition to aImlI give the land to the feoffor and to the wife of the feoffor to c. in special have and to hold to them and to the heirs of their two bodies c'shalfhav?' engendered, and for default of such issue, the remainder to the an eslate *""

. . . - . waste.

right heirs of the feoffor; in this case if the husband dies, living the wife, before any estate in tail made to them &c. then ought the feoffee by the law to make an eslate to the wife as near the condition and also as near to the extent of the condition as he may make it, that is to say, to let the land to the wife for term of life without impeachment of waste with remainder after her decease to the heirs of the body of her husband on her begotten, and for default of such issue, remainder to the right heirs of the husband. And the cause why the lease shall in this case be to the wife alone without impeachment of waste is, for that the condition is that the estate be made to the husband and wife in tail. And if such estate had been made in the lifetime of the husband, then after the death of the husband she would have had an estate tail, which estate is without impeachment of waste. And so it is reason, that as near as a man can make the estate to the intent of the condition it should be made &c. albeit she cannot have an estate tail as she might have had if the gift in tail had been made to her husband and to her in the life of her husband.

That the feoffee shidl give fyc.'] Here is no time limited, therefore what if no tim* the feoffee by the law has time during his life, unless he be hastened f^manlelfcmby the request of the feoffor or the heirs of his body, as Littleton rf'""i'1n says in the next section. But in this case, if the feoffee dies before any feoffment be made, then is the condition broken, because he made not the estates &c. within the time prescribed by law. But if the feoffment be made upon condition that the feoffee before

B B

the feast of St. Michael the Archangel next following give the land to the feoffor and to his wife in tail ut supra, and before the day the feoffee dies, the estate of the heir of the feoffee shall be absolute, because a certain time is limited by the mutual agreement of the parties, within which time the condition becomes impossible by the act of God, as hath been said before; and therefore it is necessary when a day is limited, to add to the condition, that the feoffee or his heirs do perform the condition; but when no time is limited, then the feoffee at his peril must perform the condition during his life (although there be no request made) or else the feoffor or his heirs may re-enter. But albeit in the case put by Littleton, the f£me be a stranger, yet the feoffee is not bound to make the estate within convenient time, because the feoffor who is privy to the condition is to take jointly with her. And so it is if the condition be to enfeoff the feoffor and a stranger, the feoffee has time during his life, unless he be hastened by request, Otherwise it is (as hath been said) where the condition is to enfeoff a stranger or strangers only. If a man make a feoffment in fee, upon condition that the feoffee shall make a gift in tail to the feoffor, the remainder to a stranger in fee, there the feoffee has time during his life, as is aforesaid, because the feoffor who is party and privy to the condition, is to take the first estate. But if the condition were to make a gift in tail to a stranger, with remainder to the feoffor in fee, there the feoffee ought to do it in convenient time, for that the stranger is not privy to the condition, and he ought to have the profits presently, as before hath 1>een said.

Conditions to create and destroy estate distinguished.

To make an estate to the wife as near the condition as he may make »>.] A diversity is to be undersood between conditions that are to create an estate, and conditions that are to destroy an estate: for here it appears, that a condition which is to create an estate is to be performed by construction of law as near the condition as may be, and according to the intent and meaning of the condition, albeit the letter and words of the condition cannot be performed: but otherwise it is of a condition that destroys an estate, for that is to be taken strictly, unless it be in certain special cases: and of this somewhat hath been said before in this Chapter.

Mortgage As if a man mortgage his land to W. upon condition, that if the

paldly"mort- mortgagor and I. S. pay twenty shillings at such a day to the ffrfn"' """if" mortgagee, that then he shall re-enter, and the mortgagor dies before the day, and I. S. pays the money to the mortgagee, this is a good mortgagor, dies, performance of the condition, and yet the letter of the condition is i^'f"may not performed. But if the mortgagor had been alive at the day, and he would not pay the money but refused to pay the same, and I. S. alone had tendered the money, the mortgagee might have refused it.

But if man makes a lease to two for years, with a proviso, if the Lease to cease lessees die during the term, the lessor shall re-enter, and one lessee "faj£ 0„e m aliens his part and dies, the lessor cannot re-enter, but the assignee "'"'" andf du$< shall enjoy the term so long as the survivor lives; and the reason is, feited. because the lease by the proviso is not to cease till both are dead. But in the former case, albeit the mortgagor be dead, yet the act of God shall not disable I. S. to pay the money, for thereby the mortgagee receives no prejudice. And so it is in that case, if I. S. had died before the day, the mortgagor might have paid it. And here is to be observed a diversity, when the feoffee dies, for then (as hath been said) the condition is broken, and when the feoffor dies, for then the estate is to made as near the intent of the condition as may be.

To the wife for term of life, without impeachment of waste.] Here Tht, clause sans it appears, that this estate for life ought to be without impeach- ^Uedmthout ment of waste, and yet if the wife accepts of any estate for life l"r"ch "J c""' without this clause,' without impeachment of waste,' it is good, because the estate for life is the substance of the grant, and the privilege to be without impeachment of waste is collateral, and only for the benefit of the wife, and the omission of it only for the benefit of the heir. Also if the wife take husband before request made, and then they make request, and the estate is made [220a] to the husband and wife, during the life of the wife, this is a good performance of the condition, albeit the estate be made to the husband and wife, where Littleton says it is to be made to the wife, but it is all one in substance, seeing that the limitation is during the life of th e wife.

Without impeachment of waste.] That is without any challenge Sans waste or impeachment of waste; and by force hereof the lessee may cut down the trees and convert them to his own use. Otherwise it is if the words were sans impeachment per ascun action de waste, for then the| discharge extends only to the action, and not to the trees themselves, and in that case the lessor shall have them.

Section 353. No time men- Also in this case if the husband and wife have issue and die be

tioned for doing ,...., , to i jr i

a thing, it may fore the gift in tail made to them ore, then thefeojjee ought to life unless""6 make an estate to the issue and to the heirs of the body of his hastened by father and mother begotten, and for default of such issue, be. the remainder to the right heirs of the husband, &c. 'And the same law is in other like cases: and if such a feoffee will not make such estate when he is reasonably required by them who ought to have the estate by force of the condition, &c. then may the feoffor or his heirs enter.

When he is reasonably required by them who ought to have the essate by force of the condition.] Note, here it appears that the feoffee has time during his life to make the estate, unless he is otherwise required by them who are to take the estate. This is to be intended of parties or privies, and not of mere strangers, for there (as hath been said) the estate must be made in convenient time. And concerning the request it is to be known, that when the request is made, the party or privy must request the feoffee at a time certain to be upon the land, and to make the estate according to the condition, for seeing no time certain is prescribed for the making of the estate, and it is uncertain when the request will be made, such request and notice must be made as hath been said before in this chapter. And of this section, with the (<Sjc.) there needs not upon that which has been said, any farther explication.

[220 6] Section 354.

Condition to Also if a feoffment be made upon condition that the feoffee shall

men" howTo be re-enfeoff many men to have and to hold to them and to their heirs

executed ifthey yor everf and all they who ought to have estates die before any

estate is made to them, then ought the feoffee to make the estate

to the heir of him who survives to have and to hold to him and

to the heirs of him who survives.

Hein of him To the heir of him who survives.] Hereupon questions have been

made, wherefore the habendum is not to the heirs of the heir, and for what reason it is by Littleton limited to the heirs of the survivor? And the cause is, for that if it were made to the heirs of the heir, then some persons by possibility would be inheritable to the land who would not have inherited if the estate had been made to the survivor and his heirs, and then the condition would not be strictly performed. For example, if the survivor took to wife Alice Fairfield, and the limitation were to his son [i. e. the eldest son and heir of the survivor] and his heirs, then if the son should die without heirs of his father, the blood of the Fairfields (being the blood of his mother) would inherit. But if the limitation be to the right heirs of the father [i. e. of him who survives] then shall not the blood of the Fairfields by any possibility inherit, [for by no possibility could the heirs of the wife become the heirs of the husband as such]; and therefore these words (and to the heirs of him who survives), which many have thought superfluous, are very material

Section 355.

Also, if a feoffment be made upon condition to enfeoff another, or Feoffee's alien

to make a gift in tail to another, if the feoffee before the perform- him fl.0^"

ance of the condition enfeoff a stranger, or make a lease for life, '°r!nin?TM"".

then may the feoffor and his heirs enter, Sfc'. because he has disabled a forfeiture. himself to perform the condition, inasmuch as he has made an estate to another, &c.

Littleton having spoken of defaults of performance, or express breaches of conditions, speaks now in what cases the feoffee in judgment of law disables himself to perform the condition; and of disabilities, some are by act of the party, and some by act in law.

Enfeoff a stranger, or make a lease for life.'] This is a disability [22 la] by the act of the party, for herein the feoffee has disabled himself to make the feoffment or other estate according to the condition. And to speak once for all, the feoffee is disabled when he cannot convey the land over according to the condition in the same plight, quality, and freedom as the land was conveyed to him; for so the law requires the same, as shall manifestly appear hereafter. And here where our author speaks of a feoffment, he includes an estate tail as well as the fee-simple.

Section 356. Even lease for In f^e same manner it is, if the feoffee before the condition per

years is such a J J M J . .

disability. formed, lets the same land to a stranger for term of years; in this case the feoffor and his heirs may enter, &c. because the feoffee has disabled himself to make an estate of the tenements according to that which was in the tenements when the estate thereof was made to him. For if he will make an estate of the tenements according to the condition, fyc. then may the lessee for years enter and oust him to whom the estate is made fyc. and occupy the same during his term.

If the feoffee, before the condition performed, lets the same land to a stranger for term of years, #c] Here the fyc. implies a lease to take effect infuturo as well as in precsenti, also a lease for one year or half a year, &c.

Section 357.

Andbyfeoffee's And many have said, that if such feoffment be made to a single wifelecomes man uPon tne same condition, and before he has performed the dowable, which condition he takes a wife, then the feoffor and his heirs may enter

alters the plight J J M . *

of the tene- presently, because if he makes an estate according to the condition, and dies, then the wife shall be endowed, and may recover her dower by a writ of dower cVc. and so by taking a wife the tenements are put in another plight than they were in at the time of the feoffment made, for then no such wife was dowable, nor should be endovsed by the law fyc.

Dower of estate First, here is an example of a disability both by act in law and ""r291 'n '" futuro> f°r by marriage the wife is entitled by law to dower after the death of her husband. Secondly, it appears that albeit the wife by the marriage is but entitled to dower, and the estate which she is to have is infuturo, viz. after the decease of her husband, yet it is a present cause of entry. As a lease for years to begin at a day to come is a present disability and cause of re-entry, for that the land is not in that freedom and plight as it was conveyed in to the feoffee, and after the estate made over according to the con

dition the land would be charged therewith, [which would be against reason and therefore the feoffor in entering shall take discharged of the feoffee's wife's dower, S. 358.]

In another plight.'] Plight is an old English word, and here sig- Plight, what. nines not only the estate but the habit and quality of the land, and extends to rent charges, and to a possibility of dower. See Sect. 289, where plight is taken for an estate or interest of and in the land itself, and extends not to a rent charge out of the land.

Tlten the feoffor and his heirs may enter presently.] Here it Condition how appears, that seeing for this title or possibility the feoffor may jissliamage presently enter, that albeit the wife happen to die before the hus- or ot,b" vmible

'J _ . . . disability.

band, so that the title or possibility takes no effect, yet the feoffor may

re-enter, for the feoffee being disabled at any time though the same

continue not, yet the feoffor may re-enter, for in that case he that is

once disabled is ever disabled. And herein a diversity is to be

observed between a disability for a time on the part of the feoffee,

and a disability for a time on the part of the feoffor. For if a man

makes a feoffment in fee, upon condition that the feoffee before such

a day shall re-infeoff the feoffor, and the feoffee takes wife, and the

wife dies before the day, yet may the feoffor may re-enter. So it is if [222 a]

the feoffee before the day makes a feoffment in fee, and before the

day takes back an estate to him and his heirs, yet the feoffor may

re-enter.

But if a man make a feoffment in fee upon condition, that if the if feoffor's disfeoffor or his heirs pay a certain sum of money before such a day, and J^1'* "me no the feoffor commits treason, is attainted and executed, now is there impediment ■,

contra if

a disability on the part of the feoffor, for he has no heir; but if the feoffee.
heir be restored before the day he may perform the condition.
Otherwise it is if such a disability had grown on the part of the
feoffee; and the reason of the diversity is, for that, as Littleton
says, presently by the disability of the feoffee, the condition is
broken, and the feoffor may enter, but so it is not by the disability
of the feoffor, or his heirs; for if they perform the condition within
the time it is sufficient, for that they may at any time perform the
condition before the day.

Section 358.

Feoffee's rentcharge or stat. a disability.

In the same manner it is, if the feoffee charge the land by his deed with a rent charge before the performance of the condition, or be bound in a statute staple, or statute merchant, in these cases the feoffor and his heirs may enter &c. causa quS. supra. For whosoever comes to the lands by the feoffment of the feoffee, they ought to be liable, and put in execution by force of the statute merchant, or of the statute staple. Quaere.

Entry for condition defeats feoffee's incumbrances.

But when the feoffor or his heirs, for the causes aforesaid, shall have entered, as it seems they ought &c. then all such things which before such entry might trouble or incumber the land so given upon condition &c. are as to the same land altogetlier defeated.

Annuity.

Judgment a disability.

May enter #c] And here it is to be understood, that the grant of the rent charge is a present disability of the feoffee, and therefore albeit the grantee brings a writ of annuity and discharges the land of it ab initio, yet the cause of entry being once given by the act of the feoffee the feoffor may re-enter. And so it is if the grant of the rent charge were made for life, and the grantee died before any day of payment, yet the feoffor may re-enter. The like law is of any judgment given against the feoffee wherein debt Qr damages are recovered.

Stat, confessed after disseisin no disability.

Or be bound in a statute staple fyc] If the feoffee be disseised, and after bind himself in a statute staple, or merchant, or in a recognizance, or take wife, this is no disability in him, for that during the disseisin the land is not charged therewith, neither is the land in the hands of the disseisor liable thereunto. And in that case if the wife die, or the conusee release the statute or recognizance, and after the disseisee enters, there is no disability at all, because the land was never charged therewith, and therefore in that case the feoffee may enter and perform the condition in the same plight and freedom as it was conveyed to him in.

Advovson on condition.

If a man grant an advowson upon condition that the grantee shall regrant the same to the grantor in tail; in this case if the church become void before the regrant, or before any request made by the grantor, he may take advantage of the condition, because the advowson is not in the same plight as it was at the time of the grant upon condition. And therefore the grantee in that case at his peril must regrant it before the church becomes void, or else he is disabled, otherwise he has time during his life, if he be not hastened by request.

If the feoffee suffer a recovery by default upon a feigned title, Feoffee's r«before execution sued, the feoffor may re-enter for this disability. c0iery' Et sic de similibus.

Section 359.

Also, if a man makes a deed of feoffment to another, and in the Live^r with deed there is no condition, but when the feoffor makes livery of ce<ies feoffment seisin he adds a condition; in this case nothing of the tenements mtiu<atpasses by the deed, for that the condition is not comprised within the deed, and the feoffment is in like force as if no such deed had been made.

And the reason is, for that the estate passes by the livery of seisin. And in this case the feoffor upon the delivery of seisin must express the estate to be taken as to the feoffee and his heirs, or to heirs of his body &c. If an agreement be made between two, that the one What if cmshall enfeoff the other upon condition as security for payment j„ uveiy, of certain money, and after the livery is made to him and his heirs generally, the estate is holden by some to be upon condition, inasmuch as the intent of the parties was not changed at any time, but continued the same at the time of the livery.

If a man make a charter of feoffment in fee, and the feoffor de- Feoffment infee, livers seisin for life, the feoffee shall hold it but for life; but if the livery be made expressly for life and according to the deed, the whole fee-simple shall pass, because it has reference to the deed.

Section 360.

Condition against alienation void.

Also, if a feoffment be made upon this condition, that the feoffee shall not alien the land to any, this condition is void, because when a man is enfeoffed of lands or tenements, he has power to alien them to any person by law. For if such a condition should be good, then the condition would oust him of all the power which the law gives him, which would be against reason, and therefore such a condition is void.

This rule applies to every species of grant and estate.

[223 a]

Also, if' a feoffment be made #c] And the like law is of a devise in fee upon condition that the devisee shall not alien, the condition is void, and so it is of a grant, release, confirmation, or any other conveyance whereby a fee-siuple passes. For it is absurd and repugnant to reason that he who has no possibility of reverter in the land to him, should restrain his feoffee in fee-simple of all power to alien. And so it is if a man be possessed of a lease for years, or of a horse, or of any other chattel real or personal, and give or sell his whole interest or property therein upon condition that the donee or vendee shall not alien the same, this is void, because the whole interest and property is out of him, and he has no possibility of reverter, and it is against trade and traffic between man and man. But these are to be understood of conditions annexed to the grant or sale itself in respect of the repugnancy, and not to any other collateral thing, as hereafter shall appear. Where our author puts his case of a feoffment of land, that is put but for an example: for if a man be seised of a seigniory, or a rent, or an advowson, or common, or any other inheritance that lies in grant, and by his deed grants the same to a man and to his heirs upon condition that he shall not alien, this condition is void. But some have said that a man may grant a rent-charge newly created out of lands to a man and to his heirs upon condition that he shall not alien it, and that such a condition is good, because the rent is of his own creation; but this is against the reason and opinion of our author, and against the height and purity of a fee-simple.

Condition not to A man before the statute of quia emptores terrarum might have u^uan^Ld made a feoffment in fee, and added further, that if he or his heirs alien without license, that he should pay a fine, this had been

to tCTIUM good.

good. And so it is said, that then the lord might have re- Reverter, pos

strained the alienation of his tenant by condition, because the lord J^J^n tenure.

had a possibility of reverter; and so it is in the king's case at this

day, because he may reserve a tenure to himself.

If A. be seised of Black Acre in fee, and B. infeoffs him of White Condition not to Acre upon condition that A. shall not alien Black Acre, the con- "onvewd good. dition is good, for the condition is annexed to other land, and ousts not the feoffee of his power to alien the land whereof the feoffment is made, and so there is no repugnancy to the estate passed by the feoffment; and so it is of gifts, and the sale of chattels real or personal.

Section 361.

But if the condition be that the feoffee shall not alien to such Condition not an one, naming his name, or to any of his heirs, or of the issues of particularpersuch an one, or the like, which conditions do not take away all *"n g power of alienation from the feoffee &c., such condition is good.

If a feoffment in fee be made upon condition that the feoffee shall What h pro. not infeoff I. S. or any of his heirs or issues &c. this is good, for he h so obuyuiy. does not restrain the feoffee of all his power: the reason here yielded by our author is worthy of observation. And in this case if [2236] the feoffee enfeoff I. N. of intent and purpose that he shall infeoff I. S. some hold that this is a breach of the condition, for quando aliquid prohibiturfieri, ex directo prohibetur et per obliquum.

If a feoffment be made upon condition that the feoffee shall not Condition alien in mortmain, this is good, because such alienation is pro- JJmJ,TM hibited by law, and regularly whatsoever is prohibited by the law, may be prohibited by condition, be it malum prohibitum, or malum in se. In ancient deeds of feoffment in fee there was most commonly a clause, quod licitum sit donatori rem datum dare vel vendere cuivolnerit, exceptis viris religiosis et Judais. Brac.f. 13.

Section 362.

Condition that tenant in tail shall not alien, except for his own life, good.

Also, if lands be given in tail upon condition that the tenant in tail and his heirs shall not alien in fee, nor in tail, nor for term of another's life, but only for their own lives, such condition is good. And the reason is, for that when he makes such alienation and discontinuance of the entail, he does contrary to the intent of the donor, for which the statute W. 2. cap. 1. was made, by which statutes estates tail are ordained.

What conditions on estates tail good.

But only for their own lives fyc.~\ And yet if a man make a gift in tail, upon condition that he shall not make a lease for his own life, albeit the estate be lawful, yet the condition is good, because the reversion is in the donor. As if a man make a lease for life or years upon condition, that they shall not grant over their estate or let the land to others, this is good, and yet the grant or lease should be lawful. If a man make a gift in tail upon condition that he shall not make a lease for three lives or twenty-one years, according to the statute of 32 H. 8, the condition is good, for the statute gives him power to make such leases, which may be restrained by condition, and by his own agreement; for this power is not incident to the estate, but given to him collaterally by the act, according to that rule of law, quilibet potest renunciare juripro se introducto.

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When he makes such alienation and discontinuance of the entail.] And therefore if a gift in tail be made upon condition, that the donee &c. shall not alien, this condition is good to some intents, and void to some; for, as to all those alienations which amount to a discontinuance of the estate tail (as Littleton here speaks), or is against the statute of Westminster 2, the condition is good without question. But as to a common recovery the condition is void, because this is no discontinuance, but a bar, and this common recovery is not restrained by the said statute of W. 2. And therefore such a condition is repugnant to the estate tail; for it is to be observed, that to this estate tail there are divers incidents. First, to be dispunished of waste. Secondly, that the wife of the donee in tail shall be endowed. Thirdly, that the husband of a ffime donee after issue shall be tenant by the curtesy. Fourthly, that tenant in tail may suffer a common recovery; and therefore if a man make a gift in tail, upon condition to restrain him of any of these incidents, the condition is repugnant and void in law. And it is to be observed, that a collateral warranty or a lineal with assets in respect of the recompense, is not restrained by'the statute de donis conditiomlibus, neither is a common ^recovery in respect of the intended recompense. And Littleton, to the intent to exclude the common recovery, says, such alienation and discontinuance, joining them together. If a man before the statute de donis conditionalibus had made a gift to a man and to the heirs of his body upon condition that after issue he should not have power to sell, this condition would have been repugnant and void. Pari ratione, if after the statute a man makes a gift in tail, the law taciti gives the donee power to suffer a common recovery; therefore to add a condition that he shall have no power to suffer a common recovery, is repugnant and void.

If a man make a feoffment to a baron and feme in fee, upon con- Condition in re

dition that they shall not alien, to some intent this is good, and to rluLtat^'n'

some intent it is void; for to restrain an alienation by feoffment or had~°fat,e"

J otuni m a pur

alienation by deed, is good, because such an alienation is tortious timlar way or

and voidable; but to restrain their alienation by fine is repugnant

and void, because it is lawful and unavoidable. It is said, that if a

man infeoff an infant in fee upon condition that he shall not alien,

this is good to restrain alienations during his minority, but not after

his full age.

Section 363.

For it is proved by the words comprised in the same statute, that Alienation bethe will of the donor in such cases shall be observed, and when the ij?" a a^on-S tenant in tailmakes such discontinuance, he does contrary to that &c. tinuance of rf

J mainder, and

And also in estates tail of any tenements, when the reversion of bad; ita— the fee-simple, or the remainder of the fee-simple is in other persons condition. when such discontinuance is made, then the fee-simple in the remainder is discontinued. And because tenant in tail shall do no such thing against the profit of his issues and good right, such condition is good, as is aforesaid, fyc.

Construction of condition not to alien on tenant tn tail remainder to himself in fee.

When the reversion or remainder in fee is in other persons.] Put the case that a man makes a gift in tail to A., the remainder to him and to his heirs, upon condition that he shall not alien; as to the estate tail the condition is good, for such alienation is prohibited, as hath been said, by the said statute. But as to the feesimple, some say it is repugnant and void, for the reason that Littleton has yielded; and therefore some are of opinion, that this is a good condition, and shall defeat the alienation for the estate tail only and leave the fee-simple in the alienee, for that the condition in law extended only to the estate tail, and not to the remainder.

Condition enabling alienation for profit of issue good.

[2246]

Against the profit of his issues.] Hereby it appears, that to restrain tenant in tail from alienation against the profit of his issues is good, for that agrees with the will of the donor and the intent of the statute. But a gift in tail may be made upon condition that tenant in tail &c. may alien for the profit of his issues, and that has been held to be good, and not restrained by the said statute, and seems to agree with the reason of Littleton, because in that case, voluntas donatoris observetur, fyc. and it must be for the profit of the issues.

Section 364. Discontinuance Also a man may give lands in tail upon condition that if the

IiOW S£lvc(1 1iv

condition. tenant in tail or his heirs aliens in fee or in tail, or for term of

another mans life, &c. and also that if all the issue coming of the tenant in tail be dead without issue, that then it shall be lawful for the donor and for his heirs to enter <Sfc. Andby this way the right of the tail may be saved after discontinuance to the issue in tail, if there be any, so as by way of entry of the donor or of his heirs, the tail shall not be defeated by such condition. And yet if the tenant in tail in this case, or his heirs, make any discontinuance, he in the reversion or his heirs, after the entail is determined for default of issue &c. may enter into the land by force of the same condition, and shall not be compelled to sue a writ of formedon in the reverter.

Condition to take effect on some event

Alien fyc. and also if all the issue be dead, #c.] Note, Littleton purposely made parcel of the condition in the copulative, that if the tenant in tail should alien, &c. For if a gift in tail be made to which detei

a man and to the heirs of his body, and if he die without heirs of TM"" 21,1 dower

his body, that then the donor and his heirs shall re-enter, this is a uct barred.

void condition; for when the issues fail, the estate determines by

the express limitation, and consequently the adding of the condition

to defeat that which is determined by the limitation of the estate

is void, and in that case the wife of the donee shall be endowed, &c.

And therefore Littleton, to make the condition good, added an

alienation which amounted to a wrong, and he restrained not the

alienation only, (for then presently upon the alienation the donor

&c. might re-enter, and defeat the estate tail) but added, 'and die f225al

without issue,' to the end that the right of the estate in tail might

be preserved and not defeated by the condition, but might be

recovered again by the issue in tail in kformedon. And Littleton

expressly says, that the donor and his heirs after the discontinuance,

and after that the estate tail is determined, may re-enter, which is

the intention and true meaning of Littleton in this place.

Note, that in a condition consisting of divers parts in the con- Condition in junctive, as here in the case of Littleton, both parts must be per- j^^1^'" formed. But otherwise it is when the condition is in the disjun- •**• tive. What then if the condition or limitation is both in the conjunctive nnd disjunctive: as if a man make a lease to the husband and wife for the term of one and twenty years, if the husband and wife or any child between them shall so long live, and then the wife dies without issue; shall the lease determine or continue during the life of the husband? And the answer is, that it shall continue, for the disjunctive refers to the whole, and disjoins not only the latter part, as to the child, but also as to the baron and f6me; so that the sense is, if the baron, ffime, or any child shall so long live. And so it is if an use be limited to certain persons until A. shall come from beyond sea, and attain unto his full age, or die, if he comes from beyond sea or attains to his full age, the use ceases.

Section 365.

Also a man cannot plead in any action, that an estate was made Condition to in fee, or in fee tail, or for term of life, upon condition, if he does must be in writnot vouch a record thereof, or shew a writing under seal, proving ^tn^s real? ° //'■• same condition. For it is a common learning, that a man by plea shall not defeat any estate of freehold by force of any such condition unless he shews the proof of the condition in writing &c. unless it be in some special cases &c. But of chattels real, as of a lease for years, or of grants of wards made by guardians in chivalry, and such like &c. a man may plead that such leases or grants were made upon condition fyc. without shewing any writing of the condition. So in the same manner a man may do of gifts and grants of chattels personal, and of contracts personal fyc.

Requisites to c deed.

In any action.'] Be the action real, personal, or mixt, if a condition be pleaded to defeat a freehold, it is regularly true that a deed must be shewn forth in court. And the reason why the deed shall be shewed forth to the court is, for that to every deed there are two things requisite: the one, that it is sufficient in law, and this is called the legal part, and therefore the judgment of that belongs to the judges of the law: the other concerns matter of fact, as sealing and delivery, and this belongs to the jurors. And because every deed ought to prove itself, and be proved by others too; it must prove itself upon the shewing of it forth in court in two ways. First, as to the composition of the words, that it be sufficient in law, and as to that the court shall judge.

Kramre.
Interlineation.

[2256]

Secondly, of ancient time if the deed appeared to be erased or interlined in places material, the judges upon view pronounced the deed to be void. But in later times the judges have left it to the jury to try whether the erasure or interlining were before the delivery or after.

Rent rexrmbie And there is a difference between a rent and a re-entry ; for contra 'of re- upon a gift in tail, or a lease for life, a rent may be reserved withentry. out (]eedj but a condition with a re-entry cannot be reserved in

those cases without deed.

Deed itself must be produced, no copy admissible.

Writing under sea/.] Which Littleton intends to be a deed under seal. And well said Littleton, a deed under seal. For though the deed be enrolled, yet he cannot plead the enrolment thereof, though it be record. And though it be exemplified under the great seal, yet must he shew forth the deed itself under seal, as Littleton here says, and not the exemplification.

And so when Littleton wrote, no constat or inspeximus of the tetters patent. king's letters patent were available in court, but only the letters patent themselves under seal. For both the constat and inspeximus are but exemplifications of the enrolment of the charters or letters patent: and this appears by the resolution of two several parliaments, one holden in the third and fourth years of king Edward the Sixth, and the other in the thirteenth year of queen Elizabeth. But now by those statutes the exemplification or constat under the great seal of the enrolment of any letters patent made since the 4th day of February anno 27 H. 8., or hereafter to be made, may be pleaded and shewn forth in court, as well against the king as against any other person and that by the patentees themselves (whereof there was some doubt conceived upon the said statute of E. 6.) and by all and every other person and persons, claiming by, from, or under them. Which statutes are general and beneficial, and especially the act of 13 Eliz., for that extends not only to lands, tenements, and hereditaments, but to every other thing whatsoever, and ought to be favourably construed for advancement of the remedy and right of the subject. The difference between a constat inspeximus and a vidimus, you may read at large in Page's case, 8 Co. 8. But Inroiment. none of them by law ought to be had, but only of the enrolment of record, and not of a deed or any other writing that is not of record, and no deed &c. can be enrolled, unless it be duly and lawfully acknowledged.

Unless it be in some special cases, $c.~\ Hereby is implied, that if Condition tenant in dower or by statute or elegit, enter for a condition broken, J^ pnftrtof they may plead the estate upon condition without shewing any deed> "'""• deed, because their interests are created by the law. And they Deeds belong to come not in by him who made the condition, and cannot be sup- w om' posed to be provided with the deed, but they come to the land by authority of law, and therefore the law will allow them to plead the condition without shewing it. But the lord by escheat, Escheat. albeit his estate be created by law, shall not plead a condition to l^ua] defeat a freehold without shewing it, because the deed belongs to him. A tenant by the curtesy shall not plead a condition Curtesy. made by his wife and a re-entry for the condition broken without shewing the deed; for albeit his estate be created by law, yet the law presumes that he had the possession of the deeds and evidences belonging to his wife. But lessees for years, and all others who Lessee.

c c

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claim by any conveyance from the party, or justify as servant by commandment &c. must shew the deed. If land be mortgaged upon condition, and the mortgagee let the land for years reserving a rent, [and afterwards] the condition is performed, whereupon the mortgagor re-enters, in an action of debt brought [by the mortgagee] for the rent, the lessee may plead the condition and the reentry without shewing forth any deed. In an assize the tenant pleads a feoffment of the ancestor of the plaintiff unto him &c, the plaintiff says that the feoffment was upon condition Sec., and that the condition was broken, and pleads a re-entry, and that the tenant entered and took away the chest in which the deed was, and yet detains the same, the plaintiff shall not in this case be enforced to shew the deed. If a woman give lands to a man and his heirs by deed or without generally, she may in pleading aver the same to be causa, matrimonii pralocuti [for preferment in marriage], albeit she has nothing in writing to prove the same, the reason whereof see Section 330.

Section 366.

Hut condition Also, albeit a man cannot in any action plead a condition which

may be found , , ,, . , ¥. .. ,. ./.,

bv a jury. concerns a Jreeholawifhoul shewing a writing to the jury if they find

it as a fact that such condition accompanied the livery as is aforesaid, yet a man may be aided upon such a condition by the verdict.

Verdict. The jurors are to try the fact, and the judges to adjudge accord

ing to the law that arises upon that fact,' and therefore if it be found that such a condition was made, and that thereupon the grantor entered, it is left to the judges to say whether such an entry is a disseisin or not: and they may declare that the entry was congeable, and so .give judgment for the lessor.

Estoppels.

[227a]

Estoppels which bind the interest in the land, (as the taking a lease of a man's own land by deed indented, and the like, (being specially found by the jury, the court ought to judge according to the special matter; for albeit, regularly estoppels must be pleaded and relied upon by an apt conclusion, and the jury is sworn ad veritatem dicendam, yet when they find veritatem facti, they pursue well their oath, and it lies with the court to adjudge according to law.

If a deed be made and dated in a foreign kingdom, of lands Deed executed within England, yet if livery and seisin be made secundum formam ""roou" i carta, the land shall pass, for it passes by the livery.

Section 367.

In the same manner it is of a feoffment in fee or a gift in tail Same. upon condition, although no writing were ever made of it.

Section 368.

Also in such case the jury may give their verdict at large [i. e. Jury should generally upon the whole matter without any special finding] if they verdic/when. will take upon them the knowledge of the law and say, that the lessor did not disseise the lessee &c.

Although the jury, if they will take upon themselves the knowledge of the law, may give a general verdict, yet it is dangerous for them so to do, for if they mistake the law, they run into the danger of an attaint; therefore to find the special matter is the safest way where the case is doubtful.

Section 369. [2286]

[Of pleas in bar.]

Section 370. , [229a]

And seeing that conditions are most commonly contained in deeds Of deeds poll indented, somewhat shall be here said (to thee my son) of the difference between an indenture and a deed-poll. And it is to be understood, that if the indenture be bipartite, or tripartite, or quadripartite, all the parts of the indenture are but one deed in law, and every part of the indenture is of as great force and effect as all the parts together are.

indenture what. In deeds indented.] An indenture is a writing containing a conveyance, bargain, contract, covenants, or agreements between two or more, and is indented in the top or side answerable to another that likewise comprehends the self same matter, and is called an indenture, for that it is so indented. If a deed begins, hoc indentura, Sfc. and in truth the parchment or paper is not indented, this is no indenture, because words cannot make it indented. But if the deed be actually indented, and there be no words of indenture in the deed, yet it is an indenture in law; for it may be an indenture without words, but not by words without indenting.

Should be on parchment or paper.

In deeds indented.] And here it is to understood that it ought to be on parchment or on paper. For if a writing be made upon a piece of a wood, or upon a piece of linen, or on the bark of a tree, or on a stone, or the like, &c. and the same be sealed or delivered, yet it is no deed, for a deed must be written either on parchment or paper, for the writing upon these is least liable to alteration or corruption.

Tripartite, ijc. If the indenture be bipartite, or tripartite, or quadrupartite, Sfc] Bipartite is, when there are two parts and two parties to the deed. Tripartite, when there are three parts and three parties; and so of quadripartite, quinquepartite, §c.

ute<ip<M. And of a deed-poll.] A deed-poll is that which is plain without

any indenting, so called because it is cut even, or polled. Every deed that is pleaded shall be intended to be a deed-poll, unless it be alleged to be indented.

Property in counterparts.

All the parts of the indenture are but one deed in law.] If a man by deed indented make a gift in tail, and the donee dies without issue, that part of the indenture which belonged to the donee now belongs to the donor, for both parts make but one deed in law.

Counterpart not sealed immaterial.

And every part of the indenture is of as great force fyc] This is manifest of itself, and is proved by the books aforesaid. It is to be observed, that if the feoffor, donor, or lessor seal the part of the indenture belonging to the feoffee &c. the indenture is good, albeit the feoffee never seals the counterpart belonging to the feoffor &c.


Section 371. [2296]

An D the making of an indenture is in two ways. One is to Concise form of make them in the third person. Another is to make them in the conve>ancefirst person. The making in the third person is in this form:

"This indenture made between R. of P. of the one part, and V. of D. of the other part, Witnesseth, that the said R. of P. hath granted, and by this present charter indented, confirmed to the aforesaid V. of D. such land, &c, To have and to hold &c. upon condition &c. In witness whereof the parties aforesaid to these presents interchangeably have put their seals. Or thus: — In witness whereof to the one part of this indenture remaining with the said V. of D. the said R. of P. hath put his seal, and to the other part of the same indenture remaining with the said R. of P. the said V. of D. hath put his seal. Dated 8cc."

Such an indenture is called an indenture made in tlie third per- Common forms

son, because the verbs &c. are in the third person. And this form be'folhiKd?' of indenture is the most sure making, because it is most commonly used, inc.

Because it is most commonly used.] Here it appears that that which is most commonly used in conveyances is the surest way. A cornmuui observantid non est recedendum, et minime mutanda sunt qua certain habuerunt interpretationem. Magisler rerum usus.

Section 372. [230a]

The making of an indenture in the first person is in this form: Indenture in "To all Christian people to whom these presents indented shall come, first penoa' A. of B. sends greeting in our Lord God everlasting. Know ye me to have given, granted, and by this my present deed indented confirmed to C. of D. such land 8cc. Or thus: Know all men present and to come, that I. A. of B. have given, granted, and by this my present deed indented confirmed to C. of D. such land &c. To have and to hold (habendum et tenendum) &c. upon condition

following &c. In witness whereof, as well I the said A. of B. as the aforesaid C. of D. to these indentures have interchangeably put our seals. Or thus: In witness whereof I the aforesaid A. to the one part of this indenture have put my seal, and to the other part of the same indenture the said C. of D. hath put his seal &c.'*

Precedent jj js requisite for every student to get approved forms and prece

dents not only of deeds according to the example of Littleton, but of fines and other conveyances and assurances, and especially of good and perfect pleading, and of the right entries and forms of judgments, which will stand him in great stead, both while he studies, and when he gives counsel; and it is a safe thing to follow approved precedents, for nihil simul inventum est, et perfect urn.

Section 373.

Conveyance by And it seems that suck indenture which is made in the first firat person as person is as good in law, as the indenture made in the third g°°r9^nAl"1 Person> when both parties have put to it their seals; for if in the indenture made in the third person or in the first person, it is said that the grantor only has put his seal, and not the grantee, then is the indenture and deed of the grantor only. But where mention is made of the grantee having put his seal to the indenture fiyc. then is the indenture as well the deed of the grantee as the deed of the grantor. So is it the deed of them both, and also each part of the indenture is the deed of both parties in this case.

Grantee by seui- Here is to be observed, that albeit the words in this indenture

ing deed makes r cr *ri_r/r i_* i

it Aii though no are only the words of the feoffor, yet if the feoffee put his seal to party' one part of the indenture, it is the deed of them both. And in

this special case to make it the deed of the feoffee, it appears by Littleton, that mention must be made in the deed that he has put to it his seal, for he is no otherwise a party than by putting his seal thereunto. Otherwise it is of a deed indented in the third person, as before appears, for there he is a party to the deed in the beginning. And Littleton's rule is true, that every part of an indenture is the deed of both parties; for, as it hath been said, both parts make but one deed in law in this case.

Section 374. Also if an estate be made bu indenture to one for term of his Remainder

* man need not

life, the remainder to another in fee upon a certain condition be party to or

&c., and if the tenant for life puts his seal to one part of the. **'

indenture, and afterwards dies, and he in the remainder enters

into the land by force of his remainder Sue, in this case he is

tied to perform all the conditions comprised in the indenture

as the tenant for life ought to have done in his life time, and

yet he in the remainder never sealed any part of the indenture.

But the cause is, for that inasmuch as he entered and agreed to

have the lands by force of the indenture, he is bound to perform

the conditions within the same indenture; if he will have the

land, [he must take it with its burdens.]

Upon a certain condition S>\:] Here by this (8ic.) is implied, that the condition in this case extends both to the estate for life, and to' the remainder, but by special limitation it may extend to any one of them, and not to the other. And albeit he in the remainder be no party to the indenture (the parties thereunto only being- the lessor and the tenant for life), yet when he in the remainder enters and agrees to have the land by force of the indenture, he is bound to perform the conditions contained in the indenture. And here is Contra offeralso a diversity to be understood, that any stranger to the inden- ^,,"<J^ lure may take by way of remainder, but he cannot in this case take [231 a] any present estate in possession, because he is a stranger to the deed. If A. by deed indented between him and B. lets lands to B. for life, the remainder to C. in fee reserving- a rent, and tenant for life dies, and he in the remainder enters into the lands, he shall be to pay the rent, for the cause and reason before yielded by Littleton.

An indenture of lease is engrossed between A. of the one part, and Party not signD. and R. of the other part, which purports to be a demise for years «f„ to,TM,,TM at by A. to D. and R. A. seals and delivers the indenture to D. and i«sum in grow. D. seals the counterpart to A. but R. does not seal and deliver it. And by the same indenture it is mentioned, that D. and R. declare themselves bound to the plaintiff in twenty pounds, in case that certain conditions comprised in the indenture are not performed.

In a case of this kind A. brought an action against D. only for the twenty pounds, and shewed forth the indenture. The defendant pleaded that it was proved by the indenture that the demise was to D. and R. who was then living, and not named in the writ. The plaintiff replied,; that R. never sealed or delivered the indenture and so his writ was good against D. only. And the counsel of the plaintiff took a diversity between a rent reserved which is parcel of the lease, the land being charged therewith, and a sum in gross, as here the twenty pound is; for as to the rent they agreed that by the agreement of R. to the lease, he was bound to pay it, but for the twenty pound that is a sum in gross and collateral to the lease, and not annexed to the land, and grows due only by the deed, and therefore R. said he was not chargeable therewith, for that he had not sealed and delivered the deed. But inasmuch as he had agreed to the lease which was made by indenture, he was held chargeable by the indenture for the sum in gross; but as he was not named in the writ, it was adjudged that the writ did abate.

Remainder- To have the lands $c] Here is implied an ancient maxim of the

man must take , • t\ • .• i • 7 ,

if at law, viz. (Utn sentit commodum senttre debet et onus, et transit terra

cum onere all.

cum onere.

Section 375.

Deed poll be- Also, if a feoffment be made by deed poll upon condition, and

and quasre if 'for that the condition is not performed the feoffor enters and

he has'u'ofn 9ets ^e possession of the deed poll, if the feoffee brings an ac

piead it? tion for this entry against the feoffor, it has been a question if

the feoffor may plead the condition by the said deed poll against

[2316] the feoffee. And some have said he cannot, inasmuch as it

seems to them that a deed poll and the property of the same

deed'belongs to him to tvhom the deed his made, and not to him

who makes the deed. And inasmuch as such a deed does not

appertain to the feoffor, it seems to them that he cannot

plead it. And others have said the contrary, and have

shewed divers reasons. One is, that if in an action between

them the feoffee pleads the same deed and shows it to

the court, in this case inasmuch as the deed is in court, the

feoffor may show to the court how in the deed there are divers conditions to be performed on the part of the feoffee &c., and because they were not performed he entered fyc. and to this he shall be received. By the same reason when the feoffor has the deed in hand and shows it to the court, he shall be well received to plead it. [Argument continued in Sects. 376,377.]

Here the latter opinion is clear law at this day, and is Littleton's own opinion, as before hath been observed.

On the part of the feoffee #c.] Here also is implied if the condi- Deed pleaded tion be to be performed on the part of the feoffor or by a stranger; ^J and it is to be understood that when a deed is shewed forth to the court, the deed shall remain in court all that term in the custody of the custos brevium, but at the end of the term (if the deed be not denied) then the law adjudges the deed in the custody of the party to whom it belongs, for a man's evidences are as it were the sinews Deedsarethe ,iof his land. But if the deed be denied, then the deed in judg- "tt"/t*e'flndment of law remains in court until the plea be determined. The residue of this section needs no explication.

Section 376. [232aj

Also, if two men do a trespass to another, and he releases to one Heiease of acof them by his deed all actions personal, and notwithstanding p^^enurM*' sues an action of trespass against the other, the defendant may u< the other, well shew that the trespass was done by him and by another his it though no fellow, and that the plaintiff by his deed (which he shews forth) par y' released to his fellow all actions personal, and demand judgment &c., and yet such deed belongs to his fellow and not to him. And because he may take advantage by the deed if he can shew it in court he may well plead it. By the same reason may the feoffor in the other case shew the deed poll, for he ought to have advantage of the condition comprised within it.

If two men do a trespass to another #c.] Here by this section it ReUauof bond

, , ,. . . .to one obligor

is to be understood, that when divers do a trespass the same is e,mies t0 other$ joint or several at the will of him to whom the wrong is done, yet j^^/J^,^ if he release to one of them, all are discharged, because his own deed shall be taken most strongly against himself. So if two men

be jointly and severally boond in an obligation, if the obligee releases to one of them, both are discharged : and seeing the trespassers are parties and privies in wrong, the one shall not plead a release to the other without shewing it forth, albeit the deed appertain to the other.

So heir matt pleiui relenie Ut eiecutori.

If an action of debt upon an obligation be brought against an heir, he may plead in bar a release made by the obligee to the executors. But albeit the deed belongs to another, yet most be shew it forth, for both of them are privy to the testator.

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Also if the feoffee grants the deed to the feoffor, such grant shall be good, and then the deed and the property thereof belongs to the feoffor &c. And when the feoffor has the deed in hand, and pleads it to the court, it shall be rather intended that he comes to the deed by lawful means than by wrongful. And so it seems unto them, that the feoffor may well plead such deed poll which comprises the condition 6>c, if he has the same in hand. Idco semper quaere de dubiis, quia per rationes pervenitur ad legitimam rationem &c.

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The property of the deed belongs to the feoffor.~\ Hereby it appeal's that a man may give or grant his deed to another, and such a grant by parol is good. And it is also implied, that if a man has an obligation, though he cannot grant the thing in action, yet he may give or grant the deed, viz. the parchment and wax to another, who may cancel and use [i. e. destroy] the same at his pleasure.

Wrong never presumed.

Ueatont of law not alicayt patent.

It shall be rather intended.'] Omnia presumuntur legitime* facta, donee probetur in contrarium. Injuria non prasumitur.

Quia per rationes #c] For ratio est radius divini luminis. And by the reasoning and debating of grave and learned men the darkness of ignorance is expelled, and by the light of legal reason the right is discerned, and thereupon judgment given according to law, which is the perfection of reason. This is of Littleton here called legitime

ratio, whereunto no man can attain but by long study, often conference, long experience, and continual observation. Certain it is, that in matters of difficulty the more seriously they are debated and argued, the more truly they are resolved, and thereby new inventions justly avoided.

Section 378.

Estates which men have upon condition in law, are such of condition estates which have a condition by the law to them annexed, albeit imp e< that it be not specified in writing. As if a man grant by his deed to another the office of parkership of a park, to have and occupy the same office for term of his life, the estate which he has in the office is upon a condition in law, to wit, that the parker shall well and lawfully keep the park and shall do that which to such office belongs to do, or otherwise it shall be lawful to the grantor and his heirs to oust him and to grant it to another at his will bc. And such a condition so annexed by law to any thing is as strong as if the condition were in writing.

A forest and chase are not inclosed, but a park must be. Forest park,

_ , . /. . • and chase, what.

The forest and chase differ in offices and laws: every forest is a j-233a] chase, but every chase is not a forest. A subject may have a forest by especial grant from the king, as the Duke of Lancaster and Abbot of Whitby had.

To oust him if he will <Sfc.] Littleton here speaks of an ouster by stewards reforce of a condition in law, therefore it remains to be seen in what who ^ he other cases the grantor may lawfully oust his officer. There is a di- *££*?" versity between officers who have no other profit but a collateral certain fee, for there the grantor may discharge him of his service, as to be a baily, receiver, surveyor, auditor, or the like, the exercise [2336] whereof is but labour and charge to him, but he must have his fee: for the main rule of law is, that no man can frustrate or derogate from his own grant to the prejudice of the grantee. And where albeit the grantee has no other profit but his fee, yet that fee is to be perceived and taken out of the profits appertaining to the lord within his office, for there the grantor cannot discharge him of his service or attendance, for that may turn to the prejudice of

the grantee, if the grantor will not grant the office at all. But in all cases where the officer relinquishes his office, and refuses to attend, he loses his office, fee, profit, and all. There is another diversity where the grantee, besides his certain fee, has profits and vails by reason of his office; there the grantor cannot discharge him of his service or attendance, for that would be to the prejudice of the grantee. As if a man grants to another the office of stewardship of the courts of his manors with a certain fee, the grantor cannot discharge him of his service and attendance, because he has other profits and fees belonging to his office which he should lose if he were discharged of his office.* And as in the case which Littleton here puts of the office of the keeper of a park, for that he has not only his fee certain, but profits and vails also, in respect of his office, as deer-skins, shoulders &c.

Conditions in law: different kinds.

As to conditions in law, you shall understand they are of two kinds, that is to say, by the common law, and by statute. And those by the common law are of two natures, that is to say, the one is founded upon skill and confidence, the other without skill or confidence: upon skill and confidence, as here the office of parkership, and other offices in the next Section mentioned, and the like.

That tenant for life shall not alien infee.

Touching conditions in law without skill, &c. some be by the common law and some by the statute. By the common law as to every estate of tenant by the curtesy, tenant in tail after possibility of issue extinct, tenant in dower, tenant for life, tenant for years, tenant by statute merchant or staple, tenant by elegit, guardian &c. there is a condition in law secretly annexed to their estates, that if they alien in fee &c. he in the reversion or remainder may enter, et sic similibus, or if they claim a greater estate than they have in a court of record, or the like [the remainder-man may enter].

Concerning conditions in law founded upon certain statutes, for some of them an entry is given, and for others a recovery by action: as upon an alienation in mortmain &c. an entry is given, and for waste against tenant for life, or years, or the like, an action is given.

Conditions by statute as in mortmain.

* This, it is presumed, must refer to a grant of the stewardship for valuable consideration. See 3 B.&C. 616. ante, G16. post, Sect. 379.

And such condition is as strong 8fc] Here it is worth while Condition in to take a view of the divisions aforesaid in some particular k"!*^^TM* cases. As for example. Admit that an office of parkership is feme covert. granted or descends to an infant or feme covert, if the conditions in law annexed to this office which requires skill and confidence be not observed and fulfilled, the office is lost for ever, because, as Littleton says it is as strong as an express condition. But if a lease for life be made to a ffime covert, or an infant, and they by charter of feoffment alien in fee, the breach of this condition in law, which is without skill 8tc. is no absolute forfeiture of the estate. So of a condition in law given by statute, which gives an entry only. As if an infant or feme covert with her husband aliens by charter of feoffment in mortmain, this is no bar to the infant or fOme covert. But if a recovery be had against an infant or feme covert in an action of waste, there they are bound and barred for ever.

And it is to be observed, that a condition in law by force of a Entry for for

,,..,. . ■ ,, feiture, itief

statute which gives a recovery, is in some cases more strong than ject on ^^

a condition in law without a recovery. For if lessee for life make va"ve "'"'"•

a lease for years, and afterwards enters into the land and makes

waste, and the lessor recovers in an action of waste, he shall avoid

the lease made before the waste done. But if the lessee for life

makes a lease for years, and afterwards enter upon the lessee and

makes a feoffment in fee, this forfeiture shall not avoid the lease for

years. Nor in any of the said cases shall a precedent rent granted out

of the land be avoided. For if the lessee for life grant a rent charge,

and afterwards commits waste and the lessor recovers in an action of

waste, he shall hold the land charged during the life of the tenant for [234 a]

life, but if the rent is granted after the waste done, the lessor shall

avoid it. And the reason wherefore the lease for years in the case

aforesaid shall be avoided, is because of necessity the action of

waste must be brought against the lessee for life, which in that case

must bind the lessee for years, or else by the act of the lessee for

life the lessor would be barred to recover locum vastatum, which

the statute gives. If a man has an office for life which requires

skill and confidence, to which office he has a house belonging, and

charges the house with a rent during his life, and after commits a

forfeiture of his office, the rent charge shall not be avoided during

his life, for regularly a man who takes advantage of a condition in

law shall take the land with such charge as he finds it. And there

fore Littleton is here to be understood, that a condition in law is as strong as a condition in deed, to avoid the estate or interest itself, but not to avoid precedent charges, only in some particular cases, as by that which has been said appears.

What offices not There are at this day more conditions in law annexed to offices

saleable,

3 Ii.t. c 12. than there were when Littleton wrote: for example, for offices in any wise touching the administration or execution of justice, or clerkship in any court of record, or concerning the king's treasure, revenue, account, customs, alnage, auditorship, king's surveyor, or keeping of any of his majesty's castles, forts, &c. For if any of these officers bargain or sell any of the said offices or any deputation of the same, or take any money or profit, or any promise, covenant, bond, or assurance, to have any money or reward for the same, the person so bargaining or selling, or that shall take any such promise, covenant, bqnd, or assurance, shall not only forfeit his estate, but also every person so buying, giving or assuring, shall be adjudged a disabled person to have or enjoy the same office or offices, deputation or deputations, &c. and that all such bargains, sales, promises, covenants, and assurances, before specified, shall be void, except as in the said act is excepted. Sir Robert Vernon, knight, being cofferer of the king's house of the king's gift, and having the receipt of a great sum of money yearly of the king's revenue, did for a certain sum of money bargain and sell the same to Sir A. I. and agreed to surrender the said office to the king, to the intent a grant might be made to Sir A. who surrendered it accordingly: and thereupon Sir A. was by the king's appointment admitted and sworn cofferer. And it was resolved by Sir Thomas Egerton, lord chancellor, the chief justice, and others to whom the king referred the same, that the said office was void by the said statute, and that Sir A. was disabled to have or to take the said office, and that no non obstante could dispense with this act to enable the said Sir A. for the reason and cause before mentioned, Sect. ISO. And hereupon Sir A. was removed, and Sir Marmaduke Danell sworn (by the king's commandment) in his place. And note, that all promises, bonds and assurances, as well on the part of the bargainor as of the bargainee, are void by the same act. Therefore by the law of England it is further provided, 1211. 2. c. 2. that no officer or minister of the king shall be ordained or made for any gift or brocage, favour or affection, and that he who pursues either privily or openly, to obtain a ministerial appointment shall

not be put in the same office or in any other, but that all such officers shall be made of the best and most lawful men and sufficient: a law worthy to be written in letters of gold, but more worthy to be put in due execution. For certainly never shall justice be duly administered but when the officers and ministers of justice be of such quality, and come to their places in such manner as by this law is required.

Section 379.

In this manner it is of grants of the offices of steward, constable, Of deputies. bedelary, bayliwick, or other offices, &c. But if such office be granted to a man, to have and to occupy by himself or his deputy, then if the office be occupied by him on his deputy, as it ought by law to be occupied, this suffices for him, or otherwise the grantor and his heirs may oust the grantee, as is aforesaid.

Section 380.

Also, estates of lands or tenements may be made upon condition in conditions in law, albeit upon the estate made there was not any mention or rem A I-i rehearsal of the condition. As put the case that a lease is made to husband and wife to have and to hold to them during the coverture [whereby they become tenants by entireties vsithout survivorship, as the lease is to determine with the coverture] in this case they have an estate for term of their two lives, [i. e. as long as both lives shall jointly continue] upon condition in law, scil. if one of them die, or there be a divorce between them, then it shall be lawful for the lessor and his heirs to enter fyc. [a condition however which is the boundary of the estate, and is therefore rather a limitation than a condition.]

Section 381. [235a-I

And that they have an estate for term of their [joint] lives Same.
is proved thus: Everyman who has an estate of freehold in any
lands or tenements, has either an estate in fee, or in fee tail, or for
term of his own life, or for term of another man's life, now by a

lease during coverture, the lessees have a freehold, but they have not a fee, nor fee tail, nor for term of another's life, ergo, they have an estate for term of their own lives, hut this is upon condition in law in form aforesaid.

Wordt of limitation.

[235 b]

During the coverture.-] Durante is properly a word of limitation, as durante viduitate. Dum also makes a limitation : as if a lease be made, dum sola J'uerit, or dum sola et casta vixerit. Dummodo is also a word of limitation; as dummodo solveret la/em redditum. Quamdiu also is a word of limitation, for if a man grants a rent out of the manor of D. quamdiu the grantor shall be dwelling upon the manor, this is good, or quamdiu se bene gesserit, and so of the following words donee, quousque, usque ad, tamdiu, ubicunque.

Different kinds of divorces and their effect.

Or that there be a divorce between them fyc] Here is a distinction to be understood: for there are two kinds of divorces, viz. one a vincido matrimonii, and the other a mensa et thoro. Divorces a vinculo matrimonii are these: Causa praxontractus, causa metis, causa impoteiitue seu frigiditatis, causa affinitatis, causa consanguinitatis &;c. A mensa et thoro, as causa adulterii, which dissolves not the marriage « vinculo matrimonii, for it is subsequent to the marriage. And the divorce that Littleton here speaks of is intended of such divorces as dissolve the marriage a vinculo matrimonii, and makes the issue bastard, because they were not justa nuptiee. And therefore in Littleton's case though the husband and wife be divorced causa adulterii, yet the freehold continues, because the coverture continues. And it is further to be understood, that many divorces that were of force by the canon law when Littleton wrote, are not at this day in force; for by the statute of 32 H. 8. c. 38., it is declared that all persons may lawfully marry that be not prohibited by God's law to marry, that is to say, that be not prohibited by the Levitical degrees.

Marriage with daughter of wife s sister good. (See Burn, Keel. Law, 402.)

A man married the daughter of the sister of his first wife, and was drawn in question in the ecclesiastical court for this marriage, alleging the same to be against the canons; and it was resolved by the Court of Common Pleas, upon consideration had of the said statute, that the marriage could not be impeached, for that the same was declared by the said act of parliament to be good, inasmuch as it was not prohibited by the Levitical degrees, et sic de similibus.

Section 382.

In the same manner it is, if an abbot makes a lease to a man, in Lease by one this case the lessee has an estate for term of his own life: but this office, gives an is upon condition in law, scilicet, That if the abbot resign, or be estate for deposed, that then it shall be lawful for his successor to enter &c. [This also is properly a limitation not a condition defeating the estate before its natural determination.]

If an abbot.,] So it is of a bishop, archdeacon, and other ecclesiastical or temporal body politic or corporate, or of any officer or graduate, or the like.—Resign or be deposed.] And so is of a translation and cession.

Section 383.

Also, where a man devised his lands to be sold by his executor, Deviseof land • and to make distribution of the money for his soul; and it was ^e'cutor,if he found, that presently after the death of the testator, one tendered doesnotxl1

J r 3 J J within reason

to him a certain sum of money for the lands, but not to the value, able time (two and that the executor afterwards held the lands in his own hands maTrecover. two years, to the intent to sell the same dearer to some other; and it was found that he had all the time taken the profits of the lands to his own use, without doing any thing for the sold of the deceased, &c. Moubray, justice, said, the executor in this case is bound by law to make the sale as soon as he [conveniently] can, and it is found that he refused to make sale, and so there was a default in him, and so by force of the devise he was bound to put all the profits coming of the lands to the use of the dead, and it is found that he took them to his own use, and so another default in him. Wherefore it was adjudged, that the heir should recover. And so it appears by the said judgment that by force of the said devise the executor had no estate nor power in the lands but upon condition in law.

Devised his lands to be sold by his executor.] This must be in- Daw to aec&tended of lands devisable by custom, for lands by the common £J*t»I!i«

D D

ecutor shall uu, law were not devisable. In this section is implied a diversity, viz.

[SeeiJacb'w. when a man devises that his executor shall sell the land, there the

i4o'42v"t't4' lands descend in the mean time to the heir, and until the sale be

238.] made the heir may enter and take the profits. But when the

*- * land is devised to his executor to be sold, there the devise takes

away the descent, and vests the estate of the land in the executor,

and he may enter and take the profits and make sale according to

the devise. And here it appears, by our author, that when a man

devises his tenements to be sold by his executors, it is all one as if he

had devised his tenements to his executors to be sold; and the reason

is, because he devises the tenements, whereby he breaks the descent.

The executor in this case is bound by law to make sale as soon as he can.] And the reason hereof is, for that the mean profits taken before the sale shall not be assets, so that he is not compellable to pay debts with the same, [for they belong to the heir,] and therefore the law will compel the executor to sell the lands as soon as he can, for otherwise he shall take advantage of his own laches: but if a man devise that his executor shall sell his land, there he may sell it at any time, for that he hath but a bare power, and no profit. And by this case it appears what construction the law makes for the speedy payment of debts.

DeviutoA.,h» So if lands be devised to one to pay twenty pounds to I. S. or PBy—iMm-'" pav'ns twenty pounds to I. N. this amounts to a condition. And ditim.and if he Crickmer's case was this : a man seised of certain lands holden in

does not pay . _ _ .

heirmay enter. socage had issue two daughters, A. and B. and devised all his lands [23o oj tc- A. and her heirs, to pay unto B. a certain sum of money at a certain day and place: the money was not paid, and it was adjudged, that these words, " to pay," &c. amounted in a will to a condition; and the reason was, for that the land was devised to A. for that purpose, otherwise B. to whom the money was appointed to be paid, would be remediless, and the lessee of B. [one of the coheirs] recovered in ejectment one moiety of the land against A.

Section 384.

Conclusion. And many other things there are of estates upon condition in law, and in such cases it is not necessary to shew any deed rehearsing the condition, for the law itself purports the condition, &c.

Ex paucis dictis intendere plurima possis.

More shall be said of conditions in the next chapter, in the chapter of Releases, and in the chapter of Discontinuance.

Hereby it appears, that limitations (which Littleton termeth con- Limitation and ditions in law) may be pleaded without deed; and the reason of a"l'n'""ai"' our author is observable, because the law in itself purports the condition, and withal [observe] that a stranger may take advantage of a limitation, [which he cannot do of a condition.]

Littleton having spoken at large of conditions in deed and in Subsequent delaw, somewhat seems necessary to be said of defeasances, whereby ^Tm^ieTu, the estate or right of freehold and inheritance may be defeated and ""'*<"«»»«"«.

° _ J fyc. but not to

avoided. There is a diversity between inheritances executed, and e,tate,executed. inheritances executory; as lands executed by livery, 8cc. cannot by indenture of defeasance be defeated afterwards. And so if a disseissee release to a disseisor, it cannot be defeated by indentures of defeasance made afterwards; but at the time of the release or feoffment, the same may be defeated by indentures of defeasance, for it is a maxim in law, qua incontinenli fiunt in esse videntur. But [237a] rents, annuities, conditions, warranties, and such like, which are inheritances executory, may be defeated by defeasances made either at the time or at any time after: and so is the law of statutes, recognizances, obligations, and other things executory.

Lastly, somewhat is necessary to be spoken concerning Powers of nm

. _ . .. 0 . .... cation in voluu

clauses of proviso, contaimng power ot revocation, whwh since taryemvey Littleton wrote have crept into voluntary conveyances, which pass ""^"a"^du'reom. by raising of uses, being executed by the statute of 27 II. 8., and mon law rf's

, .... „ tingnhhed.

are become very frequent, and the inheritance of many depend thereupon. As if a man seised of lands in fee, and having issue divers sons, by deed indented, covenants in consideration of fatherly love and for the advancement of the blood, or upon any other good consideration, to stand seised of three acres of land to the use of himself for life, and after to the use of Thomas his eldest son in tail; and for default of such issue, to the use of his second son in tail, with divers like remainders over; with a proviso that it shall be lawful for the covenantor at any time during his life to revoke any of the said uses &c. this proviso being coupled with an use, is allowed to be good, and not repugnant to the former estates. But in case of a feoffment, or other conveyance, whereby the feoffee or grantee &c. is in by the common law, such a proviso were merely repugnant and void. And first, in the case aforesaid, if the covenantor, who had an estate for life, revokes the uses according to his power, he is seised again in fee simple without any entry or claim. Secondly, he may revoke part at one time, and part at another. Thirdly, if he makes a feoffment in fee, or levies a fine &c. of any part, this extinguishes his power for that part only; whereas in such case the whole condition would be extinct. But if it be made of the whole, all the power is extinguished ; so that to some purposes it is of the nature of a condition, and to other purposes in nature of a limitation. Fourthly, if he who has such power of revocation has no present interest in the land, nor by the cesser of the estate shall have anything, then his feoffment or fine &c. of the land is no extinguishment of his power, because it is merely collateral to the land. Fifthly, by the same conveyance that the old uses are revoked may new uses be created or limited, where the former cease ipso facto by the revocation without either entry or claim. Sixthly, That these revocations are favourably interpreted, because many men's inheritances depend on the same.

CHAPTER VI. Section 385.

OF DESCENTS WHICH TOLL ENTRIES.

Descents which toll entries are in two ways, to wit, where where they the descent is in fee, or in fee tail. Descents in fee which toll en- occurtries are as if a man seised of certain lands or tenements is by another disseised, and the disseisor has issue, and dies of such estate seised, now the lands descend to the issue of the disseisor by course of law, as heir unto him. And because the law casts the lands or tenements upon the issue by force of the descent, so that the issue comes to the land by course of law and not by his own act, the entry of the disseisee is taken away, and he is put to sue a writ of entrie sur disseisin against the heir of the disseisor to recover the land.—[That is, he is driven to his real action, and cannot bring an ejectment, but now the heir is allowed to lay his demise in ejectment in the lifetime of the ancestor, which the defendant by consent rule is obliged to admit, and by that means this doctrine of descents is at the present day entirely evaded. Burr. 60. HEast, 141. Adams, Eject. 41. n.; but this chapter must nevertheless be studied, not only for its own illustrative importance, but for the many collateral points it contains.]

Nota. In ancient time, if the disseisor had been in long posses- Old lav. sion, the disseisee could not have entered upon him. Likewise the disseisee could not have entered upon the feoffee of the disseisor, if he had continued a year and a day in quiet possession. But the law is changed in both these cases, only the dying seised, being an act in law, holds at this day, and this seems to be very ancient, for this was the law before the conquest.

And one of the reasons of this ancient law may be, that the heir cannot suddenly by intendment of law know the true state of his title. And for that many advantages follow the possession and tenant, the law takes away the entry of him who would not enter upon the ancestor, and who is presumed to know his title, and drives him to his action against the heir that may be ignorant thereof.

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And dies of' such estate seised.] To a descent that takes away an entry a dying seised is necessary, as here it appears; but a man to other purposes may have lands by descent though his ancestor died not seised, as hath been said before.

Extends not to incorporeal

hereditaments.

Of lands or tenements.'] That is, of such tenements as are corporeal, and lie in livery, and not of inheritances which lie in grant, as advowsons, rents, commons in gross, and such like, which are inheritances incorporeal, and yet are included within this word (tenements). For descents of them do not put him who has right to an action; and the reason of this diversity is, for that houses serve for the habitation of men, and lands to be manured for their sustenance, and therefore the heir after a descent shall not be molested or disturbed in them by entry.

Or where the
disseisor dies
within five
years after the
disseisin bysiut.
which extends
to whom.

The entry of the disseisee is taken away.] At the common law, if the disseisor, abator, or intruder had died seised soon after the wrong done, the disseisee and his heirs had been barred of his and their entry without any time limited by law; but now, by the statute 37 H.6. c. 1. made since Littleton wrote, it is enacted, that except such disseisor has been in the peaceable possession of such manors, lands, &c. whereof he shall die seised by the space of five years next after such disseisin, 8cc. without entry or continual claim, &c. that there such dying seised, &c. shall not take away the entry of such person or persons, &c. But after the five years the disseisee must make such continual claim as our author has taught us, the learning whereof is necessary to be known. And it is said, that abators and intruders are out of this statute, because the statute is penal, and extends only to a disseisor, and that was the most common mischief. The feoffee also of a disseisor is out of the said statute, and remains as at the common law. But if a man makes a lease for life, and the lessee for life is disseised, and the disseisor dies seised within five years, the lessee for life may enter; but if the lessee dies before he doth enter, it is said that the entry of him in the reversion is not lawful, because his entry was not lawful upon the disseisor at the time of the descent, as the statute speaks. But if lessee for life had died first, and then the disseisor had died seised, he in the reversion had been within the remedy of the statute, because he had title of entry at the time of the descent, as the statute speaks, and so is within the express letter of the statute, albeit the disseisin was not immediate to him, and the like is to be said of a remainder, &c.

Section 386.

Descents in tail which take away entries are as if a man be dis- Descents in seised, and the disseisor gives the same land to another in tail, and the tenant in tail has issue and dies of such estate seised, and the issue enter; in this case the entry of'the disseisee is taken away, and he is put to sue against the issue of the tenant in tail a writ of entrie sur disseisin.

Section 387. [239a]

And note, that in such descents which take away entries, it is we- Dying seised of cessary that a man die seised in his demesne as of fee, or in his de- enoUgn- not mesne as of fee tail. For a dying seised for term of life, or for term of another mans life, never takes away an entry.

But if he in the reversion disseise his tenant for life and dies seised, this descent shall take away the entry of the tenant for life. So it is if there be tenant for life, the remainder in tail, the remainder in fee, and tenant in tail disseises the tenant for life and dies seised, this shall take away the entry of the tenant for life.

Section 388. [2396]

Also, a descent of a reversion, or of a remainder, does not take Dying seised away an entry\ Hence to those cases which lake away entries by not enou„n. farce of descents, it is necessary that the parly die seised of fee and freehold at the lime of his decease, or of fee tail and freehold at the time of his death, or otherwise such descent does not lake away an entry.

Reversion on lease for years and life distinguished.

And therefore if a disseisor make a lease for years, and die seised of the reversion, this descent shall take away the entry of the disseisee, because he died seised of the fee and frank-tenement. But if he had made a lease for life, and die seised of the reversion, this descent shall not take away the entry of the disseisee, for though he had the fee, yet he had not the frank-tenement. And if a disseisor make a lease for term of his own life, and dies, this descent shall not take away the entry of the disseisee; for though the fee and frank-tenement descend to the heir of the disseisor, yet the disseisor died not seised of the fee and frank-tene[CTM. L7is.3i5. ment: and Littleton says, that unless he has the fee and frank-tenement at the time of his decease, such descent shall not take away the entry.

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Section 389.

Collateral de- Also, descent in the collateral line takes away an entry as well

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Lord in by es- Also, if the alienee of the disseisor die without issue, and the lord take away dis- enter as in his escheat: in this case the disseisee may enter upon •eissee sentry. ^ne \orfit because the lord comes not to the land by descent, but by way of escheat.

But if the lord by escheat die seised, and the land descend to his heir, that descent shall take away the entry of the disseissee. So it is if the disseisor die seised, and the heir of the disseisor dies without heir, the disseissee cannot enter upon the lord by escheat. So that there is a diversity touching the descent, when after a descent cast, the issue in tail dies without issue, and when after a descent cast, the heir in fee-simple dies without heir: for he in the reversion or remainder upon an estate tail comes in above the estate tail, but the lord by escheat comes in under the heir in feesimple.

Section 391.

Also, if a man be seised of certain land in fee, or in fee-tail, So entry for upon condition to render certain rent, or upon other condition, cn"is'no? taken' albeit such tenant seised in fee or in fee-tail, dies seised, vet avvay byte:

•> '* nant s death in

if the condition be broken in their lives, or after their decease, possession. this shall not take away the entry of the feoffor or donor, or of their heirs, for that the tenancy is charged with the condition, and the estate of the tenant is conditional in whose hands soever the tenancy comes &c.

Upon these two sections a diversity is to be observed between a Right and title right, for which the law gives a remedy by action, and a title, for which the law gives no remedy by action, but by entry only. For example, the feoffee upon condition in this case has a right to the land, and therefore his entry may be taken away, because he may recover his right by action; but the feoffor or donor who has but a condition, his title of entry cannot be taken away by any descent, because he has no remedy by action to recover the land, and therefore if a descent should take away his entry, it would bar him for ever. And the law is all one whether the [240w] descent were before the condition broken, or after.

Section 392.

Same.

Also, if such tenant upon condition be disseised, and the disseisor die thereof seised, and the land descend to the heir of the disseisor, now the entry of the tenant upon condition who was disseised is taken away. Yet if the condition be broken, the feoffor or the donor who made the estate upon condition or their heirs may enter, causa qua supra.

If a man be seised of lands in fee, and by his last will in writing Heir'i entry devises the same to another in fee, and dies, after whose decease the freehold in law is cast upon the devisee, and the heir, before any entry made by the devisee, enters, and dies seised, this descent

shall not take away the entry of the devisee; for if the descent, which is an act in law, should take away his entry, the law would bar him of his right, and leave him utterly without remedy.

Section 393.

Disseisee may enter upon disseisor's wife's dower, for the wife is in by her husband, not by his heir or by descent.

Also, if a disseisor dies seised, and his heir enters and endows the wife of the disseisor of the third part of the land &c. in this case as to this part which is assigned to the wife in dower, presently after the wife enters, and has the possession of the same third part, the disseissee may lawfully enter upon the possession of the wife into the same third part. And the reason is, for that when the wife has her dower, she shau V adjudged in immediately by her husband, and not by the he and so the descent as to the freehold of the same third part, « defeated. Hence you may see, that before the endowment the disseissee could not enter into any part &c, and after the endowment he may enter upon the wife &c, but yet he cannot enter upon the other two parts which the heir of the disseisor has by the descent.

By this section it appears, that an entry being taken away by the descent, is revived by the endowmeut, albeit the tenant in dower shall have it but for her life. And the cause is, for that [241 a] although the heir entered, yet when the wife is endowed she shall not be in by the heir, but immediately by her husband being the disseissor, who is in for her life by a title paramount the dying seised and descent, and therefore in judgment of law, the descent as to the freehold, and the possession which the heir had is taken away by the endowment: for the law adjudges no mean seisin between the husband and the wife.

Disseisee's entry divests reversion.

Nota, albeit the disseissor conveys away and takes back an estate for life, yet when tfie disseissee enters upon him, he shall thereby divest the reversion, for the estate of freehold is that whereupon a pracipe lies, and therefore the entry of the disseissee is as available in law, as if he had recovered it in a real action.

Section 394. [2416]

Also, if a woman be seised of land in fee, whereof I have right Curtesy no bar and title to enter, if the woman take husband and they have issue ^veD Up to between them, and after the wife dies seised, and after the husband ',stue° j Salk dies, and the issue enters &c., tn this case I may enter upon the 241.] possession of the issue, for that the issue comes not to the lands immediately by descent after the death of the mother &c.

In this case I may enter upon the possession of the issue #c.] For here was but a descent of a reversion at the time of the dying seised, for the estate of the tenant by the curtesy had commencement by the having of issue, and is consummate by the death of the wife, so that the fee and franktenement did not after the decease of the wife descend to the heir, and albeit the tenant by the curtesy dies afterwards, and the franktenement is cast upon the heir, so as now he has the fee and franktenement by descent, yet because the heir came not to the fee and franktenement at once, immediately after the decease of the wife, such a mediate descent shall not take away the entry of the disseisee. On the other side, an immediate descent may take away an entry for a time, and mediately may be avoided by matter ex post facto, as hath been said. But if a dying seised takes not away the entry of him who has right at the time of the descent, it shall not by any matter ex post facto take away his entry.

Section 395.

Also, if a disseisor enfeoffs his father in fee, and the father If disseisor dies seised of such estate, by which the land descends to the disseisor comes in again as son and heir, in this case the disseisee may well enter upon the pure/^Dt,]"s_ disseisor, notwithstanding the descent, for as to the disseisin, the seisec may endisseisor shall be adjudged in but as a disseisor, notwilhstanding [242a] the descent quia particeps criminis.

And regularly it is true, that albeit a descent is cast and the entry of the disseisee taken away, yet if the disseisor comes to the land again, either by descent or purchase of any estate of free-' hold, which is implied in the (#c.) the disseisee may enter upon him, or have his assise against him, as if no descent or mean conveyance had been, quia particeps criminis.

Section 396.

Younger son's abatement on eldest, and death, not a descent, tolling entry of eldest.

Abatement, none between brothers. [Gilb. Tenures, 21.]

Also, if a man seised of certain land in fee hath issue two sons, and dies seised, and the younger son enters by abatement into the land, and has issue, and dies seised thereof, and the land descends to his issue, and the issue enters into the land: in this case the eldest sort or his heir may enter by law upon the issue of the younger son, notwithstanding the descent, because when the younger son abated into the land after the death of his father, before any entry made by the eldest son, the law intends that he entered claiming as heir to his father. And for that the eldest son claims by the same title, that is to say, as heir to his father, he and his heirs may enter upon the issue of the younger son notwithstanding the descent &c. because they claim by the same title. And in the same manner it shall be, if there were more descents from one issue to another issue of the younger son.

Section 397. CWr« if elder But in this case, if the father be seised of certain lands in fee,

brother once . J

seised. and has issue two sons and dies, and the eldest son enters and is

seised jfc, and after the younger brother disseises him, by which disseisin he is seised in fee, and has issue, and of his estate dies seised, then the elder brother cannot enter, but is put to his writ of entrie sur disseisin &c. to recover the land.

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Lands were given to the husband and wife, and to the heirs of their two bodies, they had issue a daughter, the wife died, the husband had issue by another wife four sons and died, the eldest son abated and died seised, this descent took away the entry of the daughters because they claimed not by one title. But if a man be seised of lands of the nature of borough English, and has issue two sons and dies, and the eldest son before any entry made by the youngest, enters into the land by abatement, and dies seised, this shall not take away the entry of the youngest brother. El sic de similibus. And these and the like cases are all within the reason

and rule of our author. And where our author speaks only of an Intrusion.

abatement, so it is of an intrusion; for if the father makes a lease

for life, and has issue two sons and dies, and the tenant for life

dies, and the youngest son intrudes and dies seised, this descent

shall not take away the entry of the eldest. But if the father had Lessee's pos

,./.,!_ session isfree

made a lease for years it had been otherwise, ior that the posses- holder's.
sion of the lessee for years makes an actual freehold in the eldest
son. And it is to be observed, that the reason of Littleton in this
case (viz. that both the brethren hold by one title) holds also in
many other cases.

If two coparceners make partition to present by turns, and one of Usurpation. them usurp the turn of the other, this usurpation shall not put the other out of possession, because they claim by one title.

And is seised &c.1 That is to say, actually seised, either by Seisin by tenant

c fcfr 3/«»rs.

entry, as Littleton here puts it, or by possession of the lessee tor years, or the like.

Section 398. In the same manner it is, if a man seised of certain land in fee, One coparcener

(ivinir seised oi

has issue two daughters, and dies, the eldest daughter enters into whol(,f no de. the land claiming all to herself, and thereof takes the profits, ^^tnhger and has issue and dies seised, and then her issue enters, which issue has issue and dies seised, and the second issue enter, et sic ultra, yet the younger daughter and her issue as to the moiety, may enter upon any issue whatsoever of the elder daughter notwithstanding [2436] such descent, for that they claim by one and the same title &c. But in such case where both sisters have entered after the death of their father, and were thereof seised, and afterwards the eldest sister had disseised the younger of her part and was thereof seised in fee, and had issue, and of such estate died seised, whereby the lands descend to the issue of the eldest sister, then neither the younger sister nor her heirs can enter &c. causa qua supra &c.

Section- 399.

dying seised, gains a good title.

Bastard eigne ALSO if a man be seised of certain lands in fee, and has issue hco Her puisne" TMnd sons> and the elder is a bastard, and the younger mulier, and the father dies, and the bastard enters claiming as heir to his father, and occupies the land all his life, icithout any entry made upon him by the mulier, and the bastard has issue and dies seised of such estate in fee, and the land descends to his issue, and his issue enters fyc. in this case the mulier is without remedy, for he may not enter nor have any action to recover the land, because there is an ancient lata in this case used [ro the contrary] &c.

K'Aiil entry of one coparcener an abatement.

Claiming all to her.~\ Here it appears, that when one coparcener specially enters, claiming the whole land and taking the whole profits, that she gains the moiety of her sister by abatement, and yet her dying seised shall not take away the entry of her sister; whereas when one coparcener enters generally and takes the profits, this shall be accounted in law the entry of them both, and no divesting of the moiety of her sister.

Feoffment of entirety by one coparcener.

If one coparcener enters claiming the whole, and makes a feoffment in fee, and takes back an estate to her and her heirs, and has issue and dies seised, this descent shall take away the entry of the other sister, because by the feoffment the privity of the coparcenary was destroyed.

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We term all bastards that are bom out of lawful marriage. By the common law if the husband be within the four seas, that is, within thejurisdiction of the king of England, if the wife has issue, no proof is to be admitted to prove the child a bastard, (for in that case fi/iatio non potest probari) unless the husband has an apparent impossibility of procreation; as if the husband be but eight years old, or under the age of procreation, such issue is bastard, albeit he be born within marriage. But if the issue be born within a month or a day after marriage between parties of full lawful age the child is legitimate.

Descend to his issue.] For if the bastard dies seised without issue, Escheat. and the lord by escheat enters, this dying seised shall not bar the mulier, because there is no descent.

And his issue enters fyc.] And so it is to be understood, albeit Abatement 0„ the mulier, after the decease of the bastard, enters before the haefrar "s"" heir of the bastard; for the descent binds, and not the entry of the heir.

The mulier is without remedy.] And it is holden that if the mulier Infancy. be within age at the time of the dying seised, he shall nevertheless be barred, because the issue of the bastard is in judgment of law become lawful heir, and the law prefers legitimation before the privilege of infancy. So if the bastard dies seised, and his Dover. issue endows the wife of the bastard, yet is not the entry of the mulier lawful upon the tenant in dower, for his right was barred by the descent.

Has issue two sons.] If a man has issue such a bastard as is afore- Collateral heir. said, and dies, and the bastard enters and dies seised, and the land descends to his issue, the collateral heir of the father is bound, as well as where there are two sons.

And where our author speaks of sons, so it is if a man has issue Two eoparcetwo daughters, the eldest being a bastard, and they enter and oc- ""J""'''b"^ cupy peaceably as heirs; now the law in favour of legitimation «*««. «<*«• shall not adjudge the whole possession in the mulier, (who then had the only right) but in both, so that if the bastard has issue and dies, her issue shall inherit [one moiety.] And in the same case, [24461 if both daughters enter and make partition, this partition shall bind the mulier for ever.

And the bastard enters as heir to his father.] If a man has issue Entry of basbastard eigne and mulier puisne, and the bastard in the life of thefather j"TM^'f,j'' has issue and dies, and then the father dies seised, and the son of the bastard enters, as heir to the grandfather, and dies seised, this descent shall bind the mulier.

Section 400.

Bastard eigne must be by same mother as mulier puisne.

But it has been the opinion of some, that this shall be intended where the father has a son bastard by a woman, and after marries the same woman, and after the espousals he has issue by the same woman a son or a daughter, and after the father dies 5fc. if such bastard enters &c. and has issue and dies seised &c. then shall the issue of such bastard have the land clearly to him, as it is said before §c. and not any other bastard of the mother who was never married to his father. And this seems to be a good and reasonable opinion: for such a bastard born before marriage celebrated between his father and his mother, by the law of lioly church is mulier, albeit by the law of the land he is a bastard, and so he has a colour to enter as heir to his father, for that he is by one law mulier, i. e. by law of holy church. But otherwise it is of a bastard who has no manner of colour to enter as heir, in so much as he can by no law be said to be mulier, for such a bastard is said in the law to be quasi nullius Alius &c.

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But bastard must not be interrupted by mulier.

But in the case aforesaid, where the bastard enters after the death of the father, and the mulier ousts him, and after the bastard disseises the mulier, and has issue and dies seised, and the issue enter, then the mulier may have a writ of entrie sur disseisin against the issue of the bastard, and shall recover the land &c. And so you may see a diversity where such bastard continues the possession all his life without interruption, and where the mulier enters and interrupts the possession of such bastard &c.

What an entry, interruption, or claim.

Interrupts the possession of such bastard #c] If the bastard invite the mulier to see his house, or to see his pictures &c, or to dine with him, or to hawk, hunt, or sport with him, or such like upon the land descended, and the mulier comes upon the land accordingly, this is no interruption, because he came in by the consent of the bastard, and therefore the coming upon the land can be no trespass; but if the mulier comes upon the ground of his own head, and cuts down a tree, or digs the soil, or takes any profit, these shall be interruptions; for rather than the bastard shall punish him in an action of trespass, the act shall amount in law to an entry, because he has a right of entry. So it is if the mulier put any of his beasts into the ground, or command a stranger to put on his beasts, these acts amount to an entry; for albeit in these cases the mulier does not use any express words of entry, yet these and such like acts, do without any words amount in law to an entry; for acts without words may make an entry, but words without an act (viz. entry into the land &c.) cannot make an entry (all which interruptions are implied in the said fyc.) More shall be said hereafter of interruptions in the chapter of Continual Claim.

Section 402.

Also, if an infant within age has cause to enter into any lands Descent during

or tenements upon another, who is seised in fee or in fee-tail of the »Vail;

tame lands or tenements, if the man who is so seised dies of such

estate seised, and the lands descend to his issue during the time

the infant is within age, such descent shall not take away the entry

of the infant, hut he may enter upon the issue who is in by descent,

for no laches shall be adjudged in an infant within age in such a

case.

If an infant within age has cause to enter.'] If a man seised except as to inof lands in fee dies, his wife privement enseint with a son, and a {anic'e.VeD TM stranger abates and dies seised, and after the son is born, he shall be bound by the descent [i. e. he shall be deprived of his entry, and driven to his action] because he at the time of the descent had no right to enter, and this is to be gathered upon these words of Littleton, has cause to enter, which at the time of the descent he has not

No laches shall be adjudged in an infant within age in such a case.] Adtmtson. ULittleton well added (tit such a case) that is, in case of descent, for •£", ,^;,f',-r in some other cases laches shall prejudice an infant. As laches ""Sjfjf, i shall be adjudged in an infant if he present not to a church within six months, for the law respects more the privilege of the church (that the cure be served) than the privilege of infancy.

E E

Section 403.

No tolling of entry as to wife and her heirs by descent during coverture.

Also, if husband and wife, in right of the wife, have title and right to enter into lands which another has in fee, or in fee-tail, and such tenant dies seised 6;c. in such case the entry of the husband vpon the heir who is in by descent is taken away. But if the husband dies, then the wife may well enter upon the issue who is in by descent, for no laches of the husband shall turn the wife or her heirs to any prejudice or loss in such case, but the wife and her heirs may well enter where such descent is eschewed during the coverture.

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If husband and wife have title and right to enter <Sjc and such tenant dies seised SfcJ] These words are general, but are particularly to be understood, viz. when the wrong was done to the wife during the coverture; for if a feme sole be seised of lands in fee, and is disseised, and then takes husband; in this case the husband and wife, as in the right of the wife, have right to enter, and yet the dying seised of the disseisor in that case shall take away the entry of the wife after the death of her husband; and the reason is as well for that she herself when she was sole might have entered and recontinued the possession, as also it shall be accounted her folly that she would take a husband who would not enter before the descent. But if the woman were within age at the time of her taking husband, then the dying seised shall not after the decease of her husband take away her entry; because no folly can be accounted in her, for that she was within age when she took husband, and after coverture she cannot enter without her husband; all which is implied in the said (#c.)

Laches no prejudice to feme covert or infant, except as to conditions.

No laches of the husband shall turn the wife SfC. to any prejudice SfC. Here is a diversity to be observed, that albeit regularly no laches shall be accounted in infants, or feme coverts, as is aforesaid, for not entering or claiming to avoid descents, yet laches shall be accounted in them for non-performance of a condition annexed to the estate of the land. For if a feme be enfeoffed either before or after marriage, reserving a rent, and for default of payment a re-entry; in that case, the laches of the baron shall disinherit the wife for ever. And so it is of an infant; his laches for not performing a condition annexed to the state, either made to his ancestor or to himself, shall bar him of the right to the land for ever. If a man makes a feoffment in fee to another reserving a rent, and if he pay not the rent within a month, that he shall double the rent, and the feoffee dies, his heir within age, and the infant pays not the rent, he shall not by this laches forfeit any thing. But otherwise it is of a feme covert; and the reason and cause of this diversity is, for that the infant is provided for by the statute of Merton, c. 5.

Section 404.

But the court holds, where such title is given to a feme sole, who Feme sole. after takes husband who does not enter but suffers a descent bc. there otherwise it is, for it shall be said to be the folly of the wife o take a husband who entered not in lime bc.

This is added, and therefore, as I have formerly done, I meddle not withal; howbeit the opinion is holden for law, as it appears in the section next precedent.

Section 405.

Also, if a man who is of non-sane memory, that is to say in Descent cast Latin, qui non est compos mentis, has cause to enter into any durin8 iJi0icy tenements, if such descent, ut supra, be had in his life during the effect against

It /. • » i. i v »• • . nei*of non com

time that he was not of sound memory, and after he dies, his heir pot.

may well enter upon him who is in by descent. And here you

may see a case, where the heir may enter and yet his ancestor who

had the same title could not enter. For as to him who was out of

his memory at the lime of such descent, if he enters after such

descent, and an action upon this is sued against him, he hasnothing

to plead for himself, or to help him, but to say, that he was not of

sane memory at the time of such descent &c. And he shall not be

received to say this, for no man of full age shall be received

in any plea by the law to disable his own person, but the heir may

well disable the person of his ancestor for his own advantage in

such case, for no laches is adjudged by law in him who has no

discretion in such case.

Idiotcy. in- Non compos mentis is of four sorts; 1. Ideola, which fiom his na

niniKs. TM" tivity, by a perpetual infirmity, is non compos mentis. 2. He that [247 «] by sickness, grief, or other accident, wholly loses his memory and understanding. 3. A lunatic that has sometimes his understanding and sometimes not, aliquando gaudet lucidis intervuttis, and therefore he is called non compos mentis, so long as he has not understanding. Lastly, he that by his own vicious act for a time deprives himself of his memory and understanding, as he that is drunken. But-that kind of non compos mentis shall give no privilege or benefit to him or to his heirs. And a descent shall take away the entry of an ideot, albeit the want of understanding was perpetual; for Littleton speaks generally of a man of non-sane memory. So likewise if a man who becomes non compos mentis by accident, as is aforesaid, be disseised and suffers a descent, albeit he recovers his memory and understanding again, yet he shall never avoid the descent; and so it is a fortiori of one who hath lucida inlervalla. As for a drunkard who is voluntarius damon, he has (as hath been said) no privilege thereby, but what hurt or ill soever he does, his drunkenness aggravates it: Omne crimen ebrietas et incendit et detegit.

hiiot'sfeoff- If an idiot make a feoffment in fee, he shall in pleading never

ncorery "what avoid it by saying that he was an idiot at the time of his feoffment *"'"'• and so had been from his nativity. But upon an office found for

the king, the king shall avoid the feoffment for the benefit of the idiot, whose custody the law gives to the king. So it is of a non comjjos mentis by accident, and of him qui gaudet lucidis intervaltis if an estate be made during his lunacy: for albeit the parties them selves cannot be received to disable themselves, yet twelve men upon their oaths may find the truth of the matter. But if any ol them alien by fine or recovery, this shall not only bind himself but his heirs also. As amongst other things requisite to be known, these cases you shall find at large in my Commentaries, whereunto, for brevity, I refer the reader : upon all which books there have been four several opinions concerning the alienation or other act r247 61 °fa man tnat >s non con>P°s mentis $c. For, first, some are of opinion that he may avoid his own act by entry, or plea. Secondly, others are of opinion that he may avoid it by writ, and not by plea. Thirdly, others, that he may avoid it either by plea, or by writ; and of this opinion is Fitzherbert in his Natura Brevium, ubi supra. And Littleton here is of opinion, that neither by plea nor by writ nor otherwise, he himself shall avoid it, but his heir (in respect that his ancestor was non compos mentis) shall avoid it by entry, plea, or writ. And herewith the greatest authorities of our books agree; and so was it resolved with Littleton in Beverley's case; where it is said, that it is a maxim of the common law, that the party shall not disable himself. But this holds only in civil causes; for in criminal causes, as felony &c, the act and wrong of a madman shall not be imputed to him. And so it is of an infant, until he is of the age of fourteen, which in law is accounted the age of discretion.

If lands be given to two and to the heirs of one of them, he who Waat—Jointhas the fee simple shall not have an action of waste upon the 'nTmllndwln' statute of Gloucester against the joint-tenant for life, but his heir /f* '" oneof may maintain an action of waste against him upon the statute of Gloucester; so the heir may maintain that action which the ancestor could not.

Section 406.

And if a man of non-sane memory make a feoffment &c. he Feoffment fine himself cannot enter, nor have a writ called Dum non fuit compos "^commlo7 mentis, &c. causa qua supra: hut after his death his heir may well m!30tenter or have the said writ of Dum non fuit compos mentis at his choice. The same law is where an infant within aye makes a feoffment, and dies, his heir may enter, or have a writ of Dum fuit infra retatem, &c.

Make a feoffment, &:.] Or any other like conveyance in pais; hut fines and other assurances of record are not implied in this (&)C.)

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Also, if I be disseised by an infant within aye, who aliens to Disseisin by mother in fee, and the alienee dies seised, and the land descends to "lfant* his heir, the infant beiny under aye, my entry is taken away.

Section 408.

Same. But if the infant within age enters upon the heir who is in by de

scent, as he well may, for that the same descent was during his nonage, then I may well enter upon the disseisor, because by his entry he has defeated and taken away the descent.

Here it appears, that the entry of the infant is lawful, and gives advantage to the disseisee to enter also, because the descent, which was the impediment, is avoided. And it is to be observed, that if the descent be cast, the infant being within age, he may enter at any time, either within age or after his full age.

infant's feoff. And so it is if an infant make a feoffment &c. he may enter either

vicnt. . . .

within age, or at any time after his full age, and so in both cases

may his heir.

Section 409.

What descent cast by death of disseisor's feoffee on condition.

In the same manner it is, where I am disseised, and the disseisor makes afeoffment in fee upon condition, and the feoffee dies of such estate seised, I may not enter upon the heir of the feoffee: but if the condition be broken and the feoffor enters upon the heir, now I may well enter, for when the feoffor or his heir enters for the condition broken, the descent is utterly defeated, &c.

Section 410.

Descent not Also, if I am disseised, and the disseisor has issue ami enters

cast by entry , , . .

into religion. into religion, by force whereof the lands descend to his issue, in this case I may well enter upon the issue, and yet there was a descent.

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Though a de- Also, if I let to a man certain lands for the term of twenty

scent cast the J . .

lessee for years years, and another disseises me and ousts the termor, and dies seised, and the lands descend to his heir, I may not enter; and yet the may enter, <*<«

.* Ira of lessee for

lessee for years may well enter, because by his entry he does life.
not oust the heir who is in by descent of the freehold which is de-
scended to him, but only claims to have the lands for term of
years, which is no expulsion of the heir from the freehold who is in
by descent. But otherwise it is where my tenant for life is dis-
seised, causa patet, &c.

For the term of' twenty years.] It is clear that a descent shall Descent ca*t mi

rir ii effect on chat

not take away the entry ot a lessee lor years, as our author here ieU.
says, nor of a tenant by elegit, or tenant by statute merchant, or
such like, who have but a chattel and no freehold; and the reason
is, for that by their entry upon the heir by descent, they take no
freehold (which, as often hath been observed, is so much respected
in law) from him; but otherwise it is of an estate for life or any
higher estate. And as a descent of a freehold and inheritance
shall take away the entry of him that right has to a freehold or in-
heritance, so a descent of a freehold and inheritance cannot take
away the entry of him that has but a chattel, for that no descent
or dying seised can be of the same.

A man seised of an advowson in fee grants three avoidances one Advou-sm, after another, and after the church becomes void, and the grantor ^r„T!,f three presents, and his clerk is admitted and instituted, and after the church becomes void again, the grantee may present to the second avoidance, for that he was not put out of the possession thereof; for as the lessor having the freehold and inheritance cannot disseise his lessee for years, having but a chattel, so as that any descent may be cast to take away his entry (as Littleton here says); so in the said case the grantor has the franktenement and fee of the advowson rightfully, so as he cannot make any usurpation to gain any estate, or to put the grantee so out of possession as that he should not present, no more than the lessee for years in that case, to enter. Also in respect of the privity that is between them, the usurpation of the grantor shall not put the grantee out of possession for the two latter avoidances. And this was resolved by all the judges of the Court of Common Pleas, which 1 myself heard and observed.

avoidances.

Section 412.

Death in Ume Also, it is said, that if a man be seised of lands in fee by occasTsnode- cupation in time of war, and thereof dies seised in the time of *cen'- war, and the tenements descend to his heir, such descent shall not

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Descent cast applies not to corporations.

Also, that no dyiny seised (where the tenements come to another by succession) shall take away the entry of any person Sfc. As of prelates, abbots, priors, deans, or of the parson of a church, or of other bodies politic fyc, albeit there were twenty dyings seised, and twenty successors, this shall not put any man from his entry.

More shall be said of descents in the next chapter,

Successors are in post, heirt iti the per.

By succession.'] This in the common law is applied only to bodies politic, or corporate, which have succession perpetual, and not to natural men: as to a bishop and his successors, or to an abbot, dean, archdeacon, prebend, parson &c. and their successors, and not to I. S. or any other natural body and his successors, but to him and his heirs. And the successor of any of these is in the ■post, and the heir of the natural man is in the per; and succedert is derived of sub and cedere.

Different hinds of corporations.

Bodies politic Sfc] That is a body to take in succession, framed (as to that capacity) by policy, and thereupon it is called here by Littleton a body politic; and it is also called a corporation, or a body incorporate, because the persons are made into a body, and are of capacity to take and grant &c. And this body politic, or incorporate, may commence and be established three manner of ways, viz. by prescription, by letters patents, or by act of parliament. Every body politic, or corporate, is either ecclesiastical or lay: ecclesiastical, either regular, as abbots, priors 8tc.: or secular, as bishops, deans, archdeacons, parsons, vicars &c.: lay, as mayor

and commonalty, bailiffs and burgesses &c. Also every body politic, or corporate, is either elective, presentative, collative, or donative. And again, it is either sole, or aggregate of many; as you may read in the Third Part of my Commentaries. And this body politic, or corporate, aggregate of many, is by the civilians called collegium or universitas.

CHAPTER VII. Section 414.

CONTINUAL CLAIM.

and defeats effect of descent cast.

Continual Continual claim is where a man has right and title to enter

right of rent, into any lands or tenements whereof another is seised in fee, or in fee-tail, if he who has title to enter makes continual claim to the lands or tenements before the dying seised of him who holds the tenements, then albeit such tenant dies thereof seised, and the lands or tenements descend to his heir, yet may he who has made such continual claim, or his heir, enter into the lands or tenements so descended, by reason of the continual claim made, notwithstanding the descent. As if a man be disseised, and the disseisee makes continual claim to the tenements in the life of the disseisor, although the disseisor dies seised in fee, and the land descends to his heir, yet may the disseisee enter upon the possession of the heir notwithstanding the descent.

Must be modi Here our author first describes what a continual claim is. It is once erery year. called continuum clameum, because at the common law it must have

been made within every year and day, as Littleton here teaches.

And yet if he that right hath makes claim, and the ter-tenant dies [2506] within the year and the day, this claim though it be but once made

(as hath been said) shall preserve the entry of him who makes the

claim.

Claim to be Hath right and title to enter.1 And yet in some cases a con

'sTm'erKaunot tmual claim may be made by him who has right and cannot enter. oner by reason If tenant for years, tenant by statute staple, merchant, or elegit,

of term for . .... ,

years. be ousted, whereby he in the reversion is disseised, the lessor, or he

in reversion, may enter to the intent to make his claim, and yet his entry as to take any profits, is not lawful during the term.

Right of entry hoio preserved

Yet may he who has made such continual claim, or his heirs, enter.] This is to be understood in this manner: that if the father make claim, and the disseisor dies, and then the father dies, that his heir '»*«•». bn «•*. may enter, because the descent was cast in the father s time, and the right of entry which the father gained by his claim shall descend to his heir. But if the father make continual claim, and dies, and the son makes no continual claim, and within the year and day after the claim made by the father, the disseisor dies, this shall take away the entry of the son, for that the descent was cast in his time, and the claim made by the father shall not avail him who might have claimed himself. And of this opinion was Littleton himself in our books, where he holds that no continual claim can avoid a descent, unless it be made by him who has title to enter, and in whose life the dying seised was. And as here Littleton puts his case of the ancestor and heir, so it holds in all respects of the predecessor and successor.

Section 415. [26In]

In the same manner it is, if tenant for life aliens in fee, he in the Alienation of reversion or he in the remainder may enter upon the alienee. And anj death of' if such alienee dies seised of such estate without continual claim al<enee, puts

J J remainder-man

made to the tenements, before the dying seised of the alienee, and to his action.

the lands by reason of the dying seised of the alienee descend to his

heir, then cannot he in the reversion nor he in the remainder enter.

But if he in the reversion or in the remainder, who has cause to

enter upon the alienee, makes continual claim to the land before the

dying seised of the alienee, then such a man may enter after the

death of the alienee, as well as he might in his life-time.

Section 416.

Also, if land be let to a man for term of his life, the remainder Continual to another for term of life, the remainder to a third person in fee, fr„n"'on^e" s if tenant for life aliens to another in fee, and he in the remainder mainder-man

J J J , , . . to another.

for life makes continual claim to the land before the dying seised of the alienee, and after the alienee dies seised, and after he in the remainder for life dies before any entry made by him, in this case he in the remainder in fee may enter upon the heir of the alienee,

9

by reason of the continual claim made by him who had the remainder for life, because that such right of entry as he had shall go and remain to him in the remainder after him, inasmuch as he in the remainder in fee could not enter upon the alienee in fee during the life of him in the remainder for life, and for that he could not then make continual claim, whence it appears that none can make continual claim but when he who has right and title to enter.

Tenant for life Alien to another in fee..] It is to be observed, that a forfeiture

ulim'TforTM may ^e raa(^e by tne alienation of a particular tenant two manner

feiture. of ways; either in pais, or by matter of record. In pais, of lands

and tenements which lie in livery (whereof Littleton intends this

case) where a greater estate passes by livery than the particular

tenant may lawfully make, whereby the reversion or remainder is

divested, as here in the example that Littleton puts when tenant

[251 b] for life aliens in fee, which must be understood of a feoffment, fine,

or recovery by consent. If tenant for life, and he in the remainder

for life in Littleton's case, had joined in a feoffment in fee, this had

been a forfeiture of both their estates, because he in the remainder

is particeps injuria:. And so it is if he in the remainder for life had

entered, and disseised tenant for life, and made a feoffment in fee,

this had been a forfeiture of the right of his remainder.

Noneofiucor- A particular estate of any thing that lies in grant cannot be formenti. '" '" feited by any grant in fee by deed. As if tenant for life or years of an advowson, rent, common, or of a reversion or remainder of land, by deed grants the same in fee, this is no forfeiture of the estates for nothing passes thereby but that which may lawfully pass; and of that opinion is Littleton in our books.

Contia <u to But if tenant for life or years of land, the reversion or remainder

yew.'nm. in being in the king, make a feoffment in fee, this is a forfeiture, and *""£■ yet no reversion or remainder is divested out of the king; and the

reason is, in respect of the solemnity of the feoffment by livery

tending to the king's disherison.

By matter of record, and that by three manner of ways. First by alienation. Secondly, by claiming a greater estate than he ought. Thirdly, by affirming the reversion or remainder to be in a stranger.

First, by alienation; and that of two sorts, viz. by alienation What aiiendivesting, or not divesting, the reversion or remainder. Divesting, jlrWediTM""' as by levying a fine, or suffering a common recovery of lands, the remainder. whereby the reversion or remainder is divested: not divesting, as by levying a fine in fee, of an advowson, rent, common, or any other thing that lies in grant: and of this opinion is Littleton in our books. And so note two diversities: first, between a grant by fine (which is of record) and a grant by deed in pais; and yet in this they both agree that the reversion or remainder in neither case is divested: secondly, between a matter of record, as a fine &c. and a deed recorded, as a deed enrolled, for that works no forfeiture, because the deed is the original.

Secondly, by claim: and that may be in two ways, either ex- of his claiming press or implied. Express, as if tenant for life in a court of record l 'Jfe m open claims the fee, or if lessee for years be ousted, and then he brings an assise ut de libero tenemento. Implied, as if in a writ of right brought against the tenant for life he takes upon himself to join the mise upon the mere right, which none but tenant in fee-simple ought to do. So if lessee for years loses in a precipe and brings a writ of error for error in process, this is a forfeiture.

Thirdly, by affirming the reversion or remainder to be in a Disclaiming stranger, and that either actively or passively. Actively, in five '^'rorl'o«! ways. As first, if tenant for life prays in aid of a stranger, whereby he affirms the reversion to be in him. 2dly. If he attorns to the grant of a stranger; and there note also a diversity between an attornment of record to a stranger, and an attornment in pais, for an attornment in pais works no forfeiture. 3dly. If a stranger brings a writ of entry in cam proviso, and supposes the reversion to be in himself, if the tenant for life confesses the action, this is a forfeiture. 4thly. If tenant for life pleads covinously to the disherison of him in the reversion, this is a forfeiture. 5thly. If a stranger brings an action of waste against lessee for life, and he pleads mil wast fait, this is a forfeiture; or the like.

Passively, as if tenant for life accepts a fine of a stranger stir Tenant for hfe's

•* i c acce'i'tuigjine a

comisans de droit come ceo Syc; for thereby he affirms of record the re- forfeiture. version to be in a stranger.

Tirmninder-man Littleton here speaks of the forfeiture of an estate; and here it 'ma^'llu^^ter '8 to ^e known> tnat tne r'ght of a particular estate may be forfeited for thejm- also, and that he who has but a right of remainder or reversion may take benefit of the forfeiture. As if tenant for life be disseised, and then levies a fine to the disseisor, he in the reversion or remainder may presently enter upon the disseisor for the forfeiture. And so it is if the lessee after the disseisin had levied a fine to a stranger, though to some respects partes finis nihil habuerunt, yet it is a forfeiture ofhis right.

Tinant for life's Littleton here speaks of an alienation in fee absolutely, but forfeiture, so it is if the lessee for life makes a lease for any other man's

life, or a gift in tail. If A. be tenant for life, and makes a lease to B. for his life, and B. dies, and the lessee re-enters, yet the forfeiture remains. If tenant for life makes a lease for life, or a gift in tail, or a feoffment in fee, upon condition, and enters for the condition broken, yet the forfeiture remains. Littleton speaks of an estate for life; so it is of tenant in tail apres possibi/itie, tenant by the curtesy, tenant in dower, or of him who has an estate during the life of I. S. 8cc. and so of tenant for years, tenant by statute merchant, statute staple, or elegit.

Surrender and Littleton says, "where the alienation in fee is made to

'thlgi'iil'iied'." another," which must be intended a stranger, for if it be made

to him in reversion or remainder, it amounts to a surrender of

his estate, as at large hath been spoken in the chapter of tenant

for life.

Remainder man By Littleton it appears, that tenant for life in remainder may 'eZtnfoTu'for- enter for the forfeiture of the first tenant for life, and that if the Je".ure< <»idhi> tenant for life in remainder make continual claim, and the alienee

claim preserves

the right. die seised, then may he in the remainder for life enter; and if he

die before he enters, then he in the remainder in fee shall enter, because he in the remainder in fee could not make any claim [i. e. during the life of him in remainder for life], and therefore the right of entry, which tenant for life in remainder gained by his claim, shall go to him in remainder in fee in respect of the privity of estate: and so it is of him in the reversion in fee in like case, for he is also privy in estate.

If two joint-tenants be disseised, and one of them makes con- Claim of one tinual claim, and dies, the survivor shall take benefit of his con- mvrettomrtinual claim in respect of the privity of their estate.

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But if tenant for life make continual claim, this shall not give any 9'""". "f "<»"<<< benefit to him in the remainder, unless the disseisor died in the life- session enures time of tenant for life, for the cause abovesaid, Section 414. Yer.""""""'

Section 417.

But it is to be seen. of thee (my son) how and in what manner Entry into part kuch continual claim shall be made; and to learn this well, three niuAtT'eood for things are to be understood. The first thing is, if a man has a lan<Is m tliat

"J f J county.

right of entry into any lands or tenements in divers towns in one county, if he enter into one parcel of the lands or tenements which are in one tovm in the name of all the lands or tenements in the same county; by such entry he shall have as good a possession and seisin of all the lands and tenements whereof he has title of entry, as if he had entered in deed into every parcel: and this seems great reason.

If a man has cause to enter into any lands or tenements #c.] It is not sufficient to tell one generally what he should do, but to direct him how, and in what manner he shall do it, as Littleton does in this place. And here, the general rules of our author are to be [252 b] understood, that the entry of a man, to recontinue his inheritance or freehold must ensue his action for the recovery of the same.

A right of entry Sjc.] But if three men disseise me severally of Contra if the three several acres of land, all being in one county, and I enter into J^'""^'"' one acre in the name of all the three acres, this is good for that f*TM'. <"•''"

° _ lands lie let to

acre only which I entered into, because each disseisor is a several seierai tenants

tenant of the freehold, and as I must have several actions against

them for the recovery of the land, so my entry must be several.

And so it is if one man disseise me of three acres of ground

and then lets the same severally to three persons for their lives

&c., there the entry upon one lessee, in the name of the whole, is

good for no more than that acre which he hath in his possession.

But if the disseisor had let severally the said three acres to three

Separate conditions require separate entries for breach.

persons for years, there the entry upon one of the lessees, in the name of all the three acres, shall recontinue and revest all the three acres in the disseisee, for that the disseisee might have had one assise against the disseisor, because he remained tenant of the freehold for all the three acres, and therefore one entry shall serve for the whole. If a man disseise me of one acre at one time, and after disseise me of another acre in the same county at another time, in this case my entry into one of the acres in the name of both is good: for that one assise might be brought against him for both disseisins. But if I enfeoff a man of one acre of ground upon condition, and at another time I enfeoff the same man of another acre in the same county upon condition also, and both the conditions are broken, an entry into one acre in the name of both is not sufficient, for I have no right to the land nor action to recover the same but a bare title, and therefore several entries must be made into the same in respect of the several conditions. But an entry in one part of the land, in the name of all the land subject to one condition, is good, although the parcels be several and in several towns. And so note a diversity between several rights of entry, and several titles of entry by force of a condition.

Different counties.

In one county.'] For if the lands lie in several counties there must be several actions, and consequently several entries, as hath been said.

General entry witfumt saying for xvhat land.

In the name of all fyc.~\ If one disseise me of two several acres in one county, and I enter into one of them generally, without saying, in the name of both; this shall revest only that acre wherein entry is made, as hath been said: and that is proved by our books, which say, that if I bring an assize of two acres, if I enter into one pending the writ, albeit it shall revest that acre only, yet the writ shall abate.

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Section 418.

For if a man enfeoff another without deed of lands which he hat in many towns in one county, aud deliver seisin of parcel of the tenements within one town, in the name of all the lands, all the saitl tenements S^c. pass by force of the said livery; a mill to fortiori, it seems good reason, that when a man has title to enter into lands in

divers towns in one county, that by the entry made by him into parcel, this shall vest a seisin in him of all, and by such entry he has possession and seisin in deed the same as if he had entered into every parcel.

Section 419. [2536]

The second thing to be understood is, that if a man has title to Entry prevented

enter into any lands or tenements, but dares not enter into the jTM6^,",^^

same lands or tenements nor into ami parcel thereof for fear of ncaras mav be»

J r J J J J equai thereto,

beating, or for doubt of maiming, or for doubt of death if he approaches as near to the tenements as he dare, then if by word of mouth he claim the lands to be his, presently by such claim he has a possession and seisin in the lands as well as if he had entered in deed, although he never had possession or seisin of the same lands or tenements before the said claim.

Here it is to be observed, that every doubt or fear is not sufficient, Fear of corfor it must concern the safety of the person of a man and not his ^"^^^< houses or goods; for if he fear the burning of his houses or the *"ffic<ent< *"f

° i t f ° # cause must be

taking away or spoiling of his goods, this is not sufficient, because ihewn — Fear he may recover the same or damages to the value without any cor- e\Zgh."'" poral hurt. Again, if the fear concerns the person, yet it must not be a vain fear, but such as may befal a constant man; as if the adverse party lie in wait in the way with weapons, or by words menace to beat maim or kill him that would enter; and so in pleading must he show some just cause of fear, for fear of itself is internal and secret. But in a special verdict, if the jurors find that the disseisee did not enter for fear of corporal hurt, this is sufficient, and it shall be intended that they had evidence to prove the same. And it seems that fear of imprisonment is also sufficient, for such a fear suffices to avoid a bond or a deed; for the law has a special regard to the safety and liberty of a man.

Iiy such claim he has a possession and seisin &c.] Here it is to be Entry in law observed, that there are two manner of entries, viz. an entry in "a'me „, rffect. deed and an entry in law. An entry in deed is sufficiently known. An entry in law is when such a claim is made as is here expressed, which entry in law is as strong and as forcible in law as an entry indeed, and that as well where the lands are in the hands of one by

F F

title as by wrong. And therefore upon such an entry in law an assize lies, as well as upon an entry in deed, and such an entry in law shall avoid a warranty, &c. But here is a diversity to be observed between an entry in law and an entry in deed, for that a continual claim of the disseisee being an entry in law shall vest the possession and seisin in him for his advantage but not for his disadvantage. And therefore if the disseisee bring an assize, and pending the assize he makes continual claim, this shall not abate the assize, but he shall recover damages from the beginning; but otherwise it is of an entry in deed.

[264a] Section 420.

Same. And that the law is so, is well proved by a plea of assize

in the book of assizes anno 38 E. 3. p. 23., the tenor whereof follows in this manner: In the county of Dorset before the justices it was found by verdict of assize, that the plaintiff" who had right by descent of inheritance to have the tenements in plaint at the decease of his ancestor, teas abiding in the town where the tenements were, and by parol claimed the tenements amongst his neighbours, but for fear of death he durst not approach the tenements, but brought his assize, and upon this matter found, it was awarded that he should recover &"c.

Repm-ted cases Here it appears that our book-cases are the best proofs what the auihorituinSe" 'aw 's> argumentum ab authoritate est fortissimum in lege. And law' after the example of Littleton, book-cases are principally to be

cited for deciding of cases in question, and not any private opinion,

teste meipso.

Section 421.

Same. The third thing is, that he toho has title to enter, when he will

make his claim, if he dare approach the land, then he ought to go to the land, or to parcel of it, and make his claim, and if he dare not approach the land for doubt or fear of beating, or maiming, or death, then ought he to go and approach as near as he dare towards the land, or parcel of it, to make his claim.

Ought he to go and approach as jiear ftc] By this it should claim within seem, that by the authority of our author, if the disseisee comes as j^TM,"", "',"ng near to the land as he dare &c, and makes his claim, this should es'"le'6"".'

seems sufficient

be sufficient, albeit he be not within the view. But it seems that to vest the po$where a continual claim shall divest any estate in any other person r-254 £] in any lands or tenements, there, as hath been said, he who makes the claim ought to enter into the land or some part thereof, according to the opinion of our author: but where the claim is not to divest any estate, but to bring him who makes it into actual possession, there a claim within view suffices; as upon a descent, the heir having the freehold in law may claim land within view to bring himself into actual possession, and in that sense is the opinion of the court to be intended. But yet the entry into some parcel in the name of the residue is the surest way.

Section 422.

And if his adversary toho occupies the land dies seised in fee or Same.
in fee-tail within the year and a day after such claim, whereby
the lands descend to his son and heir, yet may he who makes the
claim enter upon the possession of the heir.

Section 423. [255a]

But hk this case after the year and day, he who made the claim But a claim cannot enter: and therefore if he will be sure that his entry shall must be renewnot be taken away, it behoves him within the year and day after eJ J^T Jear the first claim to make another claim in form aforesaid, and so over, that is to say, to make a claim within every year and day during the life of his adversary, and then at what time soever his adversary die seised, his entry shall not be taken away by any descent, and this is called continual claim.

It is to be observed that the day whereon the claim is made Day of claim shall be accounted one: as for example, if the claim be made on the coun e ai m second day of March, that day shall be accounted as one; for Littleton says in the section next before (after the claim made),

and then the year must end the 1st day of March, and the day after is the 2d day of March. [But it is to be remembered that a descent during the first five years is not such as will toll an entry. Sect. 385.]

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Same. Bur he may make his claim at what time he will within the

year and day.

Section 425.

Descent cast affects not the claim.

Also, if the adversary be disseised within the year and day, and the disseisor dies seised, such dying seised shall not aggrieve him who made the claim, but he may enter, &c.

Section 426.

Death of disseisor within year and day after disseisin.

[256 «]

Also, if a man be disseised, and the disseisor dies seised within the year and day next after the disseisin made, whereby the tenements descend to his heirs, in this case the entry of the disseisee is taken away. And for this cause it will be good for the disseisee to make his claim in as short time as he can after the disseisin.

Disseisee now allowed five years.

This in case of a disseisor is now altered by a statute made siuce Littleton wrote, as hath been said, Sec. 385. for if the disseisor die seised within five years after the disseisin, though there be no continual claim made, it shall not take away the entry of the disseisee, but after the five years there must be such continual claim as was at the common law: but that statute extends not to any feoffee or donee of the disseisor immediate or mediate, who remain still as at the common law, as hath been said.

Section 427.

Also, if such disseisor occupies the lands forty or more years Claim at any without any claim made by the disseisee &'c. and the disseisee a ^iaseKot'shie little before the death of the disseisor makes a claim in form S00*1aforesaid, if it so happen that within the year and day after such claim the disseisor dies &c. the entry of the disseisee is congeable Sxc. And therefore it shall be good for such a man who has not made claim and who has good title of entry when he hears that his adversary is languishing, to make his claim inc.

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Also, of the foregoing, know (my son) two things. One is, Claim turns

. i • i ••!•/. i i estate tail into

where a man has title to enter upon a tenant in tail, if he makes fee-simple. such a claim to the land, then is the estate tail defeated, for this claim is as an entry made by him, and is of the same effect in law as if he had been upon the same tenements and had entered into the same, as before is said. And then when the tenant in tail immediately after such claim continues his occupation in the lands, this is a disseisin made of the same tenements to him who made such claim, and so by consequence the tenant then has a fee simple.

Section 430.

The second thing is, that as often as he who has right of entry Occupation makes such claim, and notwithstanding this his adversary continues ta/is"isin'for his occupation, so often the adversary doth wrong and disseisin to TMhich "csPass him who made the claim. And for this cause so often may he who [257 a] makes the same claim for every such wrong and disseisin done unto him, have a writ of trespass Quare clausum fregit &c. and recover damages &c.

Have a writ of trespass, quare clausum fregit and recover Damages, cms,

have

damages.] The disseisee may have an action of trespass against pr„nts.

the disseisor, and recover damages for the first entry without any regress, but after regress he may have an action of trespass with a continuando, and recover as well for all the mean occupation as for the first entry. And here note, that Littleton includes costs within the damages.

Section 431.

writ of forcible Or he may have a writ upon the statute, 5 Rich. 2. c.l. or if his

wltuVrebie"* adversary commenced his occupation of the tenements with force

damages. ana" arms, or with a multitude of people at the time of such

claim &c. defends it then immediately after the same claim he

who makes the same may for every such act have a writ of

forcible entry and recover treble damages 8fc.

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Multitude.] One or more may commit a force, three or more may commit an unlawful assembly a riot or a rout. A multitude here spoken of (as some have said) must be ten or more. Multitudiiiem decemfaciunt. And so (say they) it is said de grege hominum. But I could never read it restrained by the common law to any certain number, but left to the discretion of the j udges.

Forcible entry what.

[257 b]

A writ of forcible entry and shall recover treble damages.] This writ is grounded upon the statute of 8 H.6., and lies either where one enters with force, or where he enters peaceably and detains it by force, or where he enters by force and detains it by force. And in this action without any regress the plaintiff shall recover treble damages, as well for the mean occupation as for the first entry, by virtue of the statute. And albeit he shall recover treble damages, yet shall he also recover costs which shall be trebled also. One may commit a forcible entry, as hath been said, in respect of the armour or weapons which he hath and which are not usually borne, or in respect of his violence and threats to the terror of another. And if three or four go to make a forcible entry, albeit one alone use the violence, all are guilty of force. If the master comes with a greater number of servants than usually attend on him it is a forcible entry. And it is to be understood, that force is sometimes implied in law, thus every trespass rescous and disseisin implies a force, and is vi ct armis; there is also an actual force, as with weapons, number of persons &c., and when an entry is made with such actual force an action lies upon the said statute. See before more of force and arms, Sect. 240.

Section 432.

Also, it is to be seen whether the servant of a man who has Claim by sertitle to enter, may by the commandment of his master make con- atoraeygood.' tinual claim for his master or not.

Section 433.

An D it seems that in some cases he may do' this: for if he by Same. his commandment comes to any parcel of the land, and there makes claim &c. in the name of his master, this claim is good enough for his master, for that he does all which his master should or ought to do in such case be. Also if the master says to his servant, that he dares not approach the land nor to any parcel thereof to make his claim &c., and that he dare not go nearer than a place called Dale, and commands his servant to go to the same place of Dale, and there make a claim for him be., if the servant do this be, that also seems to be a good claim for his master, the same as if his master were there [258 a] in his proper person, for that the servant did all which his master durst and ought to do by the law in such a case &c.

By commandment.] If an infant or any man of full age have Entry to avoid any right of entry into any lands, any stranger in the name and to "majlb^atto"rthe use of the infant or man of full age may enter into the lands, n*n or "£""•

. . on an assent

and this regularly shall vest the lands in them without any com- subsequent or mandment precedent, or agreement subsequent. But if a disseisor f *'"""" levy a fine with proclamation according to the statute, a stranger without a commandment precedent, or an agreement subsequent within the five years, cannot enter in the name of the disseisee to avoid the fine. And that resolution was grounded upon the construction of the statute of 4 H. 7. c. 24. But an assent subsequent within the five years would be sufficient. Omnis enim ratilinbilio retrotrahitur et mandato aquiparatur, as hath been said.

Section 434.

Same. Also, if a man be languishing or decrepid he may enter or

claim by his servant.

Sd,in byattor- If a man make a letter of attorney to deliver seisin to I. S. upon condition, and the attorney delivers it absolute, this is void: and r2586l some hold that if the warrant be absolute and the seisin upon a condition, the livery is void.

Section 435.

Same. But i/ the master be in good health, and the servant in going

learns that injury is intended, and therefore comes as near the land as he dare and makes claim for his master, it is doubtful whether such claim will avail.

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Entry not tolled Also, some have said, that where a man is in prison and is disdLi^ftitne seised, and the disseisor dies seised during the time that the disdisseisee is seisor is in prison, whereby the tenements descend to the heir of

under duress. .

the disseisor, that this shall not hurt the disseisee who is in prison, but that he may well enter notwithstanding such a descent, because he could not make continual claim when he was in prison.

Section 437.

If disseisin be But the opinion of all the justices, p. 11. II. 7. was, that if prisonment. the disseisin be before the imprisonment, although the dying seised be during the wprisonment, his entry is taken away.

Section 438. [2596]

For if a recovery be by default against a person in prison, he Same.
may avoid the judgment by a writ of error, a mult6 fortiori,
shall a descent had when he is in prison not hurt him bc.,
especially seeing he could not go out of prison to make con-
tinual claim.

Section 439.

In the same manner, if a man be out of the realm in the king's Ambassadors service, a descent cast shall not hurt him, for he could not make descent^ast? continual claim, and therefore when he comes into England he may enter upon the heir of the disseisor.

Out of the realm] (id est) extra regnum, out of the power of the Out of the king of England; for if a man be upon the sea of England, he is reu ""'" "' within the kingdom or realm of England and within the ligeance of the king of England. And yet altum mare is out of the jurisdiction of the common law, and within the jurisdiction of the lord ad- [2606] miral, whose jurisdiction is very ancient, and long before the reign of Edward the Third, as some have supposed, as may appear by the laws of Oleron, (so called, for that they were made by king Richard the First when he was there) that there had been then an admiral time out of mind, and by many other ancient records in the reigns of Henry the Third, Edward the First, and Edward the Second, is most manifest.

Section 440. Also, some have said, that if a man be out of the realm, though Persons out of

J J ^ the realm not

he be not in the king's service, a descent cast during his absence prejudiced by shall not prejudice his right of entry on his return, provided escen cas the disseisin be while he is out of the kingdom, but that otherwise it should be if the disseisin were while he was within the realm either at the lime of the disseisin, or at the time of the dying seised of the disseisor.

Band made out of England how sued for.

[2616]

Note, An obligation made beyond the seas may be sued here in England in what place the plaintiff will. As if it bear date at Bourdeaux in France, it may be alleged to be made in a certain place called Bourdeaux 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 no, is not traversable in that case.

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Common law entry to avoid line must be within a year and day.

Another matter some allege is that before the statute 34 E. 3. c. 15. (by which statute non-claim is ousted) the law was this: that if a fine be levied of certain lands or tenements, and any stranger to the fine who has right to recover the same, makes not his claim thereof within a year and a day next after the fine is levied, he shall be barred for ever. Bui if he be out of the realm, at the time of the fine levied &c., or in prison, or not of full age, he is not barred, although he make not his claim, &c. And that the law is so is said to be proved by the statute de donis &c. W. 2.

Now Jive years allvived.

But now, since Littleton wrote, by the statute of 4 H. 7. five years (after proclamation made upon the fine) are given to him who has right to make a claim, or pursue his action, where the common law gave him but a year and a day. But this statute of 4 H. 7. extends only to fines, and not to non-claim upon a judgment in a writ of right, and therefore the said statute of 34 E. 3. here cited by Littleton, which ousts non-claim only to fines levied, extends not to a judgment in a writ of right at this day, and therefore the common law in that case remains to this day, viz. that claim must be made within a year and a day after judgment. Also if a fine be levied without proclamations, or without so many as the law requires, then the statute of non-claim extends to such a fine.

Nm-elaim at common law run against feme covert and reversion, contra now.

[2626]

Stat. West. 2.] In this statute is one person omitted who is added in the statute de modo levandi fines, viz. et saiue memoria. But a feme-covert had no privilege of non-claim at the common law, as some have said, because she had a husband that might make claim for her. Also they in reversion or remainder expectant upon any estate of freehold were barred by the common law; and yet they could make no claim, because, as hath been said, it belonged

to the particular tenant, and not to them, because their entry was not lawful; which was one of the principal causes of making the said statute of 34 E.3. which ousted non-claim. But these cases of coverture, and of them in reversion and remainder, are now without question holpcn, and just provision made for the saving of their rights and titles by the said statute of 4 H. 7. as by the said act appears.

Section 443. [2636]

Also, if an abbot of a monastery die, and during the time of Entry on corvacation a man wrongfully enters in certain parcel of land of Parley ontsg the monastery, claiming the land to him and his heirs, and of headthat estate dies seised, it seems to some, that the abbot may well enter in this case, for that the convent is but a dead body without a head. And in time of vacation a grant made unto them is void.

Here, first, it is to be observed, that albeit the freehold and in- FmefcoM m heritance is in this case in no person, but in abeyance or in consi- ^.v«n«rf'"

1 J tng that time.

deration of law, yet an entry and claim by one who has no right shall gain the inheritance by wrong. And so it is in case of a bishop, parson, vicar, prebend, or any other sole corporation. And in the statute of Merlebridge it is called an intrusion. Secondly, that seeing by the death of the abbot (which is the act of God) no person is able to make continual claim, therefore a descent during that time shall not prejudice the successor; for, as hath been said, impotentia excusat legem. If an usurpation be had to a church in Adwmum,

_ 'I'll, -t-i i • usurpation tiur

time or vacation, this shall not prejudice the successor to put him ,„g vacancy. out of possession, but at the next avoidance he may present.

For the convent is but a dead body <Sfc] This is ratio una, but not Chapter toithunica: for though the rest of the corporation be no mort persons, Zona'tu'withl'nt as the chapter in case of dean and chapter, or the commonalty in mayor can make

1 r' J no claim.

case of mayor and commonalty; yet cannot they when there is no dean or mayor make claim, because they have neither ability nor capacity to take or to sue any action, as our author here says.

For in time of vacation a srant made to them is void fyc] And *tak« h

. . .... . grantt except in

the reason is, because the body police which is capable, is not com- reversion.

[264 a] plete, but wants. the head. But this is to be understood of an immediate grant; for if, during the vacation of the abbathy of Dale, lease for life, or a gift in tail be made, the remainder to the abbot of Dale and his successors, this remainder is good, if there be an abbot made during the particular estate. If there be a mayor and commonalty of D. and the mayor dies, a grant made to the mayor and commonalty of D. is void for the cause aforesaid; but in that case if a lease for life be made, the remainder to the mayor and commonalty of D. the remainder is good, if there be a mayor elected during the particular estate.

CHAPTER VIII. Section 444.

OF RELEASES.

Releases are of tivo kinds, viz. releases of rights which men Releases are of have in lands or tenements, and releases of actions real or per- '^on"'" sonal. The first sort are commonly in this form or to this effect :—

Section 445. [2646]

"Know all men by these presents, that I A. of B. have remised, Form of release released, and from me and my heirs quitted claim: or thus, for me ^"{ and my heirs quitted claim of D. all the right, title, and claim which I have, or by any means may have, of and in one messuage with the appurtenances in F. &c." And it is to he understood, that these words " remise" and " quit-claim," are of the same effect as the word " release."

Here Littleton adduces precedents of releases: and precedents pme({enl:, both teach and illustrate, and therefore our student will do well to ihe,r t^'"' collect a store of precedents of all kinds.

Remise, release, and quit-claim.] Here Littleton shews that there What worduw are three proper words of release, though they are much of the "^^'""' same effect: there are also the words "renounce" and "acquit," and there are many other means of release; as if the lessor grants to the lessee for life that he shall be discharged of his rent, this is a good release. Vide Sect. 532.

And it is to be understood, that there are releases in deed and Rebates, exreleases at law; the former being express, must of necessity be by 1"^"^'"!' deed. The latter are sometimes by deed, and sometimes without £»»*«*•

Obligee made executor, a release.

So if feme ob-
ligee marry
obligor.
Infant'i release.

Feme executrix

marrying

debtor.

deed. As if the lord disseise the tenant, and makes a feoffment in fee by deed or without deed, this is a release of the seigniory. And so it is if the disseisee disseise the heir of the disseisor, and makes a feoffment in fee by deed or without deed, that is a release in law of the right. And the same law is of a right of [or chose in] action, ■as if the obligor makes the obligee his executor, this is a release in law of the action, but the duty remains, for which the executor may retain goods of the testator to the amount of his debt So if the feme obligee takes the obligor to husband, this is a release in law. So if there be two feme obligees, and one takes the debtor to husband [this is a release of the whole obligation.] If an infant of the age of seventeen years release a debt, this is void; but if an infant make the debtor his executor, this is a good release in law of [his right of] action [on the bond.] But if a feme executrix takes the debtor to husband, this is no release in law, for that would be a wrong to the dead and work a devastavit, which an act in law never shall do.

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But it is to be observed, that there is a diversity between a release in deed and a release in law; for if the heir of the disseisor makes a lease for life, and the disseisee release his right to the lessee for his [own] life [only] the heir's right is gone for ever. But if the disseisee should disseise the heir of the disseisor and then make a lease for life, this is only a release in law, and in that case the right is released during the life of the lessee only, for a release in law shall be expounded more favourably, according to the intent and meaning of the parties, than a release in deed, which being an act of the party shall be taken most strongly against himself; and so it is in the case aforesaid, where the debtor is made executor.

"Right" includes Utle and claim.

All the right.'] This word includes not only a right for which a writ of right will lie, but also any title or claim which arises by force of a condition, by a forfeiture in mortmain, or the like, and for which no action is given at law but only an entry.

Section 446.

ThewonU Also, these words which are commonly put into releases scilicet have^Vreusc- "a^ ^ie r*9ht which he shall hereafter have" are simply void in less, as no one faw . j"or no right passes by the release, but the right only which

the releasor has at the time of the release made. As if there be can release a father and son, and the father be disseised, and the son (living his h^not auhc* father) releases by deed all the right which he has or may have in tlme

the same tenements to the disseisor without clause or warranty &c.

and after the father dies &c. the son may lawfully enter upon the possession of the disseisor, for that he had no right in the land in

his father's life, [and could therefore pass none to the disseisor].

Note, a man may have a present right, though it cannot take Reieasebyheir

it* i • r i • i i A apparent, with

ettect in possession, but in juturo, [that is, he may nave a present out warranty. right to a future estate or interest]. As in the case of a reversion "**• or remainder that confers a vested right which the owner may presently release. But in the case put by Littleton where the son releases in the lifetime of his father, the release is void, because he has no right at all at the time when the release is made, [he being then only heir apparent] and all the right being in his father; consequently after the decease of his father, it shall be lawful for the son to enter on the land against his own release. But if a husband Release of dower

. to reversioner

seised in fee in his own right makes a lease for life and dies, a good. release made by his wife of her dower to him in reversion is good, albeit she has no cause of action against him in prasenti. And in the case put by Littleton of a release by an heir apparent, if a clause of warranty had been annexed to such release, then the son should have been barred. For albeit the release itself cannot bar the right for the cause aforesaid, yet the warranty may rebut, and bar the releasor and his heirs notwithstanding the right released was not in him at the time: and the reason (which in all cases should be sought out) is to prevent a circuity of action, which is not favoured in law; [for if the releasor should enter upon or recover against the ter-tenant or releasee, he could recover again by force of the warranty the same or other lands of equal value from the warrantor]; yet is there a diversity between a warranty and a Release, feoffeoffment; for if there be grandfather, father, and son, and the "^ d"stinT' father disseises the grandfather, and makes a feoffment in fee, and P"*^then the grandfather dies, the father against his own feoffment shall not enter; but if he die, his son may enter. And so note a diversity between a release, a feoffment, and a warranty; a release in the above case is void; a feoffment is good against the feoffor, but not against his heir; a warranty is good both against himself and his heirs.

Bare authority («s to executors to sell) cannot be released;

And here are three diversities worthy of observation, viz. 1st. Between a power or an authority, and a right. 2dly. Between powers and authorities themselves. 3dly. Between a right and a possibility. As to the first, if a man by his last will devises that his executors shall sell his land, and dies, if the executors release all their right and title in the land to the heir, this is void, for that they have neither right nor title in the land, but only a bare authority, which is not within Littleton's case of a release of right. And so it is if cestui que use had devised that his feoffees should have sold the land. Albeit they had made a feoffment over, yet might they sell the use, for their authority in that case is not given away by the livery.

otherwise of jwwer of revo' cation.

As to the second, there is a diversity between such powers or authorities as are only to the use of a stranger and nothing for the benefit of him who makes the release (as in the case before), and a power or authority which respects the benefit of the releasor, such as the usual powers of revocation, in that case when the feoffor has power to alter, change, determine, or revoke the uses (which he may do for his own benefit) then may he release; and if the estates before were defeasible, he may by his release make them absolute and seclude himself from any alteration or revocation, as it hath been resolved; Albain's case, 1 Co. 107.

A'ii release of a possihilitu or contingency.

As to the third, before judgment the plaintiff in an action of debt releases to the bail in the king's bench all demands; and after judgment is given, this shall not bar the plaintiff to have execution against the bail, because at the time of the release he has but a mere possibility, and neither jus in re nor jus ad rem, but the duty is to commence after a contingency and therefore could not be released presently. So if the conusee of a statute &,c. release to the conusor all his right in the land, yet may he afterwards sue execution; for he has no right in the land till execution, but only a possibility; and so have I known it adjudged.

Section 447.

Releasee must; Also, in releases of all right to land, it behoves the releasee to hoW * ^ have an estate of freehold in the land, either in deed, or in law, at the time of the release made; if he has such freehold, then the release is good.

Allright.~] This must be intended of a bare right, and not of a re- if the right release of right whereby any estate passes, as in the case of a release hM, otherwise from the lessor to his lessee for years, as shall be said hereafter. Also ""'• it must be intended of a release of a right of freehold at the least, and not to a right for any term of years or chattel real; as if lessee for years be ousted and he in the reversion [thereby] disseised, and the -disseisor makes a lease for years [to a stranger], and the first lessee makes a release [to such stranger, that release is good]. And in some cases it is observable that a release of a right made to one who has neither freehold in deed nor freehold in law, is good and available in law, as where the demandant releases to the vouchee, this is good though the vouchee has nothing in the land: but the reason is, that when the vouchee enters into warranty, he becomes tenant to the demandant, and may render the land to him in respect of the privity; but a stranger cannot release to the vouchee, because, in rei veritate, he is not tenant of the land.

If a disseissor makes a lease for life, the disseisee may release to Disseisee may

i release to tenant

the tenant for life; for to such a release of a bare right there needs for ufe, but not no privity, as shall be said hereafter. But if the disseisor makes „",,*""" a lease for years, the disseisee cannot release to the tenant for [266a] years, because he has no estate of freehold. And yet in some cases a freehold right may become merged and drowned in a chattel; as if a ffime who has a right to dower releases to the guardian in chivalry, then her right to a freehold shall drown in the chattel, because the writ of dower lies against the guardian and the heir may take advantage of such a release.

And it is to be observed, that by an ancient maxim of the com- Right »f entry mon law, a right of entry, or a chose in action, cannot be granted he'reUaud to a or transferred to a stranger, and thereby is avoided great oppres- s"a"S^'sion, injury, and injustice [i.e. in the prevention of maintenance and dealing in rights and titles]. And therefore well says Littleton, that he to whom a release of a right is made must have a freehold.

For the better understanding [the mode of conveying or] trans- Rights of pro

e t i ii rr pcrty and jtos*

ternng naked rights to lands or tenements [from one person to session distinanother] either by release, feoffment, or otherwise, it is to be s"u ''

known, that there is jus proprietatis, a right of ownership, jus possessions, a right of seisin or possession, and jus proprietatis et possessionis, a right both of property and possession; and this last is anciently called jus dupticatum, or droit droit. For example, if a man be disseised of an acre of land, the disseisee has jus proprietatis, and the disseisor has jus possessionis [that is, as against strangers, but not as it should seem against the disseisee, as against him the disseisor cannot well be said to have a right, but only a bare naked possession]; if the disseisee releases to the disseisor, then the disseisor shall have jus proprietatis et possessionis [and his title will be complete.]

in what cases And regularly it holds true, that when a naked right to land is

disseisee ma if' - . . ... . , . ,

take advantage released to one who has jus possessionis, and another by a mean title

'disuUoT"0h" recover8 the land from him, the right of possession shall draw the

naked right with it, and shall not leave a right in him to whom the

or re release is made. For example, if the heir of the disseisor being

j in by descent, A. disseises him B., and then [the original] disseisee D.

A releases to A., now if the heir of the disseisor B. enters into the land,

ee or'

and regains the possession, he shall have the benefit of the release issue recovering of right made by his disseisee to A. But if donee in tail discontinues take advantage m ^ee> whereby the reversion of the donor is turned into a naked oj release to dis- right, and the donor afterwards releases to the discontinuee, [and

continuee; =>' L

the tenant in tail] dies, and thereupon the issue in tail recover the land against the discontinuee, [this recovery shall nevertheless] leave the reversion in the discontinuee [and shall not carry with it the benefit of the release to the issue]; for the issue in tail can recover [nothing] but the estate tail only, which by consequence must leave the reversion in the discontinuee, for the donor cannot um-can disseisee have it [again] against his [own! release. Another diversity isob

in certain cases. L b J b LJ ....

servable when the naked right is obtained before the acquisition of the defeasible estate, for there the recontinuance of the defeasible estate shall not draw with it the preceding right. As if [in the first mentioned case] the disseisee disseise the heir of the disseisor, albeit the heir recover the land against the disseisee, yet shall he leave the preceding right in the disseisee. So if a woman who has a right of dower disseise the heir, and he recovers the land against her, yet shall [that recovery] leave the right of dower in her. Another diversity is to be noted, where the mere right is subsequent, and is transferred by act in law; there, albeit the possession be recontinued, yet that shall not draw with it the naked right, but shall leave it in him who had it before; as if the heir of the disseisor (B) be disseised [by A.], and the disseisor (A.) infeoffs the heir apparent (E) of the [original] disseisee (D), he being of full age, and afterwards the disseisee (D) dies, whereupon the naked right descends to his heir (E), and the heir of the disseisor (B)recovers the land against him,yet this recovery leaves the naked right in the heir of the disseisee (E). So if the discontinuee of tenant in tail infeoffs the issue in tail of full age, and tenant in tail dies, and then the discontinuee recover the land against him, yet he leaves the naked right in the issue. But if the heir of the disseisor^) be disseised, and the disseisee (D) releases to the disseisor (A) upon condition, if the condition be broken, it shall revest the naked right [in D].

Section 448.

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Freehold in law is this:—if a man disseises another, and dies seisinin law seised, whereby the tenements descend to his son, albeit his son does w lat" not enter yet he has a freehold in law by force of the descent cast upon him; and therefore a release made to him so being seised of a freehold in law [before entry] is good enough; and if he takes a wife, being so seised in law, although he never enter in deed, and dies, yet sliall his wife be endowed.

Here Littleton describes what a freehold in law is, for he had before spoken in many places' of a freehold in deed. And freehold in deed Bracton calls a natural seisin, and freehold in law a civil

seisin.

If a man levy a fine to another sur conusance de droit come ceo que By fine, il ad de son done, or a fine sur conusance de droit tantum; these are feoffments of record, and the conusee has a freehold in law in him before he enters.

Upon an exchange, the parties have neither freehold in deed nor Exchange cr freehold in law-before they enter; so upon a partition the freehold par''""' is not removed until an entry.

If tenant for life surrender to him in reversion who accepts the Surrender. same, then has the reversioner a freehold in law before entry. So upon a livery within view, no freehold is vested before actual entry.

Bargain and If a man bargain and sell land by deed indented and enrolled,

the freehold in law passes presently, [i.e. before enrolment, and now since the Statute of Uses, the freehold in deed also passes immediately on the execution of the deed, provided it be duly enrolled within six months.] And so when uses are raised by a covenant [to stand seised] upon good consideration [a freehold in law passes presently; and now since the Statute of Uses a freehold in deed also passes immediately on the execution of the instrument.]

Section 449.

Releasee must Also, a release of right is good, albeit the releasee has neither the iTiH t'h ffC* freehold in deed or in law [in possession if he has an estate offree

hold in rever- hold or inheritance in reversion.] As if the disseisor lets the land

der enough. which he has by disseisin to another for term of his life, saving the

reversion to him, if the disseisee or his heir release to the disseisor

[267 a] oil his right &c. this release is good, because he to whom the release

is made had in law a reversion at the time of the release made.

Section 450.

Release to one In the same manner it is, where a lease is made to a man for term mum toolTM °f Hfo' wiMl remainder to another for term of another man's life, with remainder to a third person in tail, with remainder to a fourth in fee, if a stranger who has right to the land releases all his right to any of the persons in remainder, such release is good, because each of them has a remainder in deed vested in him.

Section 451.

Release to one But if tenant for life be disseised, [which disseisin being nectsonlTvotd1.'8' sorily in fee operates to divest and turn to a right all the remainders'] and afterwards he who has any prior right to the lands, {the possession being in the disseisor) releases to one of the remainder men, this release is void, because he to whom it is made has not a remainder in deed at the time of the release made but only a right to a remainder.

Section 452. C267tl

And note, that everti release made to the person who has a rever- Release to re

J * vereioner enures

sion or remainder in deed, enures to the benefit of the tenant of the to particular freehold, if he has the release in hand to plead.

Section 453.

IN tlie same manner if a release be made to the tenant for life, or Et c convcrso. to the tenant in tail, this shall enure to the benefit of those in reversion or remainder, as well as to the tenant of the freehold, and they shall have as great advantage of this [as the particular tenant] if they can shew it.

If two tenants in common of land grant a rent charge of forty Release of rent

° a J to one tenant i«

shillings out of the same to one in fee, and the grantee releases to common extinone of them [all his right, claim and demand &c] this shall extin- ^,(1/; ,„„„ guish but twenty shillings of the rent, for that the grant in iudg- '*''"""''-'T

3 Jo a J n itje „ remuin

ment of law was originally several. So it is if two men be seised der-mm extin

- . . T-» i ■ ruishes the

ot several acres, and they grant a rent ut supra. isut there is a w\u>u.
diversity between several estates in several lands, and several es-
tates in one land; for if tenant for life and reversioner join in a
grant of a rent out of the lands, then if the grantee releases either
to him in reversion, or to the tenant for life, the whole rent is ex-
tinguished, for it is but one rent, issuing out of both estates, and
so note the diversity.

If the tenant has the release in hand to plead.] For albeit he in fictoisf"""'.

L he prodticed m

the reversion or remainder is a stranger to the deed when the re- court.
lease is made to the particular tenant, and the tenant for life or in
tail is a stranger to the deed when the release is made to him in
reversion or remainder, yet seeing they are privies in estate, none
of them in pleading shall take benefit thereof, without shewing the
same in court, which is worthy to be observed.

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t268fl] Section 454.

Hut release of Also, if there he lord and tenant, and the tenant be disseised,

seigniory to one rI77. . ,. .

hiving a right [whereby his estate is turned into a mere right\ and then the lord

on y g releases to the disseisee [i. e. to the rightful tenant~\ all the right

which he [the lord] has in the seigniory or in the land, this release

is good to extinguish the seigniory, by reason of the privity which

is between the lord and the disseisee.

Fhe kinds of From what has been said it appears that a seigniory, a rent, or a

releases. ... .

right, either iu preesenti or in futuro, may be released five different ways, and the first three without any privity. First, to the tenant of the freehold in deed or in law. Second, to him in remainder. Third, to him in the reversion. The other two in respect of privity: as, first, here the lord releases his seigniory to the tenant being disseised, having but a right, and no estate at all: secondly, iu respect of the privity, without any estate or right: as by the demandant to the vouchee, or donor to the donee after the donee has discontinued in fee, as appears hereafter in this chapter.

[2686] Section 455.

Lease in tail Also, if land be given to a man in tail, reserving to the donor

rendering rent, . . »_»••"» /• i

release to lessee and his heirs a certain rent, if the donee be disseised, and after the tinguishe'srent donor releases to the donee and his heirs all the right which he has but passes no- jH (jie fand, and after the donee enters upon the disseisor; in this

thing in rever- J

«ion. case the rent is gone, for the disseisee at the lime of the release

made, was tenant in right and in law to the donor. But such release shall pass no right to the releasee in the reversion, for the donee to whom the release was made then hud nothing in the land but only a right [of entry.-]

nmiiitp.

So ofdisconti. And if the donee makes a feoffment in fee, and then the donor r269«l releases to him and his heirs all the right in the land, this also shall extinguish the rent, though the tenant in tail after the feoflment has no right in the laud.

Section 456.

In the same manner it is, if a lease be made to one for life, reserv- Same of tenant ing to the lessor and his heirs a certain rent, if the lessee be disseised, and after the lessor release to the lessee and his heirs all the right which he has in the land, and after the lessee enters, albeit in this case the rent is extinct, yet nothing of the right to the reversion shall pass causa qua. supra.

Nota here an excellent point of learning, viz. if there be lord Acceptance of and tenant, and the rent is behind for divers years, and the tenant Z'ieVseTZrrTMmakes a feoffment in fee, if the lord accepts the service or rent of "se,'nrn, the feoffee due in his [the feoffee's] time, he shall lose the arfear- L J ages due in the time of the feoffor; for after such acceptance he shall not avow upon the feoffor, nor upon the feoffee for the arrearages incurred in the time of the feoffor. But in that case if the feoffor dies, albeit the lord accepts the rent or service by the hand of the feoffee due in his time, he shall not lose the arrearages, for now the law compels him to avow upon the feoffee, and that which the law compels him to shall not prejudice him.

Section 459. [270a]

Also, if a man lets to another his land for term of years, if the Release to leslessor release to the lessee all his right &c. before the lessee has ^f0^.r/etars entered into the land by force of the lease, such release is void, for bad; contia

J J. . J after.

the lessee had not possession of the land at the time of the release made, but only a right to have and to hold the same by force of the lease. But if the lessee enters into the land, and has possession of it by force of the said lease, then such release made to him by the feoffor, or by his heir, is sufficient to [give] him [the feel ty reason of the privity between them.

Before entry the lessee has but an interesse termini, an interest of falcate to rea term and no possession: hence a release which enures by way of '"""''where the enlarging an estate cannot work without a possession, for before f'rst tenant for

, . . ,„ r yenrs kas enLer

possession there is no reversion; and yet if a tenant for twenty c,i giwd.

years in possession makes a lease to B. for five years, and B. enters, a release to the first lessee is good, for he had an actual possession, and the possession of his under-lessee is his possession. And so it is if a man makes a lease for years, with remainder for years, and the first lessee enters, a release to him in the remainder for years is good to enlarge his estate. [This shews that the remainderman for years has not merely an interesse termini, but an estate which will support a release, and therefore a merger; but this is contradicted, infra, fol. 273 b. but it seems to be good law at this day.]

Release tom- But if a man makes a lease for years to begin presently, reserv

citinguishet the ing a rent, if before the lessee enters the lessor releases to him all f«"ai''«n*«*1( n's r'ght m tne land, albeit this release cannot enlarge the lessee's the estate. estate, yet shall it in respect of the privity extinguish the rent

And so it is if a lease be made to begin at Michaelmas reserving a rent, and before the day the lessor releases all his right in the [2706] land, this cannot enure to enlarge the estate, but it may to extinguish the rent in respect of the privity, as was adjudged in the exchequer, which I observed.

Keit presentation cannot be enlarged by retease, but one joint-tenant may release to the other.

A man grants the next avoidance of an advowson to two, one of them may before the church becomes void release to the other; for although the grantor cannot release to them to increase their estate, because their interest is future and not in possession, yet one of them, to extinguish his interest, may release to the other in respect of the privity. But after the church becomes vacant, then such a release is void, because then it is (as it were) but a thing in action. And this was resolved by the whole Court of Couinion Pleas, which I myself heard and observed.

One tenant in And by consequence in the case of Littletou, if a lease for years maTreiease'To" ^e made to tw0> albeit the lessor before they enter cannot release to other before them to enlarge their estate, yet one of them may before entry release to the other.

Interesse termini ma v be granted over.

"But only a right #c] Which is not to be understood that he has but a naked right, for then he could not grant it over; but seeing he has an interesse termini before entry, he may grant it over, albeit for want of an actual possession, he is not capable of a release to enlarge his estate.

But if the lessee enters into the land.] This is evident. And Release to «herein note a diversity between a lease for life and for years, for for%^beTore before the lessee for years enters, a release cannot be made unto enirn S0^him: but if a man makes a lease for life, with remainder for life, and the first lessee dies, a release to the remainder-man for life and his heirs before his entry is good to enlarge his estate, for he has an estate of freehold in law in him, which may be enlarged by release before entry.

And where our author speaks only of a lessee for years, the same Elegit creditor

ame as U 'or years.

law it is of a tenant by statute merchant or staple, or tenant by j?me"

elegit, or the like.

Section 460.

An D it seems that when a lease is made to a man to hold at the Release to will of the lessor, and by force of this lease the lessee enters into ;s' ^ 1iossession, then if the lessor makes a release to the lessee at will of all his rights &c., this release is good enough on account of the privity between them [by virtue of the lease]; for it would be in vain to make livery of seisin to another who has possession of the same land by lease from the same man before.

By these two Sections a diversity is to be observed between a To tenant at tenant at will and a tenant at sufferance; for a release to a tenant "'$c''anc'badat will is good, because between them there is a possession with a privity; but a release to a tenant at sufferance is void, because he has a possession without privity. As if lessee for years hold over his term &c., a release to him is void, for that there is no privity between them; and so are the books that speak of this matter to be understood.

Section 461. [271a]

But where a man of his own head occcupies lands or tenements at Release to a the will of him who has the freehold, and such occupier claims TMdre ^^VTM nothing but at will fyc., if he who has the freehold will release all his right to the occupier lnc., this release is void, because there is no privily between them by lease made to the occupier, nor by any other manner &c.

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Of his own head.'] He does not say, of his own head enters #c, [but of his own head occupies, which imports that the entry was lawful though the occupation be by permission. It should seem therefore that this section] is to be understood of a tenant at sufferance, viz. where a man comes to the possession first lawfully and holds over. For if a man enters into land of his own head, and takes the profits, his confession that he holds it at the will of the owner will not qualify that wrongful entry; but he is a disseisor, and then a release to him would be good; or if the owner consent to the occupation, then is he a tenant at will, and in that way also a release to him would be good. [So that this Section must relate to a tenant at sufferance.] But there is a diversity when one comes to a particular estate in land by the act of the party, and when by act in law; for if the guardian holds over after the infancy expired, he is an abator, because his interest came by act in law.

Privies of two kinds—in law and indeed.

No privity.'] Privity is a word common as well to the English as to the French law, and in the understanding of the common law is fourfold. 1. As privies in estate, whereof Littleton here speaks: as between the donor and donee, lessor and lessee, which privity is ever immediate. 2. Privies in blood; as the heir to the ancestor, or between coparceners &c, 3. Privities in representation ; as, executors 8cc, to the testator. And 4. Privies in tenure, as the lord and tenant 8cc, which may be reduced to two general heads, privies in deed, and privies in law.

Release by feoffees to will to feoffor good.

Vaulting use to feoffor.

Section 462, 463, 464.

Also, if a man [before the statutes of uses and of wills in the then usual ivay] enfeoffed another to the use of his will, and the feoffor occupied the same land at the will of his feoffees, who afterwards released all their right to the feoffees, it was a question whether such release were good or no. But it seems it shall be intended by law that the feoffor ought presently to occupy the land at the will of his feoffees; and so there is the like kind of privity between them as between any other tenant at will, and therefore that such their release is good.

Here is to be observed the intendment of law that when a feoflment is made to a future use, as to the performance of his last will, the feoffees shall be seised to the use of the feoffor and of his heirs in the mean time. Further, the feoffment being made without con- [2716] sideration, it is but reason that the feoffor should have the undisposed of profits in the mean time. And so it is if the use in prasenti be not entirely disposed of, what remains shall belong to the feoffor and his heirs.

And it is to be observed, that there is a diversity between a feoff- Feoffments to ment of lands at this day upon confidence, or to the intent to per- „,„(""/„ ,,«f form a last will, and a feoffment to the use of such person and per- "^V","'*''by sons and of such estate and estates as the feoffor shall appoint by guished. his last will: for, in the first case, the lands pass by the will, and not by the feoffment; for after the feoffment the feoffor was seised in fee simple, as he was before; but in the latter case, the will pursuing his power is but a direction of the uses of the feoffment, and the estates pass by execution of the uses, which were raised upon the feoffment; but in both cases the feoffees are seised to the use of the feoffor and his heirs in the mean time: and all this and much more concerning this matter has been adjudged, [which at this day however is rather obscure.]

Note, uses are raised either by transmutation of the estate, as by On what $mn fine, feoffment, common recovery &c, or out of the estate of the |^ea?/' owner of the land, by bargain and sale by deed indented and inrolled, or by covenant [to stand seised] upon lawful consideration, whereof you may read plentifully in my Reports.

A feoffee to the use of A. and his heirs, before the statute of Bargain and 27H. 8. for money bargained and sold the land to C. and his heirs, "„„S who had no notice of the former use; yet no use passed by this bar- statuU vo"igain and sale, for there cannot be two uses in esse of one and the same land; and seeing there is no transmutation of possession by the ter-tenant, the former use can neither be extinct nor altered. And if there could be two uses of one and the same land, then could not the said statute execute either of them for the uncertainty. [272 a] But if A. disseise one to the use of B. and A. bargains and sells the land for money to C, C. has an use; and here are two uses of one land, but of several natures; the one, viz. upon the bargain and sale to be executed by the statute, and the other not.

But since Littleton wrote, all uses are transferred by act of Par- Uxi now tramliament into possession, so that the]casc which Littleton here puts possmi0„.

is thereby altogether altered. Yet it is necessary to be known what the common law was before the making of the statute, [otherwise the application of the statute could not be discovered.]

Uubefartua- Nota. A use is a trust or confidence reposed in some other, which

sine m nature r'

of a tmsi now. [s not issuing out of the land, but as a thing collateral thereto and ■• -* is annexed in privity to the estate of the land, and to the person touching the land, scilicet, that cestui que use shall take the profit, and that the ter-tenant shall make an estate according to his direction. So that cestui que use had neitheir jus in re nor jus ad rem, but only a confidence and trust, for which he had no remedy by the common law, but for breach of trust his only remedy was by subpcata in chancery.

Section 465.

Release of all Also, releases [are construed as other conveyances, therefore] if 1 a Ufe eitate"" y [being tenant in fee] let land to man for a term of years, by force whereof he is in jwssession, and afterwards I release to him all my right in the land without more words, and deliver to him the deed, then has he but an estate for life, and no inheritance for want of the word heirs. So if I let land to a man for life, and after release to him all my right without more saying in the release, his estate is not enlarged. But if I release to him and his heirs, then he has a fee simple; and if I release to him and to the heirs of his body begotten, then he has a fee tail &c. And therefore it is necessary to specify in the deed what estate the releasee is to have.

Ko privity b»- It is a certain rule, that when a release enures by way of enlargwi'ier-J^see't'o1 '°S an estate> trrere must be privity of estate [between the releasing siutainare- parties as there is] between lessor and lessee, donor and donee &c. [273a] F°r if A. makes a lease to B. for life, and the lessee underlets for years, and after A. releases to the under-lessee for years and his heirs, this release is void to enlarge the estate, because there is no privity between A. and the under-lessee for years. So if a man makes a lease for twenty years, and the lessee underlets for ten years, if the first lessor releases to the second lessee, and his heirs, this release is void also for the cause aforesaid. For the same cause, if the donee in tail makes a lease for his own life, and the donor releases to the lessee for life and his heirs, this release is void to enlarge the estate.

But privity only is not enough, as if a tenant by the curtesy Release totegrants over his estate, a release to him operates nothing, for he has "J^J"^1 no estate to enlarge, yet on account of the privity he is liable to an "" h"estnte

° J r J useless.

action of waste, attornment &c.

But if a man makes a lease for years, with remainder to another Reimste to refor life, then a release by the lessor to the lessee for years and his good, far then heirs, is good, for he hath both a privity and an estate; so a ,s ?"<"'*. release to him in the remainder for life and his heirs, is good also.

It is further to be observed, that to a release enuring; by way of lielcn" "<'«

. . ruitit pur auler

enlargment of estate, there is not only required privity and an es- vie gives«« tate, but sufficient words in law to raise or create a new estate. And "„"/,•<"" therefore if a man makes a lease to A. for the life of B., and after [2736] releases to A. all his right in the land, by this A. has an estate for term of his own life—a lease for his own life being higher in judgment of law than an estate for term of another man's life.

If a feme covert be tenant for life, a release to the husband and Repose to has

... . ..... . band jure uxons

his heirs is good, for there is both privity and an estate in the °wd. husband whereupon the release may sufficiently enure by way of enlargement; for by the intermarriage he gains a freehold in his wife's right.

For term of vears.l So it is if a release be made to tenant by &'" '''#"cre

,.,,.-,., ditorgootl.

statute staple or merchant, or tenant by elegit, by this a freehold passes for the life of him to whom the release is made, that being the greatest estate that can pass without apt words of inheritance.

If a man makes a lease for ten years, with the remainder to No merger of another for twenty years, and he in remainder releases all his right „J'fter_ to the [first] lessee, [that lessee] shall have an estate for thirty years; for one chattel cannot drown in another, and years cannot be consumed in years. [The contrary, however, is now the prevalent opinion. See 6 Madd. 66.1

But if I release to him and his heirs.} Here it is to be observed, "lie,ri" not

J J necessary in

that an estate of inheritance will not pass by a release by way of release from one

. . , i /. • i • T-» i joint-tenant vr

enlargement without apt words of inheritance. But there is a coparcener to diversity between a release that enures by way of enlargement, comPano"and a release that enures by way of mitter I'estate; for in the latter

release there sometimes needs not be any words of inheritance. As if a joint estate be made to husband and wife and a third person and to their heirs, and the third person releases all his right to the husband, this shall enure by way of mitler restate, and not by way of enlargement, because the husband had a fee-simple already, and heeded not therefore any words of inheritance to give it to him. So it is if the release had been made to the wife. And if there are three joint-tenants, and one of them releases all his right to one of his companions, this enures by way of milter restate, and passes the whole fee-simple without the word (heirs). So if there are two joint-tenants, and one of them releases all his right to the other, although the release does not to all purposes enure by way of mitter I'estate, for it makes no degree, and he to whom the release is made shall for many purposes be adjudged in from the first feoffor, yet shall it vest all the estate in the other joint-tenant without the word (heirs). But if there be two coparceners, and the one releases all his right to the other, this shall enure by way of mitter restate, and shall make a degree, and without the word (heirs) shall pass the whole fee-simple. And it is to be observed, that to releases that enure by way of mitter Vestate, there must be privity of estate at the time of the release. So if two coparceners be of a rent, and the one of them takes the ter-teuant to husband, the other may release to her, notwithstanding the rent be in suspense, and it shall enure by way of mitter restate, and she may release also to the ter-tenant, and that shall enure by way of extinguishment: but if she release to her sister and to her husband, it is good to be seen how it shall enure.

Four sorti of release!.

Littleton having now spoken of releases that enure by way of enlargement of estate, and of releases that enure by way of mitter testate, proceeds to releases that enure by way of mitter le droit. Hence it appears that of releases some do enure by way of enlargement of estate, some by way of mitter Vestate, some by way of mitter le droit, some by way of entry and feoffment, and some by extinguishment.

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Release from Also, some releases enure by way of mitter [le droit.] As if a W^tpti^15 man ue disseised, and he releases to his disseisor all his right, in

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this case the disseisor has his right, so that where before his by mitter u estate was wrongful, now by this release it is made lawful and drmU right.

Section 467.

But here note, that when a man is seised in fee-simple of any Release for a lands or tenements, and another releases to him all his right, he "e^fo' "ever. need not speak of heirs iii this release, for the releasee has already a fee-simple at the time of the release made. And if such a release be made to a man for a day or an hour [or any limited time] it shall be as strong to him in law as if the release had been to him and his heirs [for ever.] For when a right has once departed from the releasor without condition to a person who has the fee-simple, it is gone for ever.

But if a man be disseised of two acres, he may release his right But release rf in one of them, and yet enter into the other. And albeit the dis- ^sja) -i seisee cannot release part of the estate [as distinguished from part of the land], yet may he release his right upon condition, as here it appears by Littleton.

And there is a diversity between a right which is favoured in law, Beiease ofemand a condition created by the party which is odious in law, for 'dition'.'LdaT' that it defeats estates. And therefore if a condition be released '"<''« ■»>"''<><>»>

good as to the

upon a condition, the release is good and the condition void. release.

And note, an express manumission of a villein cannot be upon Dispensation o» condition, for once free in that case, is for ever free: so on an attornment to a grantee upon condition, the condition is void because the grant is once settled. But this is to be understood of a condi- Attornment. tion subsequent, and not of a condition precedent; for in both those cases the condition precedent is good. But letters patent Denization. of denization made to an alien, may be either upon condition subsequent or precedent: and so may the king make a charter of Pardon. pardon to a man for his life upon condition [that he be transported or the like.]

Section 4G8.

itdease in en- But where a remainder-man or reversioner releases to tenant shouij'"press for years, or for life, or in tail, he ought to determine what the estate. estate he means to pass by the release for such release enures by way of enlargement of the estate of him to whom it is made.

Section* 4C9.

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But otherwise it is where a man has but a right to the land and nothing in the reversion or remainder in deed. Here if such a man release all his right to one who is tenant of the freehold, all his right is gone, albeit no mention is made of the heirs of the releasee. As if I let lands to one for life, and afterwards release to him to enlarge his estate, the release should be to him and to the heirs of his body, or to him and his heirs, or otherwise he will take no greater estate than he had before.

Privity, none rtifitiiite to release of right.

And here it is observable that to a release of right made to one having an estate of freehold in deed or in law, no privity at all is requisite. As if a disseisor make a lease for life, if the disseisee release to the lessee, this is good, because the lessee has an estate of freehold, albeit there is no privity. And so it is if a disseisor make a lease to A. and his heirs during the life of B. and A. dies, a release by the disseisee to his heirs before he actually enter is good.

Section 470.

Release after
discontinuance
passes all the
tij^ht without
"heirs."

But if my tenant for life lets the land to another for the life of the lessee, with remainder to another person in fee, [which is a discontinuance of my reversion and a conversion of my estate therein to a right] now if I release to the second lessee for life, I shall be barred for ever, albeit no mention is made of the heirs of the releasee, for at the time of the release made I had no re

version, but only a right to have the reversion. For by such a lease to one for life with remainder over which my tenant made in this case, my reversion was discontinued, and the release which I have made shall enure to him in the remainder who may take advantage of it as well as to the tenant for term of life.

Which is a species of release in extinguishment. But yet the [27561 right is not extinct in deed, as shall be said hereafter in this chapter. And here discontinued is taken for divested, though the entry of the lessor be not taken away.

Section 471.

For to this purpose the tenant for term of life and he in re- Particular temainder are but. as one tenant in law, and the same as if one maunder man tenant had been solely seised in his demesne as of fee at the time make but ?ne

.* tenant in fee.

of such release made to him &c.

Are as one tenant in law.] Which is certainly true in this case of a remainder, and so it is in the case of a reversion; as if a disseisor make a lease for life, and the disseisee release all his right to the lessee, this release shall enure to the disseisor in reversion, albeit they have several estates, as hath been said which is implied in this &c. But if a disseisor make a lease for life, with remainder Yet release of in fee to another, albeit they to some purposes are as one tenant in enures tu<t to law, vet if the disseisee release all actions to tenant for life, after theothei"' con'

J 'tra m release

the death of the tenant for life, he in remainder shall not take any "/righu. benefit from this release, for it extended only to the tenant for life, as it is holden in Edward Altham's case. In like manner, if the disseisor make a lease for life, and the disseisee release all actions to the lessee, this enures not to him in reversion, but only to the particular tenant; and so our author is to be understood of a release of rights, and not of a release of actions to the tenant for life, enuring to or for the benefit of him in the remainder or reversion.

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Section 472.

Release to one Also, if a man be disseised by two, if he release to one of them,

enures to re- the releasee shall hold his companion out of the land, for by suck

To^one°ofyt^o re^ase he lias the sole possession and estate in the land. But if

/«JT«». to both; a disseisor enfeoffs two persons in fee, and the disseisee release to

one of the feoffees, this shall enure to both the feoffees, because

they come in by feoffment [or right] and the other [comes in by

disseisin or] wrong.

euept releases by tenant for life.

If a man be disseised Sfc] This must be understood where tenant in fee-simple is disseised and releases; for if tenant for life be disseised by two and releases to one of them, this shall enure to them both; for he to whom the release is made, has a larger estate than he who makes the release, and therefore it cannot enure to him alone to hold out his companion, for then would the release enure by way of entry and grant of an estate, and the disseisor to whom the release is made, would become tenant for life with a reversion vested in the releasor, which strange transmutation and change of estates the law will not suffer.

Release by lessee for years to disseisor extinguishes term.

[276a]

But if lessee for years be ousted, and he in the reversion disseised, and the lessee releases to the disseisor, the disseisee may enter, for the term of years is extinct and determined. But otherwise it is in the case of a lessee for life, for the disseisor has a freehold whereupon the release of the tenant for life may enure; but in the other case the disseisor has no term for years whereupon the release of the lessee for years may enure, [for the term as before stated is extinct by the release].

In what other cases release to one shall enure to both.

And so it is if donee in tail be disseised by two, and releases to one of them, it shall enure to both. But if the king's tenant for life be disseised by two, and releases to one of them, the releasee shall hold out his companion, for the disseisor gained but the estate for life. So if two joint-tenants make a lease for life, and after disseise the tenant for life, and he releases to one of them, the releasee shall hold out his companion, for the disseisin was but an estate for life. If tenant for life be disseised by two, and he in the reversion and tenant for life join in a release to one of the disseisors, the releasee shall hold his companion out, and yet it cannot enure by way of entry and feoffment. But if they severally release their several rights, their several releases shall enure to both the disseisors. But here BeUase by in Littleton's case, where tenant in fee-simple is disseised bv two, Jn(2!""? and releases to one of them, this for many purposes enures by way of entry and feoffment, and therefore he to whom the release is made shall hold out his companion, and shall thereby become sole tenant of the fee-simple. And this holds not only in case of a disseisin, but also in case of intrusion and abatement: but necessarily he to whom the release is made must be in by wrong, and not by title. If two men gain an advowson by usurpation, and the right Advou-ion. patron releases to one of them, the releasee shall not hold out his companion, but it shall enure to them both; for seeing their clerk came in by admission and institution, which are judicial acts, they are merely in by wrong: for an usurpation shall cause a remitter, as appears in F. N. B. 31. m. But if a lease for life be made, the Disseisin by remainder for life, the remainder in fee, and he in the remainder for remainder-man

for life.

life disseises the tenant for life, and then tenant for life dies, the disseisin. is purged, and he in the remainder for life has but an estate for life. And so note a diversity where the particular estate for life is precedent, and where subsequent. Where our author Joint-tenant*. puts his case of one disseised, put the case that two joint-tenants in fee are disseised by two, and one of the disseisees releases to one of the disseisors all his right, the releasee shall not hold out his companion, because the release is but of the moiety, without any certainty. If a man be disseised by two women, and one of them take husband, and the disseisee releases to the husband, this shall enure to the advantage of both the disseisors, because the husband was no wrong-doer, for he comes in by title of some kind. And if two Disseisors. disseisors be, and they make a lease for life, ?nd the disseisee releases to one of them, this shall enure to both, and to the benefit of the lessee for life also; for he cannot by the release have the sole possession and estate, for part of the estate is in another. And so it is (as it seems) if the disseisors make a lease for years, and the disseisee releases to one of them, this shall enure to both, for by the release he cannot have the sole possession: and it appears by Littleton, that he must have the sole possession and hold his companion out [for the release to operate otherwise.]

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[These sections, and the comment thereupon, relate to releases operating by way of entry and feoffment, and to many obsolete points on disseisins.]

Disseisin, almte' ment, intrusion, deforcement, unit usurjmtion distinguished.

[277 a]

Disseisin is a wrongful putting out of the person who is actually seised of the freehold. Abatement occurs where a man dies seised of an estate of inheritance, and between the death [of the ancestor] and entry of the heir, a stranger interposes himself, then he is said to abate, diminish, or take away the freehold in law descended to the heir.

Intrusion is where the ancestor dies seised of any estate of inheritance expectant upon an estate for life, and then tenant for life dies, and between the death of the tenant for life and the entry of the heir of the reversioner a stranger interposes himself and intrudes ['277 i] upon the freehold. Deforcement comprehends not only the aforenamed, but every other holder of land whereunto another man has right, be it by descent or purchase. Usurpation is where a stranger who has no right presents to a church, and his clerk is admitted and instituted, he is said to be an usurper, and the wrongful act which he has done is called an usurpation.

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Release in extinguishment.

Releases which enure by way of extinguishment are where the releasee cannot have the thing released, as when the lord releases his seigniory to the tenant of the land, or when the grantee of a rent charge, or the owner of a common, releases to the tenant whose land is charged with the rent or common, these releases are said to extinguish the seigniory rent charge and common.

[280a] First, as to the seigniory, this release must of necessity enure by

way of extinguishment [not only to the tenant, but] to all men; for the tenant cannot have service to be taken of himself, nor can one man be at the same time both lord and tenant. 2dly. As to the rent charge; a man cannot have land and rent issuing out of the same land. Nor 3dly. Can a man have land and a common of pasture issuing out of the same land, el sic de cectcris. For in all these cases and the like he to whom the release is made cannot have and enjoy the thing that is released, [for these things are peculiarly such as can be enjoyed in the lands of another only, and not out of one's own lands.] But in the case of a right to land, the tenant of the land may take and enjoy that right for the strengthening of his estate therein.

And here note a diversity that the lord may release his seigniory Release of to the tenant of the land for life or in tail, el sic de cateris. But so cannot one release a right or an action; for if it be released but for a hour, it is extinct for ever, as hath been said. And two things are to be observed here. 1st. That by the release of all the right in the land the seigniory is extinct, as well as by the release of all the right in the seigniory, for the seigniory issues out of the land. 2dly. That by a release of all his right in the seigniory or the land, the whole seigniory is extinct without any words of inheritance. If the tenancy be given to a lord and to a stranger and to the heirs of the stranger, and the lord releases to bis companion all the right in the land, this release not only passes his estate in the tenancy, but extinguishes also his right in the seigniory, and so one release may enure to extinguish several rights in one and the same land.

Sections 481 To 491.

[Relate to pleading in real actions, or other abstruse antiquated learning.]

Section 492. [285a]

Also, as to releases of actions, real and personal, it is thus. Release of

"actions real and

Some'aclions are mixed m the realty and in the personalty: as an personal. action of waste sued against tenant for life; this action is in the really, because the place wasted shall be recovered; and also in the personalty, because treble damages shall be recovered for the wrongful waste done by the tenant; and therefore in this action

a release of actions real is a good plea in bar, and so is a release of actions personal.

Causes of action.

And by a release of all actions, causes of action are released; but in a submission of actions to arbitrement causes of action are not contained.

If a disseisor makes a lease for life, with remainder in fee, and the disseisee releases all actions to the tenant for life, after the death of tenant for life, he in the remainder shall not plead the

Remainder man cannot plead release of actions to ten. for life, though

he may a release said release. If the disseisee release all actions to the disseisor,

of right.

[2356]

and dies, this bars him but for his life, for after his decease his heir shall have an action, as some have said. And hereby may appear a manifest diversity between a release of rights, and a release of actions.

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Release of all Also, if a man has remedy by entry or action, and releases to the leaseofright'of tenant a#actions real, yet this shall not take away his right of eatry- entry, for nothing is released but the action.

Release of one of several remedies no release of other.

[2866]

Here it appears, that where a man may enter, a release of all actions does not bar him of his right, because he has another remedy, viz. to enter. But where his entry is not lawful, there a release of all actions is by consequence a bar of his right, because he has released the only means whereby he might recover his right. And it is to be observed, that when a man has several remedies for one and the selfsame thing, be it real, personal, or mixed, albeit he releases one of his remedies, he may use the other.

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Release of action no release of execution.

Also, if a man recover in debt or damages, and then releases to the defendant all manner of actions, yet may he lawfully sue out execution [on his judgment] by capias ad satisfaciendum, or by elegit, or fieri facias; for execution upon such a writ cannot be said to be an action.

An action continues until judgment is given, and then process Artim and ae

p • p i p • • cution distin

of execution begins; and therefore a release of all actions is regu- guished.
larly no bar of execution, for the execution begins when the action
ends.

•

By capias ad satisfaciendum.] This is a judicial writ for taking Capias. the body in execution until he has made satisfaction: where a capias ad satisfaciendum lies at the common law; and where it is given by statute you may read at large in my Reports.

By elegit.1 This is also a judicial writ, and is given by the Elegit attaches

,i p -i i •% goods and half

statute either upon a recovery for debt or damages, or upon a re- iands. cognizance in any court. And it is called a writ of elegit, because [289 b] the words of the writ are elegit sibi liberari fyc. By this writ the sheriff shall deliver to the plaintiff all the chattels of the debtor (except his beasts of the plough) and one moiety of his lands. And this must be done by an inquest to be taken by the sheriff, [but no elegit can be sued against the heir within age, although the lands be specially bound. Co. Lit. 290. a.]

Since Littleton wrote, a profitable statute has been made con- Elegit creditor's cerning executions of lands, 32 H. 8. c. 5. whereby it is provided, ZnvPrior\uie. that if after lands &c. be delivered 'in execution the same be re- [290a] covered [by prior title] before such time as the debt or damages are paid, the creditor shall have a scire facias against the debtor his heirs, executors or assigns, to have execution of other lands &c. for the residue of the debt or damages; [but the statute says, whereby the tenant is clearly without remedy, so that if but one acre remain, the creditor cannot have a scire facias against his debtor's other lands, because he may hold that acre till he is satisfied.]

Fieri facias.] This is a writ mentioned in the said statute, but it Fieri facias. is a writ of execution at the common law. And it is called a fieri L''^yu"J facias, because the words of the writ are auod fieri facias de bonis et calatlis #c.

And it is to be observed, that these three writs of execution Th»se writsmn<t ought to be sued out within the year and day after judgment; Zarlnda day'. but if the plaintiff sues out any of them within the year, he may continue the same after the year until he has execution.

Subsequent mat- And to none of these writs of execution the defendant can aluZtJge'ffby pleaa< ■ but if he has any matter since the judgment to discharge audita querela. njm of execution, he may have an audita querela, and relieve himself that way, but plead he cannot. And if the plaintiff after release unto the defendant all executions, yet in none of these three writs he shall plead it, but is driven to his audita querela, as hath been said.

Scire facias. Scire facias.'] This is a judicial writ, and lies not properly till a

actitnuborsit. year and day after j udgment given; and it is so called, because the words of the writ to the sheriff are quod scire facias prafat' T. &;c. And from the writ it appears, that the defendant is to be warned to plead any matter [if he can] in bar of execution; and therefore albeit it be a judicial writ, yet because the defendant may thereupon plead, this scire facias is accounted in law to be in nature of an action; and therefore a.release of all actions is a good bar of the same, and likewise a release of executions is a good bar in a scire [291a] facias. This writ was given by the statute of W. 2., for at common law if the plaintiff had ceased to sue execution byJieri facias, or levari facias for a year and a day after judgment, he had been driven to his new original.

Section 507.

Release of suits But where a man recovers debt or damages, and it is agreed between them that the plaintiff shall not sue out execution, then it behoves the plaintiff to release all executions.

includes executions.

Yet there are other words which will release an execution without express words releasing executions. As if a man release all suits, the execution is gone; for no man can have execution without prayer and suit, but the king only; and therefore if the king releases all suits, it is no bar of his execution, because in the king's case the judges ought to award execution ex officio without any suit; but a release of execution bars the king in that case. And so note a diversity between a release of all actions and a release of all suits.

Actions include If the body of a man be taken in execution, and the plaintiff lut'debt,duty, release all actions, yet shall he remain in execution; but if he release all debts or duties, he is to be discharged of the execution, „ demand inbecause the debt or duty itself is discharged. So it is if judg- cludes both' ment be given in an action of debt, and the body of the defendant be taken in execution by a capias ad satisfaciendum, and after the plaintiff releases the judgment, by this the body shall be discharged of the execution. So if the plaintiff after judgment release all demands, the execution is discharged. And if A. be accountable so B. and B. releases to him all his duties, this is no bar in an action of account, for " duties" extends to things certain, and what shall fall out upon the account is uncertain: and albeit the Latin word is debita, yet duties shall extend to all things due that are certain, and therefore discharges judgments in personal actions, and executions also.

Section 508. [2916]

AL80, if a man release to another all manner of demands, this Release of all is the best release that can be made for the releasee, and shall j^,, enure most to his advantage. For by such release of all manner of demands, all manner of actions real and personal, and also all manner of executions are taken away and extinguished.

Section 509.

And if a man has title of entry into any lands or tenements, by It includes such a release his title is taken away. Sed quaere de hoc; for ^Is. Fitz- James, chief justice of England, holds the contrary, because an entry cannot be properly said to be a demand. Year-Book, Pasch. 19 H. 8.

Here title is taken in its largest sense, including right also. [292 a]

Section 510.

An D if a man has a rent-service or rent-charge, or common of Also commons, pasture be. by such a release of all manner of demands made to slices" the tenant of the land out of which the service or the rent is

issuing, or in which the common is, the service, the rent, or the common, is taken away and extinct fc.

Section 511. Quarrels, con- Also, if a man releases to another all manner of quarrels, or all

troversies, and . - , .

debates. controversies and debates between them #c. quaere in what matter

and to what effect such words shall extend themselves 5rc.

If a man release all quarrels (a man's deed being taken most strongly against himself) it is as beneficial as all actions: for by it all actions, real and personal, are released. And by the release of all quarrels, all causes of actions are released thereby, albeit no action be then depending for the same. Controversies and debates are synonima and of one signification. If a man release all quarrels it is as large as all actions, which extends as well to actions in courts of record as in base courts. Omnes exactiones seem to be large words; for exactio derivatur ab exigendo, and exigere signifies to inquire or demand.

Section 512.

"All actions" releases the debt, though not theh payable.

Also, if a man by his deed be bound to another in a certain sum of money to be paid at the feast of Saint Michael next ensidng, if the obligee before the said feast release to the obligor all actions, he shall be barred of the duty for ever, and yet he could not have an action at the time of the release made.

[2926] The reason of this case is, for that the debt is a thing consisting

merely in action; and therefore albeit no action lies for the debt, because it is debit tun in prasentr, quamvis sit solvetuium in futuro; yet because the right of action is in him, the release of all actions is a discharge of the debt itself.

Executor may And so may an executor before probate release an action, (and pruta*. "* yet before probate he can have no action,) because the right of the action is in him, and so it was adjudged. And some say, that an ordinary may release an action, and yet he can have none.

But if a man by deed covenants to build a house oV make an luu-au of coi*estate, and before the covenant broken, the covenantee releases to ZuforTbro&n, him all actions, suits, and quarrels, this does not discharge the co- contra °faU venant itself, because at the time of the release, nihil fuil debitum, there was no debt, or duty, or cause of action in being. But in that case a release of all covenants is a good discharge of the covenant before it be broken.

Section 513.

But if a man lets land to another for a year at the rent of forty Release of shillings payable at Michaelmas next, and before Michaelmas re- iea3e 0f current leases to the lessee all actions, yet after Michaelmas he may have rentan action of debt against the lessee for the non-payment of the forty shillings, notwithstanding the said release. Stude causam diversitatis between these two cases.

This release shall not bar the lessor of his rent, because it was neither debitum nor solvendum at the time of the release made; for if the land be evicted from the lessee before the rent becomes due, the rent is avoided; for it is to be paid out of the profits of the land, aad it is a thing not merely in action, because it may be granted over. But the lessor before the day may acquit or release the rent [specially.]

But if a man be bound in a bond or by contract to another to pay Bond or recoga hundred pounds at five several days, he shall not have an action "t^luwhm of debt before the last day be past: and so note a diversity be- b">Kentween duties which touch the realty, and the mere personalty. But if a man be bound in a recognizance to pay a hundred pounds at five several days, presently after the first day of payment he shall have execution upon the recognizance for that sum, and shall not tarry till the last be past, for that it is in the nature of several judgments. And so note a diversity between a debt due by recognizance, and a debt due by bond or contract. And so it is of a covenant or promise, after the first default an action of covenant, or an action upon the case lies, for they are several in their nature.

K clean of actions no retease of current annuity.

Lastly, note a diversity between debts and covenants, or promises. If a man has an annuity for term of years or for life, or in fee, and he before it is behind releases all actions, this shall not release the annuity, because it is not merely in action, for it may be granted over.

[293a] [The residue of this chapter treats of the mode of im

pannelling the jury of knights in real actions, and of wager of law, &c]

CHAPTER IX. Section 515. [2956]

OF CONFIRMATION.

A Deed of confirmation is commonly in this form, or to this Form of coneffect: "Know all men &c. that I A. of &c. have ratified ap- . """ TMproved and confirmed to C. of &c. the estate and possession which I have of and in one messuage &c. with the appurtenances in F." &c.

•

A confirmation is a conveyance of an estate or right in esse, Void estate not whereby a voidable estate is made sure and unavoidable, or where- co"^'mableby a particular estate is increased. A confirmation does not strengthen a void estate — it may make a voidable or defeasible estate good, but it cannot work upon an estate that is void in law.

Section 516. [296a]

AnD in some cases a deed of confirmation is good and available, Confirmation of

where in the same case a deed of release would not be good. As if iease< g00(j ;n

J let land to a man for life, and he lets the same to another for his llfet»me

forty years, and the lessee enters; if I by my deed confirm the

estate of the tenant for years, and after the tenant for life dies

during the term, I cannot enter into the land during the said

term.

But note, where a confirmation shall enlarge an estate, there privity is required, as mentioned in the next section. So where a lessee for life made a lease for thirty years, and after the lessor and lessee for life made a lease for sixty years to another, which lease for sixty years the lessor first confirmed, and after that the lessor confirmed the lease for thirty years, and then the tenant for life died within the thirty years; it was adjudged that the lease for thirty years was determined by the death of the lessee for life, and that the lessee for sixty years might enter: for that albeit the lease for sixty years was the latter in time, yet was it of greater force in law, for that the lessor who had power to confirm which of them he would, did first confirm the second iease.

Section 517.

Release to Ybt if I had released to the tenant for years in the life-time of the

under-tenant » J J

bad. tenant for life, such release would have been void, for there was not

any privity between me and the tenant for years.

[2966] Section 518.

Sameofdissei- In the same manner it is if I be disseised, and the disseisor makes

sor's lease iv

yean. a lease to another for term of years, if I release to the termor, this

is void: but if I confirm the estate of the termor, this is good and effectual.

No confirmation But if the disseisor make a lease for years to begin at Michaeltermini, mas, and the disseisee confirm his estate, this is void, because he has but an interessi termini, and no estate in him, whereupon a confirmation may enure.

Section 519.

Confirmation of Also, if I be disseised, and confirm the estate of the disseisor, he ■K^oHe»nthan Rtu a 9°°^ an^ r*9Wu^ «*'«<« «'»fee-simple, albeit in the deed of the whole. confirmation no mention be made of his heirs, because he had a feesimple at the time of the confirmation. And if the disseisee confirm the estate of the disseisor, to have and to hold to hint and the heirs of his body engendered, or to have and to hold to him for term of his life, yet the disseisor has a fee simple and is seised in his demesne as of fee, because when his estate was confirmed, lie had then a fee simple, and such deed cannot change his estate without entry made upon him &c.

In the same manner it is, if the disseisor make a gift in tail, and the disseisee confirms the estate of the donee for the life of the donee, this confirmation enures to the whole estate tail; for a confirmation can make no fraction of an estate so as to extend but to part of the estate only. Et sic de cateris.

Section 520. [297a]

So if the disseisor's estate be confirmed for a day, or an hour, he If for a day, has a good estate in fee-simple. whole.

But if a parson make a lease for a hundred years, the patron and Bui lease for

... n «« A i /. i i_ . years may be

the ordinary may confirm fitty ot the years, tor they nave an in- confirmed for terest, and may charge in time of vacation. And so if a disseisor P"rtofterm< make a lease for a hundred years, the disseisee may confirm parcel of those years; but then it must be by apt words, for he must not confirm the lease, or demise, or the estate of the lessee, for if he do the addition as to part of the term will be repugnant and void, as the whole stands confirmed by the first words; but the confirmation in such case should be of the land for part of the term.

So may the confirmation be of part of the land; as if it be of or part of hind forty acres, the disseisor may confirm twenty &c. So if tenant TMfor wholeTM for life make a lease for a hundred years, the lessor may confirm either for part of the term, or for part of the land.

term.

But an estate of freehold cannot be confirmed for part of the ButfreehoU

cannot be firmed foi of estate.

estate, because the estate is entire and not several, as years are. Trm^dfor^rt

Section 521.

Also, if my disseisor make a lease for life, with remainder over Confirmation to

in fee, if I release to the tenant for life, this shall enure to him in teni"<!-forllfe'

•> 'J J J' no efiect on

remainder, because all my right and title is gone by such release, remainder;

D otherwise e conOUt %j I confirm the estate of the tenant for life [that has no effect vtrso.

on the remainder-], for after the decease of the tenant for life I

may well enter, because nothing is confirmed but the estate of the

tenant for life which is now determined; [on the other hand] if I confirm the estate and title of him in remainder that shall enure for the benefit of the tenant for life, for if his estate should be defeated, the remainder depending upon it should be defeated also, which is against my confirmation &c.

Confirmation to And so it is when the several estates are in one person; as if the mujomt-tmant disseisor makes a gift in tail, with remainder to the right heirs of

for life confirms o' o

fee in Mi com- tenant in tail, if the disseisee confirms the estate tail, it shall not

panions,

[2976] extend to the fee-simple. But if the disseisor makes a lease for life to A. and B. and the disseisee confirms the estate of A., B. may take advantage thereof; for the estate of A. so confirmed was a joint estate with B., and in that case the disseisee shall not enter into the land to divest a moiety as to B. But if the disseisor enfeoff A. and B. and the heirs of B., and the disseisee confirms the estate of B. for his life, this shall not only extend to his companion, as hath been said, but to his whole fee-simple, because to many purposes he had the whole fee-simple in him, and the confirmation shall be taken most strongly against the person who made it.

New fee created If A. makes a lease to B. for life, and B. makes a lease to C. for bjjj*mtinu" his life, with remainder to A. in fee, and A. releases to C. all his right, this is good to perfect the estate of C. for his life. But when C. dies, A. shall be in of his old estate, for his release could not enure to himself to perfect his defeasible remainder, but his ancient right remains. And note, that in this case the fee is divested and vested all at one instant; in the same manner as if tenant in tail makes a lease for life, at the same instant the estate tail is divested out of the donee, and the reversion in fee out of the donor, and a new fee is vested in tenant in tail. And so if the husband makes a lease for life of his wife's land, he divests his own estate which he has in her right and the inheritance of his wife, and at the same instant vests a new reversion in fee in himself.

Nm-claim by For that the remainder is depending &c] The reason is, that by

remainderman ^ confirmati0n to him in reversion all the right of the person

confirms estate or

for u/e. confirming is gone, and because he cannot by his entry avoid

*■ the estate of the lessee for life, without avoiding the estate

of the lessor, which is against his own confirmation; and it

has been adjudged, that if a disseisor makes a lease for life, and

after levies a fine of the reversion with proclamations, and the five years pass, so that the disseisee is barred of his right of entry, he shall not enter upon the lessee for life, [for this silent confirmation of the remainder enures equally to confirm the prior estate for life.]

The remainder should be defeated.] It is regularly true, that when Particular the particular estate is defeated, the remainder shall be defeated remaindeTdealso, but this rule hath divers exceptions. As if the lessor disseise fmi'd atso'hut

* r vested remain

A. lessee for life, and makes a lease to B. for the life of A. with re- der w""ts mt

•j _ . , .. . . ii/. /. continuance of

mainder to C in fee, albeit A. re-enters, and defeats the estate for particular estate life, yet the remainder to C. being once vested by good title shall t0 svff0rt "• not be avoided; for it is contrary to reason that the lessor should have the remainder again against his own livery. So it is if a lease be made to an infant for life, with remainder over in fee, and the infant at his full age disagrees to the estate for life, yet the remainder is good, for it was once vested by good title [and cannot afterwards be defeated by any accident to the particular estate,—the merger or forfeiture of that estate may accelerate the remainder, but cannot destroy it], and in both these cases it is observable that there was a particular estate at the time of the remainder created. [So that the remainder was good in its inception, and being vested is not liable to destruction by the destruction of the particular estate.] So if a lease be made to A. for the life of B. with remainder to C. in fee, and A. dies before an occupant enters, here also is a remainder without a particular estate, and yet the remainder continues good.* So where a rent is granted to the tenant of the land for life, with remainder in fee, this is a good remainder, albeit the particular estate continues not [but becomes merged in the land], for eo instante that the tenant takes the particular estate, eo instante the remainder vests, and the suspension in judgment of law accrues after the taking of the particular estate. As if a man grants a rent to B. for the life of Alice, with remainder to the heirs of the body of Alice, this is a good [contingent] remainder, and yet it must vest upon an instant, [that is it cannot vest during the continuance of the particular estate, but only in the very instaut of its determination.]

* TTiis is not strictly true, for there is a particular estate, though it be for a time without an owner. AW there is a special occupant appointed by law, which reduces the case in the text to a moot point.

Section 522.

Release to one ALSO, if there be two disseisors, and the disseisee releases to one

no* totheTther* of them, the releasee shall hold his companion out of the land. But

contra of con- if the disseisee confirm the estate of one, without saying more in

the deed, [that is without adding " and to his heirs'"] some say that

he shall not hold his companion out, but shall hold jointly icith him

for that nothing was confirmed but his estate which was joint.

Except heirs added.

But if the confirmation be to one disseisor and his heirs or of all the right of the disseisee in the land, he shall hold out his companion as appears by inference from this section.

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Section 523.

And some have said, that if two joint-tenants be, and one confirms the estate of the other, that the estate remains joint as before. But if ihe confirmation had been to the other and his heirs, then would the other have a sole estate in the tenements &c. And therefore it is a good and sure thing in every confirmation to hare these words; in fee, or in fee tail, or for life, or for years, according to the intention.

And this confirmation [without heirs] leaves the estate as it was, and amounts not to a severance of the jointure, as some have said.

Section 524.

Confirmation of life estate carries not the fee, though with word "heirs."

For according to some, if a man lets land to another for life, and after confirms his estate to hold to him and his heirs, this confirmation as to heirs is void, for his heirs cannot have an estate which trot only for term of his life. But if the confirmation be thus, to hare the same land to him and his heirs, [without any recital that the confirmation is intetided to be confined to t/ie estate for life] this confirmation passes a fee-simple in the land, for the habenr1""" works on the land, and not on the estate which the tenant already hath.

\\ herein it is to be noted, that the habendum and the premises Habendum may do in substance well agree together, and that the habendum may '£„"]£'abrufce enlarge the premises, but cannot abridge the same. premises.

[299a]

Section 525.

Also, if I let land to a feme sole for life [as distinguished from Confirmation to the next section where the lease is for years] and she takes hits- w"fe enure" band, and I confirm the estate of the husband and wife, to hold ^ow' for their lives; in this case [also the habendum has no effect on the premises] and the husband still holds jointly with his wife, but in her right for term of her life [as before]. Nevertheless this confirmation shall enure to the husband by way of remainder for term of his life, if he survives his wife.

Hence it appears that the baron has such an estate in the land in Husband seised right of his wife as is capable of confirmation to enlarge the estate; capable »">«and therefore if the confirmation had been made to him alone, to lease "r fonfr

'mation in fee.

hold to him and his heirs, this %vould have conveyed the fee-simple

to him after the decease of his wife: for if in this case a release

had been made to the husband and his heirs, that would have been

sufficient to convey the inheritance of the land to the husband.

And if in Littleton's case the confirmation had been to the husband [2996]

and wife, to hold to the two and their heirs, they would have been

joint-tenants of the fee-simple, and the husband would have been

seised in right of his wife for her life; for the husband and wife

cannot take by moieties during the coverture.

If a man lets land to husband and wife, to hold one moiety to Husband and the husband for his life, and the other moiety to the wife for her mt'etieTh"w life, and the lessor confirms the estate of. both in the land, to hold TM'JiTMa<""<»»

Inem enures.

to them and their heirs; by this confirmation as to the moiety of the husband, it enures only to the husband and his heirs, for the wife had nothing in that moiety; but as to the moiety of the wife, they are joint-tenants, as hath been said; for the husband has such an estate in his wife's moiety, in her right, as is capable of a confirmation. But if such a lease for life be made to two men by

several moieties, and the lessor confirms their estates in the land, to hold to them and their heirs, they are tenants in common of the inheritance; for regularly the confirmation shall enure according to the quality and nature of the estate which it purports to enlarge and increase.

Confirmation to tenant for life and remainder' man.

To tenant for life and Stranger.

If a lease for life be made to A. with remainder to B. for life, and the lessor confirms their estates in the land, to hold to them and their heirs, A. takes one moiety to him and his heirs, and B. the other moiety to him and his heirs, that is, the limitations will stand thus as to one moiety to A. for life, with remainder to B. for life, with remainder to A. in fee, and as to the other moiety to A. for life, with remainder to B. in fee, for B.'s remainder for life will in his own moiety become merged and extinguished in his remainder in fee, in the same way as if the reversion be granted to tenant for life and a stranger it is executed for one moiety [in the tenant for life, and the other moiety the stranger takes by original limitation;] and therefore they are tenants in common [in fee, and A., who before had all the land for life, has now only half in fee.]

Confirmation to two who are seised in tail makes tenancy in common of reversion.

If lands be given to two men and the heirs of their bodies begotten, and the donor confirms their estates in the land, to hold to them and their heirs; in this case some are of opinion, that they shall be joint-tenants of the fee-simple, because the donees were jointtenants for life, for that the confirmation must enure according to the estate which they have in possession, which is a joint estate for life. But others hold the contrary. For first, say they, that the donees have to some purposes several inheritances executed, though as between the donees a survivorship shall hold for their lives. Secondly, they say, that when the whole estate, which comprehends several inheritances, is confirmed, the confirmation must enure according to the several inheritances, which is the greater and most perdurable estate, and therefore that the donees shall be tenants in common of the inheritance in this case.

What remainder prevents action if waste.

And albeit in this case of Littleton, the husband, by the confirmation gains an estate for life in remainder, (as Littleton terms it, which some do object to as not being strictly a remainder,) yet if the husband commits waste, an action of waste shall lie against him and his wife, notwithstanding the mean remainder, because the husband himself commits the waste and does the wrong; and

therefore this remainder shall not excuse him, no more than it would where a man leases to A. during the life of B. with remainder to A. during the life of C, if the lessee commits waste an action of waste will lie against him.

Section 526. ♦

But if 1 let land to a feme sole for a term of years, and she takes Confirmation to

husband, and I confirm the estate of husband and wife, to hold for ^ie enure"

term oftheir lives: in this case they have a joint estate in the free- nowhold, for the wife had no freehold before &c.

And it is to be observed, that chattels real, as leases for years, of husband's wardships, and the like, are not by the marriage given to the husband J^"^",^ absolutely as all his chattels personal are, but conditionally only, real. that is if the husband happen to survive her, but he has power to *• * alien them at his pleasure; in the mean time [i. e. till alienation] the husband is possessed of the chattels real in right of his wife, which possession admits of a confirmation or release.

Section 527.

Also, if my disseisor grants a rent charge which I confirm and Confirmation of afterwards enters upon the disseisor; quaere, in this case, if the ^"free's'rentland be discharged of the rent or no. charge not

* avoided by

feoffor's entry

It is a general rule that such a thing as I may defeat by my entry broken. I may make good by my confirmation. Therefore if a feoffee upon condition grant a rent charge in fee, and the feoffor confirms it, and afterwards the condition is broken, and the feoffor enters, he shall not avoid the rent charge. And so it is if the heir of the disseisor grant a rent charge, and the disseisee confirms it, and afterwards recovers the land, he shall not avoid the rent: and yet in neither of these cases was his entry congeable at the time of the confirmation.

Section' 528.

Parson's charge Also, if a parson of a church charge his glebe, and the patron

patron, &c. and ordinary confirm the same, then shall the same grant stand in

has t'hefee.eF force. But in this case it is necessary that the patron have a fee

simple in the advowson; for if he have but an estate for life or in

tail, the grant shall stand good only during his life and the life of

the parson who granted.

Parson is seised Parson! In legal signification is taken for the rector of a paro

of the church J , 7. • ■ J • i . •

ami glebe. chial church, and he is said to be seised in jure ecclesia:, and the

[0UU6J iaw hacj an excellent end therein, viz. that in his person the church might sue for and defend her rights; and also be sued by any who had an elder or better title, and when the church is full, it it said to be full and provided with a parson. Parson imperson-ee, is the rector, who is in possession of the church parochial, be it presentative, or impropriate, and of whom the church is full.

Patron and or- Here are divers things to be noted. First, that the confir

dinarv' s assent . , , , .

Wore grant mation is but a mere assent by deed to the grant; and there"*°"g: fore ^ js holden, that if there be parson, patron, and ordinary,

and the patron and ordinary give licence by deed to the parson to grant a rent charge out of the glebe, and the parson grants the rent charge accordingly, this is good, and shall bind the successor; and yet here is no confirmation subsequent, but a licence precedent.

except patron be Secondly, The ordinary alone, without the dean and chapter, Dcun mmt as- may agree thereunto, either by licence precedent, or confirmation subsequent; for that the dean and chapter has nothing to do with what the bishop does as ordinary in the life-time of the bishop. But Thirdly, If the bishop be patron, there the bishop cannot confirm alone, but the dean and chapter must confirm also; for the advowson or patronage is parcel of the possession of the bishopric; and therefore the bishop, without the dean and chapter, cannot make the grant good, but only during his own life, [to make it good] after the decease of the incumbent [there must be] either a

sent:

licence precedent, or a confirmation subsequent [by the dean and chapter.]

A. parson of D. is patron of the church of S. as belonging to his or patron be church of D., and presents B. who by consent of A. and of the or- ^nmnmst "$ dinary, grants a rent charge out of the glebe; this is not good to •>"'"• make the rent charge perpetual, without the assent of the patron of A. no more than the assent of the bishop is who is patron without the dean and chapter, or no more than the assent of the patron is who is tenant in tail or for life, as in the text. And Littleton here says, that the patron who confirms must have a fee-simple, meaning to make the charge perpetual.

Fourthly, he that is patron must be patron in fee-simple; for if Patron must he be tenant in tail, or tenant for life, his confirmation or agree- bte'i'e'orac-1' inent is not good to bind any successor, but such only as come into i""'e i«^<i'"the church during his life. So if the estate of the patron be conditional, and he confirms, and afterwards the condition is broken, his confirmation is void. But if the patron be tenant in tail, and discontinues the estate in tail, the lease shall stand good during the discontinuance; and if the estate tail be barred, it shall stand good for ever.

But here a diversity is to be observed between a sole corporation, Powers of eccitas parson, prebend, vicar, and the like, (who have not the absolute ^i'm" a't'comfee in them, for to their grants the patron must give his consent,) mo" '""'• and a corporation aggregate of many, as dean and chapter, master fellows and scholars of a college, abbot or prior and convent, and the like, or any sole corporation who has the absolute fee, as a bishop with consent of the dean and chapter; these aggregate corporations may by the common law make any grant of or out of their possessions, without their founder or patron, albeit the abbot or prior Sac. were presentable: and the same was at common law of a bishop, because the whole estate and right of the land was in them, and they may respectively maintain a writ of right. [But now they are restrained by divers acts of Parliament presently mentioned.] If a bishop has two chapters, and makes a grant, both [301a] chapters must confirm it, or else the successor may avoid the grant. But if one of the chapters be dissolved, then the confirmation of the other is sufficient, and in no case does such grant need the confirmation of the king, though he is founder and patron of all bishop

Feoffment not cmjirmable before livery, con tra of grant be~ fore attornment.

Restraining statutes.

rics. And note the confirmation which Littleton here speaks of must be made in the life-time or during the incumbency of the parson; and so in the case of the bishop or other sole corporation, must it be made in his life-time. But it is to be remembered that grants made by parson, prebends, vicars, bishops, master and fellows of any college, dean and chapter, master or guardian of any hospital, or any other person having a spiritual or ecclesiastical living are restrained by divers acts of parliament to make any grant, rent charge, lease or alienation, other than such as are mentioned in those acts, which you may read at large, and the expositions thereon in my commentaries; [i. e. Readings on the Statutes.]

Tenant for life"! rent charge, confirmed by reversioner good, when.

Section 529.

Also, if a man lets land for life, and the tenant for life charges the land with a rent in fee, [which must necessarily determine on the grantor's death,'] and he in reversion confirms the same grant, the charge is good enough and effectual, [without words of enlargement or clause of distress.]

But if the tenant for life had granted a rent to another and his heirs during the life of the grantor by express words, and the lessor had confirmed that grant, the same would nevertheless determine by the death of tenant for life. But if tenant for life upon condition grants a rent in fee, and the lessor confirms this grant, then if after condition broken the lessor re-enters, he shall not avoid the grant.

Section 530.

Chantry. An D quaere if the patron of a chantry and the chaplain may charge

the same with a rent charge in perpetuity.

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"Give and

grant" good words of confirmation.

Also, in some cases this verb dedi, or this verb concessi, has the same effect in substance, and shall enure to the same intent, as the

verb coniirmavi. As if I be disseised of an acre of land, and make a deed thus, Sciant praesentes &c, quod dedi to the disseisor &c, or quod concessi to the said disseisor, and deliver the deed only to the disseisor without any livery of seisin of the land, this is a good confirmation, and as strong in law as if there had been in the deed this verb confirmavi &c.

Here observe, that some words are large and have a general ex- They include tent, and some have a proper and particular application. The j,,,"^^",^', former sort may contain the latter; as dedi, or concessi may amount °Peralt mh ai

J ' J they import.

to a grant, a feoffment, a gift, a lease, a release, a confimation, a surrender &c, and it is in the election of the party to use them to which of these purposes he will. But a release, confirmation, or surrender &c, cannot amount to a grant &c, nor can a surrender amount to a confirmation or a release &c, because these are proper and peculiar conveyances destined to a special end. And there are other words besides dedi and concessi, that will amount to a confirmation, as dimisi. In ancient statutes and in original writs this word dimisi is applied not only to a lease for life, but to a gift in tail, and to an estate in fee. And he to whom such deed comprehending dedi iyc, is made, may plead it as a grant, as a release, or as a confirmation, at his election.

If a parson and ordinary make a lease for years of the glebe to Samtword may the patron, and the patron by his deed grants it over, or if the dis- °aper^^tnhdas seisor grants a rent to the disseisee, and he by his deed grants it confirmation. over, and after re-enters; in both these cases one and the same *• J words amount to a grant and a confirmation. And so it is if a disseisor make a lease for life, or a gift in tail, with remainder to the disseisee in fee and the disseisee by his deed grants over the remainder and the particular tenant attorns, the disseisee shall not enter upon the tenant for life, or in tail, for if he should he would avoid his own deed, which amounts to a grant of the estate and a confirmation also..

Sects. 532, .533.

[And note, whensoever a confirmation enlarges or gives an estate words of inMere ouqht to be apt words used for the same, as ' heirs'for a fee, keritance ne

, cessary to con

'heirs of his body,'for an estate tail, and the like.] firmation by en

largement.

Section 534.

Feoffment by disseisor's heirs and disseisee operates how.

Also if a man be disseised, and the disseisor dies seised, and his heir is in by discent, and after the disseisee and the heir of the disseisor make a deed jointly to another in fee with livery of seisin this is the feoffment of the heir and confirmation of the disseisee. But if the disseisee in this case brings a writ of entry in the per and cui against the alienee of the heir of the disseisor, quaere, how he shall plead this deed against the demandant by way of confirmation &c. And know, my son, that it is one of the most honorable, laudable, and profitable things in our law, to be acquainted with the science of good pleading in actions real and personal; and therefore I counsel thee especially to employ thy courage and care to learn the same.

Feoffment by feoffees and cestui que use.

[3026]

Feoffment of the heir &c] For the land shall ever pass from the person who has the estate in the land. As if cestui (pie use and his feoffees after the statute of 1 R. 3., and before the statute of 27 H. c. 10., had joined in a feoffment, it shall be accounted the feoffment of the feoffees, [and the confirmation of the cestuis (pa use] because the estate of the land was in them.

Tenant for life and remainderman sjine or feoffment operates how.

So it is if tenant for life, and he in remainder or reversion in fee, join in a feoffment by deed. The livery of the freehold shall move from the lessee, and the inheritance from the reversioner or remainder-man, according to their respective estates. For it cannot be adjudged by law, that the feoffment of tenant for life draws the reversion or remainder out of the lessor or him in remainder, or that such a feoffment works a wrong because they joined together. If there be tenant for life, with remainder in tail &c. and tenant for life and the remainder-man in tail levy a fine, this is no discontinuance qr divesting of any estate in remainder, but each party passes that which he has power and authority to do. And if A. tenant be for life, with remainder to B. for life, with remainder to C. in tail, with remainder to the right heirs of B., and A. and B. join in a feoffment by deed, albeit it may be said that this is the feoffment of A. and the confirmation of B., and consequently that he in remainder in tail cannot enter for the forfeiture during the life of B., yet because B. joined in the feoffment, which was a

tortious act as to the remainder-man in tail, both the tenants for life shall forfeit their estates, and he in the remainder in tail may enter for the forfeiture. But if the reversioner in fee and tenant for life join in a feoffment by parol, this shall be (as some hold) first, a surrender of the estate for life, and then a feoffment of the reversioner ; for otherwise, if the whole should pass from the lessee, then he in the reversion might enter for the forfeiture, and every man's act («f res magis valeat) shall be construed most strongly against himself.

And it is to be observed, that if the disseisor and disseisee join Operation of in a charter of feoffment, and enter into the land and make livery, j^^lJ^ it shall be accounted the feoffment of the disseisee, and the con- *»»««. firmation of the disseisor; [but if, as in Littleton's case, the entry of J

the disseisee be taken away by the descent cast, then is it the feoffment of the heir and the confirmation of the disseisee].

Section- 536. [305a]

In the same manner it is, if a man has a rent charge out of certain Rent-charge land, and he confirms the estate which the tenant has in the land, firmor. yet the rent charge remains to the confirmor.

Section 537.

In the same manner it is, if a man has common of pasture in So does comanother man's land, if he confirms the estate of the tenant of the land, nothing shall pass of his common which notwithstanding hisconfirmation shall remain to him, as it was before.

And note, that a man cannot abridge a rent charge or common of pasture by a confirmation, as he may a rent service in respect of the privity between the lord and tenant; and so it is said a tenure may be abridged by a confirmation, but not a rent charge or common. But a man may release part of his rent charge, or common &c.

[307 aj Section 543.

Release in ex- And sometimes the verbs dedi et concessi shall enure by way of extinguishment of the thing given or granted; as if a tenant holds of his lord by a certain rent, and the lord by his deed grants the same rent to the tenant and his heirs, this shall enure by way of extinguishment, and thereby the rent is extinct. ■

The grant enures also by way of release.

[3076] Section 544.

Release of rent So ;/' one having a rent charge out of certain land grants to the tenant of the land the rent charge, the rent is extinct, for a man cannot have a rent out of his own land.

But if the grant be to the tenant of the land and a stranger, the rent shall be extinguished but for a moiety: and so it is of a seigniory.

Section 545.

Confirmation to Also, if I let land to a man for a term of years, and afterwards termor, j confirm his estate without more words in the deed, by this he has

no greater estate than for the term of years he had before.

Section 546.

carries freehold, But if I release to him all my right which I have in the land wnen- without more words in the deed, he has an estate of freehold; [to

carry itfurtlier, words of inheritance must be inserted.]

Section 547. [308a]

Also, if I being within age let lands to another for term of Release to twenty years, and the lessee grants the land to another for term bad^ontraof of ten years: in this case, when I am of full age, if I release to confirmation. the grantee of my lessee &c. this release is void, because as between him and me there is no privity. But if I confirm his estate, such confirmation is good. But if my lessee grant all his estate to another, then my release made to his grantee is good and effectual.

Here it is observable, that the lease of an infant is not void but Infant's Uase

■ j ii voidable only.

voidable."

Section 548.

Also, if a man grants a rent charge issuing out of his land [that Confirmation of is, a rent charge already created] to another for life, and after rent """*• confirms his estate in the rent, to hold to him in fee-tail or in fee-simple; this confirmation is void so as to enlarge the estate in the rent, for the confirmor had not any reversion therein.

Here the diversity is apparent, between a rent newly created and clause of diia rent in esse: which needs no explanation. Only this is to be ob- tle"euT^ant. served, that Littleton intends that the deed of confirmation is not to contain any clause of distress; for otherwise, as to the confirmation the deed is void, but the clause of distress amounts to a new grant, as in the Chapter of Rents has heen said.

Section 549.

But if a man be seised in fee of a rent service or rent charge, and confirmation of grants the rent to another for life, and afterwards confirms the ^ncames *** estate of the grantee in fee-tail, or in fee-simple, this confirmation [3086] is good so as to enlarge his estate according to the words of the confirmation, for the confirmor has a reversion of the rent.

Section 550.

Confirmation of But in the case aforesaid where a man grants a rent charge to

created'snould another for life, if he wishes the grantee to have an estate in tail,

be by fresh or faffe, it is necessary that the deed of grant of the rent charge

i for life be surrendered or cancelled, and then to make a new dud

of the like rent charge to have and perceive to the grantee in tail

or in fee. Ex paucis plurima concipit ingenium.

or by a claute Surrendered or cancelled.'] Note by cancellation of the deed the fee."Cancel- rent which lies only in grant ceases (as here it appears) as well as latum. by the surrender. And the reason wherefore the deed should be

surrendered or cancelled, is that the grantor should not be doubly charged, viz. with the old grant for life and with the new grant in fee; or, as hath been said, the grantor may grant to the grantee for life and his heirs, that he and his heirs shall distrain for the rent &c, and this shall amount to a new grant, and at the same time not create a double charge, whereof you may see more in the Chapter of Rents.

CHAPTER X. Section 551. t30^!

OF ATTORNMENT.

Attornm Ent is necessary where there is lord and tenant, and the What it is,

• - and how per

form* grants the services of his tenant to another for term of years, formed.

or for term of life, or in tail, or in fee, the tenant must attorn to the grantee in the life time of the grantor, otherwise the grant is void. And attornment is in fact nothing more than the tenant's agreement by word to the grant, which is sufficient if he say to the grantee, I agree to the grant made to you &c., or I am well content with the grant made to you bc., but the most common attornment is, to say, Sir, I attorn to you by force of the said grant, or I become your tenant &c., or to deliver to the grantee a penny, or a halfpenny, or a farthing, by way of attornment.

And the reason hereof is, that every grant must take effect in Au deeds mint substance in the lifetime both of the grantor and the grantee. And lifetime^"i in this case if the grantor dies before attornment, the seigniory, *""'""• rent, reversion, or remainder descends to his heir; and therefore after his decease the attornment comes too late: so likewise if the grantee dies before attornment, an attornment to the heir is void, [309i] for nothing descended to him: and if he should take, he must take as a purchaser, whereas the word heirs is added only as a word of limitation. But if the grant were by tine, then albeit the conusor or conusee dies, yet the grant is good. For by a fine levied the estate passes to the conusee and his heirs; and attornment to the conusee or his heirs at any time is sufficient to give a privity to maintain a distress. But this doctrine of attornment relates only

to conveyances at common law and to conveyances taking effect under the 27 H. 8. c. 10. made since Littleton wrote.*

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Freehold tenants must attorn on lord's alienation.

If a man be seised of a manor, consisting part in demesne and part in service, if he alien the manor it is necessary that the freehold tenants who hold of the alienor as of his manor attorn to the alienee, or otherwise the services remain continually in the alienor, but as to the tenants at will [». e. the copyhold tenants of the demesne] they need not attorn.

Here it is to be observed, that when a man makes a feoffment of a manor, the services do not pass, but remain in the feoffor until the freeholders attorn; but when they do attorn, the attornment has relation to the feoffment. For albeit the attornment be made many years after the feoffment, yet it shall have relation to make the services 'pass out of the feoffor ab initio even by the livery upon the feoffment, but not to charge the tenants with any mean arrearages, or for waste in the mean time, or the like.

And it is to be observed, that an attornment is only requisite on the alienation of a seigniory, a rent, reversion, or remainder, for the tenant never need attorn but where there is tenure, attendance, remainder or payment of a rent out of land. And therefore if an annuity, common of pasture, common of estowers, or the like, be granted for life or years &c. the reversion may be granted without any attornment; and albeit sometimes in some of these cases, or the like, an attornment be pleaded, yet it is surplusage, and more than is needed, because in none of them there is any tenure, attendance, remainder, or payment out of land.

On what alienation attornment necessary.

[312a]

* By stat. 4 &5 Ann. c. 16., attornment is rendered needless, and few statutes have been more complete in their operation than this statute, for except in the few instances noticed in 2 Bing. 59. and t Pow. Mortg. 174. n., attornment is now seldom heard of; for which reason it is deemed unnecessary to insert the whole of this chapter, relating as it does to abstruse and antiquated niceties about the effect of attornment on disseisors, abators, &r.

Section 557.

If there be lord and tenant, and the tenant lets his tenement to Tenant for life

another for life, with remainder to another in fee, and after the Reheat.""

lord grants the services to another fyc. and the tenant for life

attorns, this is good enough, for the tenant for life is tenant in this

case to the lord &c. and he in the remainder cannot be said to be

tenant to the lord as to this intent, until after the death of the

tenant for life: yet in this case if he in the remainder dies without

heir, the lord shall have the remainder by way of escheat, because

albeit the lord in such case ought to avow upon the tenant for life,

yet the whole entire tenement and all estates of freehold fee-simple

or otherwise therein are together holden of the lord.

Section 560. [313«]

Also, if there be lord and tenant, and the tenant grants the tene- Grant of serments to a man for life with remainder to another in fee, if the forTife'a^sus"' lord grants the services to the tenant for life in fee, in this case the pension during tenant for life hath a fee in the services; but the services are put in suspense during his life. But the heirs of his tenant for life shall have the services after his decease. And in this case there needs no attornment, for by the acceptance of the deed by him who ought to attorn inc. this is an attornment of itself.

Section 561. [313i]

But where the tenant hath as great and as high an estate in the Merger, the tenements as the lord has in the seigniory; in such case, if the lord esta'nS m^\\ grant the service to the tenant in fee, this shall enure by way of an(1 p«rilurextinguishment. Causa patet.

Here Littleton intends not only as great and high an estate, but as perdurable also, as hath been said; for a disseisor or tenant in fee upon condition hath as high and great an estate, but not so perdurable an estate as will make an extinguishment.

K K

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Tenant for Also, if a man lets tenements for term of years, by force oj

years must at- Ii-ij

torn on grant which lease the lessee is seised, and ajter the lessor by his deed. tUnTvelymi- grants the reversion to another for term of life, or in tail, or in necessary. yee . {[ js necessary in such case that the tenant for years attorn, or otherwise nothing shall pass to the grantee by such deed. And if in this case the tenant for years attorn to the grantee, then the freehold shall presently pass to the grantee by such attornment without any livery of seisin &c. because if any livery of seisin &c. should be or were needful to be made, then the tenant for years should be at the lime of the livery of seisin ousted of his possession, which would be against reason.

Elegit crediW and executor* must utlarn.

And tenant by statute merchant, or tenant by statute staple, or by elegit, must also attorn; for the grantee may have a venire facias ad compuluiulum, or tender the money Sec. and discharge the land: and if the reversion be granted by fine, they shall be compelled to attorn in a quid juris clamat. And so executors who have the land till debts are paid must attorn upon the grant of the reversion, although they have not any certain term for years.

Section 5gjs.

Tenant for life must atturn.

Also, if tenements be let to a man for term of life, or given in tail, saving the reversion &c. if he in the reversion grant the reversion to another by deed, it is necessary that the tenant of the land attorn to the grantee in the life time of the grantor, otherivise the grant is void.

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If tenant in dower or by the curtesy grant over his or her estate, and the heir grants over the reversion, the tenant in dower or by the curtesy may attorn, [notwithstanding the assignment of his or her estate] because at the time of the grant made they were attendant to the heir in reversion, and the grantee cannot be tenant in dower, or tenant by the curtesy. But if the reversion on a lease for life be granted, and lessee for life assigns over his estate, the lessee cannot attorn; but the attornment of the assignee is good, because, as Littleton here says, the tenant of the land must attorn, and after the assignment there is no tenure or attendance &c. between the lessee and him in reversion. So if lessee for life assigns over his estate upon condition, he then having nothing in him but a condition shall not attorn; but the assignee may attorn, because he is tenant of the land.

Section 569.

In the same manner it is, if land be granted in tail, or let to a Tenant in tail man for term of life, the remainder to another in fee, and he "",„„und to in the remainder grants this remainder to another &c. if the tenant of the land attorn in the life of the grantor, then the grant of such a remainder is good, otherwise not, [but see next section.]

True it is that tenant in tail may attorn; but where the reversion Tenant in tail is granted by fine, he is not compellable to attorn, because he has attorn. an estate of inheritance which may continue for ever. And so it is of a tenant in tail after possibility of issue extinct, he shall not be compelled to attorn for the inheritance which was once in him. But if tenant in tail after possibility of issue extinct grant over his estate, his assignee shall be compelled to attorn, because he never had but a bare estate for life.

Section 570. [3166]

YEar-book, P. 12. Edw. 4. where it was holden that tenant in Tenant in tail. tail shall not be compelled to attorn, but if fie will attorn gratis, it is good enough.

This is added to Littleton, and therefore though it be good law, and the book truly cited, yet I pass it over.

Section 572. [317a]

And it is to be understood, that where a lease for years or for Rent passes by life, or a gift in tail, is made to any man reserving to the lessor aUornraent

though not

named.

or donor a certain rent &c. if such lessor or donor grant his reversion to another, and the tenant of the land attorns, the rent passes to the grantee, although in the deed of grant of the reversion no mention be made of the rent, for the rent is incident to the reversion in such case, but not e converso &c; for if a man grant the rent in such case to another, reserving to him the reversion of the land, albeit the tenant attorn to the grantee, this shall be but a rent seek be.

Section 573.

Tenant for life's acceptance of deed an attornment which vests the remainder.

[3176]

Also, if a man let land to another for his life, and after he confirm by his deed the estate of the tenant for life, the remainder to another in fee, and the tenant for life accepts the deed, then is the remainder in fait in him to whom the remainder is given or limited by the same deed. For the acceptance of the deed, by the tenant for life is an agreement by him, and so an attornment in law. But yet he in the remainder shall not have any action of waste, nor other benefit by such remainder, unless he has the said deed in hand to produce, and therefore it will be a good and sure thing in such case for him in the remainder, that one part of the indenture be delivered to him.

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Limitation to tenant for life, with ultimate remainder to his right heirs, gives him remainder in fee.

Also, if a lease be made for life, with remainder to another in tail, with remainder over to the right heirs of the tenant for life; in this case, if the tenant for life grant his remainder in fee to another by his deed, this remainder passes immediately by the deed without any attornment &c. for if any ought to attorn, it should be the tenant for life himself, and it would be vain that he should attorn upon his own grant fyc.

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Here it appears, that where the ancestor takes an estate of freehold, and aftewards a remainder is limited to his right heirs, that the fee simple vests in himself, as well as if it had been limited to him and his heirs; for his right heirs are in this case words of limitation of estate nnd not of purchase. Otherwise it is where the

ancestor takes but an estate for years: as if a lease for years be made to A. with remainder to B. in tail, with remainder to the right heirs of A., there the remainder vests not in A. but the right heirs shall take by purchase if A. die during the estate tail: for as the ancestor and the heir are correlativa as to inheritances, so are the testator and executor, or the intestate and administrator as to chattels. And so it is if A. make a feoffment in fee to the use of B. for life, and after to the use of C. for life or in tail, and after to the use of the right heirs of B., B. hath the fee simple in him as well when it is by way of limitation of use, as when it is by act executed.

Section 586. [322«]

In the same manner is it, where a man lets tenements devisable Attornment io by custom to another for life, or for years, and devises the re- essential. version by his testament to another in fee, or in fee tail, and dies, and after the tenant commits waste, he to whom the devise was made shall have a writ of waste although the tenant never attorned. And the reason is, for that the will of the devisor made by his testament shall be performed according to the intent of the devisor: and if the effect of this should lie upon the attornment of the tenant, then perchance the tenant would never attorn, and then the will of the devisor would never be performed 5fc. and for this the devisee shall distrain &c. or he shall have an action of waste &c. without attornment. For if a man (tohoidforerer

a fee.)

devise such tenements to another by his testament, habendum [3226] sibi in perpetuura, and dies, and the devisee enters, he hath a fee-simple, causa qua supra; yet if a deed of feoffment had been made to him by the devisor of the same tenements, habendum sibi in perpetuum, and livery of seisin were made upon this, he would have had but an estate for term of his life.

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Discontinuance DISCONTINUANCE is an ancient tcord in the law, and has divers

where a man aliens to another certain

«2£$t significations be. One is,

fcated by alien- lands or tenements and dies, and another has right to have the

same lands or tenements, but he may not enter thereon because of

such alienation.

anon.

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A discontinuance of estates in lands or tenements is properly (in legal understanding) an alienation made or suffered by tenant in tail, or by any person seised in outer droit, whereby the issue in tail, or the heir or successor, or those in reversion or remainder, are driven to their action and cannot enter. I have added (properly) by warrant of our author, Sect. 470., where he uses discontinuance for a divesting or displacing of a reversion, though the entry be not taken away. And where our author says, that it has divers significations, he alludes to discontinuance of process which is expounded in my Reports, and need not be inserted here. When Littleton wrote, an estate in lands or tenements might have been discontinued in five ways, viz. by feoffment, fine, release with warranty, confirmation with warranty, and by suffering a recovery in a praxipe quod reddat [i. e. a common recovery], which also was to the prejudice of five kinds of persons, viz. of wives, of heirs, of successors, of those in reversion, and those in remainder. But for wives, and their heirs, and for successors, the law is altered by acts of parliament since Littleton wrote, as in this Chapter in its proper place will appear.

Section 593. As if an abbot alien lands belonging 1o the convent in fee, his sue- Corporation

. ', 7J ,. ..»• . • so'e could dis

cessor cannot enter into the same tanas, but he is put to tus action continue at

to recover the same. "s'tT

corporation aggregate. And here is to be noted, that the convent, albeit it be composed

of dead persons in law, yet is it said to be capitiilnm to the abbot, in the same manner as the dean and chapter is said to be secular to the bishop. As also that a sole body politic who has the absolute right as an abbot, bishop, or the like, may make a discontinuance; but a corporation aggregate of many, as dean and chapter, warden and chaplains, master and fellows, mayor and commonalty &c. cannot make any discontinuance; for if they join, the grant is good; and if the dean, warden, master, or mayor make it alone it is void, and works a disseissin. But now by statutes 27 II. 8. and SMeceUiiaiti

. . cat corporations

31 H. 8., all the abbots, priors, and other religious persons are dis- nowduaiM. solved, and there are none remaining at this day, and by the statutes 1 Eliz. and 13 Eliz. c. 10., and 1 Jac. c.3., bishops and all other ecclesiastic;il persons are disabled to alien or discontinue any of their ecclesiastical livings, as by the same acts doth appear.

Section 594.

Al.so, if a man be seised of land in right of his wife, and thereof Husband's infeoffs another, and dies, the wife may not enter, but she is continuance. put to her action, called a cui in vita.

In right of his wife.J That is to say, in fee-simple, fee-tail, or [326«] for life. But this discontinuance is altered since our author wrote, Contra now Ay by the statute of 32 H. 8., by the purview of which statute, the wife and her heirs after the decease of her husband may enter into the lands or tenements of the wife, notwithstanding the alienation of her husband.

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And where our author speaks of a husband seised in right of his Construction of wife, so it is where the husband and wife arc jointly seised to them '" s" " e'

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and their heirs of an estate made during the coverture [which is commonly called an estate by entireties], and the husband makes a feoffment in fee, and dies, the wife now may enter within the said statute, although it was the inheritance of both. And so it is if the feoffment be made by the husband and wife (albeit the words of the statute be by the husband only), for in substance this is the act of the husband only. So if the husband and wife suffer a recovery this is holpen by the statute: for it is in fact the act of the husband, and the words of the statute are made, suffered, or done. DUorce. Jf the husband make a feoffment in fee of lands holden in right of

his wife, and they are afterwards divorced causa pracontractus, yet the woman may enter within the purview of the said statute, and is not driven to her writ of cui ante divortiutn, as she was at the common law, albeit the entry be by the statute given to the wife, and now as it proves she was never his lawful wife. But it is enough that she was his wife de facto at the time of the alienation, and where her husband dies she cannot be his wife at the time of Hmbund'sfine the entry. If the husband levy a fine with proclamations, and fcu'cnfru".""" dies, the wife must enter or avoid the estate of the conusee within five years, or else she is barred for ever by the statute of 4 H. 7., for the statute of 32 H. 8. avoids the discontinuance but not the bar; and the statute speaks of a fine, and not of a fine with proclamations. If lands be given to the husband and wife, and to the heirs of their two bodies, and the husband makes a feoffment in fee and dies, the wife is holpen by the said statute, as hath been said, and so is the issue of both their bodies. Feme tenant in tail takes husband, the husband makes a feoffment in fee, the wife before entry dies without issue, he in the reversion or remainder may Remainder-man enter. For, first, the reversion or remainder cannot be discontinued protected by 1D this case, because the estate tail is not discontinued. 2dly. The natute. words of the statute are: " shall not be prejudicial or hurtful to

the wife or her heirs, or such as shall have right title or interest by the death of such wife, but that the same wife and her heirs, and such other to whom such right shall appertain after her decease, shall or lawfully may enter into all such manors, lands Sac. according to their rights and titles therein;" by which words the entry of the reversioner or remainder-man is in the above case preserved. If the husband be tenant in tail with remainder to his wife in tail, and the husband makes a feoffment in fee; by this feoffment the husband by the common law not only discontinues his own estate tail, but also his wife's remainder: but at this day after the death

of the husband without issue, the wife may enter by the said act of 32 H. 8. If the husband has issue, and makes a feoffment in fee of his wife's land, and the wife dies, the heir of the wife shall not enter during the husband's life, neither by the common law nor by the statute, [for he is entitled to be tenant by the curtesy.]

Section 595. [326b]

Also, if tenant in tail of certain land thereof enfeoffs another, Tenant in tail's and has issue and dies, this issue may not enter into the land, y^TM,^ii' j1 albeit he has right and title by the entail, but he is put to his action, which is called a formedon in le descender.

This extends as well to a woman tenant in tail as a man, and Now otherwise was generally good law when Littleton wrote. But now by stat. "toJomture*11 H. 7. if a woman has any estate tail jointly with her husband, or only to herself, or to her use in any lands or hereditaments of the inheritance or purchase of her husband, or given to the husband and wife in tail by any of the ancestors of the husband, or by any other person seised to the use of the husband or his ancestors, and shall thereafter being sole, or with any other after-taken husband discontinue &c. the same, every such discontinuance shall be void; and that it shall be lawful for every person to whom the interest, title, or inheritance, after the decease of the said woman should appertain, to enter &c. So that if such a feme tenant in tail make any discontinuance in fee, in tail, or for life, although it be with warranty, yet this does not take away the entry after her death, either of the issue or of him in reversion or remainder. If lands were entailed to a man and his wife, and to the heirs of their two bodies, and the husband had made a feoffment in fee and died, and then the wife had died, this had been a discontinuance at common law: for the title of the issue is as heir of both their bodies, and not as heir to any one of them, and his entry must ensue his title or action, [but now this is otherwise, as is noted in the first-mentioned case of this paragraph].

A formedon.] De forma donationis, so called because the writ Three kinds of comprehends the form of the gift. And there are three kinds of writs of formedon, viz. the first in the descender to be brought by

the issue in tail, who claim by descent per formam doni. The second in the reverter, which lies for him in the reversion or his heirs or assigns after the estate tail is spent. And the third in the remainder, which the law gives to him in the remainder, his heirs or assigns, after the determination of the particular estate tail; of all which you may read in the Register and in F. N. B.

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Tenant in tail's Also, if there be tenant in tail, the reversion being to the donor digests "ever-0" an(^ '*** ne '"'"*' {f tHe donor makes a feoffment &"c. and dies without S10n; issue, he in the reversion cannot enter, but is put to his action of

formedon in le reverter.

Section 597.

an J remainder; In the same manner it is, where tenant in tail is seised of certain land whereof the remainder is in another in toil, or in another in

fee. If the tenant in tail aliens in fee, or in fee-tail, and afterwards dies without issue, they in remainder may not enter, but are put to their writ of formedon in the remainder &c. and for this cause such

feoffments and alienations are called discontinuances.

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Makes a feoffment.'] This implies, either in fee-simple, fee-tail, or for an estate for life; and this remains as when Littleton wrote, not altered by any statute. And the reason hereof is that the remainder-man and reversioner are privy in estate, and it would be highly detrimental to the purchaser, if he were disallowed the benefit of his warranty, the safeguard of which is founded upon reason and equity. But then it may be demanded, seeing that there was no reversion or remainder expectant upon any estate tail at the common law, and that the issue in tail had not any remedy for the tenant in tail's alienation, then by what law is the alienation of tenant in tail a discontinuance at this day to the issue in tail, or to those in reversion or remainder? Whereunto it is thus answered, that it is provided by the statute of W. 2. cap. 1, De donis conditionalibus, quod nan habeant illi quibus tenementum sic fuerit datum potcstalcm alienandi, S;c. Upon these words the sages of the law have construed the said act according to the rule and reason of the

common law, and that in divers and sundry variable ways. For some alienations of tenant in tail they have adjudged voidable by the issue in tail by action only; some at the election of the issue in tail to avoid it by action, entry, or claim; some are merely void by the death of the tenant in tail: which several constructions were made upon the self-same words aforesaid. As, for example, if tenant in tail makes a feoffment in fee, this drives the issue in tail to his action, which is called in law a discontinuance; and this construction was made, because at common law the feoffment of an abbot or bishop, or of the husband seised in right of his wife worked a discontinuance, and drove the successor and the wife to their action and foreclosed them of their entry; and as the entry of the issue was taken away, so consequently the entry of them in reversion and remainder was likewise defeated.

Also, if an abbot, bishop, or husband in right of his wife were Noducmtinuseised of a rent, or of any other inheritance that lay in grant, and they had aliened the rent &c., it was in the election of the successor or wife after the death of her husband to claim the rent &c. or to bring an action, because alienation did not work a discontinuance; and so it is by construction in case of tenant in tail. Lastly, if the abbot, bishop, or husband had granted a rent newly created out of the land to another in fee, this had utterly ceased by their death; and so it is also by construction in case of tenant in tail. So that these words (non habent poteslatem alienandi) work these effects, viz. as to lands, that a feoffment bars not the issue &c. of his action, but works a discontinuance to bar him of his entry; that as to rents or any thing in esse which lies in grant, the said statute takes away the tenant's power to make any discontinuance; and as to rents &c. newly created, the same statute takes away his power to make them continue longer than during his life [and the reason is, because such inheritances lie in grant only and not in livery, and by a grant a man conveys no more than he can lawfully grant, which is not the case with the five species of conveyance before mentioned].

But there is a diversity between an alienation working a discon- Effect of tenant tinuance of an estate which takes away an entry, and an alienation -'T i'^'-."'""'

^ J (itum t<u inno

working, divesting, or displacing an estate which takes away no eentcmrtyawe. entry. As if there be tenant for life with remainder to A. in tail, with remainder to B. in fee, if tenant for life aliens in fee [by any

other than one of the said five tortious conveyances, that is by an innocent conveyance as it is called] this alienation divests and displaces the remainders, but works no discontinuance, for to every discontinuance there must be a divesting or displacing of the estate, and turning the same to a right; (for if it be not turned to a right, they who have the estate cannot be driven to an action) [and here the remainder-man may enter for the forfeiture, either on execution of the conveyance or on the tenant for life's death]. And that is the reason why such inheritances as lie in grant, cannot by grant be discontinued, because such a grant divests no estate, but passes only that which the grantor may lawfully convey, and so the estate itself descends, reverts, or remains, as shall be said hereafter in this Chapter.

Ftoffment of tenant in taiVi discontinuance.

If A. makes a gift in tail to B. who makes a gift in tail to C. and C. makes a feoffment in fee and dies without issue, and B. has issue and dies, the issue of B. may enter; for although the feoffment of C. discontinued the reversion of the fee-simple which B. has gained upon the estate tail made to C, yet could it not discontinue the right of entail which B. had, which was discontinued before; and therefore when C. died without issue, then the discontinuance of the estate tail of B. which passed by his livery, ceased, and consequently the entry of the issue of B. is lawful; which case may open the reason of many other cases.

Husband, wife, and stranger joint-tenants, effect of husband's feoffment.

Also note, that a discontinuance made by the husband took away the entry only of the wife and her heirs by the common law, and not of any other who claimed by title paramount above the discontinuance. As if lands had been given to the husband and wife and to a third person, and to their heirs, and the husband had made a feoffment in fee, this had been a discontinuance of one moiety and a disseisin of the other: if the husband had died, and then the wife had died, the survivor should have entered into the whole, for he claimed not under the discontinuance, but by title paramount from the first feoffor; and seeing the right by law survives, the law gives him a remedy to take advantage thereof by entry, for no other remedy for that moiety could he have.

Sections 598, 599, 600.

Also if tenant in tail be disseised, and he releases by deed to the Release of right disseisor and his heirs all the right which he [the tenant in tail] tinuance; conhas in the same tenements, this is no discontinuance, for nothing wkicji 6" "Hi,!

passes to the disseisor but the estate for life of the tenant in tail freehold;
who made the release &c. But by the feoffment of the tenant in
tail, a fee-simple passes by force of the livery of seisin &c. [which
consequently shall be a discontinuance.] And the reason hereof is,
that by the release nothing passes, but what the releasor may law-
fully and rightfully release without hurt or damage to other persons
who have right therein after his decease &e. So there is great
diversity between the feoffment of a tenant in tail and a release
by him.

It is a rule in law, that the disseisee, or any other who has a right only cannot by his release or confirmation make discontinuance, because nothing can pass thereby but what may be lawfully passed. Otherwise it is of a feoffment in respect of the livery of seisin, for that is the most solemn and common assurance in the country, and to be maintained for the common quiet of the realm; for by the feoffment the freehold (which is so much esteemed in law) passes, whereas by a release only a bare right passes.

Section 601.

But if the tenant in tail releases with warranty, and dies, and or release with this warranty descends to his issue in tail, this, it is said, is a discontinuance by reason of the warranty.

The reason is, that if the issue in tail should enter, the warranty (which is so much favoured in law) would be destroyed; and [328 6] therefore to the end that if assets in fee-simple descend [the issue shall be bound], he to whom the release is made may plead the same and bar the demandant; by which means all rights and advantages are saved. And here I may note once for all, that (it is said) with Littleton is as good as a concessum in a book-case.

Section G02.

liut the warranty must descend on the issue inheritable.

But if a man has issue a son by his wife, and his wife dies, and after he takes another wife, and tenements are given to him and to his second wife, and to the heirs of their bodies engendered, and they have issue another son, and the second wife dies, and after the tenant in tail is disseised, and he releases to the disseisor all his right &c. and binds himself and his heirs to warranty &c. and dies, this is no discontinuance to the issue in tail by the second wife, who may well enter, for the warranty descends to his elder brother whom the father had by his first wife.

Section 003.

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In the same manner it is, where lands are descendible to the youngest son after the custom of Borough-English, and these are entailed Sue. and the tenant in tail has two sons, and is disseised, and he releases to his disseisor all his right with warranty £c. and dies, the younger son may enter upon the disseisor, notwithstanding the warranty, because the warranty descends to the elder son ; for the warranty shall always descend upon the heir at the common law, [and never on the heir by custom.]

Section G04.

Release with Also, if an abbot releases to his disseisor with warranty, this is

warranty when ... , . • , , . ,

nodiscontinu- no discontinuance to his successor, for the warranty ceases with ance.

his death or privation.

Effect of bishop's translutum.

Note, that privation is here resembled to death, and so is translation also. Wherein this diversity is worthy of observation, that when a bishop &c. makes an estate, lease, giant of a rent-charge, warranty, or any other act which may tend to the diminution of the revenues of the bishopric 8cc. which should maintain the successor, there the privation or translation of the bishop &c. is all one with his death. But where the bishop is patron and ordinary, and confirms a lease made by the parson without the dean and chapter, and after the parson dies, and the bishop collates another, and then is translated, yet his confirmation remains good; for the revenues that are to maintain the successor are not thereby diminished. And the like diversity holds in case of resignation, notwithstanding there is some opinion to the contrary.

Sfxtion 605.

Also, if a man seised in right of his wife be disseised, and he Husband's rereleases &c. with warranty, this is no discontinuance to the wife, if ramy no'discimshe survives her husband, for she mail enter &'c. Causa patet. tinuance, unless

J J r wife Ins lieir.

This is evident, unless the wife be heir to the husband (as by law she may be), and then it is a discontinuance for the cause aforesaid.

Section 606. [329U]

Also, if tenant in tail of certain land lets the same to another Tenant in tail's

TOItMSi.' ii<i ili'-

for term of years, and the lessee enters, and then the tenant in tail continuance. by deed'releases all his right in the land, to hold to the lessee and his heirs for ever; this is no discontinuance, but after the decease of the tenant in tail, his issue may well enter, because by such release nothing passed but for the life of the tenant in tail.

Sfxtion 607.

In the same manner it is, if the tenant in tail confirms the estate of Neither is his the lessee for years, to hold to him and his heirs, this is no discontinuance, for nothing passes by such confirmation but the estate which the tenant in tail has for his life.

Section 611. [3306]

But otherivise it is when tenant for life makes a feoffment in fee, Feoffment by for by such a feoffment the fee-simple passes. A tenant for years, oryearsadis.

also, may make a feoffment in fee, and by his feoffment the feesimple shall pass, and yet he has at the time but an estate for a term of years.

Albeit the feoffment made by lease for years be a feoffment between the feoffor and feoffee, and by this feoffment a fee-simple passes by force of the livery, yet is it a disseisin to the lessor.

[331a] Section 613.

Estate pur outer Also, if tenant in tail by deed grants to another all his estate in

vie only passes » ■ , * , » » • » • *

by tenant in the tenements entailed, to hold to the other and his heirs for ever, of all hisestates. and ^ivers seisin accordingly; in this case the grantee has no other estate than for the life of tenant in tail. And so it may be well proved, that tenant in tail cannot grant or alien, or make any rightful estate of freehold to another person but for term of his own life only be.

The meaning of Littleton is, that having regard to the issue in tail, and to those in reversion or remainder, tenant in tail cannot lawfully make a greater estate than for term of his own life; and therefore this release or grant is no discontinuance. But in regard of himself his release or grant leaves no reversion in him, but puts the same in abeyance, so that after such a release or grant he shall not have any action of waste 8tc.

[332a] Section 617.

So of his grant Also, if a man be tenant in tail of an advowson in gross, or of

common in" a common in gross, and by deed grants the advowson or common to

gross. another in fee, this is no discontinuance; for the grantee lias no

greater estate than for term of the tenant in tail's life.

Section 618.

Fine of things And note, that of such things as pass by way of grant without '/od^sconthm- ^very> there, albeit such things be granted in fee, by fine, yet thit ance. is not a discontinuance.

The reason is because nothing passes but only during the life of Grant with wartenant in tail, which is lawful, whereas a discontinuance works a TMnuance"if"' wrong. And if tenant in tail of a rent service &,c. or of a reversion, 'fue b''"'S

° jormedon.

or remainder in tail 8cc. grant the same in fee with warranty, and [332 It] leaves assets in fee-simple, and dies, this is neither a bar nor a discontinuance to the issue in tail; but he may distrain for the rent or service, or enter into the land after the decease of tenant for life. But if the issue brings a formedon in the descender, and admits himself out of possession, then he shall be barred by the warranty and assets. And where the thing lies in lively, as lands and tenements, yet if to the conveyance of the freehold or inheritance no livery of seisin is requisite, such conveyance works no discontinuance. As if tenant in tail exchange lands &c. or if the king being Eichangim tenant in tail, grant by his letters patent the lands in fee, there is no discontinuance wrought.

If tenant in tail make a lease for years of the lands entailed, and Fine of remraf'terwards levies a fine of the same, this is a discontinuance; for a 'tt!uttiiee^nn. fine is a feoffment of record, and the freehold passes. But if tenant in tail makes a lease for his own life, and afterwards levies a fine, this is no discontinuance, because the reversion expectant upon an estate of freehold lies only in grant, and a fine of things lying in grant works no discontinuance as abovesaid.

Section 620. [333«]

But if tenant in tail makes a lease for the life of the lessee, he Tenant in tail's thereby acquires a new reversion in fee-simple, because when he ^nt of ievermade the lease for life, he discontinued the estate-tail. And a re- slon a tliscou

tinuance, il re

version of the fee-simple must be in some person in such case. It version falls in cannot be in the donor, inasmuch as his reversion is discontinued; ergo, the reversion of the fee ought to be in the tenant in tail, who discontinued. And if in this case the tenant in tail grant by his deed this reversion to another, and the tenant for life attorns and dies, living the tenant in tail, whereupon the grantee of the reversion enters, this is a discontinuance in fee, and the issue is put to his formedon, because the reversion leas executed, that is, fell in during the lifetime of tenant in tail who made the grunt.

J. L

otherwise not.

For when the reversion is thus executed in the lifetime of the tenant in tail, it is equivalent in judgment of law to a feoffment in fee, for the estate for life passed by livery. But if the lessee for life had not died in the lifetime of the tenant for life, so that the reversion had not fallen in during his life, then would there have been no discontinuance, and the entry of the issue would have been lawful because by the death of the lessee the discontinuance is determined; and consequently the grant made of the reversion gained upon that discontinuance is void also.

Lease according If tenant in tail makes a lease for three lives, according to the dilconu'iHwe. statute32 H. 8., that is no discontinuance of the estate-tail or of

the reversion, because it is authorised by act of parliament, where

unto every man in judgment of law is party.

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And yet in some cases the freehold may be discontinued and not the reveision. As if the husband and wife make a lease for life by deed of the wife's land, reserving a rent, and the husband dies; this was a discontinuance at the common law for life; and yet the reversion was not discontinued, but remained in the wife. Otherwise it is if the husband had made the lease alone.

And the tenant for life dies.~\ The like law is if the tenant for life surrenders to the grantee, or if the grantee recovers in an action of waste, or enters for the forfeiture.

Grant of reversion no discontinuance, but limitation of remainder man

If tenant in tail make a lease for life, with a remainder in fee, this is an absolute discontinuance, although the remainder be not executed [i. e. fall not into possession] in the lifetime of tenant in tail, because it is all one estate, and passes by one livery. And so note a diversity between a grant of a reversion and a limitation of a remainder.

Reversion must fall in grantor's lifetime to make grant of it a discon.

B. tenant in tail makes a gift in tail to A. and afterwards B. releases to A. and his heirs, after that A. dies without issue, the issue of the first donee may enter upon the collateral heir, because A. had not seisin and execution of the reversion of the land in his demesne as of fee, as Littleton here speaks. But if tenant in tail makes a lease for the life of the lessee, and afterwards releases to him and his heirs, this is an absolute discontinuance; because the fee-simple is executed in the lifetime of tenant in tail.

If tenant in tail of a manor whereunto an advowson is appendant, s„ incumbent makes a feoffment in fee by deed (as it ought to be) of one acre ^"'Ju.wn.'"'" with the advowson, and the church becomes void, and the feoffee presents, and afterwards tenant in tail dies, and the church becomes void, the issue shall not present until he has re-continued the acre. But if the feoffee had not executed the same by presentment, then the issue in tail should have presented. And so was it at the common law of the husband seised in right of his wife, mutatis mutandis.

If a fine be levied by a tenant in tail, and he grants and renders Executory fin* the land to himself and his heirs, and dies before execution, this is ^«'ic<"''""' no discontinuance. Otherwise it is, if it had been executed in the lifetime of the tenant in tail. If tenant in tail makes a lease for the jfa r is grant of life of the lessee, and afterwards grants the reversion with warranty, "*""„"' m>k and dies before execution, this is no discontinuance: because the discontinuance was (as hath been said) but for life, and the warranty cannot enlarge the same.

If at this day tenant in tail makes a lease for life, and afterwards Tenant in tail

by deed indented and enrolled according to the statute bargains T '"£ (TM*

and sells the reversion to another in fee, and the lessee dies, so that grants away reversion, this a the reversion is executed [i. e. falls in] in the lifetime of the tenant discontinuance,

in tail; although the bargainee is not in the per by the tenant in tenant in tuWt tail, yet inasmuch as he claims the reversion immediately from him, nfe"mewhich is executed in his lifetime, this is a discontinuance. And so it is, and for the same cause, if tenant in tail had granted the reversion to the use of another and his heirs. If tenant in tail makes a lease for life, and afterwards disseises the lessee for life, and makes a feoffment in fee, the lessee dies, and then the tenant in tail dies; although the fee is executed, yet because it was not executed by lawful means, (as in all the cases of Littleton it appears it ought to be,) it is no discontinuance.

Section 622. [334a]

But in this case, if tenant in tail who grants the reversion dies, Tenant in tail's living the tenant for life, and afterwards the tenant for life dies, and life distinand afterwards he to whom the reversion was granted enters be. ^^^^ then this is no discontinuance, and the issue of the tenant in tail may well enter upon the grantee of the reversion; because the re

version which the grantee had was not executed in the lifetime of the tenant in tail &c. And so there is a great diversity when tenant in tail makes a lease for years, and when he makes a lease for life ; for in the one case he has a reversion in tail, and in the other case he has a reversion in fee.

[334 6] Section 623.

Same exempli- Fort if land be given to a man and to the heirs male of his body

T.n.nt laii o»ie. engendered, who has issue two sons, and the eldest son has issue a

,—! 1 daughter and dies, and the tenant in tail makes a lease for years

| and dies, notv the reversion descends to the younger son, because the

Daur.

reversion was but in the tail, and the youngest son is heir male be. But if the tenant had made a lease for life &c. and had afterward* died, now the reversion descends to the daughter of the elder brother, for the reversion is in the fee-simple, and the daughter is heir general &c.

Section 624.

Devise no dis- ALSO, if a man be seised in tail of lands devisable by testament 5r. continuance. an^ j>g jevises (nis (o another in fee, and dies, and the other enters

&c. this is no discontinuance, because no discontinuance was made

in the lifetime of the tenant in tail kc.

Section 625.

Tenant in uil's ALSO, if land be given in tail, saving the reversion to the donor, feoffment to re- j ^ tenant in tail by his deed enfeoffs the donor, to hold to him

versioncr no J J •"

discontinuance. and his heirs for ever, and delivers to him seisin accordingly br. this is no discontinuance, because none can discontinue the estate tail unless he discontinues the reversion also. And inasmuch as by such feoffment made to the donor (the reversion then being in him) his reversion was not discontinued or altered &c. this feoffment is no discontinuance jfc.

Contra if Am This must be understood where the reversion of the donor is be <m intermedi- immediately expectant upon the estate of the donee: for if a man makes a gift in tail with remainder in tail, reserving the reversion [335a] to himself; in this case if the donee enfeoffs the donor, this is a discontinuance, because there is a mean estate.

ate remainder; J * *'

Also it is to be intended of a feoffment made to the donor solely or if feoffment or only, for if the donee enfeoff the donor and a stranger, this is a Granger. discontinuance of the whole land.

But if tenant for life makes a lease for his own life to the lessor, Tenant for life's the remainder to the lessor and a stranger in fee, in this case, for- J^ff""1"1to

o 'remainder-man

asmuch as the limitation of the fee would work the wrong, it enures °'"' stranger a

. . . surrender and

to the lessor as a surrender for the one moiety, and a forfeiture as forfeiture. to the remainder of the stranger; for he cannot give to the lessor that which he had before, as our author here says; and as to the remainder to the stranger, it is a forfeiture of his moiety [for it purports to pass a greater estate than he can warrant], and when the lessor enters, he may take the benefit of such forfeiture.

But if two joint-tenants be, and one of them enfeoffs his com- Feoffment by panion and a stranger, and makes livery to the stranger, this shall vest only in the stranger, because the livery cannot enure to his and s,ra"S companion.

one joint-tenant to companion

None can discontinue the estate tail, unless he discontinues the rever- jy0 discuntinusion also.'] And therefore if the reversion or remainder be in the a"ce.ot '•«»>«<«

der in king.

king, the tenant in tail cannot discontinue the estate tail. But tenant in tail, with reversion in the king, might have barred the estate tail by a common recovery, until the statute of 34 II. 8. c.20, which statute now restrains him; such common recovery, however, neither barred nor discontinued the king's reversion.

Note, the reversion may be revested, and yet the discontinuance But reversim remain. As if a feme covert be tenant for life, and the husband ""■J *f TM-''«"d

and discontinue

makes a feoffment in fee, and the lessor enters for the forfeiture; <"><* remain. here is the reversion revested, and yet the discontinuance remained at the common law.

Section 626. Feoffment to In </<e same manner it is, where lands are given to a man in tail

remainder-roan . . . ., _ _

no disconunu- u>ir/i remainder to another mfee, and the tenant in tail eirfeqfls the remainder-man in fee, this is no discontinuance, causa qui supra.

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Tenant in tail's But where the tenant in tail makes a lease for years or for life,

louso witli 1i vcrv

always a dis- with remainder to another in fee, and delivers livery of seisin accontmuance. cordingly, this is a discontinuance in fee, for that Ihe fee-simple passes by force of the livery of seisin &e.

This is evident also, and hereof sufficient hath been spoken before.

Section 632.

Husband's feoffment on condition, if a discontinuance!

And it is to be undersloood, that some discontinuances are made upon condition &c. and if the condition be broken and the estate defeated, then are the discontinuances defeated also. As if the husband seised of land in right of his wife, makes a feoffment in fee upon condition, and dies, if the [husband's] heir afterwards enters upon the feoffee for the condition broken, the entry of the wife is congeable on the heir, for by the entry of the heir the discontinuance is defeated, as is adjudged.

lie entry for condition bioken avoids feoffment, and tui consequence the discontinuance.

[3366]

Here it appears, that for the condition broken, the heir of the husband may enter; for albeit no right descends from the husband to his heir, yet the title of entry by force of the condition which the husband created, descends to his heir; and if the heir enters, that entry avoids the feoffment, which [being the cause of the discontinuance if the feoffment be defeated the discontinuance is defeated also; the consequence is that] the estate of the heir vanishes away immediately on his entry, and the estate of the feme or her heirs vests presently without any entry or claim by her or them; and if the husband himself had re-entered, the estate would have vested in his wife [immediately and he would have become seised jure maris as before].

Section 633.

Also, if a woman inheritrix hath a husband who is within aye, and Feoffment by he being within age makes a feoffment of the tenements of his wife in jure „,,rr;s no fee, and dies, it has been a question, whether the wife may enter or discontinuancenot bc. And it seems to some', that the entry of the wife after the death of her husband, is conyeable in this case. J^or when her husband made the feoffment [during his minority] fyc. he might well enter at any time during the coverture notwithstanding such feoffment, and he could not enter in his own right, but oidy in right of his wife: ergo, such right of entry in right of his wife remains to the wife after his decease.

And the heir of the husband cannot enter, for no right or title descends to him, therefore the wife may take benefit of the nonage of her husband and enter into the land. If husband and [337a] wife are both within age, and they by deed indented join in a feoffment reserving a rent, and the husband dies, the wife may enter, or have a dum fuit infra retatem. But if she were of full age, she shall not have a dum fuit infra atatem for the nonage of her husband, albeit they be but one person in law.

Section 634.

And it has been said, that if two joint-tenants being within age Effect of feoff. make a feoffment in fee, and one dies, the survivor may enter into {""au^^ine' the whole &C. infants.

In this case, if one joint-tenant had made a feoffment in fee and [337 ^'1 died, the right should not have survived, for the jointure was severed for a time. If two joint-tenants be, and the one is of full age and the other within nge, and both make a feoffment in fee,

and he of full age dies, the infant may enter or have a dttm fuit infra (Ctatem but for a moiety only.

Infant's feoffment never prejudicial to Himself or others.

Sf.ctio.v 635.

Also, when an infant makes a feoffment it shall neither aggrieve or hurt him but he may well enter &c. So neither therefore shall it aggrieve or hurt another. And for these reasons it seems to some, that after the death of the infant husband so making the feoffment Sue. his wife may well enter.

But he may well enter Sfc] Here is implied, that he may enter either within age, or at any time after full age, and likewise that after his death his heirs may enter.

Heirt in Bow' Nota, a special heir may take advantage of the infancy of the

Kngliih or r, ,

special tail may ancestor. As it tenant in tau of an acre of the custom of borough of ancestor'"^' English makes a feoffment in fee within age, and dies, the youngest mfancy. 80n mav av0[r\ it; for he is privy in blood, and claims by descent

from the infant. And so if tenant in tail to him and the heirs female of his body makes a feoffment in fee and dies within age, leaving issue a son and a daughter, the daughter may avoid the feoffment. And so note, that a cause to enter by reason of infancy is not like a right of entry on conditions, warranties, and estoppels, which ever descend to the heir at the common law only.

Section 636.

Discontinuance Also, if a woman inheritrix takes husband, and they have issue a

termines on son, and the husband dies, and she takes another husband, and the

estate"1" of second husband lets the land which he has in her right to another

for term of his life, and afterwards the wife dies, and then the

tenant for life surrenders his estate to the second husband be.

quaere, if the son of the wife may enter upon the second husband

during the life of the tenant for life &c. But it is clear law, that

after the death of the tenant for life, the son of the wife may

enter; because the discontinuance, which was only for term of life,

is determined &c. by the death of the same tenant for life.

Surrender"] Signifies the yeilding up of an estate for life or Surrender, years to him who has an immediate estate in reversion or re- how many hindi. mainder, wherein the estate for life or years may drown or merge by mutual agreement between the parties. A surrender pro- [338a] perly taken is of two sorts, viz. a surrender in deed, or by express words, and a surrender by operation of law. Littleton here A right or inputs his case of a surrender of an estate in possession, for a right caHnot be mrcannot be surrendered. And it is to be noted, that a surrender in rb"'f^"}"% law is in some cases of greater force than a surrender in deed. As '<""• if a man make a lease for years to begin at Michaelmas next, this future interest cannot be surrendered, because there is no reversion wherein it may merge; but by a surrender in law it may be merged. As if the lessee before Michaelmas take a new lease for years either to begin presently, or at Michaelmas, this is a surrender in law of the former lease. Fortior et tcquior est dispositio legis quam hominis.

Also there is a surrender without deed, whereof Littleton gives Estate fir life an example, viz. of an estate for life of lands, which may be sur- ^ered'JuhZT rendered without deed, and without livery of seisin; because it is dee<1but a yielding or a restoring of the estate again to him in the immediate reversion or remainder, which is always favoured in law

And there is also a surrender by deed; and that is of things which Tilings lying in lie in grant, whereof a particular estate cannot commence without smnt **'""'"'

D * r surrendered

deed, and by consequence the estate cannot be surrendered without vahmt deed.

deed. But in the example which Littleton here puts, the estate

might commence without deed, and therefore might be surrendered

without deed. And albeit a particular estate be made of lands by

deed, yet may it be surrendered without deed, in respect of the

nature and quality of the thing demised, because the particular

estate might have been made without deed; and so on the other

hand if a man be tenant by the curtesy, or tenant in dower of an

advowson, rent, or other thing that lies in grant, albeit there the

estate may begin without deed, yet in respect of the nature and

quality of the thing, namely that it lies in grant, it cannot be

surrendered without deed. And so if a lease for life be made of

lands, with remainder for life; albeit the remainder for life began

without deed, yet because remainders and reversions, though they

be of lands, are things that lie in grant, they cannot be sur

rendered without deed. See in my Reports plentiful matter of surrenders.

Surrender of life estate no effect on deriiatiue charges.

[3386]

If tenant for life grant a rent-charge, and after surrender, yet the rent remains during his life, for to that purpose he comes in under the charge, [that is, after or subsequent to the charge, and he cannot therefore avoid it;] but if he in the reversion make a lease for years, or grant a rent-charge &c. and then the lessee for life surrenders, the lease or rent shall commence immediately.

Construction of surrender as between parties and strangers.

Here note a diversity, when a surrender is to the prejudice of a stranger, and when it is for his benefit. If a man makes a lease tu

A. for life, reserving a rent of forty shillings to him and his heirs, with remainder to 13. for life, and the lessor grants the reversion in fee to B. and A. attorns — B. shall not have the rent, for although the remainder for life is merged in the fee-simple as between them, yet as to a stranger it is in esse; [and as between the grantor and A.,

B. it seems is to this purpose a stranger], and therefore B. shall not have the rent, but if B. dies his heir coming in of the immediate reversion is no stranger, he therefore shall have the rent.

Of merger by A master of a hospital being a sole corporation, by the consent

ami'recers'im in °^ n>s brethren makes a lease for years of part of the possessions ot different rights, the hospital; afterwards the lessee for years is made master of the

Huron and J erne. l »

hospital, the term is thereby merged; for a man cannot have a term for years in his own right and a freehold in aider droit to consist together; as if a man lessee for years takes a feme lessor to wife, [he will then have at one and the same time a term for years in his own right, and the immediate fee-simple (for his own benefit) in right of his wife, and therefore his term should be drowned; but see 2 Roll. Rep. 472. contra.] Nevertheless a man may have a freehold in his own right and a term for years in auter droit: and therefore if a man lessor takes the feme lessee to wife, the term is not merged, but he is possessed of the term in her right during the coverture. So if the lessee makes the lessor his executor, the term is not drowned. Causu qua supra. But if it had been a corporation aggregate of many, the making of the lessee master would not have extinguished the term, no further than it would if the lessee had been made one of the brethren of the hospital.

In this section Littleton makes a quaere. Upon which it is ob- Utfi»ctionr»servable, that grave and learned men may doubt without any im- *"""' putation; for the most learned doubt the most, whereas the more ignorant are for the most part the more bold and confident.

Section G37.

If there be grandfather, father, and son, and the grandfather is No discontinu

tenant in tail, and is disseised by the father who makes a feoff- tail whereof the

ment thereof without warranty, and dies, and afterwards the Part.Ywas never grandfather dies, the son may well enter upon the feoffee, because A

this was no discontinuance in the father, inasmuch as he was not?

seised of the estate tail at the time of the feoffment, but only of an estate by disseisin of the grandfather.

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Here it is to be observed, that it is not necessary that the tenant in tail be seised of the estate tail at the time when the discontinuance is effected, if he has been once seised that is sufficient: as if tenant in tail makes a lease for life, whereby he gains a reversion [339a] in fee-simple by wrong; in this case, if he grant the reversion in fee, and the lessee dies, the whole estate is discontinued; and yet at the time of the grant he was not seised of the estate tail, but because he was once seised by force of the entail a discontinuance ensues. But in many cases a warranty added to a conveyance is ««p( hi »«"" said to make a discontinuance ab effectu, although he who made the conveyance was never seised by force of the estate tail, because it takes away the entry of him who has the right, in the same manner as a discontiuance does. As if tenant in tail be disseised and dies, and the issue in tail releases to the disseisor with warranty ; in this case, the issue was never seised by force of the entail; and yet this has the effect of a discontinuance by reason of the warranty, and the reason hereof appears before in this Chapter. And if in the above case the father who made the feoffment had survived the grandfather, he should never have entered against his own feoffment; but albeit the father had survived, yet after his decease the son should have entered, for the reason here yielded by Littleton. But if the feoffment had been with warranty, then 't had wrought the effect of a d iscontinuance: and therefore Littleton says without warranty.

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Parson's alienation no discontinuance of successor.

Also, if a parson of a church or vicar of a church alien certain lands or tenements parcel of his glebe &c. to another in fee, and dies or resigns Inc. his successor may well enter notwithstanding such alienation, for the parson has no right to the fee-simple; that abides in another person [or rather is in perpetual abeyance; the parson cannot consequently maintain a writ of right~\.

Section 645.

Contra as to bishop, ilean, and master of hospital, who may maintain writ of right.

But a bishop may have a writ of right of the tenements belonging to his church, for the right is in his chapter, and the fee-simple abides in him and in his chapter. And a dean may have a writ of right, because the right remains in him. And an abbot may have a writ of right, for the right remains in him and in his convent. And a master of a hospital may have a writ of right, because the right remains in him and in his confreres &c. And so of the like cases. But a parson or vicar cannot have a writ of right &c.

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Parcel of his glebe $r.] In whom the fee-simple of the glebe is, is a question in our books. Some hold that it is in the patron; but that cannot be for two reasons. First, for that in the beginning the land was given to the parson and his successors, and the patron is no successor. 2dly. The words of the writ of juris at rum are, si sit libera eleemosi/ta ecclesiec de D. and not of the patron. Others hold that the fee-simple is in the patron and ordinary; but this cannot be, for the causes above said: and therefore, of necessity, the fee-simple is in abeyance, as Littleton says, Sect. 646. And this was provided by the providence and wisdom of the law; for that the parson and vicar have curam animarutn, and were bound to celebrate divine service and administer the sacraments; and therefore no act of the predecessor should make a discontinuance to take away the entry of the successor, and to drive him to a real action, whereby he would be destitute of maintenance in the mean time. Upon consideration of all our books I observe this

diversity: that a parson or vicar, for the benefit of the church and of his successor, is in some cases esteemed in law to have a feesimple qualified; but to do any thing to the prejudice of his successor in many cases, the law adjudges him to have in effect but an estate for life. As a parson, vicar, archdeacon, prebend, chantry priest, and the like, may have an action of waste, and in the writ it shall be said, ad exlucredutiouem ecclesice <Sfc. ipsius B. or .prabenda ipsius A. And the parson &c. who makes a lease for life, shall have a consimili casu during the life of the lessee, and a writ [3414] of entry ad communem legem after his death, or a writ ad terminum qui prateriit, or a quod permitlat in the debet, and none can maintain any of these writs, but a tenant in fee-simple or fee-tail. And a parson &c. may receive homage, which tenant for life cannot do. But a parson cannot make a discontinuance, as Littleton here teaches; for that would be to the prejudice of his successor to take away his entry and to drive him to a real action.

Also if a parson &c. make a lease for years, reserving a rent, and parK„ has only dies, the lease is determined by his death, in the same way as a a\it"*'it.and

J' J his lease for

lease by any other tenant for life then determines, and no accept- yeandet«rmines

_ _ . . i A i . on hi* deu'.h.

ance ot rent by the successor can make it good. Also in a real action a parson, vicar, archdeacon, prebend &c. shall have aid of the patron and ordinary, as tenant for life shall have. So that it is evident, that to many purposes a parson has but in effect an estate for life, and to many a qualified fee-simple, but the entire fee and right is not in him ; and that is the reason why he cannot discontinue the fee-simple, because he has it not nor ever had it. And for the same cause he cannot have a writ of right right, nor a writ of right in its nature.

But here it appears by Littleton, that such bodies politic or cor- &<h corporaporate as have a sole seisin and may have a writ of right, may """'• TM*a?"' discontinue, for the fee and right is in them, albeit they cannot ab- common taw. solutely convey away their lands &c. without assent of others; as a bishop, an abbot, a dean, a master of a hospital, and the like. But this is to be understood where a dean or a master of a hospital &c. are solely seised of distinct possessions: for if the body seised be aggregate of many, as the dean and chapter, master and confreres &c., then the feoffment of the dean or master is not a discontinuance but a disseisin. And havinji the fee and risjht in them they shall not have aid in respect of their high and large estate,

albeit any of them be presentable: but a dean that is collative shall have aid of the king. And it is to be observed, that the remedy is ever agreeable to the right: and therefore the bishop, dean, master of a hospital, who have a college or common seal, or the like, shall have a writ of right right, which is the highest remedy, for that they have the highest estate.

Sole ecdaiasti- But at this day the bishop, dean, master of a hospital, or the like,

cat corporations J . .

now ditaiiUd hy who have the fee and right in them, cannot discontinue; neither r342al can tney or anv Parson> vicar, archdeacon, prebend, or any other having any ecclesiastical living, with assent of dean and chapter, patron and ordinary, or the consent of any others, make any lease, gift, grant or conveyance, estate, charge or incumbrance to bind his successor other than for term of one and twenty years, or three lives in possession, whereupon the accustomed rent or more shall be reserved. These are excellent laws, and have been well expounded for the maintenance of religion and the good of God's church; for otherwise it is to be feared that holy church would lose more than it would gain in these days.

Ancient iwspi- Note, of hospitals, some are corporations aggregate of many; as solved with of master or warden &c. and his confreres: some, where the master and learning or warden has only the estate of inheritance in him, and the brethren respecting the or s\sters power to consent, having college and common seal: some, where the master or warden has the estate in him, but has no college and common seal; and such a master or warden shall have a juris utrum: and of these hospitals some are eligible, some donative, and some presentable. But where Littleton, in this and other sections, makes mention of masters of hospitals, the reader must know, that since Littleton wrote, there has been a great alteration made by divers acts of parliament concerning hospitals. These points concerning hospitals were resolved by the justices.

First, that no hospital was given to the crown by the statute of 27 H. 8., nor any hospital is within the statute of 31 H. 8. of monasteries, but only religious and ecclesiastical hospitals, and that no lay hospital was within those statutes. 2dly. If upon the foundation of any lay hospital, or after it was ordained, that one or divers priests should be maintained within the hospital to celebrate divine service to the poor, and to pray for the soul of the founder and all Christian souls, or the like; and that the poor of such hos

> time,

pital should make the like orisons, yet such an hospital is not within the said statutes; for the hospital is lay, and not religious; and all or the most part of ancient lay hospitals were founded or ordained after the like sort; and the makers of those statutes never intended to overthrow works of charity, but to take away the abuse. 3(lly. That no hospital was given to the king by the statute of 37 H. 8. but in two cases, where the donors, founders or patrons &c. had entered and expulsed the priests, wardens &c. between the fourth day of February, anno 27 H. 8. and the five and twentieth of December, anno 37 H. 8., or where king Henry the eighth, by commission according to that act, should enter and seise the same; but that determined by the death of that king. 4thly. That the statute of 1 E. 6. extended not to any hospital whatsoever, either lay or religious, as by the same appears. To this I will add, Funis pauper um vita pauperum; que (lefraudat eos vir sanguinis est.

Section 646.

But the highest writ a parson bc. can have is the writ of juris Fee of glebe n utrum, which is a great proof that the right of fee is not in him, ni'}"//1' or in any others bc. But the right of the fee-simple is in abeyance, that is, it is only in the remembrance, intendment, and consideration of law, or as some say, in nubibus &c.

In abeyance.] That is, in expectation, of the French word buyer, to expect. For when a parson dies we say that the freehold is in abeyance, because a successor is in expectation to take it; and here note the necessity of the true interpretation of words. If tenant Freehold in «•pur auter vie dies, the freehold is said to be in abeyance until the jee of continoccupant enters. If a man makes a lease for life, with remainder to fi'"' remm"der

r 'are in abeyance.

the right heirs of I. S., the fee-simple is in abeyance until I. S. dies. And so in the case of the parson, the fee and right is in abeyance, that is, in expectation, in remembrance, intendment, or consideration of law, because it is not in any man then living.

Section 647.

Also, if a parson of a church dies, now the freehold of the glebe Freehold of of the parsonage is in no one during the time the parsonage is vacancy"in°

abeyance In- void, but it remains in abeyance viz. in consideration and in the in deed.*SelSm understanding of the law until another be made parson of the

same church; and immediately when another is made parson, the

freehold in deed is in him as successor.

This abeyance So it is of a bishop, abbot, dean, archdeacon, prebend, vicar, and bfdi!"ric°k. °f every other sole corporation or body politic, prescntative, elective, deanery, §c. or donativc, which inheritances put in abeyance are by some called htrreditates jacentcs: and some say, que le fee est en balatmce.

[343a] Section 648.

Reason why Also, some perodventure will argue and say, that inasmuch as a chan'c his parson with the assent of the patron and ordinary, may grant a g'mUmwTih rent-charge out of the glebe of the parsonage in fee, and so charge assent of patron the glebe of the parsonage perpetually, ergo they have a fee-simple,

and onlinary. «*•»»» rwi

or two or one of them have a fee-simple, at the least, lo this may be answered, that it is a principle in laic, that of every land there is a fee-simple &c. in some body, or otherwise the fee-simple is in abeyance. And there is another principle, that every land of feesimple may be charged with a rent-charge in fee by one way or another. And when such rent is granted by the deed of the parson and the patron and ordinary &c. in fee, none shall have prejudice or loss by force of such grant, but the grantors in their lives, and the heirs of the patron, and the successors of the ordinary after their decease [who have consented to the charge.] And after such charge, if the parson dies, his successor cannot come to the said church to be parson of the same by the law, but by t/ie presentment of the patron, and admission and institution of the ordinary. And for this cause the successor ought to hold himself content, and agree to that which his patron and the ordinary have lawfully done before him. But this is no proof that the fee-simple is in the patron and ordinary, or in either of them ifc. But the reason why such grant of a rent-charge is good, is, because they who have the interest &c. in the said church, viz. the Patron according to the law temporal, and the Ordinary according to the law spiritual, were either assenting to, or were parties to such charge, Sfo. And this seems to be the true cause why such glebe may be so charged in perpetuity.

And herein is a diversity worthy observation, that when the Contingent reright to the fee-simple is by judgment of law perpetually in abey- TueLbieTurmg ance, without any expectation of its coming in esse, concurrentibus contingency, hiisqutz injure requiruntur, there he who has the qualified fee may charge or alien it, as in the case of parson, vicar, prebend, &c. But where the fee-simple is in abeyance and by possibility may every hour come in esse, there the fee-simple cannot be charged until it comes in esse. As if a lease for life be made, with remainder to the right heirs of I. S., the fee-simple cannot be charged til [3435] I. S. is dead. And so is Littleton to be understood, viz. that every fee may charged, either in prmsenti or infuturo.

Every land of'fee-simple.] And so it is of lands entailed, for EttautaUaiienthey may be charged in fee also; for the estate tail may be cut off' e'"-"' by fine or recovery. Also the estate tail may continue, and yet tenant in tail may lawfully charge the land and bind the issue in tail. As if a disseisor make a gift in tail, and the donee in consideration of a release by the disseisee of all his right to the donee, grants a rent charge to the disseisee and his heirs, proportionable to the value of his right, this shall bind the issue in tail. And as in s„ ,sa moveable the case of a moveable freehold, Sect. 1., if the owner of the thirteen £'j" ^jifcVrmV. acres, being in a meadow of eighty-five, grant a rent-charge out of the thirteen acres generally, without mentioning where they lie particularly; there, as the estate in the land removes, the charge shall remove also. But since our author wrote, all ecclesiastical persons are disabled from charging any of their ecclesiastical possessions in fee, as before hath been spoken of at large.

By the deed of the parson, and the patron, arid the ordinary $r.] Patron and

\7 •<• 1 l- i • r ■ 1 ii- ordinary in

Yet it the parson die, and in time ot vacation the patron, by the vacation may assent of the ordinary, or the patron and ordinary, grant an annuity §[,',"''«""" or rent-charge out of the glebe, this shall bind the succeeding parsons for ever.

If there be parson, patron, and ordinary, and the parson, by the Panm'ta

P ■ i change with

ordinance and assent ot the ordinary grant an annuity to another, consent of ordihaving quid pro quo in consideration thereof, this shall bind the ""'J""'' successor of the parson, without the consent of the patron. [344 a]

A church parochial may be donative and exempt from all ordi- Donative bene

. . /ice entirelii

nary jurisdiction, and the incumbent may resign to the patron, and underpatron's

controid and visitation; but privilege lust by presentation.

not to the ordinary; neither can the ordinary visit, but the patron may by comramissioners to be appointed by him. And then by Littleton's rule, the patron and incumbent may charge the glebe; and albeit it be donative by a layman, yet a mere layman is not capable of taking the incumbency thereof, but only an able clerk infra sacros ordines; for albeit he come in by lay donation, and not by admission or institution, yet his function is spiritual: and if such a clerk donative be disturbed, the patron shall have a quart impedit of this church donative, and the writ shall say quod permittat ipsttm preesentare ad ecclesiam &c. and declare the special matter in the declaration. And so it is of a prebend, chantry, or chapel donative, and the like; and no lapse shall incur to the ordinary, except it be so specially provided in the foundation. But if the patron of such a church, chantry, chapel &c. donative, doth once present to the ordinary, and his clerk is admitted and instituted, the benefice is then become presentable, and never shall be donative after, and lapse shall incur to the ordinary as it does of other benefices presentable. But a presentation to such a donative benefice by a stranger, and admission and institution thereupon is merely void. And all this was resolved by the Court of King's Bench, for the rectory parochial donative of Saint Burian in the county of Cornwall.

Origin of Lay or Donative benefices.

Visitor.

It appears by our books, and by divers acts of parliament, that at the first all the bishoprics in England were of the king's foundation, and donative per traditionem baculi, (id est) the crosier, which was the pastoral staff, et annuli, the ring whereby he]was married to the church. And king Henry the first being requested by the bishop of Rome to make them elective, refused it: but king John by his charter, bearing date quinto Junii anno decimo septimo, granted that the bishoprics should be eligible. If the king found a church, hospital, or free chapel donative, he may exempt the same from ordinary jurisdiction, and then his chancellor shall visit the same. Nay, if the king found a church without any special exemption, the ordinary is not, but the king's chancellor is visitor of the same. Now as the king may create donatives exempt from the visitation of the ordinary, so he may by his charter licence any subject to found such a church or chapel, and to ordain that it shall be donative, and not presentable, and to be visited by the founder, and not by the ordinary. And thus began donatives in England, whereof common persons were patrons.

Ordinary.] Ordinarius is he who has ordinary jurisdiction in Ordinaryulw causes ecclesiastical, immediate to the king and his courts of com- "^'ledh!l'" mon law, for the better execution of justice, as the bishop or any other who has exempt [i. e. substantive] and immediate jurisdiction in causes ecclesiastical.

Law temporal] Which consists of three parts, viz. First, on the L<i>», temporal common law, expressed in our books of law and judicial records, distinguished'. Secondly, on statutes contained in acts and records of parliament. And thirdly, on customs grounded upon reason, and used time out .

of mind; and the construction and determination of these belong to the judges of the realm.

Law spiritual.'] That is the ecclesiastical ordinances allowed by the laws of this realm, viz. those which are not against the common law (whereof the king's prerogative is a principal part) nor against the statutes and customs of the realm; and regularly according to such ecclesiastical laws, the ordinary and other ecclesiastical judges proceed in causes within their cognizance. And this jurisdiction was so bounded by the ancient common laws of the realm, and so declared by act of parliament.

Admission and institution.] In propriety of speech, admission is Institution. when the bishop upon examination admits the clerk to be able, and punarty, bg says, Admitto te habilem. Institution is, when the bishop says, wham tn"bUInstituo te rectorem talis ecclesia, cum curd animarum, et accipe curam I wim et meant. But sometimes in a more enlarged sense, admission included institution also: cujusprasentatus sit admissus (i.e.) institute. And it is to be observed, that institution is a good plenarty against a common person, but not against the king, [against whom the church is not full till the clerk] is inducted; and that is the reason why plenarty shall be tried by the bishop, because the church is full by institution, which is a spiritual act; but void or not void shall be tried by the common law.

At the common law, if a stranger had presented his clerk, and he M common la* had been admitted and instituted to a church, whereof any subject ^"^m^m' had been lawful patron, the patron had no other remedy to recover usurpation m

• r • t <• » i_ otherwise could

his advowson, but a writ of right of advowson, wherein the incum- be remomd, bent was not to be removed ; and so it was at the common law, if ^a!TM'**^!' an usurpation had been had upon an infant or feme covert, having [344 b] an advowson by descent, or upon tenant for life &c. the infant,

f&me covert, and he in the reversion were driven to their writ of right of advowson; for at the common law, if the church were once full, the incumbent could not be removed, and plenarty generally was a good plea in a quare impedit or assize of darrein presentment: and the reason of this was, to the intent that the incumbent might quietly attend and apply himself to his spiritual charge. And secondly, the law intended that the bishop who had cure of souls within his diocese, would admit and institute an able man for the discharge of his duty and bis own; and that the bishop would do „ right to every patron within his diocese. But at the common law,

if any had usurped upon the king, and his presentee had been admitted, instituted, and inducted (for without induction the church had not been full against the king), the king might have removed him by quare impedit, and have been restored to his presentation; for therein he has a prerogative, quod nullum tempus occurrit regi; but he could not present, for the plenarty barred him of that; neither could he remove the incumbent in any way but by action, to the end that the church might be the more quiet in the mean time. Neither did the king recover damages in his quare impedit at the common law. But the statute West. 2. has altered the common law in the cases aforesaid, as by the said act appears.

Usurpation by And if the king present to a church, and his clerk is admitted mid when'"'"" an(^ instituted, yet before induction the king may repeal and revoke his presentation. But regularly no man can be put out of possession of his advowson but by admission and institution upon an usurpation by a presentation to the church, cum aliquis jus prasentandi non habetis preesentaverit S)C. and not by collation of the bishop; and therefore if the bishop collate without title, and his clerk is inducted, this shall not put the rightful patron out of possession; for it shall be taken to be only provisionally made for celebration of divine service until the patron presents; and therefore he is not driven to his quare impedit, or assize of darrein presentment, in that case; but an usurpation by collation shall take away the right of collation which is in another.

Usurpation It is to be observed, that an usurpation upon a presentation shall

rii>hChowre- n°t only Put ol,t or*possession the person who has right of presentmedM a„d ti fa t he ^Q has tJ • fa 0f collation also. Therefore at this

1'ipse prevented.' b

day the incumbent shall be removed in a quare impedit, or assize of darrein presentment, if there be not a plenarty by six months before the teste of the writ; but then the incumbent must be named in the writ, or else he shall never be removed; yet at the common law, if the ordinary refused to admit and institute the clerk of the patron, or when any disturbed him to present, so that he could not prefer his clerk, he might have his quare impedit, or assize of darrein presentment; and if the church were not full, he may have a writ to the bishop to admit his clerk; but so odious was simony in the eye of the common law, that before the statute of West. 2, he recovered no damages. At the common law, if pending the quare impedit against the ordinary for refusing his clerk, and before the church is full the patron brings a quare impedit against the bishop, and pending the suit, the bishop admits and institutes a clerk at the presentation of another, in this case if judgment be given for the patron against the bishop, the patron shall have a writ to the bishop, and remove the incumbent that came in pendente lite by usurpation, for pendente lite nihil innovetur, and therefore at the common law it was good policy to bring the quare impedit against the bishop as speedily as possible. And it is to be observed, that although the clerk who comes in pendente lite, by usurpation, shall be removed, yet if the rightful patron, being a stranger to the writ, presents pendente lite, and his clerk is admitted and instituted, he shall not be removed; for else, by the bringing of such quare impedit against the ordinary, the rightful patron might be defeated of his presentation; and therefore since the statute of West. 2., it is among other things inquired .ex officio, if the church be full, and of whose presentation &c.; and if the plaintiff should have a writ to the bishop and his clerk admitted (as in most cases he ought), yet may the rightful incumbent have his remedy by law. And as it was good policy to bring a quare impedit as speedily as possible against the bishop, so it is good policy at this day to name the bishop in the quare impedit, for then he shall not present by lapse. Nor shall the metropolitan either; for the metropolitan shall never present or collate by lapse after six months, but when the immediate ordinary might have collated by lapse within the six months, and had surceased his time. And so it is if the time has devolved on the king, for the first step or beginning fails; and [345a] in human things, Quod non habet principhtm, iwn habet jinem.

Section 549.

seisor puts right to the freehold in abeyance during his life:

Tenant in tail's Also, if tenant in tail has issue and is disseised, and after he rerelease to dis- , , . w

leases by his deed all his right to the disseisor: in this case no right

to the entail can be in the tenant in tail, because he has released all his right to another, and no right can be in the issue in tail during the life of his father; yet such right to the inheritance in the entail is not altogether extinct by force of such release &c. Ergo, it must needs be that such right remain in abeyance, ut supra, during the life of the tenant in tail who releases &c, but after his decease such right presently revives to his issue in deed, &c.

Section 650.

also reversion on the grant, so that he has no remedy for waste.

In the same manner it is, where tenant in tail grants all his estate to another; in this case the grantee has no estate but for term of life of the tenant in tail, and the reversion of the entail is not in the tenant in tail, because he has granted all his estate and all his right &c. And if the grantee commit waste, the tenant in tail shall not have a writ of waste, for he has no reversion. But the reversion and inheritance of the estate tail during the life of the tenant in tail, is in abeyance, that is to say, only in the remembrance, consideration, and intelligence of the law.

"Estate " embraces every thing in pot~ session or remainder.

Grant his estate, concedit statum suum.'] State or estate signifies such inheritance, freehold, term for years, tenancy by statute merchant, staple, elegit, or the like, as any man has in lands or tenements &c. And by the grant of his estate &c. as much as he can grant shall pass, as here by Littleton's case appears. Tenant for life, with remainder in tail, with remainder to the right heirs of tenant for life, if the tenant for life grant totum statum suum to a man and his heirs, both estates shall pass.

"Right" in- Right. Jus, sive rectutn] (Which Littleton often uses) signifies

'estate." " properly, and specially in writs and pleadings, when an estate is

turned to a right, as by discontinuance, disseisin 8cc. where it shall

be said, quod jus discendit et non terra. But (right) does also include the estate in esse in conveyances; and therefore if tenant in [3456] fee-simple makes a lease for years, and releases all his right in the land to the lessee and his heirs, the whole estate in fee-simple shall <

pass. And so commonly in fines, the right of the land includes and passes the estate in the land.

Title] properly, (as some say) is, when a man hath a lawful "TMe" '".

. . . eludes all the

cause of entry into lands whereof another is seised, for the which right,
he can have no action, as title of condition, title of mortmain &c.
But legally this word (title) includes a right also, as you shall per-
ceive in many places in Littleton: and title is the more general
word; for every right is a title, but every title is not such a right
for which an action lies: and therefore Titulus est justa causa possi-
dendi quod nostrum est, and signifies the means whereby a man
comes to land, whether his title be by fine or by feoffment &c.
And when the plaintiff in assize makes himself a title, the tenant
may say, Veniat assisa super titulum; which is as much as to say,
he claims the assize upon the title which the plaintiff has made by
that particular conveyance. Et dicitur titulus a tuendo, because by
it he holds and defends his land; -and as by a release of a right a
title is released, so by release of a title a right is released also. See
more hereof in Fitzherbert and Brookes' Abridgments under the head
Title.

Interest.] Interesse is vulgarly taken for a term or chattel real, aai i,Uere,t ;„. and more particularly for a future term; in which case it is said in cludes"" '*'.'*• pleading, that he is possessed de interesse termini. But ex vi termini, in legal understanding, it extends to estates, rights, and titles that a man has of, in, to, or out of lands; for he is truly said to have an interest in them: and by the grant of totum interesse suum iu such lands, as well reversions as possessions in fee-simple shall pass. And all these words singularly spoken are nomina collectiva; for by the grant of totum statum suum in lands, all his estates therein pass. Et sic de cateris.

Shall not have a writ of wuste fyc.] So it is if tenant for life be, A. for lift. with remainder in tail, and he in the remainder releases to the ^en!""id'r'« ,

B. in tail. B. j

tenant for life all his right and estate in the land. By this release release toA.no it is said in our books, that the estate of the lessee is not enlarged, reittue'afvxute. but that the release has this effect, to put the estate tail into abey

ance, so that afterwards the remainder-man cannot have an action of waste; yet in that case (saving reformation) the lessee for life has an estate for the life of tenant in tail expectant upon his own life. But if tenant in fee release to his tenant for life all his right' yet he shall have an action of waste. And if tenant in tail makes a lease for his own life he shall have an action of waste.

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Bishop'sahen- Also, if a bishop alien lands which are parcel of his bishopric

ation a discon- ..... . .

tinuance. and dies, this is a discontinuance to his successor, because he can

not enter, but he is put to his writ of de ingressu sine assensa capituli.

Section 652, 3, 4, 5, 6.

Contra as to dean, unless he be solely seised, and of actions by and against dean and chapter.

[3466]

Also, if a dean alien lands which he has in right of him and his chapter, and dies, his successor* may enter. But if the dean be solely seised as in right of his deanry, then his alienation is a discontinuance to his successor, as is said before. And there is no similarity between a dean and chapter, and an abbot and his convent, for dean and chapter are not dead persons in law Sscfor every of them may have an action by himself in divers cases. And of such lands or tenements as the dean and chapter have in common Sfc. if they be disseised, the dean and chapter shall have an assize, and not the dean alone fife. But if any other person tciil have an action real for such lands or tenements against the dean &ic. he must sue against the dean and chapter, and not against the dean alone &c.

[347 a] And the reason of this diversity between the case of the abbot

and convent and dean and chapter is, for that the monks are regular, and civilly dead, and the chapter are secular, and persons able and capable in law. But by the policy of law the abbot himself (who is sometimes termed the sovereign) albeit he is a monk and regular, yet has he capacity and ability to sue and be sued, to enfeoff, give, demise, and lease to others, and to purchase and take from others; for otherwise they who have right would not have their lawful remedy, nor would the house have remedy against any other that did them wrong: neither could the house without such capacity and ability stand. And the convent have no other ability or capacity, but only to assent to estates made to the abbot, and to estates made by him, which for necessity sake, though they be civilly dead, they may do.

Section 657. Also, if the master of an hospital discontinue certain land of his Master of hospi

.... , . ,..,,. tal cannot tlis

hospital, his successor cannot enter, but is put to his writ of de in- continue, gressu sine assensu confratrum et consororum 8tc. And all such writs fully appear in the Register &c.

This must also be understood where the master of the hospital has sole and distinct possessions, and not where he and his brethren are seised as a body politic aggregate of many.

Section 658t

Also, if land be let to a man for term of his life, with remainder Tenant in tail to another in tail, saving the reversion to the lessor and after he in j°s^i^nten';»nt the remainder disseises the tenant for term of life, and makes a for life, and en

J . . feoffs stranger,

feoffment to another in fee, and after dies without issue, and the this no discontenant for life dies; it seemeth in this case, that he in the rever- was never seised sion may well enter upon the feoffee, because he in the remainder °[ *e '^'j0'11 who made the feoffment, was never seised in tail by force of the tail. same remainder &c.

Here it appears, that albeit the feoffor has an estate tail in him [347 b] expectant upon an estate for life, yet his feoffment works no discontinuance. Wherein Littleton adds a limitation to that which in this chapter he had said generally before, viz. That an estate tail cannot be discontinued but only where he who makes the discontinuance was once seised by force of the entail; which is to be understood, when he is seised of the freehold and inheritance of the estate in tail, and not where he is seised of a remainder or reversion expectant upon a freehold, which freehold (as often hath been said) is ever much respected in law.

CHAPTER XII. Section 659.

OF REMITTER.

A preference of Remitter is an ancient term in the law, and occurs where a man the better title. ,

has two titles to lands or tenements, viz. one of a more ancient

title, and one of a more recent date; then if he comes to the land by

the later title, yet the law will adjudge him in by force of the elder

title, because that title is the more sure and worthy. As if tenant

in tail discontinues, and afterwards disseises his discontinuee and

dies in possession, the issue in tail are remitted to their prior

better title by force of the entail, and the title and interest of the

discontinuee is quite taken away and defeated.

lUmitterpre- A remitter is an operation in law upon the meeting of an ancient

ventt circuity of * , .

action. right remediable, and a later estate in one person without any folly

in him, in this case the ancient right is restored, and the new defeasible estate ceased and vanished. And the reason hereof is, for that the law prefers a sure and constant right, though it be little, before a great estate by wrong which is defeasible: moreover the law (which abhors suits of vexation) ever avoids circuity of action, for the rule is circuit us est evitandus, and it is observable that the remitter is of the later title to that which is more ancient, and when two rights descend there can be no remitter if the one cannot be remitted to the other, and regularly to every remitter there are two incidents, viz. an ancient right and a defeasible title united to[348 a] gether [in the same person in the same right].

Remitter oper. js Quite taken away and defeated &■<;.] Here two things are im

attt on Mum in * j i i i • i

law and is ¥re- plied and to be understood: 1st, that this remitter is wrought by

descent of the freehold simply without any entry of the issue, and /«■«<* to infan2dly, that the law so favours remitter (being a restorer to right), ^J^f cover~ that if the discontinuee be an infant or a f6me covert, the issue shall be remitted without respect to the privilege of infancy or coverture; and therefore our author says, the title and interest of the discontinuee is quite taken away and defeated.

Section 660.

ALSO, if tenant in tail infeoffs his son or cousin inheritable under the Tenant in tail's entail, who are then within age in fee, and dies, and then the feoffee TMn defeated on (being also heir in tail) is remitted to his estate tail. For albeit uis deatnduring the life of the tenant in tail the feoffee shall be adjudged in by force of the feoffment, yet after the death of tenant in tail, the heir shall be adjudged in by force of the entail and not by force of the feoffment, and although such heir be of full age at the death of the tenant in tail, that is immaterial if the heir were within age at the time of the feoffment made. And if such heir attains his full age in the lifetime of the tenant in tail and charges by his deed the same land with a common of pasture, or with a rent-charge, and then the tenant in tail dies; now it seems that the land is discharged of the common or rent, for the heir is in of another estate, and the estate which he had at the time of the charge made is hj the remitter utterly defeated.

The reason is, because no folly can be attributed to the infant in jfo remitter if accepting the feoffment at the time it was made. Hence therefore, ""'ata,e, be at.

r » 'common law and

in this case the law respects the time of the feoffment, and not the other under tat. time of the death: and albeit the infant might have waived the 1-343 j] estate at his full age, yet [seeing that would be to his loss and prejudice, he shall have the benefit of the feoffment till his ancestor's death, when] the right of the estate tail descending on him either within age, or of full age, shall work a remitter [to his estate tail]. But since Littleton wrote, there is great alteration in remitters by the statute of Uses H. 8. c. 10.; for if a tenant in tail now make a feoffment in fee to the use of his son (within age) and his heirs, and dies, and the right of the estate tail descends to the son within age, yet he is not remitted, because the statute executes the possession in such plight, manner, and form, as the use was limited:

[whereby the issue is in, not of the estate discontinued, but of a new use under the statute]. But if the issue in tail in this case waive the possession, and bring a formedon in the descender, and recover against the feoffees, he shall thereby be remitted to the estate tail; otherwise the lands may be so incumbered that the issue in tail would be at a great inconvenience; but if no formedon be brought, and that issue dies, his issue shall be remitted; because an estate in fee-simple at the common law descends upon him.

Grant of rem or A common or rent charge.] That is of things granted out of the

b7rZ"ue'rMed land- But if the issue at ful1 age bY deed indented or deed poll contra of Uau make a lease for years of the land, albeit by the death of tenant in

Jor years, m *

tail he is remitted and his estate defeated, yet shall he not avoid the lease, for it is made of the land itself, which is become by the lease in other plight than it was by the grant of the rent-charge, which [349«] I gather from our author's own words in another place. But if tenant in tail makes a lease for life (whereby he gains a new reversion in fee so long as the tenant for life lives) and grants a rentcharge out of the reversion, and afterwards the tenant for life dies, whereby the grantor becom.es tenant in tail again and the reversion [upon which the rent depends] is defeated; yet because the grantor had a right of entail in him, clothed with a fee-simple, the rent charge remains good against him, but not against his issue; which diversity is worthy of observation, for it opens the reason of many cases.

The land is discharged.] But the person of the grantor is not discharged, and the grantee may have a writ of annuity against him.

Section 661.

Remitter an act Also, a principal cause why such heir shall be remitted, is because necessi y. i]iere {g not any person against whom he may sue his writ of formedon. For against himself he cannot sue, and none other is tenant of the freehold: and for this cause the laio adjudges him in his remitter, scilicet, in such plight as if he had lawfully recovered the land against another &<•.

erroneous recovery; ,

Here it is to be understood, that regularly a man shall not be re- j\w to right mitted to a right which is remediless, that is, for which he has no ""po'j'q/i remedy by action; for neither an action without a right, nor a right without an action, can make a remitter. As if tenant in AW after tail suffer a common recovery in which there is error, and afterwards the tenant in tail disseises the recoveror and dies, here the issue in tail has an action, viz. a writ of error; but as long as the recovery remains in force, they have no right, and therefore in that case there is no remitter. If B. purchases an advowson, and suffers w toadcmnon an usurpation and six months to pass, and after the usurper grants " " B,"t' the advowson to B. and his heirs, and B. dies, his heir is not remitted, because his right to the advowson was remediless, viz. a right without an action.

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Tenant in tail of a manor whereunto an advowson is appendant AdrmnmanH makes a discontinuance; the discontinuee grants the advowson to o'r"piZl'temi'u tenant in tail and his heirs; tenant in tail dies, the issue is not re- .'""'"* r"»"mitted to the advowson, because the issue had no action to recover the advowson before he recovered the manor whereunto the advowson was appendant. And so it is of all other inheritances regardant, appendant, or appurtenant; a man shall never be remitted to any of these before he recontinues the manor &c. whereunto they are regardant, appendant, or belonging. But, on the other hand, if a man be remitted to the principal, he shall also be remitted to the appendant or accessory, albeit it were severed by the discontinuee, or other wrong doer. And therefore if tenant in tail be of a manor whereunto an advowson is appendant, and he infeoffs A. of the manor with its appurtenances, and A. re-infeoff the" tenant in tail, saving to himself the advowson, and tenant in tail dies; his issue being remitted to the manor, are consequently remitted to the advowson, although at that time it was severed from the manor. So it is in the same case if tenant in tail had been disseised, and the disseisor suffer an usurpation, if the disseisee enter into the manor, he is also remitted to the advowson.

Section 662.

Also, if land be entailed to a man and his wife, and the heirs of Remitter on their bodies begotten, who have issue a daughter, and the wife dies, ^""^j""'"TM and the husband takes another wife, and has issue another daugh- as between two daughters of fer, rtrtfZ afterwards discontinues the estate tail, and disseises the ter».rent YCn discontinuee and so dies seised, now the land shall descend to the [350a] two daughters. And in this case as to the eldest daughter, who is inheritable by force of the entail, this is no remitter but of the moiety. And as to the other moiety she must sue Iter action of formedon against her sister. For the two sisters are not tenants in coparcenary, but they are tenants in common, for they are in by divers titles—the one by remitter to the entail, and the other by descent from Jier father of the fee.

And there can be no remitter but only for so much as comes to the issue by descent, or by any other means without his folly, which in this case is but of a moiety; [for though the whole fee descends on both daughters in coparcenary, yet instantly a remitter takes place as to the one who has an ancient right, and so] the coparcenary is defeated, for the daughters are then in by several titles, viz. the eldest daughter is tenant in tail performam doni, by the remitter of the one moiety; and the youngest is seised in feesimple by descent of the other moiety, against whom the other sister in tail may have her formedon.

Section 663.

Sameondiscon- In the same manner it is, if tenant in tail enfeoffs his heir apparent heilre uTtaU and ,R tail {the heir being within age), and another joint-tenant in fee, stranger. awo" fne tenant in tail dies; now the heir in tail is in his remitter

as to one moiety, and as to the other moiety he is put to his writ of

formedon &c.

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No remitter of ALSO, if tenant in tail enfeoffs his heir apparent, the heir being

f Tl'aeebe- °ffull age at the time of the feoffment, and after tenant in tail

cause his folly dies; this is no remitter to the heir, because it was his follu (beinq

to accept feoff- . » i

ment. of full age) to accept such feoffment $jc. But such folly cannot bt

adjudged in the heir being within age at the time of the feoffment 8fC.

By this feoffment the heir becomes subject to all charges and incumbrances made or suffered by his ancestor. And therefore our author says well, it was his folly to accept such a feoffment, but folly shall not be adjudged in one within age in respect of his tender years and want of experience, [and though in the above case the heir in tail accepting the feoffment is bound by it, yet his heir in the line of entail is not bound by the feoffment, for no folly can be attributed to him, and therefore he shall be remitted, infra.]

Section 665.

Also, if tenant in tail enfeoffs a woman in fee, and dies, and his Remitter by heir in tail within age takes the same woman to wife; this is a marriage with remitter, for the husband and wife are one person in law. And the husband cannot sue a writ of formedon, unless he will sue against hitnself, which would be inconvenient; and no folly can be adjudged in him, he being within age at the time of the espousals. But otherwise it is if such heir were of full age at the time of espousals, for then the heir would take nothing but in right of his wife.

discontinuee.

Takes the same woman to wife.] Here it may be enquired what Husband gain

things are given to the husband by marriage. First, it appears „,ae^e^y

here by Littleton, that if a man marries a woman seised in fee, he [351a] gains by the intermarriage an estate of freehold in her right, which estate is sufficient to work a remitter.

If the wife be attainted of felony, the lord by escheat shall enter Attainderof and put out the husband: otherwise it is if the felony be com- us"" "r vn-'t' mitted after issue had. Also, if the husband be attainted of felony, the king gains no freehold, but a pernancy of the profits during the coverture, and the freehold remains in the wife.

Secondly, if the wife be possessed of a term of years, the hus- Husband how band on marriage becomes entitled to it in her right, and he has '^fi's'l'hautu" power to dispose thereof by grant or demise, and they are so far realconsidered as gifts to him in law that they are forfeited by his attainder or outlawry, and upon an execution against the husband Attainder. for his debt, the sheriff may sell the term during his life; but the Eweutim.

husband can make no disposition thereof by his last will. Also, if he make no disposition or forfeiture of it during coverture, yet is it a gift in law to him if he survive his wife; but if he dies before his wife, she shall have the term again; and if the husband charge the chattel in his lifetime, it shall not bind the wife surviving. And the same law is of estates by statute merchant, statute staple, elegit, wardships, and other chattels real of the wife in possession.

Chattels ml in But if a feme sole be possessed of a term and is afterwards thereof

biiitu.' dispossessed, and then takes husband and dies, the husband sur

viving shall not be entitled to this right, but the executors or administrators of the wife shall have it; so it is if the wife has but a possibility. In the same manner it is if the wife be possessed of

En auter droit, chattels real en auter droit, as executrix or administratrix, or as guardian in socage &c. and she intermarries, the law makes no gift of these chattels to the husband, although he survive her. In the same manner if a woman before marriage assigns her term to another in trust for herself,* then takes husband and dies, the

Trust. husband surviving shall not have this trust, but the executors or

administrators of the wife shall have it, for it consists in privity: and so has it been resolved by the justices. Chattels real consisting merely in action the husband shall not have by the intermarriage, unless he recover them in the lifetime of the wife, albeit he survive the wife; as a writ of right of ward, a valore maritagii, a forfeiture of marriage and the like, whereunto the wife was entitled before the marriage. But chattels real being of a mixed nature, viz. partly in possession, and partly in action, these which fall to the wife during coverture the husband shall have by the intermarriage, if he survive his wife, albeit he reduce them not into possession in her lifetime; but if the wife survive she shall have

Rem-charge. them. As if the husband be seised of a rent-service, rent-charge, or rent seek, in right of his wife, and the rent becomes due during the coverture, and the wife dies, the husband shall have the arrearages; but if the wife survive the husband she shall have them, and

Jmi-ou'ioii. not the executors of the husband. So it is of an advowson, if the church become void during the coverture the husband may have a ouare impedit in his own name, as some hold: but the wife shall

| * This, it is apprehended, refers to a trust for her separate use, and a settlement of that nature on the eve of marriage, without her husband's concurrence, is considered fraudulent against him.

have it if she survive him; and the husband if he survive her: et sic de similibus. But if the arrearages had become due, or the [351 b] church had fallen void before the marriage, then they would be merely in action before the marriage; and therefore the husband should not have them by the common law, although he survived his wife. But now by the statute of 32 H. 8. c. 37. if the husband survive the wife, he shall have the arrearages incurred as well before as after the marriage.

But the marriage is an absolute gift of all chattels personal in Huiband how the wife's possession in her own right, whether the husband sur- vife\'hat't"h" vive the wife or no; but if they be in action, as debts by obligation, P"-*""'contract, or otherwise, the husband shall not have them unless he and his wife recover them. And of personal goods en auter droit, as executrix or administratrix &c., the marriage is no gift of them to the husband, although he survive his wife. If an estray happen within the manor of the wife, if the husband dies before seisure, the wife shall have it, for that the property was not in the wife before seisure. But as to personal goods, there is a diversity worthy of observation between a property in personal goods (as is aforesaid) and a bare possession; for if personal goods be bailed [i. e. lent] to a feme, or if she find goods, or if goods come to her hands as executrix to a bailiff, and she takes husband, this bare possession is not given to the husband, but the action of detinue must be brought against the husband and wife.

Section 666.

Also, if the husband seised of land in right of his wife aliens the If husband's same to another in fee, and the alienee lets the same land to the t0 nusuanj a„j husband and wife for their lives, savinq to the lessor and his Iieirs "ife for ''fe'

this a remitter.

a reversion; this is a remitter to the wife [of the whole land] for and nothing no folly can be adjudged in the wife who is covert in such case, alienee. And in this case the lessor has nothing in the reversion, for that the wife is seised [of the whole] in fee.

For if the estate gained by marriage be sufficient to work a re- Tenant in tad', mitter; a fortiori, an estate made expressly to the husband and iuueTrem'uter wife shall work a remitter in the wife. And so it is if tenant in

N N

tail enfeoff his issue (being within age) and his wife in fee, and dies; this is a remitter to the issue presently, by the death of the tenant in tail; though some have thought the contrary. And note, [352 a] in the case of the feme covert, she may be remitted in the life of the discontinuor, because she has a present right: but in the case of tenant in tail, the issue cannot be remitted in the life of the discontinuor, because the issue has no right until his decease.

Section 667.

Though wife But in this case if the lessor sues an action of waste against the band bound by husband and wife, the husband is estopped to say the plaintiff has lease< no reversion, for that is against his own feoffment and lease. And

so a man may be estopped by matter in fact, though there be no

viriting by deed indented, or otherwise.

Kstopjiels by record, writing, and in pais defined.

Estoppi] Comes of the French word estoupe, from whence the English word ' stopped:' and it is called an estoppel or conclusion, because a man's own act or acceptance stops or closes his mouth to allege or plead the contrary. Touching estoppels, which is an excellent and curious learning, it is to be observed, that there are three kinds of estoppels, viz. by matter of record, by matter in writing, and by matter in pais. By matter of record, viz. by letters patent, fine, recovery, pleading, taking of continuance, confession, imparlance, warrant of attorney, admittance. By matter in writing, as by deed indented, by making an acquittance by deed indented or by deed poll, by defeasance by deed indented or by deed poll. By matter in pais, as by livery of seisin, by entry, by acceptance of rent, by partition, and by acceptance of an estate, as here in the case put by Littleton; whereof he makes this special observation, that a man may be estopped by matter in the country, without any writing.

Nhte rules ojt estoppels, privies inblood, estate, and law, defined.

On the learning of estoppels, these few rules, amongst others, arc to be known. First, every estoppel ought to be reciprocal, that is, it should bind both parties; hence a stranger shall neither take advantage of, nor be bound by an estoppel: privies in blood, as the heir; privies in estate, as the feoffee, lessee &c.: privies in law, as the lord by escheat, tenant by the curtesy, tenant in dower, the incumbent of a benefice, and others who come under by act in law, [352 6] or in the post, shall be bound and may take advantage of estoppels. Second, every estoppel must be clearly such in itself, and not be proved so by argument or inference. Third, every estoppel ought Recital«» to be a precise affirmation, and not a rehearsal. Therefore a recital concludes not, because it is not a direct affirmation. Fourth, a a matter alleged that is neither traversable nor material [to the matter in hand] shall not estop, [for it would be hard to take away a man's right for want of caution to immaterial expressions.] Fifth, regularly a man shall not be concluded by acceptance [of rent] or the like before his title accrued. Sixth, estoppel against estoppel sets the matter at large. Seventh, matters alleged by way of supposal in pl*adi*g* are. counts shall not conclude after non-suit: otherwise it is after judgment given; and also pleadings of either party, which are precisely alleged, shall conclude after non-suit. Eighth, where the truth appears on the same record, the adverse party shall not be estopped to allege it. As if a fine be levied without any original, it is void- Fine voidable able, but not void; but if an original be brought, and a retraxit entered, and after that a concord is made, or a fine levied, this is void, because the truth appears on the record. Ninth, where a record runs to the disability or legitimation of the person, there strangers may take advantage of it, as outlawry, profession, attainder ofpramunire, of felony, bastardy &c. If the bishop certify a bastard eigne to be a mulier puisne, the adverse party may confess and avoid by alleging the special matter.

Section 670.

And here note, that where any estate shall pass from the wife Fine concludes being covert by fine, she shall be examined before the fine be taken, States riven, because such fine concludes the wife for ever. But where nothing but not as *"

'. estates taken;

moves from the wife, but the husband and wife take an estate by [3536] force of a fine, there the wife is not concluded; and she need not be examined &c.

The examination of a feme covert ought to be secret; and the if sedately object is to examine her, whether she be content to levy a fine of "amM' such lands (naming them particularly and distinctly, and the estate intended to be passed by the fine) of her own voluntary free will, and not by threats, menaces, or any other compulsory means.

If husband and wife seised in

sjKciul tail levy a fine to use of themselves in fee, wife remitted.

If the husband and wife be tenants in special tail, and they levy a fine at the common law, and after the husband and wife take back an estate to them and their heirs; in this case the estate tail is not barred; and yet against a fine levied by herself she cannot be remitted, because thereupon she was examined: but in that case if the land descend to her issue, he shall be remitted to his estate tail.

Section 671.

Discontinuee's ALSO, if tenant in tail discontinue the estate-tail, and has issue a

covert issue in daughter, and dies, and the daughter being of full age takes hus

ta , a remitter. gajM£ anj fjle discontinuee makes a release of this to the husband

and wife for term of their lives, this is a remitter to the wife, and

the wife is in by force of the tail, causa qua supra &$c.

It appears that her full age when she took baron is not material, but her coverture at the time of taking back the estate is. And so note a diversity between a remitter and a descent: for if a woman be disseised, and being of full age takes husband, and then the disseisor dies seised, this descent .shall bind the wife, albeit she was covert when the descent was cast, because she was of full age when she took husband. But albeit the wife who has an ancient right, and being of full age, takes husband, and the discontinuee lets the land to the husband and wife for their lives, this is a remitter to the wife, for remitters to ancient rights are favoured in law.

[354«] Section 672.

If husband Also, if land be given to the husband and wife to hold to them aliens in fee, an(i fjie Jieirs 0f (Jleir two bodies begotten, and after the husband

and takes back J J J

an estate to aliens the land in fee, and takes back an estate to him and to his wife for life, this is for their lives: this is a remitter in deed to the husband and wife, manger [i. e. in despite of~\ the husband. For it cannot be a remitter to the wife with out being a remitter to the husband also, because the husband and wife are but one person in law, though the husband is estopped to claim it [i. e. the fee-tail against his own alienation of the fee.] And therefore this is a remitter against his own alienation and reprisal, as is said before.

Section 673. Also, if land be qiven to a woman in tail, with remainder to Discontinuance

. . , . .• . I of particular

another in tail, with remainder to a third in tail, with remainder tenant a dislo a fourth in fee, and the woman takes husband, and the husband al/ ii,crema;n. discontinues the land in fee; bu this discontinuance all the remain- dere' bu' " re'

J J nutter of the

ders are discontinued. For if the wife dies without issue, they particular

in the remainder shall only have remedy by a writ of formedon remitter of the

in the remainder, when it comes to their turns. But if after such ""'rsy/'l

discontinuance, an estate be made to the husband and wife for their

lives, or for another man's life, or for any other estate &c. this is

a remitter to the wife, and by consequence to those in remainder.

For after the wife who is in of her remitter be dead without issue,

they in remainder may enter, without any action &c. In the

same manner it is of those who have the reversion after such

entails.

Littleton having spoken of remitters to the issue in tail, who is privy in blood, and to the wife, who is privy in person, now speaks of remitters to those in reversioner remainder who are privy in estate.

Nota, that if lands are given to husband and wife and their heirs, Remitter at and the husband makes a feoffment in fee, and the feoffee gives the dumsoia. land to the husband and wife and the heirs of their bodies, and the [357 a] husband dies; in this case the wife may elect which estate she will have; for both estates are waiveable, and her time of election is not arrived until her husband's decease.

If lands be given to a man and the heirs female of his body, and Female taunt makes a feoffment in fee, and takes back an estate to him and presumptive. his heirs, and dies, leaving issue a daughter and his wife enseint with a son, [whereby the fee-simple descends on the presumptive heir, who is also heir in tail; in this case] the daughter is remitted to her prior rightful estate-tail; and albeit a son be afterward born yet shall he not divest the remitter.

Section 682.

Tenant in tail leases for life to his eldest son (of age), remainder to his second son—a remitter to the second, not to the eldest son.

Also, if tenant in tail has issue two sons of full age, and he lets the land entailed to the eldest son for his life, with remainder to the younger son for his life, and after the tenant in tail dies; in this case the eldest son is not in in his remitter, because he took an estate of his father. But if the eldest die without issue, then this is a remitter to the younger brother, because he is heir in tail, and a freehold in law is cast upon him by force of the remainder; and there is none [but himself] against whom he may sue his action.

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Section 684.

Note, if tenant in tail enfeoffs his son and another by deed of the land entailed in fee, and livery of seisin is made to the other according to the deed, but not to the son who knows nothing of the feoffment nor agrees thereto, and afterwards he who took the livery of seisin dies, and the son takes no profit of the land, then the father dies, this is a remitter to the son, because the freehold is cast upon him by survivorship: and there was no default in the son that he agreed not to the feoffment, nor is there any [person but himself] against whom he may sue a writ q/"formedon.

Livery, a man absent, can neither take tiar make.

Here Littleton materially adds by deed; for if a man intends to make a feoffment by parol to A. and B. and he and B. come upon the land (A. being absent) and makes livery to B. in the name both of B. and A. and to their heirs, this shall enure only to B.; for neither can a man absent take livery nor make livery without deed. But note, livery being made to one according to the deed, enures to both, because the deed whereunto the livery refers is made to both; for the rule is, that Verba relata hoc maximc operantur per rcferentiatn ul in eis in esse videntur.

If ke assent it u Here it appears, that if the son be conusant of and agrees to the r35961 feoffment &c. it is no remitter to him. And therefore if the feoffment were made by deed indented, and the son with the other seals the counterpart, and then the feoffor made livery to the other according to the deed, and the other dies, the son is not remitted, because he was conusaut of the feoffment and agreed to the same; and Littleton says in the case that he puts, that there was no default in the son, because he agreed not to the feoffment in the life of the father: and so it seems, that if A. be seised in tail, and has issue two sons, and by deed indented between him of the one part, and the sons of the other part, makes a lease to the eldest for life, the remainder to the second in fee, and dies, and the eldest son dies without issue, the second son is not remitted, because he agreed to the remainder in the lifetime of the father.

Section 685.

For if a man be disseised of certain land, and the disseisor makes Feoffment to

a deed of feoffment whereby he infeoffs B. C. and D., and livery of ^^thc

seisin is made to B. and C. but not to D. who was not present at ?state< he is still

.* in by survivor

the livery of seisin, nor ever agreed to the feoffment, or took the ship.

profits &c. and afterwards B. and C die and D. survives, and the

disseisee brings his writ of disseisin in the per against D. he shall

discharge himself of damages, although he be tenant of the freehold

of the land.

Section 687. [360a]

Also, where a bishop or a dean, or other ecclesiastical person, Remitter apaliens without assent, and the alienee charges the land &c., and astical corpoofterwards the bishop takes back an estate in the same land by rationslicence, to him and his successors, and the bishop dies, his successor i* remitted in right of his church, and shall defeat the charge &c. causa qua supra.

Sections 688, 689, 690. [361a]

[Relate to recoveries in feigned actions, and particularly to the liecovery.

case where tenant in tail dies before execution.] [3616]

If in a common recovery judgment be had against tenant in tail Tenant in tail's

wherein he is vouchee and has judgment to recover over in value, judgmmtimma

N N 4 t»rial.

albeit the tenant in tail dies before execution, yet the recoveror

shall execute the judgment against the issue in tail in respect of

the intended recompence, because it is the common assurance of

fbcoveiietnot the realm, and is well warranted by our books, and was not in

inrented hi) . . .

ciwke, J.' vented by justice Choke, (who was a grave and learned judge in [3G2«J the time of E. 4.) as some hold by tradition; but it may be that it was founded upon former authorities and opinions of judges discovered by him and assented to by the rest of the judges.

Tenant for life's If a recovery be had against tenant for life without consent or feit'urJ'nmUu- covin> though it be without title, and execution be had, and tenant continuance, for jjfe dies, the reversion or remainder is discontinued, so that he

when. 7'

in reversion or remainder cannot enter; but if such a recovery be had by agreement and covin between the demandant and the tenant for life, then, as hath been said, it is a forfeiture of the estate for life, and he in the reversion or remainder may enter for the forfeiture. So it is if the tenant for life suffer a common recovery at this day, it is a forfeiture of his estate; for a common recovery is a common conveyance or assurance, whereof the law takes knowledge. Since Littleton wrote, two statutes have been made for preservation of remainders and reversions expectant upon any manner of estates for life; the one in 32 H. 8. the other in 14 Eliz.: but 32 H. 8. extended not to recoveries when tenant for life came in as vouchee &c. and therefore that act is repealed by 14 Eliz. and full remedy provided for preservation of the entry of those in reversion or remainder. But the statute of 14 Eliz. ex

if tenant m tends not to any recovery unless it be by agreement or covin. 2dly.

remainder. ' If there be tenant for life, remainder in tail, the reversion or remainder in fee, if tenant for life be impleaded by agreement and then he vouches tenant in tail, who vouches over the common vouchee, this shall bar the reversion or remainder in fee, although he in the reversion or remainder never assented to the recovery; because it was not the intent of the act to extend to a recovery where the tenant in tail was vouched; for he has power by common recover}', if he be in possession, to cut off all reversions and remainders, so that, if tenant for life surrenders to him in remainder in tail, the tenant in tail may bar the remainders and reversions expectant upon his estate. 3dly. Where the proviso of that act speaks of an assent of record by him in reversion or remainder, it is to be understood, that such assent must appear upon the same record, either upon a voucher, aid prier, receipt, or the like; for it cannot appear

of record, unless it be done in course of law, and not by any extrajudicial entry or memorandum.

Section 693. [3636]

Al-SO, if a man be disseised, and (being of full age) takes back an Disseisee takestate from the disseisor without deed, or by deed poll, this is a re- fromdlsseisl)? viitter to the disseisee. by parol or deed

poll remitted.

Here note a diversity between a right of entry and a right of action; for if a man of full age having but a right of action takes any estate, he is not remitted: but where he has a right of entry, and takes an estate, he by his entry is remitted, because his entry is lawful. And if the disseisor infeoff the disseisee and others, the disseisee is remitted to the whole, for his entry is lawful: otherwise it is if his entry were taken away [by a descent cast, or otherwise].

A. is disseised of a manor, whereunto an advowson is appendant, Remitter to and a stranger usurps the advowson, if the disseisee enter into the Jd"oZ*ni"apmanor, the advowson is recontinued again, which was severed by Penda"'the usurpation. And so it is if tenant in tail be of a manor whereupon an advowson is appendant, the tenant in tail discontinues in fee, and the discontinuee grants away the advowson in fee, and dies, if the issue in tail recontinue the manor by recovery, he is thereby remitted to the advowson; and in both cases he who has right shall present when the church becomes void.

If the patron of a benefice is outlawed, and the church becoming He-continuance void, a stranger usurps, and six months pass, if the king recovers "J <"tr"w*"'in a quare impedit and removes the incumbent, the advowson is recontinued to the rightful patron. And so note a diversity between a recontinuance and a remitter; for a remitter cannot properly be, unless there are two titles; but a recontinuance may be where there is but one.

Without deed or by deed poll.] If the disseisor by deed indented Conveyance makes a lease for life, or gift in tail, or a feoffment in fee, whereunto {uZitTbTdrlt livery of seisin is requisite; yet the deed indented shall not suffer anestopptlwhiek

prevents remitter.

Deed poll m> estoppel to taker.

the livery made according to the form and effect of the indenture to work any remitter to the disseisee, but shall estop the disseisee to claim his former estate; and if the disseisor upon the feoffment reserves any rent or condition 8tc. the rent or condition is good: and the reason wherefore a deed indented shall conclude the taker more than a deed poll, is, for that the deed poll is only the deed of the feoffor, donor, and lessor; but the deed indented is the deed of both parties, and therefore as well the taker as the giver is concluded.

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Alienee of te- Also, if a man lets land for life to another, who aliens to another conveys to lessor ,n fee> and tne alienee makes an estate to the lessor, this is a re'remitter- milter to the lessor, because his entry was congeable &c.

Section 695.

Disseisee's acceptance of lease for years from disseisor a remitter and no estoppel.

Also, if a man be disseised, and the disseisor lets the land to the disseisee by deed poll, or without deed, for term of years, by which the disseisee enters, this entry is a remitter to the disseisee. For in such case where the entry of a man is congeable, and a lease it made to him, this is no remitter, although he claims by words iu pais, or says openly that he claims nothing in the land but by force of such lease, for such disclaimer in pais is nothing to the purpose. But if he disclaim in court of record that he has no estate but by force of such lease, then is he concluded, but not otherwise.

Section 696.

Remitter as between joint

Also, if two joint-tenants seised of certain tenements in fee, (the one being of full age the other within age,) be disseised be. and the disseisor dies seised, and his issue enters, one of the joint-tenants being then within age, and after that he comes to full age, and the heir of the disseisor lets the tenements to the same joint-tenants for their lives, this is a remitter (as to the moiety) to him who was

within age, because he is seised of the moiety which belongs to him in fee, for his entry was congeable. But the other joint-tenant has in the other moiety but an estate for term of his life by force of the lease, because his entry was taken away &c.

Here note a diversity worthy the observation, that where joint- Entry of one tenants or coparceners have one and the same remedy, if the one coparcener enter, the other shall enter also; but where their remedies are "'S/Zf-ji' several, there it is otherwise. As if two joint-tenants or coparceners join in a real action, where their entry is not lawful, and the one is summoned and severed, and the other pursues and recovers the moiety, the other joint-tenant or coparcener shall enter and take the profits with her, because their remedy was one and the same. But where two coparceners be, and they are disseised, and a discent is cast, and they have issue and die, if the issue of the one recovers her moiety, the other shall not enter with her, because their remedies were several: and yet when both have recovered, they are coparceners again. So here in this case, the two jointtenants have not equal remedy; for the infant has a right of entry, and the other a right of action; and therefore the infant being remitted to a moiety, the other shall not enter and take the profits with her.

CHAPTER XIII. Section 697.

OF WARRANTY.

Warranty of three kinds— lineal, collateral, and commencing in disseisin.*

It is commonly said, that there are three kinds of warranty, scilicet, warranty lineal, warranty collateral, and warranty that commences by disseisin. And it is to be understood, that before the statute of Gloucester all warranties which descended to the heirs of those who made them barred the same heirs from demanding any lands or tenements so warranted, except tvarranties commencing by disseisin, which beginning in wrong were no bar to the heir.

A warranty is a covenant real annexed to lands or tenements, whereby a man and his heirs are bound to warrant the same, and either upon voucher, or by judgment in a writ of warrantia carta, to yield other lands and tenements in exchange for and to the value of those from which the grantee may be evicted by former title; or else it may be used by way of rebutter, that is, to repel or bar a person. It is also to be observed, that warranties may be expressed or implied; the former being called warranties in deed, because they are expressed; and the latter warranties in law, because the law tacitly implies them. The warranties that Littleton here speaks of, are warranties in deed. And of warranties in law, more shall be said hereafter in this

Warranty, what it u.

[365 a]

* The student in entering on this truly " curious and cunning learning" should turn to Sections 703, 4 , and 107, 8., where the distinction between lineal and collateral warranty is pointedly put by Littleton. lie should also bear in mind the stat. 4 & 5 Ann. c. 16., which has very much reduced the application of warranty to transactions of the present day. In Watk. Prin. 112 n. 5th edition, he will also find a succinct synopsis of the modern doctrine of warranty.

Chapter. As for promises or contracts annexed to chattels real or personal, they are not comprehended by our author in this division, which treats exclusively of warranties concerning freeholds and inheritances.

Before the statute of Gloucester.] This statute was made at a Tenant by curparliament holden at Gloucester, 6 Edw. 1., (which was before the "hhwalTanty" statute de donis conditionalibus, 13 Edw. 1.) when all estates of in- b""h, ""t.,he.,

'' wife s heir with

heritance were in fee-simple. By that statute it is declared that out assets in fee

ii_'' -i-Lii ii iii *• i . simple from the

the heir in tail shall not be barred by the warranty of his ancestor, alienor. So of unless he receive assets by descent from him, as will appear more b^founTZw. fully hereafter. By the statute of Gloucester it is enacted, first, that if a tenant by the curtesy aliens with warranty and dies, this warranty shall be no bar to the heir of the wife unless assets in fee-simple descend from the tenant by the curtesy to the wife's heir; but if lands or tenements do descend from the father to the mother's heir, then such heir shall be barred according to the value of the lands so descending.

Secondly, that if the heir, for want of assets at that time de- [365 U] scended, recovers the lands of his mother, and afterwards assets do descend to the heir from the father, then the tenant [i. e. the purchaser] shall recover against the heir the inheritance of the mother. And 3dly. That the heir shall not, after the death of his father and mother, be barred of his action by writ of entry, to demand the inheritance of his mother which his father aliened in her lifetime without fine levied in the king's court. But notwithstanding the statute of Gloucester, if a feme tenant in dower had aliened in fee with warranty and died, the warranty would have bound the heir until the statute 11 H. 7. (enacted ince our author wrote) by which statute the heir may now enter notwithstanding such warranty.

Note, that warranties are favoured in law, being part of a man's Warranties assurance; but estoppels are odious. favoured; e,

'ri • tappets odious.

By the Statute of Jointures, 11 H.7. c.20., it is enacted that Stat.jointures where the wife has any estate for life of the gift or purchase of her PTMtecls}ieirtn

J or lai( against his

husband, or given to her by any of the ancestors of the husband, mother's uuen

, -ii fii alion and war

or by any other person seised to the use of her husband, or of any ranty.ifiand of his ancestors, there her alienation, release, or confirmation with i"(T0{

rom the husband.

warranty shall not bind her heir [though such heir succeed to the estate by virtue of the settlement].

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A man seised of lands in fee levied a fine to the use of himself for life, and after to the use of his wife and the heirs males of her body by him begotten for her jointure, and had issue male: afterwards he and his wife levied a fine, and suffered a common recovery, [the effectof which in the ordinary way wonld be to bartheissue in tail and those in remainder], and the husband wife and died, and the issue male entered by force of the said statute of 11 H. 7. [on the ground that the alienation of the wife, though she was tenant in special tail, was not lawful, or at least not binding on the issue in special tail], and it was holden, that the entry of the issue male was lawful: and yet this case is out of the letter of the statute; for the wife neither levied the fine, being sole or with an after-taken husband, but with her husband who made the jointure. [This case, however, has since been overruled by Kirkman v.Thompson, Cro. Jac. 474., on the ground that the statute was meant to provide for the disinherison of heirs contrary to the husband's intention, whereas if he joined his intention was manifest] So a case may be without the meaning of this statute, and yet within the letter. As where a man was seised of lands in right of his wife, and they levied a fine to the use of the husband and wife in special tail, with remainder to the right heirs of the wife, and they had issue, and afterwards the husband died, and the wife married again, and she and her second husband levied a fine of the same lands in fee, this is directly within the letter of the statute, and yet it is out of the meaning; because the land was originally the wife's [and though the estate tail was of] the purchase of the husband in letter, it was not so in meaning, [and therefore the issue of the first marriage are completely barred by the second fine.]

Tenantfor life But when the woman is tenant for life, by the gift or conveyance rimtv^if hiTM' °f anv °ther person than her husband, her alienation with warheir be the re- ranty shall bind her heir at this day. [Therefore if the wife's heir

matnder-man or J J

reversioner he is be the remainder-man to succeed to the estate by virtue of the limitations in the settlement, he will be bound if he does not enter for the forfeiture in his mother's lifetime.] So if a man be tenant for life (otherwise than as tenant by the curtesy) and aliens in fee with warranty, and dies, this shall bind his heir [succeeding to] the reversion or remainder. But this is to be understood where the

heir who has the reversion or remainder does not avoid the estate so aliened in the lifetime of his ancestor [by his entry as for the forfeiture; if he does so enter] the estate to which the warranty is annexed being avoided, the warranty is avoided also. And therefore it is necessary for the heir in such case to make an entry as soon as he has notice or probable suspicion of such an alienation. [But now by the stat. 4&5Ann. c. 16. all warranties made by tenant for life descending on the remainder-man or reversioner are void].

Touching the feoffment in fee with warranty by the husband Husband's feoffseised in right of his wife, this warranty shall not bind the heirs of the wife without assets [from the husband], although the husband be not tenant by the curtesy. But of this you shall read more hereafter. In the meantime know that the learning of warranties is one of the most cunning and curious learnings in the law, and of great use and consequence.

To demand any lands or tenements.} A warranty may not only be Warranty m./w annexed to freeholds or inheritances corporeal, which pass by livery, writs newly creas houses and lands, but also to freeholds or inheritances incor- "if-i\ an(i"""'

7 plied on grant

poreal, which lie in grant, as advowsons; and to rents, commons, ofnnt Jor

. equality nf

estovers, and the like, which issue out of lands or tenements. And exchange or not only to inheritances in esse, but also to rents, commons, estovers Par"'"mm &c. newly created. For a man (as some say) may grant a rent &c. out of land for life, in tail, or in fee with warranty; for although there can be no title precedent to the rent, yet there may be a title precedent to the land. And so a warranty in law may extend to a rent &c. newly created; and therefore if a rent newly created be granted in exchange for an acre of land, a warranty is necessarily implied by the exchange. And so a rent newly created may be granted for owelty of partition, [on which also a warranty is necessarily implied.]

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Warranty commencing by disseisin is in this manner: where warranty compere is father and son, and the son purchases land Sec. and lets the menc,?g by dls

^ * seisin is, where

same land to his father for a term of years, and the father after- father, tenant wards by his deed infeoJJ's another thereof in fee and binds himself a feoffment in

fee with war- and his heirs to warranty; then when the father dies, the warranty the reversioner descends to his son, but it shall not bar the son, who, notwithstanding his son and ing ulls warranty, may well enter into the land, or have an assize

licir, he is not » J J

bound. So of against the alienee if he will, because the warranty commenced by and tenants at disseisin ; for when the father (who had but a term oft/ears) made a feoffment in fee, this was a disseisin to the son of the freehold which was then in him. In the same manner it is, if the son lets to the father the land to hold at will, and afterwards the father makes a feoffment icith warranty tt.c. And as it is said of the father, so it may be said of every other ancestor &c. In the same manner it is, if tenant by elegit, tenant by statute merchant or staple, makes a feoffment in fee ivith warranty, this shall not bar the heir, who is entitled to the land, because such warranty commences by disseisin.

Feoffment uiih If the father, son, and a third person are joint-tenants in fee, and ,m"j7hit-i'enant the father makes a feoffment in fee of the whole with warranty, and mi har to the j- rwnererjy the father's third devolves on the other two and the

other, though L J

he be feoffor's whole warranty descends on his son and heir, yet the son is not

son and heir. . .,,..._...

T367 al bound because this is a warranty commencing by disseisin], then if the son dies [whereby the whole survives to the third party] he may not only avoid the feoffment for his own part, but also for the part of the son; and he may take advantage that the warranty commenced by disseisin, though the disseisin was done to another.

Warrant;*4j And it is to be observed, that warranties commencing by disseisin are collateral warranties, and shall not by reason of the disseisin bind at all.

disseisin are collateral.

Feoffment by Shall not bar the heir.] By the authority of our author himself,

passes {"fee.*"" a lessee for years may make a feoffment, and by his feoffment a

2y'^s^otn fee"snnP'e shall pass; so that although such a feoffment may work

by disseisin as against the lessor, yet as between the parties it is

good, and the warranty annexed to such estate, being a covenant

real, binds the feoffor and his heirs who are bound to render lands

of equal value to the feoffee on eviction if they have assets by

. descent to recompense him; for there is a feoffment de facto and

a feoffment dejure; and a feoffment de facto made by those who

have such an interest or possession as is aforesaid, is good between

the parties and against all other men except only those who have

the legal right and inheritance. Skction 699.

Also, if a guardian in chivalry or in socage makes a feoffment in Feoffment by fee, or in fee-tail, or for life, with warranty &c. such warranty is „ot heir. no bar to the heir, because it commences by disseisin. [367 U]

Section 700.

Also, if father and son purchase lands to hold to them jointly [in Father and son fee], and afterwards the father aliens the whole to another, and tcc; if the father

funds himself and his heirs to warranty &c., this shall not bind the al!f"s in fee.

•> •>' with warranty

son as to his moiety, because as to that moiety the warranty com- <t is collateral

. . and binds not

mences by disseisin ofc. the son.

But if the purchase was to the father and son and the heirs of the son, then if the father [being tenant for life only] makes a feoffment in fee with warranty, and the son does not enter in his father's lifetime as for the forfeiture, he shall be bound for a moiety by the collateral warranty. But if the purchase had been to the father and son, and to the heirs of the father, then the entry of the son in the lifetime of the father for avoidance of the warranty would not avail him, because his father might have lawfully conveyed away his moiety, [and therefore in such case the warranty on the father's feoffment would have been lineal and binding on his son and heir.]

If a man of full age and an infant make a feoffment in fee with infant'sfmffwarranty, this warranty is not void in part and good in part; but it but his warranty is good for the whole against the man of full age and void against *""'• the infant; for although the feoffment of an infant passing by livery of seisin is voidable, yet his warranty, which takes effect only by deed, is merely void.

Section 701. [3G8a]

Also, if A. be seised of a messuage, and F. who has no right to Two in pnssesIhe same enters and dwells therein, in this case the possession of adjudged in the

o o

one haying right;

the freehold shall be adjudged in A. and not in F.,.for the law adjudges him to he in possession who has right. But if F. mates a feoffment to certain harretors and extortioners with warranty, by force whereof the said A. dares not abide in the messuage, this

warranty commences by disseisin, because such feoffment was the

caiisii of A.'s relinquishing his house.

except as to bastard eigne, and mulier puisne.

These words of our author are significant and material; for if a man has issue two daughters, Dastard eigne and mulier puisne, and dies seised, and they both enter generally, the sole possession shall not be adjudged in the mulier only [but in the other also], because they both claim by one and the same title, and not the one by one title and the other by another title as [in the case put by] our author.

Statute againtt buying pretended titles and maintenance.

[368*] [369 a]

Here barretors and extortioners are put only for examples; for if the feoffment be made to any other person or persons, the law is all one, for by the stat. 1 R. 2, it is enacted, that feoffments made for maintenance shall be of no value; so that the case put by Littleton is at the common law, but some have said that the feoffment is not void between the feoffor and the feoffee, but only against him who has right. And since Littleton wrote, there is a notable statute (38 H. 8. c. 9.) made in suppression of unlawful maintenance (which is the most dangerous enemy justice has), the effect of which statute is, first, that no person shall bargain, buy or sell, or obtain any pretended right or title; or, secondly, take promise, grant, or covenant for any right or title in or to any lands, tenements, or hereditaments, whereof the seller or they for whom he claims have not been in possession a year before, on penalty of forfeiting the whole value of the lands 8cc. and the buyer or taker 8tc. knowing the same to forfeit also the value.

Sale of a right or title without possessum incurs a forfeiture of treble value.

For example, if A. be the lawful owner of land and is also in possession, and B. who has no right thereto grants to, or contracts for the land with another, the grantor and the grantee (albeit the grant be merely void) are within the danger of the statute; for B. has no right at all, but only in pretence. Further, if A. be disseised, still he has a good lawful right; but if he, being out of possession, grants to, or contracts for the land with another, he has now mado his good right of entry a pretended title within the statute, and both the grantor and grantee are within the danger thereof. A fortiori of a right in action. Quod nota. So if it be a good right ooupled with a wrongful possession, it is within the statute. As if in the case aforesaid the disseisor dies seised, and A. the disseisee enters and disseises the heirs of the disseisor, albeit he has an ancient right, yet seeing the possession is unlawful, if he bargain or contract for the land before he has been a year in possession, he is within danger of the statute, because the heir of the disseisor has right to the posesssion, and he is thereby aggrieved, et sic de similibus: and albeit he who has a pretended right (and none in verity) gets the possession wrongfully, yet the statute extends to him as well as if he had been out of possession.

Note, the words of the statute are (any pretended right), therefore Leasehold ami a lease for years is within the statute. But if a man makes a ^'uilj'"'' lease for years to try his title in ejectment, that is out of the itu'"te' statute, because it is in course of law: but if it be made to a great [369^] man, or any other to sway or countenance the cause, that is within this statute. And a customary right or pretence to a copyhold is within the statute.

But if one be remitted to a former title or recover upon an an- Statute extendi

. ,..,., »'<" to releases,

cient right, or redeem a mortgage, or being a disseisor obtain the remainders,and release of the disseisee, such person may presently sell, grant, or JJu" *"' contract, and need not tarry a year. And without question, any person having a just and lawful estate may obtain any pretended right by release or otherwise; for that cannot be to the prejudice of any: so a disseisor who has a wrongful estate may obtain a release from the disseisee. In like manner a remainder-man [who is necessarily out of possession] having a lawful and just title, may obtain a release of any pretended right or title, not only because the particular estate and remainder are all one; [the possession of the tenants for life being that of the remainder-man]; but because also it is a means of extinguishing the seeds of trouble and suits, and cannot prejudice any. But he in remainder cannot take a promise or covenant, that when the disseisee has entered upon the land, or recovered the same, that then he shall convey the land to the remainder-man, thereby to avoid the particular estate, for that is neither lawful, being against the express purview and body of the act, and not reasonable, because it is to the prejudice of a third person.

Skction 702.

Warranty by disseisin.

Also, if a man who has no right to tenements enters into the same, and incontinently makes a feoffment thereof with warranty and delivers seisin, the warranty commences by disseisin, because the disseisin and feoffment were made at one time.

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Lineal war- WARRANTY luteal is, where a man seised of lands in fee makes a rillifby'de- C feoffment by deed to another, and binds himself and his heirs to *cent- warranty, and has issue and dies, and the warranty descends to

his issue, that is a lineal warranty. And the reason why this is called lineal warranty, is not because the warranty descends from the father [to the son, but because the heir, if the lands had not been aliened, could not have made any other title thereto but by descent through his father, that is, he could r.ot have claimed right to the lands by purchase; if he could, then, as to that claim, the warranty is collateral.]

Warrant// lineal.] A warranty lineal is a covenant real annexed to the land by him who either was owner, or might have inherited the land, and from whom his heir lineal or collateral might by possibility have claimed the land as heir from him who made the warranty. And it is called a lineal warranty, not because it must descend upon the lineal heir; for be the heir lineal or collateral, if by possibility he might claim the land from him who made the warranty, then is- it lineal. And it is also called lineal [to distinguish it from collateral warranty, which is, where] the warranty is made by him who has no right or possibility of right to the land, Warranty bin-is and is therefore collateral to the [real right and] title. And it is to be lut'imlvih""0" observed, that warranty, whether lineal or collateral, binds the heir natural heir. only, and not the successor to a body politic, who claims in another right, and is not bound by the warranty of any natural ancestor.

Section 704, 5. [3706]

For if there be father and son, and the son purchases lands in Collateral warfee, and the father afterwards disseises his son, and aliens to an- ^ght byour-0 other in fee with warranty, and dies, now is the son barred by this chasewarranty, which is called collateral, although it descend lineally from the father to the so?i. It is further called collateral, because he who made the warranty is collateral to the title of the tene- [371«] ments.

Because although the warranty lineally descends, yet seeing the title is collateral, that is, that the son claims not the land as heir to his father, therefore in respect of the title it is a collateral warranty.

The father releases by his deed with warranty fyc] And it is to be o» what conknown, that upon every conveyance of lands, tenements, or heredi- H^maTbe taments, as upon fines, feoffments, gifts &c. releases and confirm- ma,ieations made to the tenant of the land, a warranty may be made, [37] /,] albeit he who makes the release or confirmation, has no right to the land &c.; but some hold, that by release or confirmation, where there is no estate created, or transmutation of possession, a warranty cannot be made to the assignee.

Section 707.

Also, if a man lias issue two sons and is disseised, and the eldest Lineal and colsow releases to the disseissor by deed with warranty &c, and dies j^JLuislied/' without issue, and afterwards the father dies, this is a lineal warranty to the younger son, because albeit the eldest son died in the lifetime of the father, yet by possibility the younger son might have conveyed title to the land by his elder brother, if no such warranty had been made. For after the death of tlie father the elder brother might have entered the tenements and died without issue, and then title to the land would have been conveyed to the younger son by his elder brother. But if the younger son had released with warranty to the disseissor, and died without issue, this would hait been collateral to his elder brother, because of such

land as was the father's, the elder could by no possibility convey to hi?iiselfa title [by descent from his father"] through his younger brother.

And this warranty is collateral to the eldest son and the issue of his body; but if the eldest son dies without issue of his body, then the warranty is lineal to the issue of the body of the youngest: so that the warranty that was collateral to some persons, may become lineal to others.

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and exemplified.

A

Estate tail how barred by collateral warranty;

Also, if tenant in tail has issue three sons, and [by feoffment or ollierwise] discontiimes the estate tail [and conveys away the land 1 to another'] in fee, and then the middle son releases by deed to the discontinuee with warranty, and afterwards the tenant in tail dies, and the middle son dies without issue; now the eldest son is barred of his recovery in a writ of formedon, by the warranty of his middle brother which is collateral to him, inasmuch as he can by no means convey a title to the estate tail by any descent from his middle and younger brother. But if the eldest son dies without issue, now the youngest brother may well have a writ of formedon in the descender, and shall recover the land, because the warranty of the middle brother is lineal to the youngest son, for by possibility the middle brother might have been seised by force of the entail after the death of his eldest brother, and then the youngest brother might have conveyed his title of descent by [or through] his middle brother. [This mode of barring estates tail by collateral warranty is now taken away by the statute 4 fir 5 Ann. c. 16.]

which binds the Hereby it appears that collateral warranty does not give a right, right as long m jjut oniy Dmds [or bars the exercise of] the right so long as the

it continues. •» "• ,

same [warranty] continues: if the collateral warranty be determined, removed, or defeated, the right revives.

Fine alto bars An estate tail may also be barred by certain acts of parliament

"blitata T- made since Littleton wrote; and in some cases an estate tail cannot

maindtr. now \,e barred which when Littleton wrote might have been. For

example, if tenant in tail levy a fine with proclamations according to the statute, [32 H. 8. c. 36.] this is a bar to the estate tail, [and

to all the issue claiming under such estate tail], but it is no bar to

him in reversion or remainder if he make his claim or pursue his

action within five years after the estate tail is spent. So if a gift

be made to the eldest son and the heirs of his body, with remainder

to the father and to the heirs of his body, and the father dies, and

the eldest son [having thus an estate tail in possession and an estate

tail in remainder in the same land] levies a fine with proclamations,

and dies without issue: this shall bar the second son, for the re- [372 b~\

mainder descended to the eldest [and could not come to the second

son but through him who levied the fine]. In like manner if tenant

in tail be disseised, or have a right of action, and the tenant of the

land levy a fine with proclamations, and five years pass [without

claim, the tenant in tail or his issue being under no disability], the

right of the estate tail is barred: and if tenant in tail be attainted

of treason, the estate tail is forfeited to the king and bound as to

the issues, whether it were in possession or in right only, and none

of these were barred when Littleton wrote. [On the other hand] a

lineal warranty with assets was a bar to an estate tail when Littleton

wrote [which is now taken away], as shall be said hereafter.

A common recovery with a voucher over, and a judgment to re- common recover in value, was a bar to an estate tail in Littleton's time. c^Zy,a!"""m

Littleton >

[Littleton himself was in fact a judge of the Common Pleas when time.
the famous case settling this point occurred, and took a conspicu-
ous part in the judgement.] And of common recoveries there are
two sorts, viz. one with single voucher, and another with double
voucher, which latter is more common and safe: but there may be
more [than two] vouchers over [if necessary].

If the king had made a gift in tail [leaving a reversion in the But estate tail crown], and the donee had suffered a common recovery, this should Sf^^JJ^JJ" have barred the estate tail in Littleton's time, but not the reversion now lmW(' or remainder in the king. And so if such a donee had levied a fine with proclamations after the statute of 4 H. 7., this would have barred the estate tail, although the reversion was in the king. But since Littleton wrote, a common recovery had against tenant in tail of the king's gift, or a fine with proclamations levied by him, the reversion continuing in the crown, is no bar to the estate tail by the statute of 34 H. 8. And these ten things arc to be observed upon the construction of that act.

Exposition of
stat. 34//. 8.
c.20. The
estate tail and
remainder must
he both created
bu the king.
[3 liligh, 62.]

First, that the estate tail must be created by a king, and not by any subject, albeit the king be his heir [and as such comes in] to the reversion; for the preamble speaks of gifts made to subjects, and none can have subjects but the king. And also in the preamble it is said (for service done to the kings of the realm), and the body of the act refers to the preamble. And therefore if the duke of Lancaster had made a gift in tail, and the reversion had descended to the king, yet [the tenant of] that estate tail was not restrained [from barring it] by this statute; and so of the like. 2dly. If the king grant over the reversion, then a recovery suffered will bar the estate tail, because the king had no reversion at the time the recovery is suffered. 3dly. If the king makes a gift in tail, with remainder in tail to another, or grants the reversion in tail, keeping [an ultimate] reversion in the crown, a recovery suffered by the tenant in tail in possession shall neither bar his own estate tail in possession nor the estate tail in remainder or reversion; for a reversion or remainder cannot be barred, but only where the estate tail in possession is barred.

Fourthly, if a subject makes a gift in tail, with remainder to the king in fee, albeit the words of the statute are (whereof the reversion or remainder of the same, at the time of the recovery had, be in the king), yet seeing the estate in tail was not created by a king, as hath been said, it may be barred by a common recovery. 5thly. If Prince Henry, son of Henry the seventh, had made a gift in tail, with -remainder to Henry the seventh i'i fee, which remainder by the death of Henry the seventh had descended to Henry the eighth, so that he took the remainder by descent; yet might the tenant in tail, for the cause aforesaid, bar the estate tail by a common recovery.

What it of the king's procnrance.

His remainder for years not within act.

Sixthly, if the king in consideration of money or land, or for other consideration by way of provision, procure a subject by deed indented and enrolled, to make a gift in tail to one of his servants and subjects for recompense of service, or other consideration, with remainder to the king in fee, and all this appears of record; this is a good provision within the statute, and the tenant in tail cannot by a common recovery bar the estate tail. So it is, if the remainder be limited to the king in tail; but if the remainder be limited to the king for years, or for life, that is no such remainder as is intended by the statute, because it is no remainder of continuance, as

it ought to be, as appears by the preamble: and it ought to have some affinity with the reversion wherewith it is joined.

Seventhly, where a common recovery cannot bar the estate tail Pint no bar to

r • 1 entail where re'

by force of the statute, there a fine levied with proclamations shall awry cannot not bar the estate tail, or the issue in tail, [so long as] the reversion "' r'nm"' eror remainder [in fee] is in the king. [373 a]

Eighthly, but where a common recovery shall bar the estate tail, notwithstanding that statute, there a fine with proclamations shall bar the same also.

Ninthly, where tenant in tail is no party or not privy to the fine Tenant in tail

, , , , „ . , . , must be party or

or recovery, there the act does not apply, tor the words are, " had privy to the act done or suffered by or against any such tenant in tail." As if Ziiia^tmtm" tenant in tail of the gift of the king, with reversion in the crown mnty a"d dis~ expectant, is disseised, and the disseissor levies a fine, and five years pass, this shall bar the estate tail; and so if a collateral ancestor of the donee release with warranty, and the donee suffer the warranty to descend without any entry made in the life of the ancestor, this shall bind the tenant in tail, because he is not party or privy to any act either done or suffered by or against him.

Tenthly, albeit the preamble of the statute extends only to gifts Act is prospec in tail made by the kings of England before the act, and the body retrospective. of the act refers to the preamble (viz. that no such feigned recovery &c.) so that this' word (such) may seem to couple the body and the preamble together; yet in this case (such) shall be taken for such in equal mischief, or in like case; and by divers parts of the act it appears that the makers intended to extend it to future gifts; and so is the law taken at this day without question.

A recovery in a writ of right against tenant in tail without a Reentry with.,.„... out voucher no

voucher, is no bar of any gilt in tail. bur.

And note, the reason of warranty is that the law presumes that no Reason of warman would unnaturally disinherit his own heir, being of his own ra" y' blood, without leaving him some greater advancement. So if the Presumptions as lord make an acquittance of the last rent, all the rest is presumed t0.TM^"nii'*" to be paid, and the law will admit no proof against that prcsump

tion. So if a man be within the four seas, and his wife have a child, the law presumes it to be his.

[373 6] Section 710.

Onecoparcener Tenant in tail has issue two daughters, and dies, the eldest whole^war3- enters into the whole, and thereof makes a feoffment with warranty Uncal and ranty and dies without issue; this is collateral to the youngest as

to the one moiety which belonged to her, and lineal as to the moiety

belonging to the eldest.

How me eopar- Here it is to be understood, that when one coparcener enters

eoner may dis- „ iiii-i «• 1 i-i

so* another. generally into the whole, this does not divest the estate which [374a] descends by law to the other coparcener; but if the coparcener entering claims the whole and takes [and retains] the profits of the whole, that divests the freehold in law of the other coparcener [and amounts to a disseisin], provided they are not actually seised; but if they are actually seised, nothing done by one coparcener can put the other out of possession but an actual ouster or disseisin. Then it may be asked, how the warranty in Littleton's case could bind, seeing it was annexed to a feoffment, which worked a wrong? The answer is, that when one sister enters into the whole, and makes a feoffment of the whole, the subsequent act so far explains the first entry, that now by construction of law she was at first seised of all, and then making a feoffment of the whole the freehold in law is divested out of the other coparcener.

Section 711, 712.

Lineal war- ■^lN D n°te, that as to the person who demands an estate in fee

raiitybarsestate s%mple ou any of his ancestors, he shall be barred by lineal warin fee without r 3 3 J' 3

assets, and ranly descending upon him. But he who demands a fee-tail by assets. Colla- V)rit of formedon in descender, shall not be barred by lineal rant bareboth warranty unless he have assets in fee-simple descended from the

estates without ancestor who made the warranty. But collateral warranty is a assets.

bar both to estates tail and estates in fee-simple without any

assets descending, except in cases restrained by any statute.

In these two sections there are expressed four legal conclusions: [374 6] —First, that lineal warranty binds the right of a fee-simple. 2dly. That a lineal warranty does not bind the right of an estate tail, for that is restrained by the statute de donis conditionalibus. 3dly. That a lineal warranty and assets is a bar to an estate tail and is not restrained by the said act. And 4thly. That a collateral warranty made by a collateral ancestor of the donee, binds an estate tail, albeit jthere are no assets; and the reason is, because it is not made by the tenant in tail, as lineal warranty is. To this may be added, that the warranty of the donee in tail, if the person in remainder be heir to the warrantor, such warranty binds both the donor and remainder-man, which is collateral to the donor and to him in remainder, without any assets. For though the alienation of the donee after issue does not bar the donor, which was the mischief provided for by the statute de donis, yet the warranty being collateral bars both of them; for the act restrains not that warranty, which therefore remains as at common law, and in like manner the warranty of the donee bars him in remainder. [See further, Gilb. Ten. 141, 142.]

Assets requisite to make a lineal warranty a bar, must be of Assets—Requiequal value with the land which it so bars one to demand, it must descend from the same ancestor that made the warranty, and it must be a real inheritance in estate or interest; not a bare |use or right of entry or action, which are not assets till they are reduced into possession. But a rent issuing out of the heir's land descending to him, whereby it becomes extinct, is good assets. An advowson also is assets, and may be extended at the rate of a shilling for every mark of the yearly value of the living. But a seigniory in frankalmoign is not assets, because it is not valuable.

Section 714. [375a]

LAN D is given to husband and wife in special tail, the husband Husband's di»makes « feoffment in fee, and dies, the widow releases to the wyc's reii,aK. feoffee with warranty, and dies, this is lineal as to the whole; and wlth warrantythe law is the same if the gift had been before marriage, in which case they had taken by moieties, for the heir must claim as heir of both their bodies.

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Tenant for life's If a man has three sons, A. B. and C, and a gift is made to A.

warranty col- . . , . , . .,

lateral to re- J or life, remainder to B. m tail, remainder to C. in tail, A. thouKhhis*TM discontinues with warranty: this is collateral to the brothers,

heir.

because the
collateral.

remainders are their titles, and to those A. is

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Collateral warranty enures in respect of title, not of blood. ■

And so note, that where a man is collateral to the title, and he releases his right with warranty &c. this is a collateral warranty.

Here it appears that it is not adjudged in law a collateral warranty in respect of the blood, for the warranty may be collateral, albeit the blood be lineal; and the warranty may be lineal, albeit the blood be collateral, as hath been said. But it is in law deemed a collateral warranty, in respect that he who makes the warranty is collateral to the title of him upon whom the warranty falls.

And note, it is a maxim of law, that warranties descend on the

Warranty de-
af common law heir at the common law only, infra, Sect. 735.

only.

Observe further, if a man be seised of lands in gavelkind, and has issue three sons, and by obligation binds himself and his heirs and dies, an action of debt shall be maintainable against all the three sons, for the heir is not chargeable unless he has lands by descent. So if a man be seised of land on the part of his mother, and binds himself and his heirs by an obligation, and dies, an action of debt shall lie against the heir on the part of the mother, without naming of the heir at the common law. And so note a diversity between the personal lien of a bond, and the real lien warranty. •

Debt on bond ties against sjtecial or customary heir.

['376 b]

on a

Section 719.

If land be given to a man and to the heirs male of his body To A. in tail

begotten, and for default of such issue to the heirs female of his der to his heirs

body begotten, and afterwards the donee in tail makes a feoffment aeremainder in

in fee with warranty, and has issue a son and a daughter and female tail and

. ... Ii» not a tai18ene'

dies, this warranty is lineal both to the son and the daughter. ral.

Here it appears, that whensoever the ancestor takes any estate of freehold, and in the same conveyance an estate is limited to any of his heirs, these latter words " his heirs" are words of limitation, and not of purchase, although it be limited by way of remainder; and therefore here the remainder to the heir female vests in the tenant in tail himself: [so only, however, as to give him a remainder in tail female, and not by merger to destroy the remainder, and give him an estate tail general.] And it is well to know this learning; nevertheless it is dangerous to use such [377a] limitations in conveyances, as great inconveniences may arise thereupon; for if such a tenant in tail has issue divers sons, and they have issue divers daughters, or if tenant in tail has issue divers daughters, and each of them has issue sons, none of the daughters of the sons, nor the sons of the daughters, shall ever inherit to either of the said estates tail; and so it is of the issues of the issues, for (as hath been said) the issues inheritable must make their, claim either only by males, or only by females, so that the females of the males, or males of the females, are wholly excluded in the heritage of either of the said estates tail: hence, therefore, it is proper, when the first limitation is to the heirs male, that the remainder should be to the heirs general, as then all the issues, be they females of males, or males of females, are inheritable.

Section 720. [3776]

Also, I have heard say, that in the time of king Richard the Richci's case of second, there was a justice of the common pleas, dwelling in Kent, ^ndition'

called Richel, who had issue divers sons, and his intent was, that against alieni • i • i ation vo'^'

his eldest son should have certain lands and tenements to htm and

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to the heirs of his body begotten; and for default of issue, the remainder to the second son &c, and so to the third son Sfc, and because he would that none of his sons should alien, or male warranty to bar or hurt the others that should be in the remainder &c, he caused an indenture to be made, declaring that the lands and tenements were given to his eldest son upon this condition, that if the eldest son aliened in fee, or in fee-tail 3?c., or if any of his sons aliened &c, that then their estates should cease and be void, and that then the same lands and tenements should immediately remain to the second son and to the heirs of his body begotten, et sic ultra, the remainder to his ot/ier sons, and livery of seisin was made accordingly.

Section 721.

Remainder But it seems by reason, that all such remainders are void and of same time as n0 value, and that for three causes. 1st. Because the remainder estate"11" *'*'' M0' vest "l *'*e second son at the time livery was made of the

freehold.

First, Littleton says by deed, because if lands arc granted and rendered by fine for life, with remainder in tail, with remainder in fee, none of these remainders are in the remainder-men, until the particular estate is executed.

Krcrpt at to contingent remainders.

Secondly, this rule is generally true, but it hath divers exceptions. 1st. If the person who is to take the remainder be not in rerum natura: as if a lease for life be made with remainder to the right heirs of I. S.—I. S. being then alive, now here the inheritance passes presently out of the lessor, but it cannot vest in the heir of I. S., for living the father his heir is not in rerum natura, for non est hares viventis; so that the remainder is good upon this contingency, viz. if I. S. die during the life of the lessee. And so it is if a man makes a lease for life to A. B. and C, and if B. survive C, then remainder to B. and his heirs. This is another exception; for albeit the person be certain, yet inasmuch as it depends upon the dying of B. before C. the remainder cannot vest in C. presently. And the reason of both cases in effect is, because the remainder is to commence upon limitation of time, viz. upon the possibility of the death of one man before another, which is a common possibility.

Section 722. [3786]

The second cause is, if the first son alien the tenements in fee, then Alienation to is the freehold and the fee-simple in the alienee and in none other; create an estate and if the donor had any reversion, by such alienation, that rever- in anot cr" sion is discontinued. Also if suck remainder be good, then might the second son enter upon the alienee, vihen he had no manner of right before the alienation, which would be inconvenient.

Therefore by an alienation which transfers the freehold and fee- Condition that

- li- i i i • i i i lessee shall have

simple to the alienee, there can be no remainder raised and vested fee cannot rf<in another person. As if a man makes a lease for life upon con- ^wting'nZrdition that if the lessor grants over the reversion, the lessee "o"shall have the fee; if the lessor grants the reversion by fine, the lessee shall not have the fee; for when the fine transferred the fee to the conusee, it would be absurd and repugnant to reason, that the same fine should work an estate in the lessee; for one alienation cannot vest an estate in two several persons at one time of the same land.

In a man's own grant which is ever taken most forcibly against Nextpresenhinaself, the reason of Littleton holds; for it has been resolved that m^ «5ihm« if a man seised of an advowson in fee by his deed grants the next ° man"""'

J ° grant,

presentation to A. and before the church becomes void, by another deed he grants the next presentation of the same church to B. the second grant is void, for A. had the same granted to him before; and the grantee shall not have the second avoidance by construction, to have the next avoidance which the grantor might lawfully grant, for the grant of the next avoidance imports not the second presentation. But if a man seised of an advowson in fee take [379a] wife; now by act in law is the wife entitled to the third presentation, if the husband die before her. Then if husband grants the third presentation to another and dies, the heir shall present twice, the wife shall have the third presentation, and the grantee the fourth; for in this case it shall be taken the third presentation which he might lawfully grant; and so note a diversity between a title by act in law and by act of the party; for the act in law shall work no prejudice to the grantee.

Section 723. Condition can- The third cause is, because the donor may enter for breach of the

not create an .... » , , , . . . ,

estate but only condition in preference to the second son, who having no right before

w^c^tmaydo alienation can have no greater right after, and therefore it seems

on alienation, such remainders are void;—[the meaning is, that a right of entry

on breach of a condition cannot be reserved to a stranger but only

to the donor and his heirs, i. e. his heirs by descent not by purchase

as RicheFs case was.~\

Here it is to be observed, that such part of the condition as prohibits the alienation is good, but such part of it as tends to carry the estate over to another, is void, and by the opinion of Littleton the donor may re-enter for the condition broken; for Utile per inutile non vitiatur: which being in case of a condition for the defeating of an estate, is worthy of observation. And it is to be noted, that after the death of the donor, the condition descends to the eldest son, and then his alienation would extinguish the same for ever; wherein the weakness of this invention appears: and therefore Littleton here says, that it seems the donor may re-enter without mentioning his heirs.

Sections 724, 725.

[Treat of the warranty of tenants by the curtesy and tenants in dower, of which enough has been said.]

Section 726.

[Treats of warranty falling on an heir within age, to whom no laches are attributable.] •

Infant's acts of And herein a diversity is to be observed between matters of v/not amided record done or suffered by an infant, and matters in fait: for during mi- matters in fait he shall avoid either within age, or at full age, as hath been said: but matters of record, as statutes merchant or [380b] staple, recognizances acknowledged by him, or a fine levied by him, or a recovery suffered against him by default in a real action (saving in dower) must be avoided by him, viz. statutes &c. by audita quarela, and the fine and recovery by writ of error during his minority and the like. And the reason thereof is, because they are judicial acts and are taken by a court or a judge, therefore the nonage of the party, to avoid the same, shall be tried by inspection of judges, and not by the country. And for that his nonage must be tried by inspection, this cannot be done after his full age: and so is the law clearly holden at this day, though there be. some difference in our books. But if the age be inspected by the judges, and it be recorded that he is within age, albeit he come of full age before the reversal, yet may it be reversed after his full age. And so was it resolved by the whole court of king's bench in the case of Kekewich.

No laches shall be adjudged in the heir within age.] Laches, is an infant not old French word for slackness or negligence. And the rule (that "f'n1'a r ,fegu. no negligence shall be adjudged in an infant) is true, where he is thereby to be barred of his entry in respect of a former right, as by a descent; or of his former right by a warranty where his entry is congeable. But otherwise it is of conditions, charges and penalties, going out of or depending upon the original conveyance, for laches or negligence shall'be adjudged in those cases as well in an infant as in any other.

Sections 729, 730, 731, 732. [382a b]

[Treat of the husband's fine of the wife's land by warranty, which it seems cannot since the statute of Gloucester, bar the wife's heir without assets from the husband.]

Section- 733. [3836]

An express waranty can only be created by the word warrant.

gence.

What words create a warranty.

But warranties in law are created by many other words. Thus Give, grant, <«6 creates a warranty in law to the feoffee and his heirs during '"rjjg^fl-i

p r

the life of the feoffor, but concern in a feoffment or fine implies no warranty. And this word dedi imports a warranty iu law, albeit there be an express warranty in the deed. For if a man make a feoffment by dedi, and in the deed warrants the land against I. S. and his heirs, yet dedi is oeneral warranty during the life of the

'"'»• feoffor. And if a man make a lease for life reserving a rent, 'and

add an express warranty, here the express warranty does not take away the warranty in law, and he may vouch by either of them at his election; and note a diversity between a warranty which is a covenant real annexed to a freehold, and a warranty concerning a chattel, as in Nokes' ease, 4 Co. 80. Also this word exchange implies

Partition. a warranty. Also a partition implies a warranty in law, as in the

r.ifhiugf. J r r J

chapter of parceners appears. And it is to be observed, that the warranty wrought by this word dedi, is a special warranty, and extends to the heirs of the feoffee during the life of the donor only. But on an exchange the warranty extends reciprocally to the heirs and against the heirs of both parties.

Eipre* u«. It is further observable, that the heir shall never be bound to

I(tntil ((ni otit'l

he neuied by any express warranty but where the ancestor was bound by the

Deed, ita not by .

wm, ulnih is same; ior it the ancestor were not bound, it cannot descend upon

no deed; but Ai u
on a u ill there the heir.
may bean im-
plied warranty.

[386 a] But a warranty in law may bind the heir, although it never

bound the ancestor, and may be created by a last will and testament. As if a man devise lands to a man for life or in tail reserving a rent, the devisee for life or in tail may take advantage of this warranty in law, albeit the ancestor was not bounden, and the warranty shall bind his heirs also, although they are not named. Also an express warranty cannot be created without deed, and a will in writing is no deed, and therefore an express warranty cannot be created by will.

Section 735. Warranty de- Also, a warranty cannot qo according to the nature of the tene

s-ends to heirs „ , , »• i .

atnnmmon law ments by the custom &c., but only according to the form of the

ii'uirVn Borough common law. For if tenant in tail be seised of tenements in

Jingluli; borough English, where the custom is, that all the tenements within

the same borough ought to descend to the youngest son, and fit

discontinues the entail with warranty be., and has issue two

sons, and dies seised of other lands or tenements in the same

borough in fee-simple to the value or more [than the value] of the

lands entailed &c., yet the youngest son shall have a formedon

of the lands entailed, and shall not he barred by the warranty of

his father, albeit assets descended to him in fee-simple from his

said father according to the custom bc., because the warranty [386 b]

descends upon his elder brother vjho is in full life, and not upon

the youngest. And in the same manner is it of collateral warranty

made of such tenements, where the warranty descends upon the

eldest son &c. this shall not bar the youngest son &c.

Section' 736.

In the same manner is it of lands in the county of Kent, that or gavelkind; are called gavelkind, which lands are dividable between thebrolhers &r. according to the custom; if any such warranty be made by his ancestor, such warranty shall descend only to the heir who is heir at the common law, that is to say, to the elder brother, according to the conusance of the common law, and not to all the heirs who are heirs according to the custom.

Section 737.

Also, if tenant in tail has issue two daughters by divers venters ox heir of the and dies, and the daughters enter, and a stranger disseises them ia O0 of the same tenements, and one of the daughters releases by deed to the disseissor all her right, and binds herself and her heirs to warranty, and dies without issue: in this case the sister who sur- [387a] vives may well enter and oust the disseisor, because such warranty is no discontinuance or is collateral to thesister who survives, for the sisters are of the half blood and cannot be heirs the one to the other. But otherwise it is, where there are daughters of a tenant in tail by one venter.

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But it may be But warranty may descend to one's heirs for term of another

annexed toan . .

estate pur outer man's life, if it be annexed to such an estate pur auter vie. which estate, though it be no inheritance, is yet a descendable freehold.

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Term of years goes to executors not to heirs, though so limited.

And note, where a lease or grant is made to a man and to his heirs for term of years, in this case the heir of the lessee or the grantee shall not after the death of the lessee or grantee have the lands so granted, because it is a chattel real, and chattels real by the common law shall devolve on the executors of the grantee or lessee, and not on the heir.

And to a tern

no warranty extend*.

[389,7]

A warranty extends not to a lease though it be for many thousand years, or to estates of tenant by statute staple, or merchant, or elegit, or any other chattel, but only to estates of freehold or inheritance. And this is the reason why in all actions which a lessee for years may have, a warranty cannot be pleaded in bar, as in an action of trespass, or the like.

Section 741, 742,743.

Destruction of If the estate to which the warranty is annexed be defeated, the

estate defeats . ■ j /• . j j

warranty. warranty is aejeated also.

A man enfeoffs a woman with warranty they intermarry and are impleaded, upon the default of the husband, the wife is received, she shall vouch her husband &c, notwithstanding the warranty was put in suspense. And so on the other side, if a woman enfeoff a man with warranty, and they intermarry and are impleaded, the husband shall vouch himself and his wife by force of the said warranty.

An infant en ventre sa mere may be vouched if God give him birth, and if not, such a one heir to the warranty; but he cannot be vouched alone without the heir at the common law, for process shall be presently awarded against him.

But is put in suspense.] Tenant in tail makes a feoffment in fee with warranty, and disseises the discontinuee, and dies seised leaving assets to his issue. Some hold that in respect of this suspended warranty and assets, the issue in tail shall not be re- [390 i] mitted, but that the discontinuee shall recover against the issue in tail, and he take advantage of his warranty, if any he has, and after in aformedon brought by the issue, the discontinuee shall bar him in respect of the warranty and assets; and so every man's right is saved.

Section' 745.

Also, if after a feoffment or release with warranty the person whowarranted is attainted of felony, or is outlawed for felony, such Warranty de

... ~ , . , stroyed bv al

warranty shall not bar or aggrieve the issue, Jor by the attainder tainder for of felony the blood is corrupted [and the warranty descends not e ony' on them].

Be attainted of felony, or outlawed <^c] Note, according to Little- Forfeiture fir ton here, there are two manner of attainders: the one is after ap- J'Jonv Mutes to

'r the day of oj

pearance, which is in three ways; by confession, by battle, or by feancommitttd. verdict: the other upon process of outlawry, which is an attainder in law. But there is a great diversity, as to the forfeiture of land, between an attainder of felony by outlawry upon an appeal, and upon an indictment: for in the case of an appeal the defendant shall forfeit no lands but such as he had at the time of the outlawry pronounced; but in case of an indictment, he shall forfeit such land as he had at the time of the felony committed. And the reason of this diversity is evident; for that in the case of appeal there is no time alleged in the writ when the felony was done, and therefore of necessity it must relate in that case only to the judgment of outlawry: but in the case of an indictment there is a certain time alleged, and therefore in that case it shall relate to that time, viz. to the time when the felony was committed. In the case of the indictment there is this further diversity: that it relates to the time alleged in the indictment for avoiding of estates, charges,

and incumbrances made-by the felon after the felony committed; but as to the mean profits of the land it relates only to the judgment, as well in the case of outlawry as in other cases.

c«,nietion and Upon attainder for felonies there lie three several writs of escheat,

altiuniler dis

thigniihtd. viz. first, when the felon has judgment to be hanged. 2dly. When he is outlawed. 3dly. When he abjures the realm. The defendant in an appeal of death waged battle &c, and was slain in the field, yet judgment was given that he should be hanged; and the justices said, that it was altogether necessary that such a judgment should be given, for otherwise the lord could not have a writ of escheat. The difference between a man attainted and convicted is, that a man is said to be convicted before judgment of death is passed upon him. But when he has received judgment upon the [391a] verdict, confession, outlawry, or abjuration, then is he said to be attainted.

ConUforfeited If a felon be convicted by verdict, confession, or recreancy, he

i>« conviction ;«./...■_■ , , , ,„ ii-i- - •

buiihmi at- toneits his goods and chattels etc. presently [that is, on conviction before attainder]. And Stanford (speaking of a felon convict bv verdict) says, that he shall forfeit his goods which he had at the time of the verdict given, which is the conviction in that case ; and by the statute of 1 R. 3. c.3. no sheriff, bailiff &c. shall seise the goods of a felon before he be convicted of the felony; whereby it appears, that the goods may be seised as forfeited after conviction. So that by conviction of felony the goods and chattels of a felon are forfeited; and by attainder, that is, by judgment given, his lands and tenements are forfeited, and his blood corrupted, but not before. [But though the goods and chattels of a felon are forfeited only from the time of conviction, yet if he dispose of them between his committal to prison and conviction, otherwise than for the necessary sustenance of himself and family, such assignment is open to impeachment as a fraudulent conveyance under the statute 13Eliz. c.o. Pauncefoot's case, 3 Co. 82 a. b. Skin. 357. Ch.C.L. 723.]

Standing mute. If the party upon his arraignment refuse to answer according to law, he shall not be adjudged to be hanged, but for his contempt, to peine fort et dure, which works no attainder for the felony, or forfeiture of his lands, or corruption of blood. But in case of high treason, if the party refuse to answer according to law, he shall receive such judgment by attainder, as if he had been convicted by verdict or confession [and a similar judgment is now awarded to persons standing mute, 12 Geo. 3. c. 20.]

Felony.] In ancient times this word was of so large an extent iniat/wTM;.* that it included high treason; and therefore in our ancient books, /«(„«,,/•(„,„.', by the pardon of all felonies, high treason was included. But "'"'#""'/'afterwards it was resolved, that in the king's pardon or charter, this word (felony) should not only extend to common felonies, and' that high treason should not be comprehended under the same but ought to be specially named. Yet it was held that a pardon of all felonies should extend to petit treason: wherefore by the law at this day under the word (felony) in commissions &c. is included petit treason, murder, homicide, burning of houses, burglary, robbery, rape &.c., chance-medley se defendendo, and petit larceny. And for such of these crimes for which any shall have judgment to be hanged by the neck till he be dead, he shall forfeit all his lands in fee-simple, and his goods and chattels: for felony by chancemedley, or se defendendo, or petit larceny, he shall forfeit his goods and chattels, but not his lands of freehold or inheritance. And all felonies punishable according to the course of the common law, are either by the common law or by statute.*

* And as to felonies created by statute, the forfeiture ensues the nature of the Forfeiture, run

punishment; if the offender receive sentence of death then is he attainted, and he V" 1 'of.

forfeits all his lands and goods, that is, his lands to the king for a year, day, and waste, and after the year and day the king is further entitled to the profits of the land for the residue of the felon's life; on his death the lands now go to the felon's heir (corruption of blood being taken away by the stat. 54 Geo. 3. c. 45. which has consequently deprived the lord and the king of their escheats, but not the kin<<' of his year, day, and waste); if the offence be any other than treason or murder the goods go to the king absolutely, but if the offence be treason, then the lands and goods go to the king absolutely; if murder, the lands on the tenant's death (subject to the king's year, day, and waste) escheat to the lord of the fee whereof they are holden, for want of an heir, if the lord, by shewing the existence of a court baron and manor, can prove that the lands are holden of his lordship; if not, the lands escheat to the king absolutely, for, in default of any mesne legal tenure, all hmds are holden of the king as lord paramount, which is now the case with nineteen-twentieths of the manors in the kingdom; and in that case also the goods are forfeited to the king absolutely. But if the offender receive a lesser punishment than attainder, whether the felony be a grand or petit larceny, then he forfeits all his goods to the king absolutely, and rents in arrear, being part of his goods, arc forfeited also, but subsequent rents, it is presumed, belong to the convict.

Piracy, con-
itction forxcorki
uo forfeiture,
ei t'pt when.

There is also a felony punishable by the civil law, because it is done upon the high sea, as piracy, robbery, or murder, whereof the common law took no notice, because it could not be tried by twelve men. If this piracy be tried before the lord admiral in the court of the admiralty, according to the civil law, and the delinquent be there attainted, yet shall it work no corruption of blood, or forfeiture of his lands; otherwise it is if he be attainted before commissioners by force of the statute of 28 H. 8. By the express purview of that statute, about the end of the reign of queen Elizabeth, certain English pirates who had robbed on the sea certain merchants of Venice in amity with the queen, obtained a coronation pardon [their commission of the piracy not having been then discovered], whereby amongst other things, the king pardoned them all felonies. It was resolved by all the judges of England upon conference and advisement, that this did not pardon the piracy; for seeing it was no felony whereof the common law took conusance, and the statute of 28 H. 8. did not alter the offence, but only ordained a trial and inflicted punishment, therefore it ought to be pardoned specially, or by words which were tantamount, and not by the general name of felony; and according to this resolution the delinquents were attainted and executed.

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The blood is corrupted.} Aptly is a man said to be attainted, attinctut, for that by his attainder of treason or felony his blood is so stained and corrupted, as, first, his children cannot be heirs to him, nor to any other ancestor [through him], and therefore the warranty cannot bind; for thereby heirs only are bound. 2dly. If he were noble or gentle before, he and all his children and posterity are by this attainder made base and ignoble, in respect of any nobility or gentry which they had by their birth. 3dly. This corruption of blood is so high, that regularly it cannot be absolutely salved and taken away but by authority of parliament. [It is now taken away, except in cases of treason, petit treason, and murder, by 54 Geo. 3. c. 45.]

Pardon makes »ubiequent httte inheritable, if heir.

[392 a]

And it is a general rule, that having respect to all those whose blood was corrupted at the time of the attainder, the pardon does not remove the corruption of blood neither upward nor downward. As if there be grandfather, father, and son, and the grandfather and father have divers other sons, if the father be attainted of felony and pardoned, yet his blood remains corrupted not only

above him and about him, but also to all his chldren born at [or *

before] the time of his attainder. But issue had after the pardon, [_H'i

is inheritable [provided it be the eldest and heir]. But if the issue had after the pardon be the youngest, nothing can descend to him, for that his eldest brother is living and disabled. But if the eldest son dies in the lifetime of the father without issue, then the youngest shall inherit.

It is also to be observed, that judgment against a man for Judgment of

death includes

felony that he be hanged by the neck until he be dead, includes what five five other punishments; 1st. In his wife, who shall lose her dower, ''"rogo Ti 2dly. In his children, who shall become base and ignoble. 3dly. In his posterity, for his blood shall be corrupted, so that they cannot inherit unto him or any other ancestor [through him.] 4thly. He shall forfeit all his lands and tenements which he has in fee, and all his lands which he has in tail for term of his life. And 5thly. All his goods and chattels.

But some acts of parliament have altered the common law in Tenant in tail

r i . rru It- 7- • forfeits for life

some ot these points: 1st. 1 he statute ae doms conditionalwus, by miy far felony, which lands entailed are not to be forfeited absolutely, either for a£^n\ S^0T felony or treason, but for the life of tenant in tail only. And the cause wherefore this statute was made was to preserve the inheritance in the blood of those to whom the gift was made notwithstanding any attainder for felony or treason. And this act in history is called gentilitium municipale; for that thereby the families of many noblemen and gentlemen were continued and preserved to their posterities. And this law continued in force from the thirteenth year of king Edward the first, until the twenty-sixth year of king Henry the eighth, when by act of parliament estates in tail are forfeited absolutely by attainder of high treason. But as to felonies, the statute de donis conditionalibus yet remains in force, so that for attainder of felony, lands or tenements entailed are not forfeited but only during the life of tenant in tail, and the inheritance is preserved to the issue.

Sections 748, 749.

Also, a warranty, whether lineal or collateral, may be dis- How warranties

charged or defeated by a release of all warranties, or of all cove- TM/rced.'*' nants real, or of all demands.

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Lineal war- And it is to be known that a lineal warranty with assets [in fee

Ki" LniJue"in simple] is a good plea in bar to a formedon in the descender; and !'"'■ *"'""' •'« therefore if tenant in tail aliens with warranty, and leaves assets to

i*sue, unlets it ^

receive them- descend; if the issue in tail aliens the assets, and dies, the issue of [393 Al t'le 'ssue sna^ recover the land, because the lineal warranty descends to him without assets; for neither the pleading of the warranty without the assets, nor the assets without the warranty, is any bar in a formedon in the descender. But if the issue to whom the warranty and assets descended had brought a formedon, and by judgment had been barred by reason of the warranty and assets; in that case, albeit he aliens the assets, yet the estate tail is barred for ever; for a bar in a formedon in the descender, which is a writ of the highest nature that the issue in tail can have, is a good bar in any other formedon in the descender brought afterwards upon the same gift.

[Here follows in Littleton a Table of Contents, which in this edition has been transferred to the beginning of the book, immediately after the preface.]

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And know, my son, that I would not have thee believe that all I have said in these books is law, for I will not presume to take this much upon me. But of those things that are not lavs, inquire and learn of my wise masters learned in the. law. But notwithstanding certain things which are moved and specified in the said books, are not altogether law, yet such things shall make thee more apt and able to understand and apprehend the arguments and the reasons of the law &'c. For by the arguments and reasons in the law a man shall sooner come to the certainty and knowledge of the law itself.

Lex plus laiulatur quando ratione probatur.

/ will not presume #c.] Here observe the great modesty and mildness of our author, which is worthy of imitation; for Nulla virtus, nulla scientia locum sun in et dignitatem conservare potest sine modestid.

The arguments and reasons in the law.] For then only can we be said to know the law when we apprehend the reasons of it; that is, when we bring the reason of the law so to our own reason that we perfectly understand it as our own; and then, and never before, have we such an excellent and inseparable property and ownership therein, as we can neither lose it, nor can any man take it from us; and these reasons being fully apprehended in one case will direct us (the learning of the law is so chained together) in many other like cases. But if by your study and industry you make not the reason of the law your own, it is not possible for you [395a] loii" to retain it in vour memory.

When I had finished this work of the first part of the Institutes, and looked back and considered the multitude of the conclusions in law, the manifold diversities between cases and. points of learning; the variety almost infinite of authorities, ancient, constant, and modern, and withall their amiable and admirable consent in so many succeeding ages; the many changes and alterations of the common law, and additions to the same, by many acts of parliament, and that the like work of institutes had not been attempted by any of our profession whom I might imitate, I thought it safe to follow the grave and prudent example of our worthy author, not to take upon me, or to presume that the reader should think that all that I have said herein is law; yet this I may safely affirm, that there is nothing herein but may either open some window of the law to let in more light to the student by diligent search to see the secrets of the law, or to move him to doubt, and withall to euable him to inquire and learn of the sages, what the law, together with the true reason thereof, in these cases is: or lastly, upon consideration had of our old books, laws, and records (which are full of venerable dignity and antiquity) to find out where any alteration has been made, or upon what ground the law has been changed ; knowing for certain, that the law is unknown to him who knows not the reason thereof, and that the known certainty of the law is the safety of all. I had once intended for the ease of our student, to have made a table to these Institutes; but when I considered that tables and abridgments are most profitable to those who make them, I have left that work to every studious reader. And in taking farewel, I wish him the gladsome light of jurisprudence, the loveliness of temperance, the stability of fortitude, and the solidity of justice.

THE END.

INDEX.

ABATOR,

guardian holding over is, 271 a.
ABATEMENT,

younger sons abatement on eldest and death, not a descent which tolls entry

of eldest son, 242 a.
of abatement in special tail, 242 a.
of abatement in borough English, 242 b.

none between brothers, contra if elder brother once seised, 242 b.
what entry of one coparcener an abatement, 243 b.
bastard eigne abating on mulier puisne and dying seised gains a good

title, 243 b.
disseisin, abatement, intrusion, deforcement, and usurpation distinguished,

243 a. 276b.
guardian continuing possession is an abator, 57 b. 271 a.
ABEYANCE,

fee-simple of glebe and freehold during vacancy is in abeyance and why,

340 b. 342 b.
general occupancy puts freehold in abeyance, 242 b.
fee of contingent remainder is in abayance [sed qu.1], 242 b.
ABJURATION,

attainder, and outlawry distinguished, 13 a.
and transportation are civil deaths, 132 b.
ACCEPTANCE

of subsequent rent releases arrearages, 269 b.
ACCOUNT,

executors may bring now, 89 b.
as to action of, against companion bailiff, 200 b.
ACTION,

rights of and entry may be held in joint tenancy, but not a right and an estate,

188 a.
rights of action or entry not grantable over, 214 a.
nor can they be released to a stranger, 266 b.
real and personal distinguished, 197 b. 285 a.
action and execution distinguished, 289 a.
release of actions includes not execution, but debt, duty, or demand, includes

both, 291 a-
release of actions no release of current rent or annuity, 292 b.
release of all actions no release of right of entry, 286 a.
release of all actions releases the debt though not then payable, 292 a.
release of actions to one trespasser enures to the other who may plead it though
no party, 232 a.
ADMINISTRATOR,

may redeem a mortgage, but it will be for the heir's benefit, 205 b. 209 a. See
Executor.
ADULTERY,

effect of elopement and adultery on dower, 32 a. See Divorce; Dower.
ADVANCEMENT,

franltmarriage is, 176 a. 177 b.

ADVOWSON,

may be appurtenant to manor, 122 a.

law presumes no profit can be derived from, 17 b.

guardian cannot present to, 89 a.

as to possessio fratris of, lib. 15 b.

of a moiety, and moiety of advowson distinguished, 1? b.

dower how taken of, 31 b.

as to dower of appropriate advowson, 46 b.

seisin in law enough for curtesy, 29 a. 243 a.

next presentation when it means the next a man may grant, 373 b.

next presentation, who entitled to, bishop's executors or heirs, qu.t 90 a.

next presentation cannot be enlarged by release, but one joint-tenant may

release to another, 270 b.
present avoidance not grantable over, but it survives to husband if it happen in

wife's lifetime, 120 a. 351 a.
how divided between coparceners, 164 b.
on partition it belongs to eldest sister, 166 b.

deed necessary to grant of, though it be appendant to land divided, 190 h.
as to coparcenary of advowson after partition of land, 122 a.
as to curtesy of when held in coparcenary, 186 b.
disseisee may present to, 122 b.
usurpation of, 194 a.
usurpation of during vacancy, 263 b.
effect of release by patron to usurper, 276 a.
grant of on condition. 222 a.
grant of three avoidances, what effect, 249 a.
infant must present within six mouths, 245 a.

incumbent must die to make discontinuance of advowson complete, 333 b.
as to the recontinuance of advowson, 363 b.
remitter to manor a remitter to advowson, 363 b.
AGE,

of marriage by common law, 79 a.
powers of men and women at different ages, 78 b.
AGREEMENT,

contrary to law bad, 51b.
of parties overrules law, when, 166 a.
AID,

for marriage what, 90 b.
ALIEN,

who is, and of denization, naturalization, and descent, 8 a. 128 b. 180 b.
may take lease of a house for trade or habitation, 2 b.
may purchase but cannot hold lands, 2 b.
nor can he inherit, 8 a.
husband an alien, no dower, 31 a.

wife an alien, effect of denization and naturalization on dower, 33 b.
friend and alien enemy, who, 129 a.
out of realm and out of ligeance distinguished, 129 b.
what if one joint-tenant is, 18G a.
ALIENATION,

condition against alienation void. This rule applies to every species of grant

and estate, 222 a.
condition in restraint of alienation in a particular way or time good, 224 a.
not to alien without licence annexed to tenure good, 223 a.
that tenant in tail shall not alien, except for his own life good, 223 b.
construction of condition not to alien on tenant in tail, remainder to himself in

fee, 224 a.
condition enabling alienation for profit of issue good, 224 a.
not to alien to a particular person good, 223 a.
not to alien land not conveyed good, 223 a.
alienation beyond tenant's life a discontinuance of remainder and bad; ita,

restrainable by condition, 224 a.
licence to alien not vacated by lessor's death, 52 b.
AMBASSADOR,

not hurt by descent cast during his absence, 259 b.
ANCESTOR

bears all his heirs in him, 22 b.
ANNUITY,

charges the person only, 144 b.

limited to heir of body gives conditional fee, 20 ar

grant of by two persons passes only one annuity, when, 144 b.

ANNUITY—continual.

not considered as in mortmain, 2 b.

releuse of arrears, no release of current annuity, 292 b.

subsequent defeazance may be annexed to grant of annuity, but not to estate
executed, 236 b.

who entitled to writ of annuity, and against whom, 144 b. 145 a. b. 150 a.

if owner and stranger grant a rent, both suable in writ of annuity, 144 b.

writ of annuity fixes the person, but suing that discharges the distress, 144 b.
APPENDANT,

and appurtenant distinguished and exemplified, 121 b.

and regardant distinguished, 121 b.

corporeal cannot be appendant to corporeal or incorporeal hereditaments, 121 b.
APPORTIONMENT.

surrender of part, rent apportionable; so on recovery of part for waste, 148 a.

so on lease or devise of part of the reversion, 148 a.

grant and reservation distinguished as to apportionment on eviction by elder
title, 149 b.

must be made according to value, not quantity, 149 b.

doweress accepting rent-charge, may still claim dower and have an apportion-
ment of the rent, 150 a.

writ of annuity lost by, 150 a.

as to, of common, on descent of part of soil to owner of the common, 149 a.

if part of land descends to owner of rent-charge, no merger of the whole rent,
but same may be apportioned, 149 b.

so if rent descend to owner of part of land, 149 b. See Rent; Common; An-
nuitit; Dower, §r.
APPURTENANT,

and appendant distinguished and exemplified, 121 b.
ARABLE,

now includes every other sort of land, 86 b.
ARCHBISHOPS,

hold by barony, 96 b.
APPURTENANCES,

includes what, 121 b.
ARREARS,

and current rent distinguished, 160 b.

rent and nomine pcenas descend to heir, but arrears belong to executor 162 b.

acceptance of subsequent rent releases arrears, 269 b. See Annuity.
ASSENT,

executor's assent necessary to bequest of chattels, contra as to devise of free-
holds, Ilia.
ASSETS,

mesne profits till sale are not, unless specially made so, 113 a.

what requisite to make a warranty, 374 b.
ASSIGNS,

who are, 8 b.

'heirs' includes ' assigns'in a deed at common law, [but not in a power], 215 b.

could not enter at common law, 215 b. See Condition; Reiersion.
ASSIGNMENT,

by tenant for life or tenant in tail passes all his interest, 183 a.
ASSIZE,

means a jury, 154 b.

of mord'ancester and novel disseisin, what, 159 a.
ASSIZES,

formerly held once in seven years, 153 b.
ATTAINDER,

its effects, 8 a.

modern doctrine of, 391 a. n.

person attainted cannot inherit, 8 a

effect of husband's attainder on dower, 40 b. 41 a. 351 a.

as to wife's attainder of felony, 33 b.

how it affects coparcenary, 163 b.

of heirs for treason, 13 a.

the five punishments of, 41 a. 393 a. 391 a.

conviction and attainder distinguished, 390 b.

goods are forfeited on conviction, lands on attainder, 391 a.

but it relates to act committed, so that intermediate conveyance is bad, contra

of outlawry, 13 a.
guardian [or trustee] forfeits nothing by outlawry or attainder, 88 b.
descent of crown cures attainder, 16 a.

ATTAINDER—continued.

outlawry, execution, and attainder distinguished, 13 a. 351 a.

warranty destroyed by attainder for felony, 390 b.
ATTORNEY,

who may be, 52 a.'

power of. must be by deed, 52 a.

if made by indenture he must be a party, 52 b.

must pursue his power, and what is a virtual execution of it, 52 a.

livery by attorney, good, 48 b.

if he do less than his authority livery void, 52 a.

cannot make livery within view. 49 b. 52 b.

livery to attorney must be in lifetime of feoffor, 51 b.

power to deliver seisin after feoffee's decease bad, 52 b.

livery by or to one attorney bad if two jointly appointed, 49 b.

power of, vacated by death of either party, 52 b.

but power of, not vacated by the death of the head of an aggregate corpora-
tion, 52 b.

power of, to two or three if one dies, power survives, 181 b.

entry to avoid a fine may be made by attorney or agent on an assent subsequent
or precedent, 258 a.

when the attorney having right is bound by his acceptance of the power, 52 a.

power not revocable without notice to attorney, 55 b.
ATTORNMENT.

what it is, and how performed, 309 a.

on what alienation attornment necessary, 310 b.

freehold tenants must attorn on lord's alienation, 310 b.

tenant in tail need not attorn, 316 a.

nor need tenant in tail apres, 316 a.

tenant for life must attorn, and his assignee also, 312 a, 316 a.

tenant for years must attoin on grant of reversion, then livery unne-
cessary, 315 b.

elegit creditors and executors must attorn, 315 b.

attornment to devisee not essential, 322 a.

rent passes by attornment though not named, 317 a.

tenant for life's acceptance of deed an attornment which vests the remainder,
317 a.
AUTHORITY,

bare authority (as to executors to sell) cannot be released ; otherwise of power of
revocation, 265 b. See Power.
AUDITA QUERELA,

a writ which must be sued within a year and a day, 290 b.

subsequent matter may be taken advantage of in, 290 b.

I'..

BAILIFF,

surrender to, good by custom, 61 b.
BALANCE

of accounts, payment of, good payment of the whole, 212 b.
BARGAIN and SALE,

entry not necessary to, under statute of uses, 266 b.
of feoffee to uses before statute void, 271 b.
rent granted by bargainor and bargainee, how far good, 147 b.
BARON and FEME,

husband gains freehold by marriage, 351 a.

how interested in his wife s chattels real, 46 b. 299 b. 351 a.

how in her goods and chattels personal, 351 b.

limitation to husband, wife, and stranger makes them joint tenants, but H. and

W. take but one moiety, and companion takes the other moiety;

yet of what H. and W. take they are tenants by entireties, 187 a.
estate by entireties does not arise except H. and W. are married at the

time, 187 b.
conveyance by man and wife who are joint tenants, estate taken back is held by

entireties, 187 b.
as to survivorship of right of entry between baron, feme, and stranger joint

tenants, 188 a.
husband, wife, and stranger joint tenants, effect of husband's feoffment, 327 b.
fine concludes wife as to estates given, but not as to estates taken, if separately

examined, 353 b.

BARON and FEME—continued.

if husband and wife seised in special tail levy a fine to use of themselves in fee,
wife is remitted, 353 b.

husband's fine must be avoided by entry, 326 a.

husband's feoffment a discontinuance, contra now by stat. 32. H. 8. 326 a,
202 a. 336 a.

husband's release with warranty no discontinuance, unless wife be his heir,
320 a.

lease by husband and wife a discontinuance for life, 333 a.

statute of jointures protects heir in tail against his mother's alienation and war-
ranty, if lands come from the husband, 365 b.

husband seised jure uxoris capable of release or confirmation of fee, 273 b.
299 a.

husband, wife, and stranger joint tenants; effect of stranger's release, first to
husband, second to wife, 193 b.

of merger by union of term and reversion in different rights, 338 b.

of husband's remedy for rent during coverture, 162 b.

husband's charge binds wife's term, 184 b.

cannot in their own right convey to each other, 187 b.

husband's conveyance to his wife bad, unless it be by uses, 112 a.

condition for husband to enfeoff wife bad, 206 b.

husband may devise to his wife, 112 a.

but wife cannot devise to husband, 112 b.

wife having power of sale may appoint to husband, 112 a.

tenant by curtesy's alienation with warranty binds not the wife's heir without
assets in fee simple from the alienor; so of like alienation by dowress
now, 365 a.

remitter at wife's election dum sola, 357 a.

if husband's alienee relets to husband and wife for life, this a remitter, and no-
thing remains in alienee, 351 b.

if husband aliens in fee, and takes back an estate to himself and wife for life,
this is a remitter, 354 a.

though wife remitted, husband bound by lease, 352 a.
BARONY,

as to tenure by, &c. 69 a.

bishops and archbishops hold by, 96 h.
BASE FEE,

what curtesy allowed of base fee defeated, 29 b.

what dower, 31 b.

no gift in base fee direct allowed, 21 a.
BASTARD,

who is, 243 b.

he cannot inherit, 7 b.

remainder to void, 3 b."

having acquired a name by reputation may purchase, 3 b.

dower allowed of his estate escheated, 244 a.

bastard eigne abating on mulier puisne and dyiii" seised gains a good title,
243 b. 245 a.

so if there be two coparceners, and one is a bastard, if she is allowed to enjoy
share, the other is estopped, 244 a.

bastard eigne must be by same mother as mulier puisne, 244 b.

entry of bastard eigne's issue good when, 244 b.

as to abatement on bastard eigne's heir, 244 a.

two in possession, freehold adjudged in the one having right, except as to bas-
tard eigne and mulier puisne, 368 a.
BISHOP,

may grant, when and how, 43 a.

holds by barony, 96 b.

his concurrent lease lor years good if confirmed, contra of lease for life, 45 a.

as to joint tenancy between two bishops, 190 a.

joint tenancy between himself in natural and corporate capacities, 190 a.

his alienation a discontinuance, 346 a.

effect of his translation, 329 a.

whether fee of his temporalities in abeyance, 342 b.

he may maintain writ of right, which should shewthat fee resides in him, 340 b.
BLOOD,

corruption of, 8 a. See Attainder.
BOND

itself assignable at law, 232 a.

condition not to alien or take profits bad in feoffment, good in bond, 206 b.

possible and impossible conditions in bond and feoffment distinguished, 206 a.

Q Q

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BOND—continued.

condition on, and feoffment further distinguished, 208 a.

tender and refusal on, operates how, 207 a.

debt on, lies against special or customary heir, 376 a.

made out of England, how sued for, 261 b.

obligee made executor, a release, 264 b.

or recognizance for instalments when broken, 292 b.
BOROUGH ENGLISH.

what the custom is, 140 b.

as to descent in, 110 b.

youngest son inherits, 110 b.

youngest brother also by some customs, 110 b.

it extends to daughters, 140 b.

as to dower of, 35 b. 110 b. Ilia.

power of devising allowed by custom in some boroughs before Statute of Wills,
Ilia.

estate tail not devisable in. Ilia.

heirs in may take advantage of ancestor's infancy, 337 b.

lands may be held purauter vie in, 110 b.

elder brother cannot be guardian to his younger brother in, 88 b.

of abatement in, 242 b.

of discontinuance in, 328 b.

warranty descends to heirs at common law only, not to heir in borough Eng-
lish, 386 a.
BURGAGE

tenure, what it is, 109 a. See Borough English.

CANCELLATION

no surrender, 308 b.
CAPIAS,

what and when suable, 289 a. 290 b.
CASTLE,

includes what, 5 a.
CESTUIQUE TRUST,

feoffment by on condition and entry for breach disseises trustee, 202 a.

lease by, trustee cannot enter, 214 b.
CERTAINTY,

law delights in, and publicity, 34 b.
CHAMBERS,

inheritance in allowable, 48 b.
CHAMPERTY,

what is, 214 a.
CHASE,

includes what, 5 b.

forest, park, and chase distinguished, 232 b.
CHAPTER

without dean, can make no claim, or take by grant, except in reversion,
263 b. See Dean.
CHATTEL,

devise of land to executors till debts paid gives them but a chattel interest,
42 a.

no joint tenancy, or tenancy in common of freehold and chattel, 188 a. 198 b.

freehold and chattel distinguished, 43 b.

cannot go to heirs or successors, 190 a.

condition to defeat need not be in writing, 225 a.

descent cast no effect on, 249 a.
CHILDREN,

born, take jointly with parents when, 9 a.
CHIVALRY,

escuage is a tenure in, 73a.

but the service in is not always by escuage, 82 b.
CHURCH,

parson, how seized of church and glebe, 300 a. See Abeyance. Parwm, 3rc.
CHURCHWARDENS,

as such cannot purchase lands without act of parliament, or grant from the
crown, 3 a.

CIRCUITY OF ACTION,

remitter designed to prevent, 347 b.
CITY,

what is, 109 b.
CIVIL DEATH,

natural and civil death distinguished, 132a.

effect of, 132 a.

a person entering into religion becomes dead in law, 132 a.
CIVIL WAR,

death in time of casts no descents, 249 a.
CLAIM,

what amounts to, 245 a.

right includes, 265 a. See Continual Claim.
COMMON,

appendant, what, 122 a.

appurtenant, what, 122 a.

in gross, what, 122 a.

sans nombre, what, 122 a.

of vicinage, what, 122 a.

lord's common not improved by escheats, 122 a.

of pasture, different kinds of, 122 a.

of turbary appurtenant to house only, 121 b.

whieh excludes owner of soil bad, but he may be excluded for a time, 122a.

as to dower of, 32 a.

disseis3ee cannot use, 122 b.

as to apportionment of, on descent of part of soil to owner of common, 149 a

grant of avoided by remitter, 348 b.
COMMON (Tenant in). See Tenant in Common.
COMMON LAW,

original writs one principal evidence of, 93 b.
CONCISE,

form of conveyance, 229 b.
CONDITION,

what is, 201 a.

different kinds of, 201 a.

what words make, 203 a.

"provided always," "so that," 203 b.

"if it happen," 204a.

in lease for years, words of less strict, 204 a.

in copulative, disjunctive, and both distinguished, 225 a.

of re-entry, what, 201 b.

clause of entry makes, 203 b.

when a penalty, 203 a.

when alternative should be expressed, 207 b.

against law bad, 206 b.

possible and impossible conditions in bond and feoffment distinguished, 206a.

what implied by law, 232 b. 234 a.

different kinds of, 233 b.

how binding on infant and feme covert, 233 b.

to create and destroy estate distinguished, 219 b.

limitation and condition distinguished, 236 b.

estate cannot be created by, but only determined, 379 b.

to take effect on some event which determines estate void, and dower not
barred, 224 b.

devise to A, he paying 20/. to B. a condition, and if he does not pay, heir may
enter, 236 a.

feoffment by single woman to a man causa matrimonu creates, 204 a.

annexed to freeholds and terms for years distinguished, 214b.

power and condition distinguished, 215 a.

against alienation void. This rule applies to every species of grant and estate,
222 a.

in restraint of general alienation bad; of alienation in a particular way or
time, good, 224 a.

construction of condition not to alien on tenant in tail remainder to himself in
fee, 224 a.

alienation beyond tenant's life a discontinuance of remainder, and bad; there-
fore restrainable by condition, 224 a.

that tenant in tail shall not alien, except for his own life, good, 223 b.

that tenant in tail shall not suffer recovery bad, 223 b.

CONDITION—amtimirtl.

not to alien without licence annexed to tenure good, 223 a.

not to alien to a particular person g. oil, 223 a.

not to alien land not conveyed good, 233 a.

against mortmain good, 223 b.

enabling alienation for profit of issue good, 224 a.

to defeat freehold must be in writing, contra as to chattels real, 225 a.

not to alien or take profits bad in feoffment, good in bond, 206b.

on bond and feoffment further distinguished, 208 a. 206 a.

effect of feoffment by tenant in tail on, 202 b.

to enfeoff man and wife in special tail if husband dies, wife will have an estate
sans waste, 218 b.

as to husband's feoffment of wife's estate on, 202 a.

for husband to enfeoff wife is bad, 206 b.

to enfeoff B. and C. in special tail, if B. dies, C. shall have an estate sans waste,
218b.

to re-enfeoff many men, how to be executed if they die, 220 b,

feoffment by cestui que trust on, and entry for breach disseises trustee, 202 a.

lease by cestui que trust, trustee cannot enter for condition broken, 214 b.

lease by corporation, successors may enter for condition broken ; so may execu-
tors or under-lessee, 214 b.

reservation to grantor's heir bad, condition to him good, 214 b.

as to dower of estate on a condition, 221 a.

entry for condition broken defeats feoffee's incumbrances, 222 a.

reserved to stranger void, 212 b.

assigns could not enter at common law, 215 b.

grantee of reversion may enter for breach of condition at law in his own time,
as if a tenant for life make a larger estate &c. 215a.

guardian may enter for condition broken, 215b.

lord by escheat cannot enter for breach of condition, 215 b.

executor or under-lessee may enter for a condition broken, 214 b.

Slace appointed for performance of must be attended to, 202 a.
emand must be made on the land at the house, if any, or at the fore door or

gate of a field or wood, 201 b.
tender to person off the land good, 206b.
demand of condition and rent distinguished, 153 b.
void demand what, 202 a.
demand of sum in gross not necessary, 213 b.
demand at any time sustains distress, 202 a.

demand and tender must be made before sun-set on last day, 202 a.
what, if no time limited for performance of condition, 218 h.
if time of payment uncertain, notice of payment must be given, 211a.
entry into part, when good, 202 b.
tender, what sufficient in performance of, 202 a.
tender of part of rent good, 202 b.
if a week allowed for payment, demand or tender may be made at any time

before last day, 202 a.
refusal offender amounts to a release, except in ease of a mortgage, where thy

debt remains though land discharged, 2o9 a.
feoffee's conveyance before condition broken good, and second feoffee may

tender, 207 b.
tender of money in bags good, 207 b.
heir cannot perform unless he is mentioned or a day be appointed, then he or

the executors may tender, 208 a.
heirs or executors may perform, when, 210 a.
privies in estate may perform, 207 b.
receipt of less sum no performance of condition, except as to rent, but release

under seal cures it, 212 b.
for money, acceptance of other things good; secus if 6 converso, 212 b.
feoffee is disabled from performing condition by altering the plight of the tene-
ments, 221 a.
feoffee's alienation disables him from performing condition, which is a forfeiture,

220 b.
lease for years by feoffee disables him from performing condition, 221 a.
statute confessed after disseisin no disability, 222 a.
feoffee's rent-charge, or statute, a disability, 222 a.
judgment is a disability, 222 a.
if feoffor's disability cease within time no impediment; contra if feoffee,

CONDI T ION—continued.

dower by feoffee's marriage, his wife becomes dowable, which alters the plight

of the tenements, and disables him from performing condition, 221 a.
release equivalent to feoffment in performance of, 207 a.
no time mentioned for doing a thing, it may be done during life, unless

hastened by request, 220 a.
freehold reverts only on entry, 218 b.
voidable estates not avoided without entry or claim, but avoidance may be

waived, 217 b.
though estate is void it does not revest till entry or claim, except when, 217 b.
entry for condition broken is not taken away by tenant's death in possession,

240 a.
party having right of entry may either enter or bring action, 211b.
no action of debt lies after entry, 203 a.
separate conditions require separate entries for breach, 252 b.
if land be released to feoffor, he being in possession cannot enter, 218 a.
to go to Home, and no time named, operates how, 208 b.
as to conditions precedent. 216 b.

tenant for years to have fee on payment of a sum good if with livery, 216 a.
condition and conditional limitation distinguished as to grantee's right of

entry, 214 a.
merger of one term in another, if the term in reversion be afterwards defeated

by condition, both terms are lost, 218 b.
as to grant of advowson on, 222 a.
what if condition omitted in livery, 222 a.
effect of feoffment in fee and livery for life, 222 a.
livery with condition supersedes feoffment without, 222 a.
'laches no prejudice to feme covert or infant, except as to conditions, 246 b.
discontinuance how saved by condition, 224 b.
pleadable without profeit of deed, when, 225 b.
may be found by a jury, though not in deed, 226 b. .

entry for condition defeats feoffee's incumbrances, 222 a.
dispensation on condition bad, 274b.

release of condition on a condition bad as to the condition, good as to the re-
lease, 274 b.
CONDITIONAL FEE

of the donee's power of alienation before and after issne had, 19 a.
annuity limited to heirs gives conditional fee now, 20 a.
CONFIRMATION,
form of, 295 b.

same word may operate both as a grant and confirmation, 302 a.
gives the fee, 10 a.

of estates cannot be for less than the whole, 296 b.
if for a day good for all time, 2:17 a.
freehold cannot be confirmed for part of estate, 297 a.
part of land may be confirmed for whole term, 297. a.
void estate not confirmable, 295 b.
void lease not confirmable by acceptance of rent, contra of lease voidable by

entry, 215 a.
of tenant for life's lease good in his lifetime, 296 a.
tenant for life's rent charge confirmed by reversioner good, when, 301 a.
no confirmation of interesse termini, 296 a.
lease for years may be confirmed for part of term, 297 a.
confirmation of life estate carries not the fee though with word " heirs," 298 b.
confirmation to tenant for life and stranger, 299 b.
to one joint tenant for life confirms fee in his companions, 297 a.
by one joint tenant to his companion nugatory without word heirs, 298 b.
words of inheritance necessary to confirmation by enlargement, 302 a.
confirmation to tenant for life, and remainder man, 299 b.
confirmation to tenant for life no effect on remainder, otherwise c converso,

297 a.
non-claim by remainder man confirms estate for life, 297 b.
confirmation to termor carries freehold, when, 307 b.
to under-tenant good, 308 a.

release to one disseisor enures not to other, contra of confirmation, 298 a.
husband seised jure uxoris capable of release or confirmation of fee, 299 a.
husband and wife seized in moieties, how confirmation to them enures, 299 b.
confirmation to two who are seised in tail makes tenancy in common of rever-
sion, 299 b.
parson's charge confirmed by patron, &c. good, if latter has the fee, 300 a.

CONFIRMATION—continued.

patron to confirm must have indefeasible fee, or acquire such during his lrfe,
300 b.

confirmation of conditional feoffee's rent charge not avoided by feoffee's entry
for condition broken, 300 a.

feoffment not confirmable before livery, contra of grant before attornment of the
restraining statutes, 301 a.

confirmation of rent newly created should be by fresh deed or by a clause of dis-
tress in fee, 308 b.

of rent carries fee, when, 308 a.

rent charge remains to confirmor, so does common, 305 a-

by tenant in tail, no discontinuance, 329 b.
CONSANGUINITY,

mode of reckoning degrees in descent and consanguinity, 12 b. 23 b.
CONTINUAL CLAIM,

effect of, 250 a.

right of entry, how preserved to heir by, 250 b.

must be made every year, 250 a.

continual claim preserves right of entry, and defeats effect of descent cast, 250 a.

effect of claim on estate tail, 256 b.

claim turns estate tail into fee simple, 256 b.

continual claim to be made if reversioner cannot enter by reason of term for
years, 250 b.

continual claim descends from one remainder-man to another, 251a.

separate conditions require separate entries for breach, 252 b.

if lands be in several counties, there must be several entries, 251 b.

remainder-man for life may enter for a forfeiture, and his claim preserves his
right, 252 a.

claim by servant, agent, or attorney, good, 257 b.

claim within view not enough to divest an estate, but it seems sufficient to vest
the possession, 254 b.

entry prevented for fear of injury, claim as near as may be equal thereto, 253 b.

fear ot corporal hurt or imprisonment sufficient, but cause must be shewn ; fear
of arson not enough, 253 b.

day of claim counted as one, 255 a.

claim within view must be renewed every year and day, 255 a.

descent cast affects not the claim, 255 b.

disseisee now allowed five years to claim in, 256 a.

claim at any time during disseisor's life good, 256 a.

occupation after claim, a disseisin for which trespass lies, 256 b.

entry not tolled by descent during time disseisee is under duress, 259 a.

if disseissin be during imprisonment, how entry is effected, 259 a.

ambassadors not hurt by a descent cast, 259 b.

persons out of the realm not prejudiced by descent cast, 260 b.

chapter without dean, commonalty without mayor, can make no claim, 263 b.
CONTINGENT REMAINDER

on term had, 217 a.

not alienable during contingency, 343 a.

of a possibility or contingency, 265 b.
CONTROVERSIES,

includes what, in a release, 292 a.
CONVEYANCES.

different kinds of, 10 a.

conveyance by indenture in first person as good as in third, 230 a.

who may convey, and who not, 42 b.

reservation can only be to grantor and his heirs, 213 b.

reservation of rent charge to lessor and his assigns is only for life, 215 b.

fraudulent, as against purchasers for valuable consideration void, 3 b.

condition cannot create an estate, but only determine one, 379 b.

concise form of, 229 b.
CONVICTION,

and attainder distinguished, 390 b.
COPYHOLD,

what it is, 57 b.

origin of, 57 b.

why called copyholders, 60 a.

nature of the tenancy, 58 b.

copyholding a base tenure, 62 b.

copyholder has now a fixed estate, and cannot be ejected at lord's plea-
sure, 60 b.

COPYHOLD—continued.

are conveyed by surrender only, 58 b.

surrender not presented at next court void, 62 a.

a right to copyholds may be released, 58 b.

of surrenders in and out of court, 59 a.

lord in remainder bound to admit on surrender to particular tenant, 69 b.

surrenderee is in by surrenderor, but gener.il surrender gives life estate only, 59 b.

what may be granted as such, 58 b.

what lords may admit to and grant, 58 a.

lord may admit out of manor, 61 b.

executors may admit to copyholds, 58 b.

of the demisable quality of copyholds, 58 b.

form of surrender, 58 b.

what may be granted by copy, 58 b.

not within stat. de Donis, 60 a.

special custom requisite to support entails, but such entails and remainders

may be barred by surrender, 60 a.
entails and remainders of, may be barred by surrender, 60 b.
what alienation a forfeiture, 59 a.
waste a forfeiture of copyhold, 63 a.
surrender to will severs joint tenancy in, 59 b.
fines, to what subject, 59 b.
fines must be reasonable, 59 b.

fine may become due on lord's death, and on tenant's death or alienation, 59 b.
leasehold and copyhold rights within the statute of pretended titles, 369 a.
copyholds are within enabling statutes, 44 b.
of the court baron, which cannot be held out of manor, 58 a.
of the customary or copyhold couit, 58 a.
heriot service indivisible and extinct by lord's purchase of part of land; contra

of heriot custom, 149 b.
entire services multiplied by tenant's alienation in parcels, 149 b.
copyholder's remedy is in customary court, 60 a.
petition of error lies to the lord, 60 a.
tenants by verge are copyholders, 61 a.

steward may be retained without deed, and discharged at pleasure, 61 b.
surrender of, to bailiff, reeve and tenants, good by custom, 61 b.
special customs must be reasonable, 62 a.
copyholders and tenants at will distinguished, 62 b.
copyholder must repair, 63 a.
fealty due from copyholder, 63 a.
customary freehold may pass by surrender, 59 a.
CORPORATION,

different kinds of, 250 a.

may purchase, hut cannot hold lands or tenements in fee without licence, 2 b.

of the pro; er name of a corporation in a purchase, 3 a.

sole corporation takes the fee by the word " successors" only, 8 b. 9 b.

limitation to sole corporation and his heirs give only a life estate, 9 a.

corporation aggregate—fee passes by limitation to corporation aggregate without

heirs or successors, 9 b.
corporation sole —fee will pass to, without word " successors," when, 9 b.
sole and aggregate corporations distinguished as to the word " successors," and

capacity of taking by deed or without deed, 94b.
successors are in post, heirs in the per, 250 a.
what ecclesiastical bodies have capacity to take, 95 a.
powers of ecclesiastical corporations at common law, 300 b.
sole ecclesiastical, now disabled, 325 b.
cannot hold a term for years since it has no executors, 46 b.
death of aggregate corporation's head vacates not power, 52 b.
no lease by corporation without deed, 85 a.
on a lease by, successors mayen'er for condition broken, 214 b.
no escheat on dissolution of body corporate, land reverts to donor, 13 b.
descents cast, apply not to corporations, 250 a.
entry on, during vacancy of its head, its effect, 263 b.
freehold in abeyance during that time, 263 b.
chapter without dean, commonalty without mayor, can make no claim, or lake

by grant, except in reversion, 263 b.
without a head cannot take by grant, except in reversion, 263 b.
corporation aggregate cannot do homage, 66 b.
no joint-tenancy of politic with natural body, 188 a. 190 a.
as to joint.tenancy between bishop in natural and corporate capacity, 190 a.

CORPORATION—continued.

sole corporations may discontinue at common law, 341 b.

remitter applies to ecclesiastical corporations, 360 a.

warranty binds not a corporation, but only the natural heir, 370 a.
CORPOREAL

cannot be appurtenant to corporeal or incorporeal hereditaments, 121b.
COTTAGE,

what, 56 b.
COUNSEL,

advice of, its value, 212 a.
COUNTERPART

not sealed, immaterial, 229 a.

as to property in, 229 a.
COUNTY,

if lands in different counties there must be separate entries, 252 b.

of the remedy for rent, common, &c. issuing out of land in two counties, 154 a.
COURT BARON,

of the court baron, 58 a.

cannot be held out of manor, 58 a.
COVENANT,

to stand seised, may arise indirectly, 23 b.

release of covenant, before broken, a discharge, 292 b.—See condition.
CROWN.

as to descent of lands belonging to or purchased by the crown, 15 b.

neither possessio fratris nor half blood hold as to the crown, 15 b.

exposition of statute 34II. 8. c. 20., as to creation of estate tail with remainder
or reversion in crown, 372 b.
CURTESY,

what it is, 29 a.

four requisites to curtesy, 30 a.

what signs of life necessary in issue, 29 b.

what kind of issue necessary, 29 b.

the issue must be such as can inherit the estate, 29 b.

issue born after wife's death not sufficient, 29 b.

issue, deaf, dumb, or ideot, gives curtesy, contra it a monster, 29 b.

the possibility of issue enough, though the wife be a hundred years old, or the
husband only four, 40 a.

issue before wife's attainder gives curtesy, contra if after, 40 a.

death of issue before wife's death immaterial, 29 b.

what seisin of wife necessary to, 29 a.

begins in wife's life after issue had, 30 a.

cannot be of reversion or a bare right, 29 b.

may be of an advowson or rent to which seisin in law is sufficient, 29 a.

as to, of advowson held in coparcenary, 186 b.

curtesy allowed of joint-tenancy with several inheritances, but not dower, 30 a.

of a castle or common, 30 b.

curtesy of rent, 30 a.

when lost, 30 b.

if wife dies an ideot curtesy lost, 30 b.

effect of husband's alienation, 30 a.

husband's feoffment on condition destroys, 30 b.

of gavelkind lands, 29 b.

tenants by escheat, curtesy, or dower, are in by purchase; contra of disseisor,
18 b.

husband cannot waive curtesy and take a life estate by devise, 30 a.

no bar to entry though given up to issue, 241 b.

tenant by curtesy's alienation with warranty binds not the wife's heir without
assets in fee-simple from the alienor; so of like alienation by dow-
ress now, 365 a.

writ of partition lies against tenant by curtesy or alienee of one coparcener,
174 b.

and now by statute, tenant by curtesy and alienee of coparcener entitled to such
writ of partition, 175 a.

is used in Scotland and Ireland, 80 a.
CURTILAGE,

includes what, 5 b.

house includes curtilage, orchard, and garden, 56 a.
CUSTOM,

what essential to, 113b.

must have been used time out of mind, 113 a.

special customs must be reasonable, 62 a.

CUSTOM—continued.

of prescription not lost by twenty years disuse, except by merger of rights.
114 b.

what may be claimed by prescription, 114 b.

memory of man includes written documents, 115 a.

municipal law consists of common law; statute law and customs, 115b.

prescription in a que estate applies to those things only which will not pass at
common law without deed, 121 a.
CUSTOMARY FREEHOLD,

may pass by surrender, 59 a.

DAMAGE FEASANT,

distress for, how avoidable, 161 a.

in night allowed, contra for rent, 142 a.
DATE,

of impossible or mis-recited dates, 46 b. See Dted.
DEAN AND CHAPTER,

what and who, 95 a. 300 b. 346 a.

fee is vested in, semb. 340 b. 342 a.
DEATH,

natural and civil distinguished, 132 b.
DEBATES,

includes what in a release, 292 a,
DEBT,

includes actions and executions in a release, 291 a.

no action of, after entry, 203 a.

for rent not several, though the estates are, 198 b.

on bond lies against special or customary heir, 376 a.
DEED,

requisites to, 35 b. 225 a.

several parts of, 6 a.

formal parts not essential, 7 a.

delivery of, what sufficient, 36 a.

and livery of seisin, distinguished, 49 b.
on land, not in itself a livery of seisin, 56 b.

conveyance by indenture in first person as good as in third, 230 a.

executed abroad good, 227 a.

bad grammar vitiates not the, 146 b.

as to the enrolment of, 35 b. 225 b.

on what it must be written, 35 b.

should be on parchment or paper, 229 a.

as to erasure and interlineation of, 225 a.

who may grant and who not, 42 b. .

how purchaser should be named, 3 a.

of the proper name of a corporation in a purchase, 3 a.

what things pass at common law without, 121 b.

if counterpart not sealed immaterial, 229 a.

things lying in grant cannot be surrendered without, 338 a.

person taking in possession must be party to, 230 b.

remainder-man need not be party to or seal it, 143 a. 230 b.

grantee by sealing, makes it his, though no party, 230 b.

party not signing, bound as to rent but not as to sum in gross, 231 a.

to be construed valid, if possible, 183 b.

the rule is, first grant; last will, 112 b.

habendum overrules the operative part, 183 a.
explains the premises, 183 b.
may enlarge but cannot abridge premises, 298 b.

give and grant include all other words, but other words operate only as they
import, 301 b.

words of limitation, what are, 235 a.

informal in one way may operate in another, 49 a.

same word may operate both as a grant and confirmation, 302 a.

reservation can only be to grantor and his heir, 213 b.

all deeds must take effect in lifetime of parties, 309 a.

witnesses, who may be, 6 a.

concise form of, 229 b.

belongs to whom, 6 a. 225 b.

DEED—continued.

in what cases the purchaser shall have deeds, 6 a.

of property in counterparts, 229 a.

common law applicable to custody of deeds or other chattels, 89 a.

of stolen, 226 b.

profert required of all deeds pleaded, 35 b. 121 a.

pleaded must remain in court, 231 b.

itself must be produced, no copy admissible, 225 b.

deeds are the sinews of the land, 231 b.

deeds grantable per se, 232 a.

what things pass at common law without, 121 b.

rent reservable without, contra of re-entry, 225 b.

estate for life may be surrendered without, 338 a.
DEED POLL,

is what, 229 a.

deed poll and indenture distinguished, 229 a.

feoffment by, good, and attorney may be made by it; contra if by indenture
unlesss he be a party, 52 b.

no estoppel to taker, 363 b.

reservation by, good, 143 b.

belongs to feoffee., and quaere if feoffor though he has it can plead it, 231 a.

DEER,

may be held in common, 200 b. See Watte, Park, Chace, &c.
DEFEAZANCE,

subsequent, may be annexed to rents, annuities, &c. but not to estates exe-
cuted, 236 b.

may be found by a jury, though not in deed, 226 b.

how it operates to counteract implication of law, 146 b.
DEFORCEMENT,

disseisin, abatement, intrusion, and usurpation distinguished, 276 a.
DELIVERY

of deed and livery of seisin distinguished, 49 b.
DEMAND,

and non-payment is a denial, 153 b.

of condition and rent distinguished, 153 b.

on land, when sufficient, 153 a.

should be made at the house, if any, or at the gate of a field or wojd, 201 b.

of sum in gross not necessary, 213 b.

at any time sustains distress, 202 a.

and tender must be made before sunset on last day, 202 a.

if a week allowed for payment, demand or tender may be made at any time
before last day, 202 a.
DEMANDS,

release of all, includes rights, titles, and every claim or duty, 291 b.
DEMESNE,

"as of fee," meaning of, 17 a.

lands in, and service distinguished, 17 a.
DENIZEN,

who is, 129 a.
DENIZATION,

effect of, 128 b.
DEPUTIES,

of, and their power and duties, 234 a.
DERIVATIVE ESTATES,

entry for forfeiture, its effect on, 233 b.
DERIVATIVE CHARGES,

surrender of life estate no effect on, 338 a.
DESCENT,

where it occurs, 238 b.

collateral, defined, 10 a.

mode of reckoning degrees in, and consanguinity, 23 b.

heir on father's side preferred, 12 a.

paternal line preferred, except it be a material estate, 12 a.

male preferred to female, and paternal female to maternal female, 13 b.

uucle s title defeated by posthumous heir, 11 b.

father not heir to son, except through an uncle, 10 b.

the uncle must be actually seised to make father heir, 11 a.

of estates tail male, 25 a.
female, 25 a.

DESCENT—continued.

possessio fratris, doctrine of, exemplified, 14 a.

what seisin of incorporeal hereditaments sufficient for, lib.
how affected by dower, 15 a.
not applicable to estates tail and reversions, 14 b.
lease for life or in tail prevents, unless eldest son receive rent, 15 a.
of maternal estate, 12 h.
maternal and paternal kept distinct, 13 a.
maternal, when broken, 13 a.
in coparcenary, 164 a.
partition makes no degree, 173 a.
as to husband's attainder seised jure uxoris, 12 a.
of lands belonging to, or purchased by the crown, 15 b.
neither possessio fratris, nor half blood, hold as to the crown, 15 b.
DESCENTS WHICH TOLL ENTRIES,
'where they occur, 238 b.
dying seised of inheritance necessary to, 238 b.
of freehold, not enough, 239 a.
of reversion not enongh, 239 a.
this doctrine extends not to incorporeal hereditaments, 238 b.
if disseisor dies within five years after the disseisin, no descent cast by statute

which extends to whom, 238 b.
no tolling of entry as to wife and her heirs by descent during coverture, 246 a.
descent during infancy no avail, except as to infants in ventre sa mere, 245 a.
descent cast during idiotcy or lunacy, no effect against heir of non compos,

246 b.
death in time of civil war casts no descent, 249 a.
descent not cast by entry into religion, 248 a.

entry not tolled by descent during time disseisee is under duress, 259 a.
what descent cast by death of disseisor's feoffee on condition, 218 a.
entry for condition broken is not taken away by tenant's death in possession,

though a descent cast, lessee for years may enter, contra of lessee for life, 249 a.

descent cast applies not to corporations, 250 a.

descent cast no effect on chattels, 249 a.

continual claim preserves right of rent, and defeats effect of descent cast, 250 a.

of descents in tail which toll entries, 238 b,

among coparceners, how affected by one dying seised of the whole, 243 a.

effect of heir's entry on devisee, 240 b.

of bastard eigne's issue good, 244 b.

what an entry interruption or claim, 245 a.

one coparcener dying seised of whole, no descent tolling entry of other, 243 a.

younger son's abatement on eldest, and death, not a descent tolling entry of
eldest son, 242 a.
DETAINER,

when a disseisin, 161 b.
DEVISE,

lands not devisable at common law, secus now by statute of wills, 111b.

to executors till debts paid, gives them but a chattel, 42 a.

to executor to sell, and devise that executor shall sell, distinguished, 236 a.

that his executors sell, they may make a feoffment, but heir takes till sale,
112 b.

as to reversion devised to be sold, 113 a.

of land to be sold by executor, if he does not sell within reasonable time [two
years] heir may recover, 235 b.

no discontinuance, 334 b.

wife cannot devise to husband, 112 b.
DEVISEE,

as to heir's entry upon, 240 b.

attornment to, not essential, 322 a.

of his seisin before entry, Ilia.
DIGNITIES,

titles of nobility, when introduced, 69 b.

creation by writ and letters patent distinguished, 9 b. 16 a.

creation gives a fee unless restrained, 9 b.

of dignities for life, 16 b.

of dignities in coparcenary, 165a.

of nobility by marriage, 16 b.

no possessio fratris of, 15 b.
DISABILITIES,

no hindrance to a purchase, 3 b.

DISABLING,

and enabling statutes commented on, 44 a.
DISCLAIMER,

tenant for life disclaiming reversion, its effect, 252 a.
DISCONTINUANCE,

means what, 325 a.

is where right of entry is defeated by alienation, 325 a.

new fee is created by, 297 b.

what conveyances create, 325 a.

feoffment by tenant in tail is a discontinuance, 327 b.

effect of statute de Donis on discontinuance, 327 a.

tenant in tail's lease for life and grant of reversion, a discontinuance if rever-
sion falls in his lifetime, 333 a. 336 a.

tenant in tail's feoffment divests estate tail, now otherwise as to jointures, 326 b.

tenant in tail's release, no discontinuance, neither is his confirmation, 329 b.

tenant in tail in remainder, disseises tenant for life, and enfeoffs strangers; this
no discontinuance, for he was never seised of the freehold of the
estate tail, 347 a.

no discontinuance of estate tail whereof the party was never seised, except by
means of warranty, 339 a.

tenant in tail's lease with livery, always a discontinuance, 333 a. 336 a.

tenant in tail's lease for years and life distinguished as to discontinuance, 334 a.

tenant in tail makes a lease for life, then grants away reversion, this a discon-
tinuance if lessee dies in tenant in tail's lifetime, 333 b.

tenant in tail's feoffment to reversioner, no discontinuance, contra if there be
an intermediate remainder, 334 b.

alienation beyond tenant's life, a discontinuance of remainder and bad ; ita,
restrailiable by condition, 224 a.

of particular tenant a discontinuance of all remainders, but a remitter of the par-
ticular tenant is a remitter of the remainders, 354 b.

tenant for life's recovery, a forfeiture, and discontinuance when, 362 a.

for life if it determines on surrender of estate, 337 b.

grant of reversion no discontinuance, but limitation of remainder may be, 333 b.

grant of reversion with warranty no discontinuance, 333 b.

reversion must fall in in grantor's lifetime to make grant of reversion a discon-
tinuance, 333 b.

reversion may be revested, and discontinuance remain, 335 a.

feoffment to remainder-man, no discontinuance, 335 a.

no discontinuance of remainder in king, 335 a.

husband's feoffment a discontinuance, contra by statute 32 II. 8. 325 b.

husband's feoffment on condition of a discontinuance, 336 a.

lease by husband and wife a discontinuance for life, 333 a.

remainder-man and reversioner protected by the statute 32 II. 8. against hut-
band's discontinuance, 326 a.

lease according to statute, no discontinuance, 333 a.

husband's release with warranty, no discontinuance unless wife his heir, 329 a.

feoffment by one joint-tenant to companion and stranger if a discontinuance,
335 a.

exchange no discontinuance, 332 b.

re-entry for condition broken avoids feoffment, and by consequence, the discoo-
tinuance, 336 b.

how saved by condition, 224 b.

executor's fine no discontinuance, 333 b.

fine of reversion no discontinuance, when, 332 b.

grant with warranty a discontinuance, if issue bring formedon, 332 b.

no discontinuance of rents, 327 b.

release of right not a discontinuance, contra of feoffment which passess frw-
hold, or release with warranty, 328 a.

release with warranty, when no discontinuance, 329 a.

devise no discontinuance, 334 b.

fine of things lying in grant no discontinuance, 332 a.

feoffment by minor seised jure uxoiis, no discontinuance, 336 b.

bishop's alienation a discontinuance, ;)4(> a.

parson's alienation no discontinuance of successor, 340 b.

incumbent must die to make discontinuance of advowson, 333 b.

estates in borough English, of discontinuance as to, 329 a.
DISPENSATION

on condition bad, 274 b. Sec Licence.
DISSEISEE,

taking any estate from disseisor by parol or died poll nmitted, 363 b.

his entry divests reversion, 241 a.

DISSEISEE—continued.

may release to tenant for life, but not to tenant for years, 266. b.

now allowed five years to claim in, 256 a.

in what cases disseisee may take advantage of release to his disseisor, 266 a,

cannot use common, but he may present to an advowson, 122 b.

may enter upon disseisor's wife's dower, for the wife is in by her husband, not
by his heir or by descent, 240 b.
DISSEISIN,

what it is, 281a.

by infant, its effect, 248 a.

of rent charge, what is, 161b.

of rent service, what, 160 b.

warranty by, what, 369 b.

feoffment by tenant for life or years is, 330 b.

by remainder-man for life, 276 a.

abatement, intrusion, deforcement, and usurpation distinguished, 276b.

if disseisin may be during imprisonment, 259 b.

occupation after claim a disseisin for which trespass lies, 257 a.

of a mill, what amounts to, 161 a.

diverting stream a disseisin of the mill, 161 a.

detainer when a disseisin, 161 b.

demand and non-payment is a denial, 153 b.

release to one disseisor enures not to other; contra of confirmation, 298a.

and usurpation is always in fee, 10 a.

effect of disseisor's death within year and day after disseisin, 256 a.

by joint tenants, 180 b.

of disseisin by agreement, 180 b.

of rent by forcible prevention of distress, 161 b.
DISSEISOR,

operation of feoffment by disseisor and disseisee, 302 b.

release to one of two disseisors enures to disseisee only, 275 b.

release to one of two carries the whole, 194 a.

not entitled to emblements though severed, 55 b.

if disseisor aliens and comes in again by descent or purchase, disseisee may
enter, 241 b.
DISTRESS,

precludes entry for condition broken ; contra of receipt or release, 211 b.

power of distress in gross good, 146 b.

in gross is a virtual rent-charge, 146b.

for damage feasant, how voidable, 161 a.

if the lord distrain off his own land, tenant may make rescous, 161 a.

distress in night allowed for damage feasant, not for rent, 142a.

for damage feasant, how voidable, 161 a.

of distress for rent service, 142 b.

clause of, amounts to new grant, 308 a.

rent due on last day of term cannot be distrained for, as term is then ended,
47 b.

what may be taken in, and what not, 47 a.

of live cattle, and pounds overt and covert, 47 b

it cannot be reserved in gross, 214 a.

demand at any time sustains, 202 a.

may be made before the time specified, 204 b.

power of, and entry operates how, 202 b.
DIVORCE,

different kinds of, 235 b.

effect of divorce on dower, 32 a. 326 a.

a mensa, what effect on dower, 33 b.

marriage with daughter of wife's sister good, 235 b.
DONATIVE,

origin of lay or donative benefices, 344 a.

entirely under patron's controul and visitation, but privilege lost by presenta-
tion, 344a.
DONOR AND DONEE,

definition of terms, 42 b,
DOVE-HOUSE, 53 a.

waste of, 200 b.

as to, held in common, 200 a.
DOWER,

is the wife's third of her husband's lands for her life, 30 b.

DOWER—continued.

three essentials to this estate, 30 b.

shall be taken of the improved value of the land, 32 a.

of the wife's age, 33 a.

the different sorts of dower, 33 b.

momentary seisin not enough, 31 b.

seisin in law sufficient, 31 a.

what issue necessary, 40 a.

the possibility of issue enough, though the wife be a hundred years old, or the

husband only four, 40 a.
the issue, if any, must be such as could inherit the husband's estate, 40 a.
marriage must continue, but seisin need not, 32 a.
voidable marriage cannot be annulled after the death of one party, 33 a.
effect of divorce on dower, 32 a.
not lost by a divorce a mensa, 33 b.
lost by a divorce a vinculo, 33 b.
disseisee may enter upon disseisor's wife's dower, for the wife is in by her

husband, not by his heir or by descent, 240 b.
lease for years or rent in tail by husband before marriage will not deprive wife

of, 32 a.
dowress takes discharged of what incumbrances, 32 b.
dowress must pay a third part of rent, 148 b.
is held free of taxes and crown debts, 31 a.
when it may be given by an infant, and when not, 38 a.
cannot be had of dower by descent; contra of purchase, 31a.
no dower of joint tenancy, 37 b.

wife of tenant in common cannot have dower set out, 37 b.
curtesy allowed of joint tenancy with several inheritances, but not dower, 30 a.
what of estate tail determined, 31b.
what of base fee determined, 31b.
as to dower of estate on condition, 221 a.
the land must be set out, 35 b.

dowress cannot enter till possession delivered by sheriff, 34 b.
assignment of, when necessary, 37 a.
when husband's alienees may assign, 35 a.
requisites to assignment of dower, 34 b.
assignment necessary when husband's estate is held in common, or the lands in

dower are not set out, 37 a.
when husband's alienees may assign dower, the one for the other of them, 35 a.
for what kinds the wife may have a writ of, 35 b.
writ of, incidents to, 32 b.

of the writ of dower, quarantine, and damages, 32 b.
quarantine lost by marriage, 34 b.
claim of election bars dower, 144 b.
dowress accepting rent-charge may still claim dower and have an apportion -

ment of the rent, 150 a.
estoppel by acceptance, either in pais or on record, 33 a.
estoppel by acceptance of jointure or dower, 36 b.
what kinds a woman may reject, 36 a.
release of dower to reversioner good, 265 a.
lease by tenant in tail revives by endowment of his widow, 46 a.
lease avoided by previous dower revives on its cessation, 46 a.
estate suspended by dower revives on dower ceasing, 42 a.
no dower of dower on descent, contra on purchase, or if the first dower be not

assigned, 31a.
of an exchange, 31 b.
allowed of bastard's estate escheated, 244 a.
of rent, 32 a.
of annuity, 32 a.
of appropriate advowson, 46 b.
of tithes, 32 a.
of common, 32 a.
castle, mansion, 31 b.
of mill, fair, fishery, &c. 32 a.
wife attainted of felony, effect of pardon, 33 b.
treason and felony, what effect on jointure and dower, 36 b.
wife an alien, effect of denization and naturalization on dower, 33b.
on husband's attainder wife endowable, though issue cannot inherit; e con-
verso on wife's elopement, 40 b.

DOWER—continued.

effect of husband's attainder on dower, 41 a.

husband alien or traitor no dower, contra of an ideot, outlaw or a felon, 31a.

not prevented by civil death of husband, 33 b.

effect of elopement and adultery on dower, 32 a.

Jewess entitled to dower, when, 31b.

alien queen, 31 b.

possessio fratris, how affected by dower, 15 a.

by custom may be made of the half or the whole, or a fourth only, 33 b,

by the custom of gavelkind may be made of a moiety, 33 b.

of gavelkind and borough-English lands, 33 b. 35 b.

of borough-English lands, 110 b.

ex assensu patns, is what, 35 a.

the endowment is by the son, of his father's land, 35 b.

heir must be heir-apparent, 37 a.

the son need not be of age, 35 b.

of lands in borough-English, 35 b.

the endowment is by the son, of what, 35 b.

must be of an estate in possesston; heir must be apparent, not presump-
tive, 35a. 35 b.

this dower may be of more than a third, 36 a.

wife may enter in father's lifettme, 35 b.

if fatherafter assent be attainted of treason or felony the wife loses it, 35 b.
at church door, what; the husband must be twenty-one ; it may be without

deed, 34 a.
widow may reject dower, ad ostium and ex assensu, and claim dower at com-
mon law, 36 a.
infant cannot give dower ad ostium, but he may ex assensu patris, 38 a.
de la plus beale, what, 38 a.
DRUNKENNESS,
what effect, 247 a.

ECCLESIASTICAL

division of England, 93 b.

what ecclesiastical bodies have capacity to take, 95 a.

sole corporations now disabled, 325 b 341 b.

powers of ecclesiastical corporations at common law, 300 b.

of leases by ecclesiastical persons, 44 a. 44 b.
EJECTMENT,

for ouster by companion in common, 199 b.
ELECTION,

claim of election bars dower, 144 b.

estoppel by acceptance of jointure or dower, 36 b. 173 a.
ELEGIT,

attaches goods and half lands, 289 a.

statute and elegit creditors have a chattel to hold as a freehold, 43 b. 42 a.

creditor same as lessee for years, 270 b.

creditor's remedy, if evicted by a prior title, 289 b.

survives to coparceners, 198 a.

release to elegit creditors good, 273 b.

creditor must attoin, 316 b.

how affected by warranty, 366 b.
ELOPEMENT,

effect of elopement and adultery on dower, 32 a.

on husband's attainder wife endowable, though issue cannot inherit; e con-
verso on wife's, 40 b.
EMBLEMENTS,

who entitled to emblements; tenant for life—husband seised jure uxoris ; joint-
tenants ; tenant pur auter vie—heir presumptive, 55 b.

concern the annual profits only, 55 a.

who are entitled to, 55 b.

tenant at will entitled to emblements, but not tenant for years, 55 a.

tenant by statute is entitled to, 55 b.

accrue where the corn is ripe but not cut, 55 b.

grass not emblements, 56 a.

derivative estates entitled to emblements, when, 55 b.

no emblements if estate determined by party's own act, 55 b.

EMBLEMENTS—continued.

lessees prevented from taking emblements; his remedy: action on the

case, 56 a.
disseisor not entitled to emblements though severed, 55 l>.
ENABLING AND DISABLING STATUTES,
comment on, 44 a.
nine requisites to, 44 a.
ENABLING STATUTES,

relate to corporeal not incorporeal hereditaments, 44 b.
copyholds are within enabling statutes, 44 b.
extend to what, 44 b.

do not extend to a parson or vicar, 44 b. p

lands must be anciently let, 44 b.
coparceners on petition may reserve half rent, 44 b.
lease must not be sans waste, 44 b.
ENGLAND,

ecclesiastical division of, 94 a,
ENTIRETIES, (Etialiby)

this estate does not arise except parties are man ami wife at the time, 187 b.
limitation to man and woman makes them joint tenants, though they after in-
termarry, 187 b.
husband and wife take but one moiety, and companion tho other moiety, and of

what they take they are tenants by, 187 a.
conveyance by man and wife joint tenant's estate taken back is held by, 187 b.
estate tail by entireties, how it arises, 25 b.
ENTRY,

necessary to exchange and partition, 266 b.

of one joint tenant or coparcener entry of both, 364 b.

husband's fine must be avoided by entry, 326 a.

to avoid a fine may be made by attorney or agent on an assent subsequent or

precedent, 258 a.
common law entry to avoid fine must lie within a year and a day; now five

years allowed, 262 a.
condition and conditional limitation distinguished as to grantee's right of enuv,

214 a.
separate conditions require separate entries for breach, 252 b.
entry into part in name of whole good for lands in that county; contra if the

disseisin or right of entry be several, or the lands be let to several

tenants for years, 252 a.
right of action or entry not grantable: champerty, what is, 214 a.
re-entry reservable to grantor and his heirs only, 214 a.
right of entry or action cannot be released to a stranger, 266 b.
clause of, makes a condition, 203 b.
release of all actions no release of right of entry, 286 a.
what amounts to an entry, interruption or claim, 245 a.
freehold reverts only on, 218 b.
for forfeitures, its effect on derivative estates, 233 b.
forcible, is what, 257 a.
power of, gives no estate in land, 203 a.

right of entry, how preserved to heir by continual claim, 250 b.
entry not tolled by descent during time disseisee is under duress, 259 a.
entry prevented for fear of injury, claim as near as may be equal thereto, 253 b.
fear of corpora] hurt or imprisonment sufficient, but cause must lie shewn; feat

of arson not enough, 253 b.
entry not necessary to bargain and sale, 266 b.
entry not necessary to surrender, 266 b.
difference of conditions annexed to freehold and terms for years, as ihey affeel

grantee's right of, 214 b.
lord in by escheat does not take away disseisee's entry, 240 a.
entry for condition broken is not taken away by tenant's death in possession,

240 a.
younger son's entry, abatement on eldest, and death, not a descent tolling

entry of eldest son, 242 a.
entry in law and in deed same in effect, 254 a.
party having right of, may either enter or bring action, 211b.
right of action and entry may be held in joint-tenancy, but not a right and an

estate, 188 a.
effect of general entry without saying for what land, 252b.
as to survivorship of right of, as between baron and feme and a stranger, 188 a.

ERASURE,

its effect, 225 a.
ESCHEAT,

causes of escheat and other forfeitures, 92 b.

happens for want of heirs, 13 a.

tenant by, is in by purchase, 18 b.

as to escheat of bastard's estate, 244 a.

dower allowed of bastard's estate escheated, 244 a.

lord's common not improved by escheats, 122 a.

lord by escheat may distrain for rent, but cannot enter for breach of condition,
215 b.

no escheat on dissolution of body corporate, land reverts to donor, 13 b.

of the mortgagor's death without heirs, 206 a.

lord in by escheat does not take away disseisee's entry, 240 a.

lost by the disuse of fealty, 90 b.
ESCROW,

what, 36 a.
ESCUAGE,

what it is, 68 b.

it is a tenure in chivalry, 73 a.

how assessed, 71b.

as to distress for, 73 b.

of the term of service, 69 b.

of substitutes, 70 a.

sub-lords when entitled to, 73 a.

socage and escuage distinguished, 87 a.
ESCUTCHEON,

belongs to heir, but executor has also a right of action for defacing it, 18 b.
ESTATE,

meaning of the word, 9 a.

embraces every thing in possession or remainder, 345 a.
ESTATE TAIL APRES.

this estate occurs only in special tail, 27 b.

privileges and disabilities of tenant in tail apres, 27 b.

this estate can arise only by act of God not by limitation or divorce, 28 a.

issue in special tail cannot become tenants in tail apres, 28 b.
ESTATE AT SUFFERANCE,

description of, 57 b.
ESTATE PUR AUTER VIE,

release to tenant pur auter vie gives an estate for his own life, 273 b.

warranty may be annexed to, 387 b. See further, Life Estate.
ESTATE TAIL,

why so called, 22 a.

origin of, 18 b.

what may and what may not be entitled, 19 b.

if both ancestors named, they both take an estate tail, 26 a.

the ancestor not named takes nothing, 26 b.

the ancestor from whose body the issue are to proceed, takes the estate tail, 26 a.

as to tenure of estates tail, subinfeudation what, 23 a.

tenure in tail is of donor, 22 a.

four incidents to, 224 a.

tail general, what, 19 b.

special tail, what, 20 b.

special tail after general, bad, [but not c contra], 28 b.

male or female, good, 24 b.

in gift to A. and his eldest heirs female, female is rejected, 27 b.

what words of procreation necessary, 20 b.

half blood applies not to estates tail, 15 b.

heirs male or female, gives tail general, 25 b.

what words essential to create estate tail in deeds, 20 a.

seed, issue, children, give what estates, 20 b.

to A. and his heirs on the part of his, 27 a.

to wife and her heirs husband &c. they take by purchase and she only a life
estate, 26 b.

limitation to man and woman unmarried, gives what estate, 20 b.

by entireties how it arises, 25 b.

heirs female of the body of the father, a life estate, 26 b.

to one heir and his heir only, construction of gift, 22 a.

gift to A. and his heirs female good, but gift to the heirs female of A. bad,
24 I).

Tt H

ESTATE TAIL—continue,!.

"heirs male" gives a fee, in letters patent nothing, but in will '* heirs male"

gives an estate tail, 27 a. to A. in tail, remainder to his heirs female, gives A. a remainder in female tail,

and not a tail general, 376 li. to A. and the heirs of the body of his father, an estate tail, 26 b. entail may be to other than to the donee's issue, 20 b. effect of word begotten, in past, present, and future tenses, 20 b. what conditions on estates tail good, 223 b.

descent of tail male, with remainder in tail female, and vice versa, 25 b. gift in tail to man and woman not married how, 25 b. descent of estate tail female, 25 a.

of conditional fee in nature of estates tail at common law, 19 a. none of joint-tenancy, 189 b. construction of gift by one coparcener to her sister and the heirs of the body of

her father, 26 b. partition of estate tail binds issue, 173 a. reversion on estate tail a cypher, 172 b. what conditions on, good, 223 b. with reversion in crown, are not now barrable, 372 a. tenant in tail forfeits for life only for felony, absolutely for treason, 392 b. devise of gavelkind to A. and his eldest heirs, " eldest rejected." 27 a.
not devisable in borough English, Ilia,
tenant in tail cannot jointure by common law or statute, 38 a.
rent-charge by tenant in tail and him in remainder, how it enures, 45 a.
issue recovering land cannot take advantage of release to discontinue, 266 a.
tenant in tail's lease for years and life, distinguished as to discontinuance,

334 a. tenant in tail's lease with livery, always a discontinuance, 336 a. lease by tenant in tail voidable, and eonfirmable by acceptance of rent, 46 b. lease in tail rendering rent, release to lessee disseised extinguishes rent, but

passes nothing in reversion, 268 b. tenant in tail leases for life to his eldest son (of age); remainder to his second

son, a remitter to the second not to the eldest son, 358 b. exposition of statute 34. H. 8. c. 20. The estate tail and remainder must

both be created by the king, 372 b. tenant in tail's lease for life and grant of reversion a discontinuance, if rever- sion falls in his lifetime, 333 a. lease by tenant in tail; revives by endowment of his widow, 46 a. tenant in tail makes a lease for life, then grants away reversion, this a discon- tinuance if lessee dies in tenant in tail's lifetime, 333 b. lease according to statute no discontinuance, 333 a.
feoffment on condition by tenant in tail who after becomes apres, 202 a.
tenant in tail enfeoffs his son and another who dies, a remitter if son assent not

to the deed, 359 a. tenant in tail's feoffment to his son defeated on his death, 348 a. feoffment of tenant in Uil's discontinuance, 327 b. tenant in tail's feoffment to reversioner no discontinuance, contra if there be an

intermediate remainder, 334 b. tenant in tail's feoffment divests estate tail; now otherwise as to jointures,

326 b. tenant in tail's feoffment to issue a remitter, 351 b.

tenant in tail's release no discontinuance, neither is his confirmation, 329 b. tenant in tail's release to disseisor puts right to the freehold in abeyance during his life, also reversion on the grant, so that he has no remedy for waste, 345 a. estate tail alienable in fee, 343 b. fine bars an estate tail, but not a remainder, 372 a. fine no bar to entail where recovery cannot bar remainder, 372 b.
lessor (in tail) by levying fine has new reversion, 215 a.
common recovery a bar in Littleton's time to estate tail and remainder, 372 b.
tenant in tail's death aftei judgment in recovery immaterial, 361 b.
condition that tenant in tail shall not alien except for his own life, good, 223 b.
condition that tenant in tail shall not suffer recovery, bad, 223 b.
condition in restraint of general alienation, bad, 224 a.
estate tail, how barred by collateral warranty, 372 a.
no discontinuance of estate tail whereof the party was never seised, except by

means of warranty, 338 b. tenant in tail must lie party or privy to the act which excludes collateral nir- rantv and disseisin, 373 a.

ESTATE AT WILL,

description of, 55 a.

heirs rejected in limitations of, 62 b.

the will must be at the option of both parties, 55 a.

what amounts to a determination of, 55 b.

marriage of lessor or lessee no determination to, 55 b. See Will, Estate of.

death of one lessor or lessee, if there be two, no determination of will, 55 b.

only passes by feoffment without livery, 56 b. ESTOPPEL,

different kinds of, "226 b.

etymology of estoppel, 37 a.

well exemplified, 170 a.

estoppel of leases, 45 a.

what, by acceptance of lease, 185 a.

by acceptance either in pais or on record, 33 a.

tenant may shew that his landlord hath nothing in the tenements if lease by parol, contra if by deed, which is an estoppel, 47 b.

aoctrine of, fully exemplified, 47 b.

estoppel binds collateral heir, 12 a.

nine rules on estoppels; privies in blood, estate and law defined, 352 a.

warranties favoured estoppels odious, 365 b.

by writing, and in pais defined, 352 a.

deed poll no estoppel to taker. 363 b. ESTOVERS,

what kind of, incident to estate for life, 41b. ESTRAY

as to, on lands held in common, 200 a. EVIDENCE,

{>rofert required of all deeds pleaded, 121 a. etters patent, what sufficient, evidence of, 225 b.

inrolment of deed, what evidence, 225 b. EXCEPTION,

reservation and exception distinguished, 47 a. EXCHANGE,

requisites to, 51 b.

entry essential to exchange in parties' lifetime, 50 b. 266 b.

five requisites to an exchange, 51b.

'give' ' grant' ' exchange' create a warranty, 383 b.

what may be exchanged: rent for lands, but not an annuity, 50 b.

estates must be equal, 50 b.

life estate not exchangeable for fee tail, nor tail general for tail special, 50 b.

fee tail not exchangeable for fee simple, 50 b.

joint tenants may exchange with tenants in common or tenants in seve- ralty, 51 a.

of things lying in grant must be by indenture, 50 a.

if in two counties, or of incorporeal hereditaments, a deed requisite, 50 a. b.

exchange of lands in same county good by parol, [contra now by statute frauds], 50 a.

of lands jure uxoris, 51a.

by infant, not void but voidable, 51 b.

with king good, 51 a.

defective title makes exchange voidable only, not void, 51 a.

entry necessary to exchange and partition, 266 b.

of dower on exchange, 31 b.

what may pass by, 50 b.

exchange gives the fee, 10 a.

partition and exchange distinguished as to owelty rent, 169 a.

warranty on partition and exchange distinguished, 174 a.

exchange no discontinuance, 332 b. EXECUTION,

action and execution distinguished, 289 a.

release of action no release of execution, 289 a. 291 a.

release of suits includes executions, 291 a. EXECUTORS,

power to sell, how construed, 181 b.

concurrence of renouncing executors not necessary by statute, 113 a.

devise to them to sell enables them to make a feoffment, 112 b.

when a feoffment is made by them under a power of sale, the feoffee is in by devisor, 113 a.

EXECUTORS—continued.

devise of land to be sold by executor; if he doe* not sell within reasonable

time [two years] heir may recover, 235 b. devise to executor to sell, and devise that executor shall sell, distinguished,

236 a. devise to executors till debts paid gives them but a chattel, 42 a. surviving, when they may exercise a general power of sale, 112 b. term of years goes to executors, not to heirs, though so limited, 388 a. limitation of land to A's executors vests in him when, 54 b. assigns cannot be of the estate, 210 a. heir cannot perform condition unless he is mentioned, or a day be appointed

for payment, then he or they may tender, 208 a. allowed reasonable time to remove their goods from the premises, 56 a. may now bring an account, 89 b. remedy for rent by executors of tenant for life, 162 a. remedy for rent, 162 b.

mesne profits till sale not assets, unless made so, 113a. or heirs, may perform condition when, 210 a. may redeem, 205 b.

assent necessary to bequest of chattels, contra as to freeholds, Ilia, heir may plead release to executors. 232 a.

rent nomine pcenae descends to heir, but arrears belong to executors, 162 b. executor may release before probate, 292 b. are not always charged with rent, 146b.

are bound in a bond, though not named, contra of heirs in a feoffment 209 a. renouncing cannot purchase, 113 a. obligee made executor a release, 264 b. feme executrix marrying debtor no release, 264 b. i and elegit creditors must attorn, 315 b. EXTINGUISHMENT,

power and condition distinguished as to extinguishment in part of land, 215 a.

FAIR,

dower, how taken of mill, fair, fishery, advowson, tithes, Sec. 31 b. FARM,

what passes by the name of, 5 a. FEALTY,

who shall do, 67 a.

who may take, 67 a.

how performed, 67 a.

in socage, what, 93 a.

tenants for life and years hold by fealty, but not tenants at will, except copy- holders, 93 a.

is an inseparable incident of tenure, 93 a.

importance of, 67 a. 91 a.

escheats lost by the disuse of, 90b.

alienee of estate in frankalmoign holds by fealty, 98 a.

frankmarriage and frankalmoign distinguished as to fealty, 97 b. FEE,

what, 1 b.

means fee-simple, 189a.

fee-simple the largest estate a man can have, 18 a.

different kinds of, 1 b.

in what a man may have, 2 a.

to A, or heirs only, a life estate, 8b.

to one for ever, gives in a will, 9b.

to A. and his assigns for ever, gives a fee in a will, 9 b.

heirs male, 13 a.

heirs male gives a fee; in letters patent nothing: but in will heirs male gives an estate tail, 27 a.

tenant to have fee on payment of a sum, if with livery he has the fee subject to be divested on non-payment, 216 b.

children born, take jointly with parents when, 9 a.

to A. or his heirs, gives life estate, 8 b.

heir in singular number gives no fee, 8 b.

heirs on the part of the wife, gives what estate, 13 a.

sole corporations takes the fee by the word successors only, 8 b.

FEE —continued.

fee passes by limitation to corporation aggregate, without heirs cr successors, 9 b.

may pass by periphrasis, 9 b.

upon a fee bad, 18 a.

devise to A, he paying 201. to B. a condition, and if he does not pay, heir may

enter, 236 b. to hold for ever a fee, 322 b. condition precedent; tenant for years to have fee on payment of a sum good,

if with livery, 216 a. condition that lessee shall have fee cannot depend on lessor's grantine reversion,

378 b."

limitation to heirs a materna void, 13 a. condition to pay a gross sum, gives a fee in a will, 9 b. recovery conveys a fee without word heir, 9 b. partition gives the fee, 10 a. confirmation of rent carries fee, when, 308 a. release conveys a fee without word heir, 9 b. fine conveys a fee without word heir, 9 b.

two deeds of same land; one in fee, other in tail, how construed, 21 a. of glebe is an abeyance, 342 a. disseisin and usurpation is always in fee, 10 a.

qualified fee and fee-simple incompatible, if raised by act of party, 18 a. of moveable fee-simple, 4 a. by right and wrong distinguished, 2 a. FEE FAKM RENT,

what; and though distress not incident to, feoffor is entitled to a writ of annuity,

if grant be by deed, 144 a. FELON,

may purchase land, 2 b.

husband, alien, or traitor, no dower; contra if an ideot, outlaw, or felon, 31 a. felons attainted, cannot be freeholders, 2 b. FELONY,

its effect, 8 a.

what felonies occasion a forfeiture of lands and goods, 391 a. forfeiture for felony relates to the day of offence, 390 b. what effect on jointure and dower, 36 b. warranty destroyed by attainder for felony, 390 b.

tenant in tail forfeits for life only for felony, absolutely for treason, 392 b. FEMALE.

complete heir can only take under a limitation to heirs female, 164 a. See

Estate Tail. FEME COVERT,

may purchase land, 3 a.

may not take any thing of the gift of her husband, 3 a. unequal partition binds not feme covert, 170b.

but equal partition binds feme covert, so does partition by writ, 171a. conditions in law, how binding on, 233 b. of homage by, 65 a.

laches no prejudice to feme covert or infant, except as to conditions, 24fi li FEOFFMENT,

meaning of the word, 9 a.

qualities of, 9 a.

antiquity of, 9 a.

what passes by, 9a.

by parol, 190 b.

by deed poll good, 52 b. 230 a.

by tenant in tail, discontinuance, 327 b.

tenant in tail's feoffment divests estate tail—now otherwise as to jointures,

326 b. tenant in tail's feoffment, &c. divests reversion and remainder, which is not

altered by any statute, 326 b. by tenant for life or years a disseisin, 330b. by tenant for life, and remainder-man's fine, operates how, 3!)2 b. to remainder-man no discontinuance, 335 a. by tenant for years passes a fee, 367 a.

husband, wife, and stranger joint-tenants, effect of husband's feoffment, 327 b. by joint-tenants; effect, if feoffment by joint-tenants being infants, 337 a. effect of infant's feoffment, 248 a. by minor seised jure ujroris, no discontinuance, 336 b. by guardian binds not heir, 367 b.

by one joint-tenant to companion and stranger, if a discontinuance, 335 a.

FEOFFMENT—continued.

by warranty by one joint-tenant no bar to the other, though he be feoffee's son and heir, 366 b.

to three, one waives the estate, he is still in by survivorship, 359 b.

by feoffees, and cestuique use, 302 b.

release of right not a discontinuance; contra of feoffment, which passes free- hold or release with warranty, 328 a.

by disseisor's heir and disseisee, operates how, 302 a.

to will and feoffments to uses was appointed by will, distinguished. 271 b.

not conformable before livery; contra of grant before attornment of the re- straining statutes, 301 a.

livery of part for all good, except feoffment be by deed, and lauds are in different counties, 50 a.

feoffor out of possession, nothing but livery will avoid estate by wrong, 49 a.

and release distinguished, as to tenants in common, joint-tenants, and co- parceners, 200 b.

possible and impossible conditions in bond, and distinguished, 206 a.

clears all disseisins, 9 a.

release, feoffment, and warranty, distinguished, 265 b.

before statute 2 E. feoffee held of feoffor, 143 a.

condition on bond and feoffment distinguished, 208 a.

deed poll belongs to feoffee; and quere, if feoffor, though he has it, can plead it, 231a. FIERI FACIAS,

what, 290 a.

must be. sued within a year and a day, 290 b. FINE,

bars an estate tail, but not a remainder, 372 a.

no bar to entail, where recovery cannot bar remainder, 372 b.

tenant for life, and remainder-man's fine or feoffment, operates how, 302 b.

taken before a party bad, 141 a.

conveys a fee without word '.heir,' 9 b.

five years allowed to avoid, 262 a.

of things lying in grant, no discontinuance, 332 a.

entry to avoid a fine may be made by attorney or agent, on an assent subsequent or precedent, 258 a.

if husband and wife seised in special tail levy a fine to use of themselves in fee, wife remitted, 353 b.

nonclaim at common law ran against feme covert and reversion; contra now, 262 b.

concludes wife as to estates given, but not as to estates taken, if separately examined, 353 b.

husband's fine must be avoided by entry, 326 a.

executor's fine, no discontinuance, 333 b.

of reversion, no discontinuance, when, 332 b. FIRE,

accidental fire is waste, 53 b. FISHERY,

passes what, 4 b.

grant of, will not pass the soil, 4 b.

dower how taken of, 31 b. FIXTURES,

wainscot and, of waste in, 53 a. FOLD COURSE,

by the grant of, what passes, 6 a. FORCIBLE ENTRY,

what, 257 b.

writ of, lies with treble damages, 257 a. FOREST

includes what, 5 b.

park and chase what, 232 b. FORFEITURE,

causes of, 92 b.

alienation when a forfeiture of life estate, 251 a.

tenant for life, recovery a foifeiture and discontinuance, when, 362 a.

tenant for life's lease for life a forfeiture, 252 a.

tenant for life accepting fine a forfeiture, 252 a.

tenant for life's feoffment to remainder-man and stranger, a surrender and

• forfeiture, 335 a.

remainder-man divested by fine may still enter for the forfeiture, 252 a.


FORFEITURE—continued.

and now by statute, grantees of reversion may take advantage of re-entries and
forfeitures, 215 a.

entry for, its effect on derivative estates, 233 b.

none of incorporeal hereditaments, contra as to tenants for years, remainder in
king, 251 b.

sale of a right or title without possession incurs a forfeiture of treble value, 369 a.

penal, what felonies occasion a forfeiture of lands and goods, 391 a.

goods forfeited on conviction, lands on attainder, 391 a.

for felony relates to the day of offence, 390 b.

conviction for piracy works no forfeiture except when, 391 a.
FORMEDON,

three kinds of, 326 b.
FRANKALMOIGN,

what it is, 93 b.

who may take in, 95 a.

alienee of estate in, holds by fealty, 98 a.

cannot be created at this day, except by licence from the crown, 98 b

division of spiritual tenures, 95 a.

tenure in is of donor, 99 a.

of what the service in consists, 95 a.

may be created by licence from the crown, 98 b.

what ecclesiastical bodies have capacity to take in, 95 a.

of the service at this day, 95 a.

and frankmarriage distinguished as to fealty, 97 b.

no distress for non-performance of service, except for divine service incertain,
96 b.
FRANKMARRIAGE,

four requisites to, 21 a.

gift in, gives an estate tail, 9 b.

does not apply unless descent be from some ancestor, 178 b.

disused since stat. West. 2, 178 a.

and frankalmoign distinguished as to fealty, 97 b.

is an advancement, 176 a.

no hotchpot where lands descended are of equal value, 178 b.

mode of partition on bringing into hotchpot, 177 a.

free to the fourth degree, 21 b.

four degrees in, how counted, 23 a.
FRAUDULENT

conveyance what, 3 b.
FREEHOLD,

and less than freehold distinguished, 42 b.

and chattel distinguished, 43 b.

if moveable, fee-simple, 4 a.

seised and possessed distinguished, 200 b.

when a freehold may pass without livery, 49 a.

husband gains by marriage, 351 a.

condition to defeat must be in writing, contra as to chattels real, 225 a.

of glebe during vacancy in abeyance, induction a seisin in deed, 342 b.

in occupancy and fee of contingent remainder are in abeyance, 342 b.

confirmation to termor carries, when, 307 b.

confirmation cannot be confirmed for part of estate, 297 a.

two in possession, freehold adjudged in the one having right, except as to
bastard eigne and mulier puisne, 368 a.
"FROM"

and " after" distinguished as lo commencement of Term, 45 b.
FRUIT TREES,

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GAVELKIND,

custom of, what, 140 a.
explanation of term, 10 a.
exists principally in Kent, 140a.
as to curtesy of gavelkind lands, 29 b.

as to dower of gavelkind and borough-english lands, ex assensu fratris, 35 b.
devise of to A. and his eldest heirs, eldest rejected, 27 a.
right heir means who, 10 a.
warranty of lands in descends to who, 386 b.

"GIVE

and grant" good words of confirmation, 301 b.
creates a warranty, 383 b.

and grant include all other words, but other words operate only as tbey import,
301 b.
GLEBE,

parson is seised of the church and glebe, 300 a.
fee-simple of is in abeyance and why, 340 b. 242 b.

freehold of, during vacancy in abeyance, induction a seisin in deed, 342 b.
reason why parson may charge his glebe in perpetuity with assent of patron and
ordinary, 343 a.
GOODS

forfeited on conviction, lands on attainder, 391 a.
GRAMMAR,

bad vitiates not the deed, 146 b.
GRAND SERJEANTY,

what it is, incidents to, 105 b.
if he may make a deputy, 107 a.
of ward, marriage, relief, &c. in, 107 b.
GRANGE,

what passes by the name of, 5 a.
GRANT,

what, 9 a.

who may and who not, 42 b.

de novo and assignment of thing granted distinguished, 85 a.

created a warranty, 383 b.

"give and grant' include all other words, but other words operate only as they

import, 301 b.
"give and grant" good words of confirmation, 301 b.
same word may operate both as a grant and confirmation, 302 a.
general, gives what estate, 42 a.

reservation can only be to grantor and his heirs, 213 b.
and reservation distinguished as to apportionment on eviction by elder title,

148 b.
of reversion no discontinuance, but limitation of remainder may be, 333 b.
general, when made by tenant in tail, then it is for grantor's life, 42 a.
first grant, last will, 112 b.

things lying in, cannot be surrendered without deed, 338 a.
of reversion with warranty no discontinuance, 333 b.
reservation is a, 170 a.

with warranty a discontinuance, if issue bring formedon, 332 b.
GRANTEE

by sealing deed, makes it his though no party, 230 b.
GRASS

not emblements, 56 a.
GUARDIAN,

may enter for condition broken, 215 b.

holding over an abator, 271 a.

(or trustee) forfeits nothing by outlawry or attainder, 88 b.

feoffment by binds not heir, 367 b.

if a stranger occupies, he is a guardian and must account, 89 b.

in chivalry, who, 85 a.

must account to infant at fourteen, 89 a.

accountable for laches, 89 b.

reasonable expenses and losses allowed, 89a.

may redeem mortgage, 206 b.

cannot present to acivowson, 89 a.

in socage, 87 b.

in equal degree, who preferred, 88 a.

father is when, 88 b.

mother is when, 88 b.

guardianship of mother survives not to her husband, 88 b

of tenant in tail, who is, 22 a.

prochein amy must be of the blood, 88 a.

different sorts of, 88 b.

some incorporeal hereditaments lie not in tenure, and of these infant may elect

his guardian, 87 b.
elder half-brother cannot be to younger brother in borough English, 88 b.
11.

HABENDUM,

its office, 6 a.

explains premises, 183b.

may enlarge, but cannot abridge premises, 299 a.

premises overrules the operative part, 183 a.

two deeds of same land, one in fee, other in tail, how construed, 21a.
HALF BLOOD,

applies not to estates tail, 15 b.

or descent of crown, 15 b.
HEATH,

grant of, passes the soil, 4 b.
HEIR,

who is, 7 b. •

incompetent persons may be heirs, 8 a.

chattels cannot go to heir or successors, 190 a.

successors are in post, heir in the per, 250 a.

to a man and his neirs, in the singular number gives what estate, 8 b.

nomine poena? descends to heir, but arrears of rent belong to executors, lb'2 b.

complete heir only can take under a limitation to heirs female, 164 a.

ancestor bears all his heirs in him, 22 b.

includes all heirs, 9 a.

heir may plead release to executors, 232 a.

the word " heir" not necessary in a fine sur conusance, &c. 9 b.

"heirs " not necessary in release from one joint-tenant or coparcener to com-
panion, 273 b.

necessary in exchanges and confirmations, 16 a.

not necessary in a will to pass an estate of inheritance, 9 b.

cases where the fee will pass in a will without the word " heir," 9 b.

case where " heirs" not necessary in a feoffment, 9 b.

limitation to him or his, gives what estate, 8 b.

"heirs" not uecessary in the creation of a dignity, otherwise than by patent, 9 b.

not necessary in a recovery, 9 b.

in a gift in frank-marriage, 9 b.

when not necessary in a release, 9 b.

term of years goes to executors, not to heirs, though so limited, 388 a.

devise that executors sell, they may make a feoffment, but heir takes till sale,
112b. f

devise of land to be sold by executor, if he does not sell within reasonable time,
two years, heir may recover, 235 b.

heirs includes assigns in deed and in law, but not in a power, 215 b.

heir's entry upon demise, 240 b.

executors are bound in a bond though not named; contra of heirs in a feoff-
ment, 209 a.

cannot perform condition unless he is mentioned, or a day be appointed for pay-
ment, then he or the executors may tender, 208 a.

heirs or executors may perform condition, when, 210 a.

entry into part sufficient, 15 a.

of his entry by guardian, 15 a.
IIElll APPARENT,

description of, 8 b.

who and what he is, and of his rights, 8 b.

may be heir and inherit, 8 a.

uncle's title defeated by posthumous heir, 11 b.
HEIR LOOMS,

what are. 8 a.

reason why they pass not if expressly devised, 185 b.

of heir's action for, 18 b.
HERBAGE,

passes what, 4 b.
"HEREAFrER HAVE."

These woids are useless in a release, as no one can convey a right which he has
not at the time, 265 a.
HEREDITAMENT,

meaning of the word, 6 a.

lands, tenements, and hereditaments, distinguished, 2 a.

corporeal and incorporeal distinguished, 9 a.

HERIOT SERVICE,

indivisible aud extinct by lord's purchase of part of land; contra of lienot cus-
tom, 149 b.
HERMAPHRODITE,

ma; purchase land, 3 a.

cannot inherit, 8 a.
HIS,

"his" and '• the " distinguished, 27a.
HOMAGE,

what it is, 64 a.

manner of doing it, 64 a.

who may perform homage, 66 b.

once performed endures for the tenant's life, 103 b.

of homage by infants, 65 a.

by feme covert, 65 a.
by corporation, 66 b.
HOMAGE ANCESTRAL,

this tenure is where lord and tenant have both immemorial!}' held by descent,
100 b.

how affected by alienation, 103 a.
HONOUR,

includes what, 5 a.
HOSPITALS,

ancient hospitals not dissolved with monasteries and learning respecting the
same, 342 a.

master of hospital cannot discontinue, 347 a.

may maintain writ of right, 340 b.
HOTCHPOT,

explained, 176 a.

does not apply unless descent be from same ancestor, 178 b.

no hotchpot where lands descended are of equal value, 178 b.

right of hotchpot descends to issue, 178 a.

mode of partition on bringing frank-marriage into hotchpot, 177 a.

its effect on partition, 176 a.

does not hold when lands are entailed, 179 b.
HOUSE,

includes what, 56 a.

curtilage, orchard, and garden, 56 a.

of waste in, 53 a.

remedy for contribution to repairs of, 200 b.
HUSBAND,

may devise to his wife, 112 a.

but his conveyance to his wife bad, unless when, 112 a.

wife cannot devise to him, 112 b.

wife having power of sale may appoint to him, 112 a.

of his interest in his wife's chattels real, 299 b.

his fine must be avoided by entry, 326 a.

seised jure uxoris, capable of release or confirmation in fee, 299 a. See Bann
and Feme.

I.

IDEOT,

ideot's feoffment, fine, or recovery, what value, 247 a.

any person may redeem mortgage for an, 206 b.

if wife dies an ideot, curtesy lost, 30 b.

but dower allowed his wife, 31 a.

descent cast during idiotcy or lunacy, no effect against heir, if non compos,
246 b.
IMPROPRIATE TITHES,

are now temporal inheritances, 159 a. See Tithes.
INCOMPETENT PERSONS,

may inherit, 8 a.
INCORPOREAL HEREDITAMENTS,

lie in grant and pass by deed only, 9 a.

corporeal cannot be appendant to corporeal or incorporeal hereditaments, 121b.

livery is to corporeal, same as delivery of deed is to incorporeal hereditaments, 49 a.

rent not reservable out of incorporeal hereditaments, for there can be no dis-
tress, 46 b.

INCORPOREAL HEREDITAMENTS—continued.

rent not grantable out of incorporeal hereditaments, 01 on the release of a right,

144 a.
some incorporeal hereditaments lie not in tenure, and of these infant may elect

his guardian, 87 b.
grant de novo, and assignment of thing granted, distinguished, 85 a.
INCUMBRANCE,

remainder man must take cum onere if at all, 231, 231 a.
entry for condition defeats feoffee's incumbrance, 222 a.
INDENTURE,

what, 143 b. 229 a.
indenture tripatite, &c. 229 a.

in first person, 230 a.
deeds poll and indentures distinguished, 229 a.
indenture should be on parchment or paper, 229 a.
INDUCTION,

a seisin in deed, 342 b.
INFANT,

may purchase land, 2 b.

at what age infant may make will of personalty, 89 b.

powers of men and women at different ages, 78 b.

may be steward, 3 b.

of the disability of infants, 471 b.

in what cases infant may bind himself, 172 a.

effect of infant's feoffment, 248 a.

infant's feoffment never prejudicial to himself or others, 337 b.

infant's feoffment voidable, but his warrantry void, 367 b.

void and voidable acts of infant distinguished, 171 a.

may agree or disagree to their purchases when of full age, 2 b.

infant's lease voidable only, 308 a.

lease by infant at fifteen good, 45 b.

effect of infant's release, 264 b.

recovery on account of infancy or lunacy, the party is in by act of law, not by

his own act, 150 a.
infant's acts of record binds heir, if not avoided during minority, 379 b.
effect, if feoffment by joint-tenants being infants, 337 a.
feoffment by minor seised jure uxoris no discontinuance, 336 b.
advowson, infants must present within six months, 245 a.
conditions in law, how binding on infants and feme covert, 233 b.
cannot give dower ad ostium, but he may ex assensu patris, 38 a.
heirs in borough-English or special tail may take advantage of ancestor s in-
fancy, 337 b.
descent during infancy no avail, except as to infants in ventre sa mere, 245 a.
of homage by, 65 a.

exchange by, not void but voidable, 51 b.
bound by partition, when, 171 a.
feoffment by guardian binds not heir, 367 b,
some incorporeal hereditaments lie not in tenure, and of these infant may elect

his guardian, 87 b.
infant not affected by laches or negligence, 380 b.
prochein amy must be of the blood, 88 a.
disseisin by, its effect, 248 a.

who may take advantage of their ancestor being such, 337 b.
INROLMENT,

of deed, what evidence, 225 b.
records and inrolments prove themselves, 117 b.
INSTALMENTS,

bond or recognizance for, when broken, 292 b.
INSTITUTION,

admission and plenarty, by whom triable, 344 a.
INTERLINEATION,

its effect, 225 a.
INTERESSE TERMINI,
defined, 51b.
release to, good, 46 b.

extinguishes the rent, though it enlarges not the estate, 270 a.
how to be surrendered, 338 a.
no confirmation of interesse termini, 296 b.
a right, or interesse termini cannot be surrendered, except by taking fresh lease,

338 a.
may be granted over, 270 b.

INTEREST.

includes what, 345 b.
INTERRUPTION,

what amounts to, or claim, 245 a.
INTRUSION,

disseisin and abatement distinguished, 243 a. 276 a.
IRELAND,

what English statutes affect, 141 b.

abolition of Brehon law, and substitution of English law, 141 a.
1LE,

includes what, 5 a.
JOINT-TENANTS,
who are, 180 a.

of the seisin per my et per lout, 186 a.
no joint-tenancy of freehold and chattel, 188 a.
extends to bonds and covenants, 182 a.
none of estate tail, 189 b.

no joint-tenancy of possession and reversion, 188 a.

right of action and entry may be held in, but not a right and an estate, 188 a.
between king and subject, 190 a.
of the privity and unity of joint estates, 169 a.
unity of time, 188 a.
of the survivorship, 181 a.

survivorship extends to chattels real and personal, 181 b.
must continue to instant of death to give survivorship, 188 a.
no dower of joint-tenancy, 37 b.

curtesy allowed of joint-tenancy with several inheritances, but not dower, 30 a.
survivor claims paramount, 185 a.
will of joint-tenant void, 185 a.
gift to two and heirs of one gives what estate, 184 a.
to two women and the heirs of their bodies, 183 a.
gift to two women, or to man and woman, who are prohibited from marrying,

same as gift to two men, 184 a.
limitation to man and woman makes them joint-tenants though they after

intermarry, 187 b.
remedy for contribution to repair of houses and mills, 54 b. 200 b.
rent-charge made good by release to companion in, 185 a.
how they may take advantage of condition, 186 a.
no joint-tenancy of politic with natural body, 190 a.
between two bishops, 190 a.
between two parsons, 190 a.
gift to natural and corporate persons jointly, 190 a.
survivorship of right of entry, as between baron and feme and a stranger,

188 a.
as to reversion of, 182 b.
reversion part of old estate, and how joint-tenancy may be created therein, and

in ultimate remainder, 183 b.
charge preferred to survivorship, contra of alienation, 185 a.
what if one an alien, 186a.

conveyance by one passes only a moiety though he survive, 186 a.
two femes, joint-tenants of a term, marriage of one no severance; contra of

personalty, 185 b.
husband, wife, and stranger joint-tenants; effect of stranger's release, first to

husband, second to wife, 193 b.
husband, wife, and stranger joint-tenants, effect of husband's feoffment, 327 b.
term held by two femes in joint-tenancy, marriage of one no severance, 185 b.
alienation by one of three, 189 b.
alienation in tail by one, 189 a.
lease by in fee a severance pro tanto, 185 a.
lease by joint-tenants, reserving lent to one, 47 a.
one may lease to his companion, 186 a.
lease by one for life binds survivor, and is a severance pro tanto, but no further,

186 b.
what estoppel by acceptance of lease, 185 a.

lease for life by one, a severance of the jointure in the reversion, 191 b.
lease for life by both a severance of the reversion, when, 191 b.
lease for life by both no severance of jointure, 192 a.
effect of one joint tenant's lease for his own life, 193 a.
for years under-lease by one, severance of whole jointure, 192 a.
lease and rent-charge by distinguished, 186 a.
of a term, what charge oi lease of one binds survivor, 184 b.

JOINT-TENANTS—continued.

for lives, disadvantage of severance, 191 a.

Shelley's case how applicable to joint-tenants for life, 182 a.

gift to two and heirs of one, how executed, 184 a.

for lives, with several inheritances in tail as tenants in common, how they hold,
182 a.

claim of one joint-tenant enures to survivor, 252 a.

remainder to one good, 192 b.

surrender to one good, 192 a.

joint-tenants may exchange with tenants in common or tenants in severalty,
51a.

actions real and personal distinguished as to, 197 b.

entry of one joint-tenant or coparcener entry of both, 364 b.

rescous by one joint-tenant makes both disseisors, 161 b.

of rent, 180 a.

as to advowson of, 190 b.

reservation as to joint-tenant generally enures to both, 214 a.

of disseisin by, 180 b.

of waste as to, 53 b.

action of waste by one against the other companion, 200 b.

waste, joint-tenants for life, remainder in fee to one of them, 247 b.

as to grant of way by one of two, 185 a.

survivorship no place as between merchants, 182 a.

as to partition of, 187 a.

of compulsory partition of, 187 a.

warranty destroyed by partition, 187 a.

feoffment by one joint-tenant to companion and stranger, if a discontinuance,
335 a.

feoffment with warranty by one joint-tenant no bar to the other, though he be
feoffee's son and heir, 366 b.

"heirs" not necessary in release from one joint-tenant or co-parcener to com-
panion, 273 b.

three joint-tenants; effect of release by one to one companion, 193 a.

confirmation by one joint-tenant to his companion nugatory without word
"heirs," 298 b.

remitter as between joint-tenants, 364 a.

one joint-tenant &c. may compel the other to contribute to repairs, 54 b. 200 b.

crown debts bind them, when, 185 a.

judgment binds, when, 184 b.

effect of feoffment by them while infants, 337 a.

if alien and subject purchase lands, they are, 180 b.

how affected by estoppel, 185 a.

of entry by, for condition broken, 186 a.
JOINTURE,

before and after marriage distinguished, 36 b.

six requisites to jointure, 36 b.

construction of statute* of jointures, 326 a.

election when binding, 173 a.

estoppel by acceptance of jointure or dower, 36 b.

treason and felony what effect on jointure and dower, 36 b.

tenant in tail's feoffment divests estate tail; now otherwise as to jointures, 326 b.

how far barred by fine, 36 b.

at the common law, what, 34 a.

tenant in tail cannot jointure by common law or statute, 38 a.
JUDGE,

no man can be his own judge, 141a.
JUDGMENT,

final and interlocutory distinguished as to partition, 168 a.

binds joint-tenancy, when, 184 b.
JURY,

should find a special verdict, when, 228 a.
JUS ACCRESCENDI,

none as between merchants, 181 a.
JEWESS,

entitled to dower, when, 31 b.

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LACHES,

no prejudice to fime covert or infant, except as to conditions, 246 b 380b.

guardian accountable for laches, 89 b.
LAND,

includes what, 4 a.

tenements and hereditaments distinguished, 2 a.

arable takes precedence of pasture, 85 b.

ploughland, l. e- arable, now includes every other soil, 86 b.

woods include the land upon which they grow, 4 b.

rents and profits include the land itself, 4 b.

in demesne and service distinguished, 17 a.
LAW,

a deep well ice, 71a.

delights in publicity and certainly, 34 a.

agreement of parties overrules law, 166 a.

temporal and spiritual distinguished, 344 a.
LEASE,

what words make a lease, 45 b.

limit of term, 44 b.

of the necessary certainty to commencement of term, 45 b.

term must have a certain beginning and certain end, 46 a.

for so many years as A. shall name, good, 45 b.

for twenty-one years, if A. shall so long live, good, 45 b.

in running lease lessee has a term only for those years which be elects lo
take, 218 b.

livery not necessary to term of years, 48 a.

leasehold a less estate than a freehold, 46 a.

tenant to have fee on payment of a sum, if with livery, he has the fee subject to
be divested on non-payment, 216 b.

good against party making it, 45 a.

rent may be made payable every two or three years, 47 a.

release to lessee for years before entry bad, contra after, 270 a.

reservation must be to lessor or his heirs, not to executors or assigns, if so it
ceases on his death, 47 a.

reservation to a stranger is simply void, 213 a.

reservation and exception distinguished, 47 a.

clause of distress amounts to new grant, 308 a.

by corporation, successors may enter for condition broken, so may executors or
under lessee, 214 b.

grantee may enter if term be void, secus if lessor be to re-enter, 215 a.

who may make, under the enabling statutes, 45 a.

of void and voidable leases, 45 b.

of leases by ecclesiastical persons, 44 a.

bishop's concurrent lease for years, good if confirmed, contra of lease of
life, 44 a.

lease must not be sans waste, 44 b.

in reversion or concurrent, when bad, 44 b.

commencement of, ' from' and ' after' date distinguished, 45 b.

LEASE—continued.

lands must be anciently let, 44 b.

ancient rent must lie reserved, 44 b.

lease by parson binds who, 45 b.

parson lias only a life estate, and his lease for years determines on his death,
341 b.

what void against remainder-man and reversioner, 45 b.

rent not reservable out of incorporeal hereditaments, for there can be no dis-
tress, 46 b.

rent for life, charged on freehold and leasehold, issues out of freehold only, 147 a.

remedies for rent, 43 b.

rent due on last day of term cannot be distrained for, as term is then
ended, 47 b.

remedy by action of debt for rent, 47 b.

clause of re-entry, when necessary, 204 b.

tender of rent must be on land, 211b.

estoppel of leases, 45 a.

tenant may shew that his landlord h.iih nothing in the tenements if lease by
parol, contra if by deed, which is an estoppel, 47 b.

notice of assignment of reversion to be given to lessee, when, 215b.

to cease on death of two lessees, one aliens and dies, lease not forfeited, 219b.

effect of one joint-tenant's lease for his own life, 193 a.

by joint-tenants in fee, a severance pro tanto, 185 a.

by joint-tenants, reserving rent to one, 47 a.

for life by one joint-tenant, a severance of the jointure in the reversion, 191 b.

for life by both joint-tenants, a severance of the reversion, when, 191 b.

by one joint tenant for life, binds survivors and is a severance pro tanto but no
further, 186 b.

one joint-tenant may lease to his companion, 186a.

and rent charge by joint-tenant distinguished, 186 a.

privity of parceners not destroyed by lease after partition, 174 a.

by coparceners how affected by partition, 46 a.

for life no severance of coparcenary; contra of joint-tenancy, 192 a.

joint-tenants of a term, what charge or lease of one binds survivor, 184 b.

tenant bound to repair, 53 a.

avoided by previous dower, survives on its cessation, 46 a.

term not barred by a recovery, 46 a.

interesse termini defined, 51 b.

reversion not grantable before lessee's entry, 46 b.

by one holding an office gives an estate for life, 235 b.

corporation cannot hold a term for years, since it has no executors, 46 b.

lessee may work mines, when, 54 b.

lessee may fell timber for repairing dwelling-house, 54 b.

lease by mortgagee, 226 b.

licence to alien not vacated by lessor's death, 52 b.

tenant at will entitled to emblements, but not tenants for years, 55 a.

by cestui que trust, trustee cannot enter, 214 b.

by husband and wife a discontinuance for life, 333 a.

by infant at fifteen good, 45 b.

infant's lease voidable only, 308 a.

by several owners in one deed, 45 a.

by tenant for life, and him in remainder, enures how, 45 a. 214 a.

effect of lease by owner and a stranger, 45 a.

confirmation of tenant for life, lease good in his lifetime, 296 a.

void, not confirmable by acceptance of rent; contra of lease voidable by entry,
215a.

tenant in tail's lease for years and Hie distinguished as to discontinuance,
• 334 a,

by tenant in tail revives by endowment of his widow, 46 a.

tenant in tail's with livery always a discontinuance, 336 a.

tenant in tail's lease for life and grant of reversion a discontinuance, if reversion
falls in his lifetime, 333 a.

by tenant in tail voidable, and confirmable by acceptance of rent, 46 b.

according to statute, no discontinuance, 333 a.

release by lessee for years to disseisor extinguishes term, 275 b.

in tail rendering rent, release to lessee disseised, extinguishes rent, but passes
nothing in reversion, 268 b.

no privily between lessor and under-lessee to sustain a release, 273 a.

creates a warranty, 384 b.
LEGITIMACY,

presumption as to rent and legitimacy, 373 a. See liastard.

LESSOR.

definition of terms ' donor' and 'donee,' 'lessor, lessee,' ' feoffor' and ' feoffee,'
42 b.
LETTERS PATENT,

what evidence of, 225 b. #

LICENCE,

to alien not vacated by lessor's death, 52 b.

release of condition on a condition bad as to the condition, good as to the
release, 274 b.
LIFE ESTATE,

what words will create, 1 a.

to A. generally, an estate for life, if with livery, but if without, an estate at will
only, 56 b.

to A. or heirs, only a life estate, 8 b.

a general giant gives an estate for lessee's life, except when made by tenant in
tail, then it is for grantee's life, 42 a.

estate tail to one heir and his heir only, construction of gift, 22 a.

release of all right gives only a life estate, 272 b.

what uncertain grants give life estates, 42 a.

lease to A. till he be paid 100/. gives a life estate; contra on grant of a rent
certain, 42 a.

heirs female of the body of the father a life estate, 26 b.

passes by heir in singular number, 8 b.

to A. or heirs gives life estate, 8 b.

office and rent for its performance, grant of, gives what estate, 42 a.

limitation to sole corporation and his heirs, gives only a life estate, 9 a.

gift to A. and his successors gives life estate only, 8 b.

to wife and her heirs, husband &c. they take by purchase and she only a life
estate, 26 b.

the clause sans waste may be omitted without breach of condition, 219 b.

sans waste means what, 220 a.

remainder-man for life may enter for a forfeiture, and his claim preserves the
right, 252 a.

reservation of rent-charge to lessor and his assigns, is only for life, 215 b.

joint-tenants for lives disadvantage of severance, 191 a.

joint-tenants for lives with several inheritances in tail as tenants in common,
how they hold, 182a.

tenant for life's grant for less than his life creates a reversion; waste, 42 a.

alienation when a forfeiture of life-estate, 251 a.

tenant for life's recovery a forfeiture and discontinuance, when, 362 a.
lease for a life a forfeiture, 252 a.
accepting fine a forfeiture, 252 a.

grant to remainder-man not a forfeiture nor a surrender, if it be
for life of grantee, 41 b.

alienation beyond tenant's life a discontinuance of remainder and bad; ita, re-
strainable by condition, 224 a.

lease by tenant for life and him in remainder, enures how, 214 a.

tenant for life and remainder-man's fine or feoffment operates how, 302 b.

effect of tenant for life's alienation by innocent conveyance, 327 b.

tenant for life's feoffment to remainder-man and stranger a surrender and for-
feiture, 335 a.

claim of tenant for life in possession enures not to remainder, 252 a.

release to reversioner enures to particular tenant; et e converso, 267 b.

non-claim by remainder-man confirms estates for life, 297 b.

entry for forfeiture, its effect on derivative estates, 233 b.

particular estate defeated, remainder defeated also; but vested remainder wants
not continuance of particular estate to support it, 298 a.

remedy for rent by executors of tenant for life, 162 a.

feoffment by tenant for life or years a disseisin, 330 b.

tenant for life's warranty collateral to remainder man, though his heir, 375 b.

tenant for life aliens with warranty; if his heir be the remainder-man or rever-
sioner he is bound, 366a.

lease by one holding an office gives an estate for life, 235 b.

disseisin by remainder-man for life,~276a.

tenant for life disclaiming reversion, its effect, 251 b.

of his claiming the fee in open court, 251 b.

what alienation of tenant for life divests the remainder, 251 b.

release to one of two disseisors enures to releasee only; to one of two feoffees, to
both, except release by tenant for life, 275 b.

tenant for life's rent charge confirmed by reversioner good, when, 301 a.

grant of services to tenant for life a suspension during his life, 313 a.

LIFE ESTATE—continue,l.

does not pass by grant of a rent certain, 42 a.

estate for life may be surrendered without deed, 338 a.

surrender of life estate no effect on derivative charges, 338 a.

parson has only a life estate, and his lease for years determines on his death,

341 b.
remainder-man cannot plead release of actions to tenant for life, though he may
a release of light, 285 a.
LIMITATION,

words of, what are, 235 a.

limitation and condition distinguished, 236 b,

heirs of him who survives means who, 220 b.

to tenant for life with ultimate remainder to his right heirs, gives him remainder

in fee, 319 b.
condition and conditional limitation distinguished, as to grantees' right of

entry, 214 a.
to a person's executors when it vests in the person, 54 b.
limitation to one cannot create an estate in another, 378 b.
condition cannot create an estate, but only determine one, which it may do ou

alienation, 379 b.
to man and woman unmarried, gives what estate, 20 b.
LITTLETON'S &c.

value of, 17 b.
LIVERY OF SEISIN,
how performed, 48 a.
antiquity of, 49 b.
to tenant in possesion void, 216 a.

tenant in possession must assent to the livery or quit possession, 48 b.
prevented by lessee's entry, 49 b.
not necessary to term of years, 48 a.

necessary to term of years or when there is a remainder of freehold, 49 a.
a man absent, can neither take nor make; if he assent, it is no remitter, 359 a.
tenant to have fee on payment of a sum, if with livery, he has the fee subject

to be divested on non-payment, 216 b.
of part in name of whole, good, 48 a.
of part for all good, except feoffment be by deed, and lands are in different

counties, 50 a.
when a freehold may pass without livery, 49 a.
delivery of deed on land not in itself a livery of seisin, but what amounts to

livery of seisin, 56 b.
enures according to deed , ita to tenant for years void, 48 a.
in law what, 48 b.
by attorney, distinctions, 48 b.
to attorney must be in lifetime of feoffor, 51 b.
feoffor's death vacates power of attorney, 52 b.
in view by attorney bad, 49 b.

power to deliver seisin after feoffee's decease bad, 52 b.
by or to one attorney bad, if two jointly appointed; so if to one of two feoffees,

when, 49 b.
of moveable freehold, 48 b.
as to corporeal hereditaments, 49 a.

is to corporeal, what delivery of deed is to incorporeal hereditaments, 49 a.
delivery of deed and livery of seisin, with and without deed distinguished,

49 b.
reversion will pass by livery, though it properly lies in grant, 52 b.
with condition supersedes feoffment without, 222 a.
what if condition omitted in, 222 a.

must be in each county, when the lands lie in different counties, 50 a.
of part for all good except when, 50 a.

feoffor out of possession, nothing but livery will avoid estate by wrong, 49 a.
LONDON,

custom of defined, 176 b.
LORD,

same person cannot be both lord and tenant, 152 b.
LUNATIC,

may purchase land, 2 b.

may avoid his purchases if he recover, 2 b.

what effect, 247 a.

descent cast during lunacy no effect against heir of non-compos, 246 b.

may be heir and inherit, 8 a.

M.

MAINTENANCE,

statutes against buying pretended titles and maintenance, 368 b. 369 a.
MAN,

Isle of, how governed, 9 a.
MANOR.

advowson may be appurtenant to, 122 a.

of the court baron, which cannot be held out of manor, 58 a.

but lord may admit out of, 61 b.
MARRIAGE,

age of by common law, 79 a.

within Levitical degrees allowed, 24 a.

with daughter of wife's sister good, 235 b.

voidable, caDnot be annulled after death of one party, 33 a.
MARSHES,

grant of passes the soil, 5 a.
MATERNAL DESCENT,

when broken, 13 a.
MAXIM,

what value, 10 b.
MEADOWS.

grant of includes the land, 4 b.
MEMORY

of man includes written documents, 115 a.
MERCHANTS,

no survivorship between, 182 a.
MERGER,

none by union of term and reversion in different rights, 338 b.

to A. for life, remainder to him for twenty-one years no merger, contra e con-
verso, 54 b.

as to merger of one term in another, 273 b.

of one term in another, if the term in reversion be afterwards defeated by con-
dition, and so both lost, 218 b.

the estates must be equally high and perdurable, 313 b.

surrender may be conditional so as term may revive on breach, 218 b.

A. for life, remainder to B. in tail, B.'s release to A. no merger, but a release
of waste, 345 b.

of rent-charge by purchase of part of land, because it cannot be apportioned;
contra of rent-service, 147 b.

if part descends to owner of rent-charge, no merger of the whole rent, but same
may be apportioned, 149 b.
MESNALTY

extinguished by lord paramount purchasing tenancy, 152 a.

but mesne holds difference of rent as a rent-seek, 152 b.
MESSUAGE,

grant of, passes what, 5 b.

and curtilage includes what, 5 b.
METE-STONES,

as to, held in common, 200 b.
MILL,

dower, how taken of, 31b.

diverting stream a disseisin of the mill, 161 a.
MINES,

includes what, 5 b. 6 a.

lessee may work, when, 54 b.
MINORITY,

disabilitv of, affects not the king, 43 b.
MONASTERIES,

heads of, held by barony, 96 b.
MONKS,

professed monks cannot purchase, 3 b.
MONSTER

cannot purchase, much less retain any thing, 3 b.
cannot be heir, 7 b.
MONEY,

lawful, what is, 207 b.
MORD'ANCESTER,
assize of, what, 155) a.

.MORTGAGE,

what is, 205 a.

vivum vadium or Welch mortgage, what, 205 a.

may be in tail, for life, or years, 205 b.

mortgagee's executors entitled to money, not his heir, unless heir specially
named, 209 b.

mortgagor not bound to take notice of the mortgagee's conveyance before con-
dition broken, 210 a.

of the mortgagor's death without heirs, 206 a.

heir may redeem though not named ; contra of stranger, 205 b.

executor or administrator or the ordinary may redeem, 205 b.

mortgage money to be paid by mortgagor and a stranger, if mortgagor dies,
who may pay it, 219 b.

when heirs and executors are both named, mortgagor may pay to whom he
pleases, 210 a.

guardian may redeem, 206 b. •

any person may redeem for an idiot, 206 b.

if a mortgagee receive the money at another place or before the time, it is a good
performance of the condition, 212 a.

so if he accept another thing for the money, 212 b.

receipt of less sum than what is due no performance of the condition, except
when, 212 b.

after tender and refusal, mortgagee no remedy for money, 207 a.

stranger's tender in mortgagor's name good, if accepted, 206 b.

tender to person of mortgagee good, 206 b.

tender not requisite if mortgagee be beyond seas, 210 b.

if time of payment uncertain, notice must be given, 211 a.

place of payment should be specially appointed in mortgage condition, 212 a.

what, if mortgagee be beyond sea on day of payment, 210 b.

lease by mortgagee, 226 b.
MONUMENT

belongs to heir, but executor has also a right of action for defacing it, 18 b.
MORTMAIN,

condition against, good, 223 b.
MOVEABLE

freehold, 167 a.

livery of moveable freehold, how made, 48 b.

as to rent charged on, 343 b.
MUL1ER PUISNE,

two in possession, freehold adjudged in the one having right, except as to
bastard eigne and mulier puisne, 368 a. See Bastard.
MULTITUDE,

how many makes; riot, what, 257 a.
MUNICIPAL

law consists of common law, statute law, and customs, 115 b. ,
MUTE,

standing mute, what punishment for, 391 a.

\.

NAME,

of baptism and confirmation distinguished, 3 a.

mistakes in, what error, 3 a.
NATURALIZATION,

effect of, 128 b. 129 a.
NEXT BLOOD,

remainder to, who takes, 10 b.
NEXT PRESENTATION,

who entitled to, bishop's executors or heirs, qu. : 90 a.

cannot be enlarged by release, but one joint-tenant may release to the other,
270 b.

when it means the next a man may grant, 378 b.
NOBILITY,

titles of, when introduced, 69 b.
NOMINE POiN^E,

descends to heir, but arrears of rent belong to executors, 162 b.
NON-CLAIM,

at common law ran against feme covert and reversioner; contra now, 262 b.

by remainder-man confirms estate for life, 297 b.

XOX COMPOS.

feoffment, fine, or recovery by non-compos or infant, its effect, 247 b.

descent durin" idiotrv or lunacr, no effect against heir of non-conipos, 246 b.
XOT1CE

of assignment of reversion should be given to lessee, when, 215 b,
NOVEL DISSEISIN',

what, 153 b.

O.

OCCUPANCY,

defined, 41 b.

general and special distinguished, 41 b.

none of things lying in grant, 41 b.

freehold in occupancy ami fee of contingent remainder are in abeyance, 342 b.

of waste by occupant, 54 a.
OFFICES,

who capable to take by gift or purchase, 3 b.

grant of offices of skill when void, 3 b.

what offices not saleable, 234 a.

grants of ancient, not affected by disabling statutes, 44 a.

of deputies, 234 a.

lease by one holding an office gives an estate for life, 235 b.
ORDINARY,

who, and why so called, 344 a.

may redeem, 205 b.

reason why parson may charge his glebe in perpetuity with assent of patron and
ordinary, 343 a,
OUSTER,

different kinds of explained, 55 b

receipt of all the rent by one tenant in common no ouster of companion, 1Mb.
OUTLAWRY,

attainder relates to act committed, and intermediate conveyance bad; contra of
outlawry, 13 a.

attainder, abjuration, and outlawry distinguished, 13 a.

husband, alien, or traitor no dower; contra if an idiot, outlaw, or felon, 31 a.

outlaw may be heir and inherit, 8 a.

guardian (or trustee) forfeits nothing by outlawry or attainder, 88 b.
OWELTY,

of partition, 169 a.

rent must be out of same lands, 169 b.
rent is a rent-charge, 169 b.

partition and exchange distinguished, as to owelty rent, 169 a.

rent reserved to two coparceners is still in coparcenary, 169 b.

of the owelty rent and distress, 169 a.

P.

PARCELS,

arable takes precedence of pasture land, 85 b.
herbage passes what, 4 b.

woods include the land upon which they grow, 4 b.
rents and profits include the land itself, 4 b.
PARCENERS,
who are, 163 a.
they are but one heir, 163 b.
parcenary is only by descent, 170 a.
unity of estate, 164 a.

have several freeholds for most purposes, 164 a.
one may enfeoff the other, 164 a.

of descent in coparcenary, 164 a. .,■• ,..,.._»

construction of gift by one coparcener to her sister, and the heir sof the body ol

her father, 26 b.
feoffment and release distinguished, as to tenants in common, joint-tenants, and

parceners, 200 b.
alienation by, makes tenant in common, 195 a.
lease for life no severance, 192 a.
tenants in may charge, 185 a.
privileges of eldest sister descend to her issue and assignee, and when not,

of partition in coparcenary, 165 b. 167 b.

PA RCENERS—continued.

partitions good at common law without deed [contra now by Statute of Frauds],

169 a.
equal partition, binds who, 16S b.

infants not bound by unequal partition, except when, 171 a.
equal partition binds feme covert, 171 a.
of partition, when lands in fee and in tail descend to two daughters, and one

takes the fee and the other the tail, 172 b.
effect of eviction from all, on part of either purparty, 173 b.
privity of parceners not destroyed by lease after partition, 174 a.
of partition by writ, 167 a.
one of three parceners may separate by consent, but if by writ the whole co-

parcenery is dissolved, 179 b.
writ of partition lies against tenant byjcurtesy, or alienee of one coparcener, 174 b.
husband and the other daughter are parceners, 174 b.
husband of one coparcener compellable to make, but he cannot compel partition,

husband, in right of his wife, entitled to writ of partition, 175 a.

partition by writ binds feme covert, 171a.

partition of estate tail binds issue, 173 a.

if partition be by the king's writ each tenant must have his part, 180 a.

reversion on estate for years distinguished from reversion on estate for life as to

writ of partition, 167 a.
partition makes no degree, 173 a.

as to partition of incorporeal inheritances which are indivisible, 165 a.
partition in frank-marnage, 176 a.
of the owelty rent and distress, 169 a,
of partition by balls, 166 b.
partition by friends, 166 a.
partition does not destroy privity, 173 b.

fiartitions void and voidable distinguished, 171 a.
ease by coparceners how affected by partition, 46 a.

lease for life no severance of; contra of joint-tenants, 192 a.

on partition may reserve half rent, within enabling statute, 44 b.

"heirs" not necessary in release from one joint-tenant or coparcener to com-
panion, 273 b.

of severance by curtesy [sed qu. ?] 167 b.

two coparceners, one a bastard, allowed a share, the other estopped, 244 a.

may charge their estates, 185 a.

tenants in common and joint-tenants of personal actions, 197 b.

one coparcener dying seised of whole, no descent tolling entry of other, 243 a.

of rent-charge granted by one of two joint-tenants or parceners in fee, 184 b.

what entry of one coparcener an abatement, 343 b.

entry of one coparcener entry of both, 364 b.

one coparcener aliening the whole, warranty lineal and collateral, 373 b.

how one coparcener may disseise another, 373 b.

effect of feoffment of entirety by one coparcener, 243 b.

operation of a release as between joint-tenants and, 193 a.

of dignities in coparcenary, 165 a.

of advowson held in joint-tenancy, 186b.

as to curtesy of advowson held in, 186 b.

as to coparcenary of advowson after partition, 122 a.

of parcenary by custom, 176 a.

an action of waste lies against them, 53 b.

of moveable partitions, 167 a.

elegit survives to, 190 a.
PARDON,

makes subsequent issue inheritable, if heir, 391 b.
PARK,

includes what, 5 b.

forest, park, and chase, what, 232 b.

of waste in, 53 a.
PARLIAMENT,

of its antiquity and power, 109 b.
PARSON,

is seised of the church and glebe, 300 a.

may grant, when and how, 43 a.

lease by parson binds who, 45 b.

has only a life-estate, and his lease for years determines on his death, 341 b.

parson's alienation no discontinuance of successor, 340 b.

enabling statutes do not extend to a parson or vicar, 44 b.

PARSON—continued.

may charge his glebe in perpetuity, with assent of patron and ordinary, 343 a.
reason why parson may charge his glebe in perpetuity with assent of patron

and ordinary, 343 a.
patron and ordinary's assent before grant by parson enough, except patron be

ordinary, then dean must assent, 300 b.
parson's charge confirmed by patron &c. good if patron has the fee, 300 a.
patron to confirm must have indefeasible fee, or acquire such during his life,

300 b.
parsons exchange with consent of ordinary only, binding, 343 b.
as to joint-tenancy between two, 190 a.
PARTICULAR ESTATE,

particular tenant and remainder-man maVe but one tenant in fee, yet release of
actions to one enures not to the other; contra of release of rights,
275 b.
effect of lease by particular tenant and remainder-man, 45 a.
particular estate defeated, remainder defeated also, but vested remainder wants
not countenance of particular estate to support it, 298 a.
PARTITION,

entry necessary to, 266 b.

good at common law without deed, [contra now by statute of frauds], 169 a.

of partition by friends, 166 a.

gives the fee, 9 b.

of partition by writ, 167 a.

judgment on writ of partition is to what effect, 167 b.

as to owelty on partition, 169 a.

hotchpot, its effect on partition, 176 a.

of compulsory partition between joint-tenants, 187 a.

of partition in coparcenary, 165 b.

writ of partition lies against tenant by curtesy, on alienee of one coparcener,

176 a.
deed necessary to grant of advowson in common, though appendant to land

divided, 190 b.
of incorporeal inheritances which are indivisible, 165 a.
advowson on partition belonging to eldest sister, 166 b.
what coparcenary of advowson after partition, 122 a.
of partition in frankmarriage, 176 a.
lease by coparceners how affected by partition, 46a.
privity not destroyed by partition, 173 b.
defeated by eviction from either purparty, 174 b.
creates a warranty, 384 a.

warranty on partition and exchange distinguished, 174 a.
eviction for defective title before sale avoids partition, 173 b.
value ascertained at time of partition, 179 a.
infants bound by partition, when, 171 a.

husband of one coparcener compellable to make, but he cannot compel parti-
tion, 174 b.
equal partition binds feme covert, so does partition by writ, 171a.
husband in right of wife entitled to writ of partition, 175 a.
of partition when lands in fee and in tail descend to two daughters, and one

takes the fee and the oilier the tail, 172 b.
of moveable partitions, 167 a.
void and voidable distinguished, 170 b.
unequal partition binds not feme covert, 170 b.
judgment final and interlocutory distinguished as to partition, 168 a.
equal partition hinds who, 165 b.
of estate tail binds issue, 173 a.

unequal partitions bind only unfettered tenants in fee, 170 a.
makes no degree, 173 a.
of partition by balls, 166 b.
See Varcenert.
PARTY,

no party can acknowledge his own fine oi be hisownjudge, 141 a.
PASTURE,

includes what, 4 b.
PATRON,

and ordinary in vacation may grant a rent charge, 343 b.

reason why parson may charge his glebe in perpetuity with assent of patron

and ordinary, 343 a.
and ordinary's assent before grant by patron enough, except patron be ordinary,

then dean must assent, 300 b.
lo confirm must have indefeasible fee, or acquire Mich during hto lile, 300 b.

PAYMENT,

balance of account good payment of the whole, 212 b.

collateral satisfaction, what is, 212 b.

place of, should be specially appointed in mortgage condition, 212 a.
PER AND POST,

distinguished, 162 b.
PERPETUITY,

Richel's case of perpetuity, 377 b.—See Alienation; Condition.
PERSONALTY,

at what age infant may make will of personalty, 89 b.

survivorship extends fo chattels real and personal, 181 b.
PETIT SERJEANTY,

what it is, 108 a.

held only of the king, 108 a.

it is in effect a socage tenure, 108 a.
PEW,

pew appurtenant to house only, 121 b.
PIRACY,

conviction of, works no forfeiture except when, 391 a.
PLEADINGS,

are an estoppel, 352 b.
PLOUGHLAND,

what, 69 a.

now includes every other sort, 86 b.

knight's fee, ploughland, yardland, &c. a measurement of value, not of con-
tent, 69 a.
POSSESSED,

and seised, distinguished, 17 a. 200 b.
POSSESSIO FRATRIS,

what seisin of incorporeal hereditaments sufficient for a possessio fratris, lib.

no possessio fratris of dignities, 15 b.

lease for life or intail prevents possessio fratris, unless eldest son receive rent, 15 a.

four rules to possessio fratris, 15 b.

neither possessio fratris nor half-blood hold as to the crown, 15 b.

how affected by dower, 15 a.

this rule not applicable to estates tail and reversions, 14 b.

eldest son must be seised to make possessio fratris, 14 b.

of advowson, rent &c., 16 b.

exemplification of doctrine, 14 a.

how affected by curtesy, 15 b.
POSSESSION,

rights of property and possession distinguished, 266 a.

of yearly tenant is seisin of freeholder, 15 a.
POSSIBILITY,

no release of a possibility or contingency, 265 b.
POSTHUMOUS

child may be heir and inherit, 8 a.

uncle's title defeated by posthumous heir, lib.
POTJND,

distress of live cattle and of pounds overt and covert, 47 b.
POWER,

to executors to sell, how construed, 181b.

concurrence of renouncing executors not necessary by statute, 113 a.

executor renouncing cannot purchase, 113 a.

feoffee in by devisor, 113 a.

and condition distinguished as to extinguishment in part of land, 215 a.

when trusts and powers survive, 181 b.

bare authority (as to executors to sell) cannot be released, otherwise of power
of revocation, 265 b.

of revocation, how construed, 218 b.

surviving executors may exercise a general power of sale, if they were not par-
ticularly named, or if they have an estate as well as a power, 112 b.
POWER OF ATTORNEY,

if attorney do less than his authority, livery void, 52 a.

not revocable without notice to attorney, 55 b.

when the attorney having right is bound by his acceptance of the power, 52 a.

feoffee's death vacates, 52 b.

disabled persons may be private attorneys, 52 a.

must be by deed, 51 b. 52 a.

attorney must pursue his power, and what is a virtual execution of it, 52 a.

POWER OF ATTORNEY—amtinatd.

to two or three, if one dies, if the power survives, 181 b.
PRECEDENTS,

their value, 230 a. 264 b.
PREMISES

explains habendum, 183 b.

what if habendum ami premises are repugnant, 20 b.

habendum overrules the operative part, 183 a.

may enlarge but cannot abridge premises, 299 a.
PRESCRIPTION.

what may be claimed by, 114 b.

in a que estate applies to those things only which will not pass at common law
without deed, 121 a.

custom of prescription not lost by twenty years disuse, except by merger of
rights, 114 b.
PRESUMPTION,

every one presumed conusant of hts rights, 173 b.

as to rent and legitimacy, 373 a.
PRIVITY,

no privity between lessor and under-lessee to sustain a release, 273 a.

none requisite to release of right, 275 a.

privities of two kinds, in law and in deed, 271 a.
PROFITS

cannot be reserved as rent, 142 a.
PROHIBITION,

what is prohibited directly is so obliquely, 223 a.
PROPERTY,

rights of property and possession distinguished, 266 a.
PROVISO.

how it operates, 146 b. See Condition.
PUBLICITY,

law delights in certainty and publicity, 34 b.
PURCHASE,

who may, 2 a.

and descent distinguished, 3 b. 163 b.

"right heirs" words of purchase, when, 319 b.

tenant by escheat, curtesy, or dower are in by purchase: contra of disseisor,
18 b.

includes every other title but descent, 18 a.

heirs may take by, 10 a.

[graphic]

QUALIFIED

fee and fee-simple incompatible if raised by act of party, 18 a.
QUARRELS,

includes what in a release, 292 a.
QUEEN

may purchase land, 3 a.

treated as feme sole, 133 a.

of an alien queen, 31 b.
QUIA EMPTORES,

before statute 2 E. feoffee held of feoffor, 143 a.

It.

REALM,

bond made out of England, how sued for, 261 b.

persons out of the realm not prejudiced by descent cast, 260 b.

out of the realm, what, 259 b.
REASONABLE TIME

is expounded by judges, 56 b.
RECITAL

no estoppel, 352 b.
RECEIVER

may be discharged at pleasure, 233 a.
RECOGNIZANCE

for instalments when broken, 292 b.

RECORD,

what is, 117 b.
which courts of, 117 b.
and enrolment prove themselves, 117b.
RECOVEEY,

common recovery a bar in Littleton's time to estate tail and remainder, 372 b.
condition that tenant in tail shall not suffer recovery bad, 223 b.
without voucher no bar, 373 a.
recoveries not invented by Choke, 361 b.

tenant in tail's death after judgment in recovery immaterial, 361 b.
conveys a fee without word " heir," 9 b.

tenant for life's recovery a forfeiture and discontinuance when, 362 a.
if tenant in tail joins recovery, it bars remainder, 362 a.
RECTOR,

parson's charge confirmed by patron and ordinary good, if latter has the fee,

300 a.
patron and ordinary's assent before grant by parson enough, except patron be

ordinary, then dean must assent, 300 b.
parson's alienation no discontinuance of successor, 340 b.
RE-ENTRY,

condition of, what, 201 b.

clause of, when necessary, 204 b.

cannot be reserved in gross, 214 a.

for condition broken avoids feoffment, and by consequence the discontinuance,

336 b.
distress precludes entry for condition; contra of receipt or release, 211 b.
though estate void, it does not revest till entry or claim, 217 b.
clause of entry makes a condition, 203 b.

grantee may enter if term be void; secus if lessor be to re-enter, 215 a.
REEVE,

surrender to, good by custom, 61 b.
REFLECTION

recommended, 338 b.
REGARDANT,

appendant and regardant distinguished, 121 b.
RELEASE,

five kinds of, 268 a. 273 b.
fourfold operation of a, 193 b.

releases are of rights or of actions, 264 a.

releasee must have the freehold, but freehold in reversion or remainder enough,
267 a.

no release of a possibility or contingency, 265 b.

release for a moment a release for ever, 274 a.

releases express and implied distinguished, 264 b.

releasee must have the freehold if the right released be a freehold, otherwise
not, 265 b.

privity none requisite to release of right, 275 a.

in deed must be in fee, it cannot be for life, 264 b.

what words necessary to release, 264 b.

of all actions no release of right of entry, 286 a.

all actions releases the debt though not then payable, 292 a.

of actions bars scire facias, 290 b.

of all demands the best, it includes rights and titles, also commons, rents, and
all services, 291 b.

"quarrels, controversies, and debates" include what in a release, 292 a.

of covenant discharges it before broken ; contra of all actions, 292 b.

of suits includes executions, 291 a.

of action no release of execution, 289 a.

of actions no release of current rent, 292 b.

of one of several remedies no release of other, 286 a.

of causes of action, 285 a.

conveys a fee without word " heir," 9 b.

after discontinuance passes all the right without " heirs," 275 a.

of all right gives only a life-estate, 272 b.

to one having a right only void, 267 a.

to tenant who has granted away all his estate useless, 273 a.

right of entry or action cannot be released to a stranger, 266 b.

of part good, 274 b.

form of release of right, 264 b.

of actions to one trespasser enures to the other, who may plead it though no
party, 232 a.

RELEASE—continued.

of rent to tenant is a release in extent, 307 b.

the words " hereafter have" are useless, as no one can release a right which he

has not at the time, 265 a.
in extinguishment enures how, 278 b. 307 a.

disseisee may release to tenant for life but not to tenant for years, 266 b.
issue recovering land cannot take advantage of release to discontinues, ^66 a.
release, feoffment, and warranty distinguished, 265 b.
with warranty when no discontinuance, 329 a.
lease in tail rendering rent, release to lessee disseised, extinguishes rent but

passes nothing in reversion, 268 b.
tenant in tail's release no discontinuance, neither is his confirmation, 329 b.
tenant in tail's release to disseisor puts right to the freehold in abeyance during

his life, also reversion on the grant, so that he has no remedy for

waste, 345 a.
release to one of two disseisors enures to release only; to one of two feoffees to

both except releases by tenant for life, 275 b.
release from disseisee to disseisor enures by milter le droit, 274 a.
in what cases disseisee may take advantage of release to his disseisor, 266 a.
release to one disseisor enures not to other ; contra of confirmation, 298 a.
to one of two disseisors carries the whole, 194 a.
release to remainder man for life before entry, good, 270 b.
release to one remainder man enures to all, when, 267 a.
particular tenant and remainder man make but one tenant in fee, yet release of

action to one enures not to the other; contra of release of rights,

275 b.
to particular tenant enures to him in remainder, 194 b.
A. for life remainder to B. in tail, B.'s release to A. no merger but a release of

waste, 345 b.
remainder man cannot plead release of actions to tenant for life, though he may

a release of right, 285 a.
release to reversioner enures to particular tenant, et e converso, 267 b.
release to reversioner for years where the first tenant for years has entered,

good, 270 a.
release to remainder man good, for there is privity, 273 a.
release of dower to reversioner good, 265 a.
release by heir apparent without warranty bad, 265 a.
release to lessee for years before entry bad, contra after, 270 a.
release to under-tenant bad ; contra of confirmation, 308 a. 246 a.
no privity between lessor and under lessee to sustain a release, 273 a.
interesse termini, release to, good, 46 b.
release to interesse termini extinguishes the rent though it enlarges not the

estate, 270 a.
executor may release before probate, 292 b.
release by lessee for years to disseisor extinguishes term, 275 b.
obligee made executor, a release, 264 b.
release of bond to one obligor enures to others though they are severally bound,

232 a.
release to elegit creditor good, 273 b.

next piesentation cannot be enlarged by release, but one joint-tenant may re-
lease to the other, 270 b.
advowson, effect of release by patron to usurper, 276 a.
release to tenant at will is good, 270 b.
release to tenant at sufferance bad, so a release to a mere occupier is bad,

270 b.
release by feoffees to will to feoffor good, 271a.

husband seised jure uxoris capable of release or confirmation of fee, 299 a.
feme executrix marrying debtor no release, 264 b.
so if feme obligee marry obligor, 264 b.
release to husband jure uxoris good, 273 b.
husband's discontinuance wife's release with warranty, 375 a.
feoffment and, distinguished as to tenants in common, joint-tenants and coparce-
ners, 200 b.
one tenant in common of term may release to other before entry, 270 b.
operation of a release as between joint-tenants and coparceners, 193 a.
release of rent to one tenant in common extinguishes only a moiety, same to

tenant for life or remainder man extinguishes the whole, 267 b.
in what cases release to one shall enure to both, 275 b.
three joint-tenants, effect of release, by one to one companion, 193 a.

RELEASE—continued.

"heirs" not necessary in release from one joint-tenant or corparcener to com- panion, 273 b.

equivalent to feoffment in performance of condition, 207 a.

release of condition on condition bad as to the condition, good as to the re- lease, 274 b.

bare authority (as to executors to sell) cannot be released, otherwise of power of revocation, 265 b.

release of seigniory, its effect, 280 a.

but release of seigniory to one having a right only, good, 268 a.

release to tenant pur auter vie gives an estate for bis own life, 273 b.

release must be produced in court, 267 b.

heir may plead it to executors, 232 a.

of one of several remedies no release of other, 286 a. KELIEF,

is what, 90 b.

in socage is a year's rent on tenant's death, 90 b.

for knight's fee, how much, 69 b.

of the relief in knight's service, 83 a.

the lord may distrain for, 83 a. RELIGION,

a person entering into religion becomes dead in law, 132 a.

but descent not cast by entry into religion, 248 a. REMAINDER,

what is, 49 a.

without deed good, 143 a.

contingent on term bad, 216 b.

remainder man must take him onere if at all, 231 a.

limitation of land to A.'s executors vests in him, when, 54 b.

limitation to tenant for life with ultimate remainder to his right heirs gives him remainder in fee, 319 b.

must be created at the same time as particular estate, 143 a.

remainder to next of blood if father can take, 10 b.

to A. in tail male remainder to his heirs female gives A. a remainder in female tail, and not a tail genera1, 376 b.

remainder to donor's right heirs void, when, 22 b.

to one joint-tenant good, 192 b.

remainder man need not be party to or seal deed; contra of person taking in possession, 230 b.

remainder man divested by fine may still enter for the forfeiture, 252 a.

remainder man for life may enter for a forfeiture, and his claims preserve the right, 252 a.

discontinuance, how saved by condition, 224 b.

alienation beyond tenant's life a discontinuance of remainder and bad, it is restrainable by condition, 224 a.

tenant for life and remainder man's fine or feoffment operates, how, 302 b.

no discontinuance of remainder in king, 335 a.

tenant in tail's feoffment, &c. divests reversion and remainder, which is not altered by any statute, 327 a.

fine bars an estate tail, but not a remainder, 372 a.

common recovery a bar in Littleton's time to estate tail and remainder, 372 b.

particular estate defeated, remainder defeated also; but vested remainder wants not continuance of particular estate to support it, 298 a.

lease by tenant for life, and him in remainder enures, how, 214 a.

claim of tenant for life in possession enures not to remainder, 252 a.

tenant for life's feoffment to remainder man and stranger a surrender and for- feiture, 335 a.

non-claim by remainder man confirms estate for life, 297 b.

alienation of tenant for life and death of alienee puts remainder man to his action, 251 a.

remainder man and reversioner protected by statute 32 H. 8. against husband's discontinuance, 326 a.

what alienations of tenant for life divest the remainder, 251 b.

discontinuance of particular tenant a discontinuance of all the remainders, but a remitter of the particular tenant is a remitter of the remainders, 354 b.

particular tenant and remainder man make but one tenant in fee, yet release of actions to one enures not to the other; contra of release of rights, 275 b.

release to one remainder man enures to all, 267 a.

REMAINDER—continued.

release to remainder man good, for there is privity. 273 a,

release to remainder for life before entry good, 270 b.

release to reversioner enures to particular tenant, et e converso, 267 b.

release to particular tenant enures to him in remainder, 194 b.

disseisin by remainder man for life, 276 a.

what remainder prevents action of waste, 299 b.

confirmation to tenant for life no effect on remainder, otherwise e converso,

297 a. remainderman cannot plead release of actions to tenant for life, though he may

a release of right, 285 a, REMEDY,

release of one of several remedies no release of other, 286 a. REMITTER,

remitter an act of necessity, 349 a.

prevents circuity of action, 347 b.

is a preference of the better title, 347 b.

operates on seisin in law, and is preferred to infancy and coverture, 348a.

none to right remediless, none after erroneous recovery, nor to advowson after

lapse, 349 a. tenant in tail's feoffment to issue a remitter, 351 b. tenant in tail enfeoffs his son and another who dies; a remitter, if son assent

not to the deed, 359 a. discontinuance of particular tenant a discontinuance of all the remainders, but

a remitter of the particular tenant is a remitter of the remainders,

354 b. no remitter of heir in tail of full age, because his folly to accept feoffment.

350 b. on discontinuance of special tail as between two daughters of different venters,

349 b. conveyance from disseisor to disseisee by deed an estoppel, which prevents

remitter, 363 b. alienee of tenant for life conveys to lessor a remitter, 364 a. tenant in tail leases for life to his eldest son (of age), remainder to his second

son; a remitter to the second, not to the eldest son, 358 b. disseisor's acceptance of lease for years from disseisor a remitter, and no

estoppel, 364 a. disseisee taking any estate from disseissor by parol or deed poll remitted, 363b. as between joint tenants, 364 a. applies to ecclesiastical corporations, 360 a. . to manor remits to advowson appurtenant, 363 b.

if husband's alienee relets to husband and wife for life, this is a remitter, and

nothing remains in alienee, 351b. by infant issues marriage with discontinuance, 350 b. if husband and wife seised in special tail levy a fine to use of themselves in fee,

wife remitted, 353 b. if husband aliens in fee, and takes back an estate to himself and wife for life,

this is a remitter, 354 a. no remitter by entry of disseisee to make a release, except when, 49 b. no remitter if one estate be at common law, and other under stat. of uses, 348 a. grant of rent, or common, avoided by remitter; contra of lease for years, 348 b. RENT,

passes by grant of reversion, but not e converso, 151 a.b.

arrears and current rent distinguished, 160 b.

may be reserved on a conveyance to uses, or out of reversion, 144 a.

granted by bargainor and bargainee, how far good, 147 b.

reservation is a grant, 170 a.

for life, charged on freehold and leasehold, issues out of freehold only, 147 a.

profits cannot be reserved as rent, 142 a.

may be made payable every two or three years, 47 a.

reservation to a stranger is simply void, 213 a.

clause of re-entry, when necessary, 204 b.

reservable without deed ; contra of re-entry, 225 b.

dowress must pay a third part of rent, 148 b.

curtesy of rent, 30 a.

and profits include the land itself, 4 b.

joint-tenants of rent, 180 a.

grant of by tenant in common is a grant of two rents; contra of reservation to

them, 196 a.b. one rent out of every acre is a rent for each, 147 b. grant by two passes only one annuity, when, 144 b.

RENT—continued,

not grantable out of incorporeal hereditaments, or on the release of a right,

144 a. not out of incorporeal hereditaments, for there can be no distress, 46 b. but of advowson, or rent seisin, is law enough for curtesy, 29 a. as to dower of, 32 a. remedies for rent, 43 b. of the remedy for rent common, &c. issuing out of land in two counties,

153 b. of husband's remedy for rent during coverture, 162 b. remedy for rent by statute 32 H. 8. c. 37. 161 b. remedy for rent by executors of tenant for life, 162 a. remedy by action of debt for rent, 47 b. distress preferable to action of debt, as distress may be made by " assigns,"

162 b. distress in night allowed for damage feasant, not for rent, 142 a. distress may be made before the time specified, 204 b.

due on last day of term cannot be distrained for, as term is then ended, 47 b. tender of must be on land, 211 b.

tender of mortgage money must be to the person, otherwise of rent, 210a. demand of condition and rent distinguished, 153 b. demand on land, when sufficient, 153 a. demand and non-payment is a denial, 153 b. reserved to a stranger no remedy for, 213 a. release of actions no release of current rent, 292 b.
release of rent to one tenant in common extinguishes only a moiety; same to

tenant for life, or remainder-man extinguishes the whole, 267 b. acceptance of subsequent rent releases arrearages, 269 b. payment of penny in name of rent gives actual seisin, on which only real action

of rent can be supported, 160 a. disseisin of rent by forcible prevention of distress, 161 b. executors are not always charged with rent, 146 b. apportionment is according to value, not quantity, 149 b. confirmation of rent newly created should be by fresh deed, or by a clause of

distress in fee, 3C8 a. confirmation of rent, carries fee when, 308 a. no discontinuance of rents, 327 b. warranty may be annexed to rents newly created, and is implied on grants of

rent for equality of exchange or partition, 366 a. debt for, not several, though estates are, 198 b.J possessio fratris of, 15 b.

effect of a proviso, discharging the person on a grant of, by two, 146 b. power of distress in gross good, 146 b. RENT-CHARGE,

is where distress is expressly reserved; rent-seek, where it is not; person to

whom these rents are reserved need not have a reversion; to neither

is distress incident, 143 b. and rent-seek distinguished, 144 a.

merger of rent charge by purchase of part of land, because it cannot be appor- tioned; contra of rent service, 147 b. reservation of rent charge to lessor and his assigns is only for life, 215 b. in coparcenary, how affected by partition, 164 b.

dowress accepting rent-charge may still claim dower, and have an apportion- ment of the rent, 150 a. tenant for life's rent-charge confirmed by reversioner good, when, 301 a. remains to confirmor, so does common, 305 a. distress in gross is a virtual rent-charge, 146b. by tenant in tail, and him in remainder, how it enures, 45 a.
if part descends to owner of rent-charge no merger of the whole rent, but same

may be apportioned, 149 b. made good by release to companion in joint tenancy, 185 a. of rent-charge granted by one of two joint-tenants or parceners in fee, 184 b. owner of rent-charge may release part of it, 148 a. cannot be apportioned, but special reservation may amount to a new grant,

147 b. disseisin of rent-charge, what is, 161 b. if rent-charge be determined by act of law, or by eviction on prior title, writ of

annuity lies, 148 a. RENT SERVICE,

out of what it must issue, 142 a. distress incident to, 141 b.

KENT SERVICE—continued.

to a rent service grantor must retain a reversion, 142 b.

the reversion may be granted over, excepting the rent service, 143 a.

of the teuure of a rent service, 142 b.

all rent service is socage, 87 b.

this rent may issue out of estates tail for life or years, and be reserved without deed, 142 b.

merger of rent-charge by purchase of part of land, because it cannot be appor- tioned ; contra of rent service, 147b.

disseisin of rent service, what, 160 b. RENT SECK,

is what, 143 b.

remedy for, 160 a.

rent charge and rent seek distinguished, 144 a.

rent on lease for life becomes seek on lessor's granting away reversion reserv- ing rent, 151 a.b.

rent and service severed, it becomes seek, 159 b.

taken in execution distress incident to, 153 a.

remedy for rent seek is by real action, refusal to pay being a disseisin, 153 a.

disseisin of rent seek, 161 b. RENT, FEE FARM,

what, 143 b. REPAIR,

tenant bound to repair, 53 a.

remedy for contribution to repairs of houses and mills, 200 b.

neighbour compellable to repair his house, 56 b.

tenant at will not bound to repair, but liable to trespass for voluntary waste, 57 a.

one joint tenant. Sec. mav compel the other to contribute to repairs, 54 b. RESCOUS,

in law what, 161a.

when justified, 160 b.

if the lord distrain off his own land, tenant may make rescous, 161a.

by one joint-tenant makes both disseisors, 161 b. RESERVATION

is a grant, 170 a.

can only be to grantor and his heirs, 213 b. 47 a. 143 b.

to him or his heirs good only for his life, 214 a.

if to executors or assigns, ceases on his death, 47 a.

to stranger simply void, 213 a.

it cannot be reserved in gross, 214 a.

by deed-poll good, 143 b.

to one joint-tenant enures to both when, 214 a.

grant and reservation distinguished as to apportionment on eviction by elder title, 148 b.

and exception distinguished, 47 a. RESTRAINING STATUTES,

feoffment not cou6rmable before livery; contra of grant before attornment by the restraining statutes, 301 a. RESULTING ISE

to feoffor, 271 a. See Ute. REVERSION,

what it is and where it arises, 22 a.

is part of old estate, 183 b.

on lease for years and life distinguished, 239 b-

will pass by livery, though it properly lies in grant, 52 b.

limitation to donor's right heirs gives him a reversion, under rule in Shelley's case, 22 b.

rent passes by grant of reversion, but not e converso, 151 a b.

no curtesy of reversion on a bare right, 29 b.

may be granted over, excepting the rent service, 143 a.

on estate tail a cipher, 172 b.

not grantable before lessee's entry, 46 b-

no joint-tenancy of possession and, 188 a.

confirmation to two who are seised in tail makes tenancy in common of rever- sion, 299 b.

tenant for life disclaiming reversion, its effect, 251 b.

tenant in tail's feoffment &c. divests reversion and remainder, which is not altered by any statute, 327 a.

grant of reversion no discontinuance, but limitation of remainder may be, REVERSION—continued.

grant of reversion with warranty no discontinuance, 333 b.

tenant in tail makes a lease for life, then grants away reversion, this a discon- tinuance if lease dies in tenant in tail's lifetime, 333 b.

may be revested and discontinuance remain, 335 a.

must fall in in grantor's lifetime to make grant of it a discontinuance, 333 b.

disseisee's entry divests reversion, 241 a.

lease for life by one joint-tenant a severance of the jointure in the, 191 b.

grantee of, cannot enter, but may distrain (at the common law), 214 a.

but now by statute, grantees of reversion may take advantage of re-entries and forfeitures, 215 a.

lessor in tail, by levying fine has new reversion, 215 a.

notice of assignment of reversion to be given to lessee when, 215 b.

devised to be sold, 113 a.

estate tail with reversion in crown not now barrable, 372 b.

possessio fratris of, lib. REVERTER,

possibility of depends on tenure, 223 a. REVOCATION,

power of, how construed, 218 b.

power and condition distinguished as to extinguishment in part of land, 215 a.

power of revocation in voluntary conveyances under uses and at common law distinguished, 237 a.

power of, may be released, 265 b. RIGHT

and title distinguished, 240 a.

includes title and claim, 265 a.

includes all the estate, 345 a.

release of all demands the best, it includes rights and titles, also commons, rents, and services, 291 b.

rights of property and possession distinguished, 266 a.

sale of a right or title without possession incurs a forfeiture of treble value, 369 a.

no curtesy of reversion or bare right, 29 b.

every one presumed conusant of his rights, 173 b. RIOT,

how many makes, 257 a. RIVER,

is in common if between two owners, 200 b. RUSHES,

grant of, passes the soil, 5 a.

S.

SCIRE FACIAS,

release of actions bars it, 290 b.
SEA and RIVER BANKS,

of waste and destruction to, 53 b.
SEALING,

grantee by sealing deed makes it his, though no party, 230 b.
SEAL,

remainder man need not be party to or seal deed; contra of person taking in
possession, 230 b.
SEIGNIORY,

release of seigniory, its effect, 280 a.

suspended, when, 148 b.
SEISIN,

in law, what, 266 b.

of what there may be a seisin, 14 b. 200 b.

of rent, what, 159 b.

seised and possessed distinguished, 200 b.

by attorney, 258 a.

of the seisin of devisee before entry, Ilia.

induction is a seisin in deed, 342 b.
SERJEANTY,

tenure by grand, what, 105 b.

incidents to, 105 b.

tenant by, may make a deputy, 107 a.

tenure by petit, 108 a.

SF.RJEAXTY—t.mtunud. a ucage tenure, 108 b. grand and petit, of the tenures in, 105 b. 108 a. SERVICE,

lands in demesne and service distinguished, 17 a.

entire services multiplied by tenant's alienation in parcels, 149 b. SEVERANCE,

joint-tenants for lives disadvantage of severance, 191 a.

lease for life by one joint-tenant a severance of the jointure in the reversion,

191 b. 193 a.

lease for life by both joint-tenants a severance of the reversion, when, 191 b. lease for life by both joint-tenants no severance of jointure, 192 a. joint-tenants for years under lease by one severance of the whole jointure,

192 a.

lease by one joint-tenant for life binds survivor, and is a pro Unto, but no far- ther, 186 b. lease by joint-tenants in fee a pro Unto, 185 a. two femes joint-tenants of a term, marriage of one no severance; contra of

personalty, 185 b. lease for life no severance of coparcenary; contra of joint-tenants, 192 a. SHELLEY'S CASE,

when applicable, 182 b. how applicable to joint-tenants for life, 182 a.

limitation to donor's right heirs gives him a reversion under rule in Shelter's case, 22 b. SIGNING,

party not signing bound as to rent, but not as to sum in gross, 231 a. SIMONY,

is what, 120 a. general rules as to, 119 b. SOCAGE,

etymology of term, 86 a. of the service in, 86 a. distress lies for relief in socage, 90 b. fealty in socage, what, 93 a.

tenure not chargeable within time of memory, 86 b. is a tenure by service certain, 85 b. release in socage is a year's rent on tenant's death, 90 b. socage and escuage distinguished, 87 a. petit serjeanty is in effect a socage tenure, 108 b. rent certain is socage, 87 a. all rent service is socage, 87 b. most tenures now in socage, 86 a.

principle of tenure still preserved; but every .new tenure is in socage, 98 a. STANDING MUTE,

what punishment for, 391 a. STATUTE,

statute and elegit creditors have but chattels, 42 a. STATUTES,

construction of, 115 a. equity of, noticed at law, 24 b. effects of preamble, 19 b. enabling and disabling statutes, 44 a.

nine requisites to, 44 a. do not extend to a parson or vicar, 44 b. statutes of limitations, construction of, 114 b. memory of man includes written documents, 115 a. what English statutes affect Ireland, 141b. STEWARD,

infant may be, 3 b. who are incapable of the office of, 3 b.

may be retained without deed, and discharged at pleasure, 61 b. See Capiihcld. SUBINFEUDATION,

taken away by statute of quia emptores, 43 a. SUBSTRACTION,

remedy for, of tithes, 159 a. SUCCESSORS,

chattels cannot go to heirs or, 190 a. are in post, heirs in the per, 250 a. SUITS,

release of suits includes executions, 291 a.

SUFFERANCE. See Tenant at Sufferance. SURRENDER, what it is, and how many kinds, 337 b. things lying in grant cannot be surrendered without deed, 338 a.

surrender and forfeiture, distinguished, 2o2 a.

of life estate no effect on derivative charges, 338 a.

estate for life may be surrendered without deed, 338 a.

tenant for life's feoffment to remainder-man and stranger a surrender and for- feiture, 335 a.

to one joint-tenant good, 192 a.

entry not necessary to surrender, 266 b.

cancellation no surrender, 380 b.

a right, or interesse termini, cannot be surrendered, except by taking fresh lease, 338 a.

may be conditional, so as term may revive on breach, 218 b.

to joint-tenant enures to both, 214 a.

form of surrender of copyholds, 58 b.

not presented at next court void, 62 a. See Copuholds. SUSPENSION,

if reversioner accepts under lease or grant from his tenant, that suspends the whole rent, 148 b.

T.

TENANT,

meaning of word, 1 a.

same person cannot lie lord and, 152 a. TENANT IN FEE. See Fee. TENANT IN TAIL. See Estate Tail. TENANT IN TAIL APHES,

who only can be, 28 b.

by what means the estate can arise, 28 a.

incidents to, 28 a.

privileges and disabilities of, 27 a.

may commit waste, 53 b.

need not attorn, 316 a.

frankmarriage, 28b. TENANT FOR LIFE. See Life Estate. TENANT FOR YEARS,

who is, 43 b.

tenant for less than a year said to be tenant for years, 52 b.

may work mines, when, 54 b.

may fell timl>er for repairing dwelling-house, 54 b. Sec Term; Lean. TENANT AT WILL. See Will, Tenant at. TENANT AT SUFFERANCE,

who is, as distinguished from tenant at will, 57 b.

holds only by laches of owner, 57 b.

lessor cannot bring an action of trespass against before entry, 57 b.

cannot be against the king, 57 b.

release to tenant at sufferance bad; so a release to a mere occupier is bad, 270 b. TENANTS BY ENTIRETY,

this estate arises when, 187 b. See Entireties; Estate by. TENANTS IN COMMON,

creation and definition of, 188 b.

tenants in common have several freeholds, 189 a.

possession only thing in common, 189 a.

grant of moiety gives a tenancy in common, 190 b.

habendum in moieties gives tenancy in common, 190 b.

alienation by parceners makes tenant in common, 195 a.

assignees of joint-tenants are tenants in common, 191 a.

assignee of one joint-tenant and his companion are tenants in common, 191 a.

one may be tenant in common with himself, 190 a.

dower allowed of tenancy in common, 37 b.

wife of tenant in common cannot have dower set nut, 37 b.

joint-tenants may exchange with tenants in common or tenants in severalty, 51 a.

grant of rent by tenant in common is a grant of two rents; contra of reserv- ation to them, 196 a. b.

remedy against companion as to chattels personal, 199 b.

receipt of all the rent by one tenant in common no ouster of companion, 199 b.

T T

TENANT IN COMMON—continued. ejectment for ouster by companion in common, 199 b. chattels real no tenancy in common in, 198 b.

chattels personal as to tenancy in common in, 199 a.

partition not compulsory as between tenants in common, 198 b.

tenants in common and parceners are joint tenants of personal actions, 197 b.

confirmation to two who are seised in tail makes tenancy in common of rever- sion, 299 b.

feoffment and release distinguished, as to tenants in common, joint-tenants, and coparceners, 200 b.

as to waste of life-estate held in, 200 b.

action of waste by one against the other companion, 200 b.

remedy for contribution to repairs of houses and mills, 200 b.

of an advowson, 190 b. TENDER,

of rent must be on land, 211b.

to person off the land good, 206 b.

lawful money, what is, 207 b.

place of, whether to the person or on the land, 210 a.

demand and, must be made before sun-set on last day, 202 a.

what sufficient in performance of condition, 202 a.

of mortgage money must be to the persons, otherwise of rent, 210 a.

not requisite if mortgagee be beyond sea, 210 b.

.stranger's tender in mortgagor's name good, if accepted, 206 b.

nfter and refusal, mortgagee no remedy for money, 207 a.

if a week allowed for payment, demand of may be made at any time before last day, 202 a.

refusal of amounts to a release, except in case of a mortgage, where the debt remains, though land discharged, 209 a.

in bags good, 208 a. of part good, when, 202 b.

if time of payment uncertain, notice must be given, 211a. and refusal on bond, operates how, 207 a. TEN EMENT,

passes what, 6 a.

lands, tenements, and hereditaments distinguished, 2 a. TENURE,

the principle of, 65 a.

principle of tenure still preserved; but every new tenure is in socage, 98 a. not changeable within time of memory, 86 b. some service necessary to, 92 b. division of spiritual, 95 a. fealty is an inseparable incident of tenure, 93 a. before statute 2 E. feoffee held of feoffor, 143 a. in tail is of donor, 22 a.

same person cannot be both lord and tenant, 152 b. TERM,

signifies what, 45 b.

requisites to, 46 a.

term must have a certain beginning and certain end, 46 a.

of the necessary certainty to commencement of term, 45 b.

of years goes to executors, not to heirs, though so limited, 388 a.

tenant to have fee on payment of a sum, if with livery he has the fee subject to

be divested on non-payment, 216 b. feoffment by tenant for years passes a fee, 367 a.

corporation cannot hold a term for years, since it has no executors, 46 b. merger of one term in another; if the term in reversion be afterwards defeated

by a condition, both are lost, 218 b. tenant for less than a year said to be tenant for years, 52 b. tenant for half a year is a tenant for years, within statute of Gloucester, 54 b. not barred by a recovery, 46a. contingent remainder on term bad, 217 a. for twenty-one years, if A. shall so long live, good, 45 b. lease; commencement of, "from" and " after" date distinguished, 45 b. release by lessee for years to disseisor extinguishes term, 275 b. no warranty extends to, 388 a. See Lense; Years. TERMOR,

of livery to termor, or when there is a remainder of freehold, 49 a. confirmation to termor carries freehold, when, 307 b. See I^ease. THE,

"his'' and "the" distinguished, 27a.

TIMBER, of waste in, 53 a. selling reparation timber is waste, 53 b.

lessee may fell the timber for repairing of dwelling-houses, 64 b. TIME,

computation of time, observations on, 135 a. b. TITHES,

impropriate, are now temporal inheritances, 154 b.

remedy for substraction of, 159 a.

dower, how taken of, 31 b. TITLE,

right and title distinguished, 240 a.

"right" includes title, and claim, 265 a. 345 b.

release of all demands the best, it includes rights and titles; also commons, rents, and services, 291 b.

sale of a right or title without possession incurs a forfeiture of treble value, 369 a.

statute against buying pretended titles and maintenance, 368 b.

statute of pretended titles extends not to releases, remainders, and what other things, 369 a.

leasehold and copyhold rights within the statute of pretended titles, 369 a. TOMB,

belongs to heir, but executor has also a right of action for defacing it, 18 b. TOWN,

what passes by the name of, 5 a. TRANSPORTATION,

and abjuration are civil deaths, 132 b. TREASON OR FELONY,

the punishments of, 41a.

attainder of heirs for treason, 13 a.

tenant in tail forfeits for life only for felony, absolutely for treason, 392 b.

treason and felony, what effect on jointure and dower, 36 b. TRESPASS,

accessories in, 57 b. TRESPASSER,

release of actions to one trespasser enures to the other, who may plead it, though no party, 232 a. TRUST,

use before statute in nature of a trust now, 271 a.

when trusts and powers survive, 181 b. TRUSTEE,

lease by cestui que trust trustee cannot enter, 214 b.

feoffment by cestui que trust on condition, and entry for breach disseises him, 202 a.

guardian (or trustee) forfeits nothing by outlawry or attainder, 88 b. TURBARY,

common of appurtenant to house onlv, 121 b. TURF,

grant of will not pass the soil, 4 b.

U.
UNDERLEASE, by one joint-tenant for years a severance of the whole jointure, 192 a. release to undertenant bad, 296 a.

no privity between lessor and underlessee to sustain a release, 273 a.

release to undertenant bad ; contra of confirmation, 308 a. USE,

on what seisin it may be raised, 271 b.

no use raisable on seisin in tail, 19 b.

before statute in nature of a trust now, 272 a.

now transferred into possession, 272 a.

uses, common law, and by statute distinguished, 22 b.

bargain and sale of feoffee to uses before statute void, 271 b.

feoffments to will, and feoffments to uses appointed by will, distinguished, S71b.

resulting use, old and new seisin, 23 a. USURPATION,

of advowson, what, 194 a.

disseisin and usurpation is always in fee, 10 a.

USURPATION—continued. disseisin, abatement, intrusion, deforcement, and usurpation distinguished, 276a. at common law no incumbent, whether by usuqiation or otherwise, could be re- moved ; contra now by stat. "West. 2. 344 a. during trial of right, how remedied and lapse prevented, 344 b. by collation, what and when, 344 b. USURY,

discountenanced, 3 b.

VENDOR AND PURCHASER, sale of a right or title without possession incurs a forfeiture of treble value, 369 a. statute against buying pretended titles and maintenance, construction of, 368 b. 369 a. VERDICT,

its effect, 226 b.

jury should find a special verdict, when, 228 a. VERGE,

tenants by verge are copyholders, 61 a. VICAR,

enabling statutes do not extend to a parson or a vicar, 44 b. VICINAGE,

common of vicinage, what, 122 a. VILLEINAGE,

tenure in, 116 a.

tenure in villeinage is where the service is servile, 116a.

lord has no title till entry, 118 a. VILLEINS,

regardant, and in gross distinguished, 120 b.

what if villein purchase an advowson, 11!) b.

are held by prescription, or confession, 117 b. VISITOR,

who is, 344 a. VOID,

estate not avoided without entry or claim, but avoidance may be waived, 217 b.

though estate void it does not revest till entry or claim, 217 b.

void and voidable, general rule as to estates, 214 b. VOLUNTARY CONVEYANCES,

power of revocation in voluntary conveyances under uses and at common law distinguished, 237 a. VOYAGE ROYAL,

what is, 69 b.

W.

WAIK, as to, on lands held in common, 200 a. WAINSCOT, and fixtures, of waste in, 63 a. WARDSHIP,

what it is, 84 a. 90 a.

of wardship and age of marriage, 74 b.

incident to knight service, 84 a.

descent of, 90 a.

descent of, as to bishops, 90 a. WARRANTY,

what it is, 365 a.

of three kinds, lineal, collateral, and commencing in disseisin, 364 l».

what words create a warranty, 383 b.

warranties favoured, estoppels odious, 365 b.

lineal and collateral warranty distinguished, 371 b.

collateral warranty binds the right by purchase, 370 b.

estate tail, how barred by collateral warranty, 372 a.

lineal warranty bars estate in fee without assets and estate tail with assets, col- lateral warranty bars both estates without assets. 374 a.

lineal warranty with assets bars issue in tail, but not its issue, unless it recti** the assets, 392 b.

WARRANTY—emumud. assets, what requisite to make a warranty, 374 b. on what conveyances warranty may be made, 371 a. tenant for life aliens with warranty, if his heir be the remainder man or rever- sioner he is bound, 366 a. warranty may be annexed to rents newly created, and is implied on grants of rent for equality of exchange or partition, 366 a. warranties by disseisin are collateral, 367 a. release, feoffment, and warranty distinguished, 265 b. feoffment with warranty by one joint-tenant no bar to the other, though he be feoffee's son and heir, 366 b. warranty by disseisin, what, 369 a. warranty descends to heir at common law only, 12 a. 376 a. collateral warranty enures in respect of title, not of blood, 376 a. tenant for life's warranty collateral to remainder man though his lien, 375 b. one corparcener aliening the whole warranty lineal and collateral, 373 b. lineal warranty binds the right by descent, 370 a. reason of warranty, 373 a. warranty binds not a corporation, but only the natural heir, 370 a. of husband's discontinuance and wife's release with warranty, 375 a. lease creates a warranty, 384 a. partition creates a warranty, 174 a. 384 a. extends not to the heir of the half-blood, 386b. may be annexed to an estate pur auter vie, 387 b. to a term no warranty extends, 388 a. of lands in gavelkind descends to who, 386 b. "give, grant, exchange" create a warranty, 383 b. how warranties may be discharged, 392 b. destroyed by attainder for felony, 390 b. destruction of estate defeats warranty, 389 a. WARREN, what passes by the name of, 5 b. of waste in, 53 a. WASTE, lies by whom, against whom, and what is waste, 53 a. conversion of arable to pasture &c. is waste, 53 b. new erections are waste, 53 a. timber trees, of waste in, 53 a. lessee may fell timber for repairing of dwelling-house, 54 b. selling reparation timber is waste, 53 b. lessee may work mines, when, 54 b. of dove-house, 200 b. fences, ditches, &c. of waste in, 53 b. sea and river banks, of waste and destruction to, 53 b. prohibition lies against whom, 53 b. tenant for life's assignee punishable for waste, 54 a. as to life estate held in common tenancy, 200 b. coparceners joint-tenants of waste as to, 53 b. by husband seised jure uxoris, 54 a. occupants, of waste by, 54 a. guardian, of waste by, 54 a. by a stranger, 54 a. tenant at will not bound to repair, but liable to trespass for voluntary wastci 57 a. tenant at will not liable for permissive waste, 57 a. of waste sparsim, 54 a. the clause " sans waste" may be omitted without breach of condition, 219 b. action of by one against the other companion, 200 b. costs and damages in, 198 a. five writs of waste, 54 a. plaintiffs in waste must have immediate estate of inheritance, 53 b. 218 b. what remainder prevents action of waste, 53 b. 299 b. reversion must continue in same person to support action of waste, 53 b. A. for life, remainder to B. in tail, U.'s release to A. no merger, but a release of waste, 345 b. WATERCOURSE, diverting stream a disseisin of the mill, 161 a. WATERING-PLACE, as to obstruction of watering-place, 56 a. » WAY, b V three kinds of ways, 56 a.
WAY,—continued. private and public ways distinguished and remedy for obstruction, 56 a. as to grant of, by one of two joint-tenants, 185 a. WELSH MORTGAGE, vivum vadium, or Welsh mortgage, what, 205 a. WIFE, is a good name of purchase without christian name, 3 a. WILL, construction of, 112 a. first grant; last will, 112 b. lands not devisable at common law; secus now by statute of wills, 111b. wife cannot devise to husband, 112 b. at what age infant may make will of personalty, 89 b. feoffments to will, and feoffments to uses appointed by will, distinguished, 271 b. of the seisin on devisee before entry. Ilia. express warranty can only be created by deed; ita, not by will, which is no deed ; but on a will there may be an implied warranty, 384 a. of joint-tenant void, 185 a. WILL, (TENANT AT), to A. generally, an estate for life, if with livery, but if without, an estate at will only, 56 b. the will-must be at option of both parties, 55 a. what a determination of the will, 55 b. marriage of lessor or lessee no determination of the will, 55 b. no determination of will on death of one lessor or lessee, if there are two, 55 b. tenant at will entitled to emblements, but not tenant for years, 55 a. emblements concern the annual profits only, 55 a. tenants at will and executors, allowed a reasonable time to remove their goods from the premises, 56 a. voluntary waste and assignment, a determination of tenancy at will, 57 a. tenant at will not bound to repair, but liable to trespass for voluntary waste, 571. tenant at will not liable for permissive waste, 57 a. release to tenant at will good, 270 b. lessor at will may distrain, but impounding distress on land determines will, 57 b. his grantee a disseisor, 57 a. WITNESS, who may be, 6 b. WOODS, include the lands upon which they grow, 4 b. WRITS, *B original writs one principal evidence of the common law, 93 b. WRONG, never presumed, 232 b. V.

VARDLANU, a measurement of value, not of content, 69 a. YEARS, tenant for years, who is, 43 b. term of years goes to executors not to heirs, though so limited, 388 a. tenant for less than a year said to be tenant for years, 52 b. tenant for half a year is a tenant for years within the statute of Gloucester, 54 b. in running lease, lessee has a term only for those years which he elects to take, 218 b. tenant to have fee on payment of a sum, if with livery, he has the fee subject to be divested on nonpayment, 216 b. tenant at will entitled to emblements, but not tenants for years, 55 a. feoffment by tenant for life or years a disseisin, 330 b. feoffment by tenant for years passes a fee, 367 a. See Lease; Farm.
*.* The following references to Modern Cases will shew the applicability of the foregoing Works to transactions of the present day, as well as assist the Student in his interpretation of the text.

Co. Litt.
 Where cited.
 Co. Litt.
 Where cited.
3b
 12 Price, 494.
 90a
 7 B. & C. 162, 176.
4b
 5 Yo. & Jerv. 347
 90a
 7 B. & C. 182, 4.
4b
 5 B. & C. 884.
 Sect. 99
 4 East. 288.
4b
 6 Bing. 157.
 102a
 5 Bing. 539.
6a
 2 B. & A. 738.
 111a
 6 B & C 116.
6a
 4 Biag. 296.
 112b
 1 Tam. 94.


































































































































































































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