v-2- 
 
 ISJ3 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL Or LAW
 
 THE 
 
 FIRST PART 
 
 OF THE 
 
 fngtttuteg of t&eHatog of €tt0lano; 
 
 OR, A 
 
 COMMENTARY UPON LITTLETON. 
 
 NOT THE NAME OF THE AUTHOR ONLY, BUT OF THE LAW ITSELF. 
 
 Quid te vana j'uvant miser or ludibria charter. ? 
 
 Hoc lege, quod possis dicer e jure, — meum est. Mart. 
 
 Major hcereditas venit unicuique nostrum a jure et legibus, qudm a parentibus. Cicero. 
 
 H^EC EGO GRANDiEVUS POSUI TIBI, CANDIDE LECTOR, 
 
 Aulhore EDWARDO COKE, Milite. 
 
 REVISED AND CORRECTED, 
 
 With Additions of NOTES, REFERENCES, and PROPER TABLES, 
 By FRANCIS HARGRAVE and CHARLES BUTLER, Esqrs. of Lincoln's Inn, 
 
 INCLUDING ALSO 
 
 The NOTES of Lord Chief Justice HALE and Lord Chancellor NOTTINGHAM ; 
 
 \ AND 
 
 An ANALYSIS OF LITTLETON, written by an unknown Hand in 1658-9. 
 
 By CHARLES BUTLER ESQ. one of His Majesty's Counsel. 
 
 FIRST AMERICAN, 
 
 jFrom the Nineteenth aontton 22Trftton, corrected. 
 
 IN TWO VOLUMES. 
 
 VOL. II. 
 
 PHILADELPHIA: 
 ROBERT II. SMALL, MINOR STREET. 
 
 185 3.
 
 » 
 
 
 KITE A WALTON. PRINTERS.
 
 THE 
 
 FIRST PART 
 
 m 
 
 OF THE 
 
 INSTITUTE S 
 
 OF THE 
 
 LAWS OF ENGLAND. (1) 
 
 THE THIRD BOOK. 
 
 Chap. 1. Of Parceners. Sect. 241. 
 
 PARCENERS are of two sorts, to wit; parceners according to the 
 
 course of the common law, and parceners according to the custome. 
 
 Parceners after the course of the common law are, where a man, or woman, 
 
 seised of certain lands or tenements in fee simple or in taile, hath no issue 
 
 but 
 
 (l)In the vellum MSS. of Littleton, belonging to the public library at Cam- 
 bridge there is the following argument or introduction to this third book : 
 
 « En cest tierce liver ascum chose sera dit a toy, mon fitz, de parceners, de 
 « iointenantez, de tenantez in comen, de estatez de terrez et tenementez sur 
 "condition, de discentez que tollount entrez, de continuell clayme, de releissez 
 « et confirmation, de garrantiez liniall et collaterall et de garrantiez que com- 
 " ensont per disseisin, de attornament, de surrenderor, de discontinuance, de 
 "remitterez, de tenant per elegit, de tenant per estatut merchant, de tenant per 
 
 " estatut de la staple, &c." . _.„. T , 
 
 On this addition to the printed copies of Littleton, sir William Jones, who 
 kindly favoured me with the readings from the two Cambridge manuscripts, 
 writes this observation.— "It is very remarkable, that m this argument a 
 « Chapter is promised concerning surrenders, of which Littleton has not ex- 
 « pressly and separately treated. The word surrenderor, which is abbreviated 
 « by the transcriber, seems completely to have puzzled a former owner ot the 
 " manuscript. He says in the margin, ceste parole est en auter fragment que 
 "ieo ay: qucere ce que il signifie. Since then surrenders are mentioned in 
 "two manuscripts as one of the heads of the third book ; it is not improbable, 
 " that the author intended to have written a distinct chapter concerning them, 
 " as he did write concerning tenants by elegit, and by statute mer- 
 chant and staple."— See Sect. 324, where Littleton refers to a Chapter ou 
 elegits. — [Note 1.] 
 
 5C f
 
 \ 
 
 (f 
 
 163. a. 163. b.] Of Parceners. L. 3. C. 1. Sect. 241. 
 
 but daughters, and dieth, and the tenements descend to the issue (2), and 
 the daughters enter into the lands or tenements so descended to them, then 
 they are called parceners, and be but one heir to theire ancestor (Parce- 
 ners solonque le course del common ley sont, lou home, ou feme, seisie de 
 certaine terres ou tenements in fee simple ou en taile, n'ad issue forsque 
 files, et devie, et les tenements discendont a les issues, et les files 
 entront en les terres ou tenements issint discendus a eux, donques els 
 sont appels parceners et quant a files els sont (1) * forsque un heire 
 a lour ancestor) : And they are called parceners; because by the writ, 
 which is called breve de participatione facienda, the law will constraine 
 them, the partition shall be made among them. And if there be two 
 daughters to whom the land descendeth, then they be called two parce- 
 ners ; and if there be three daughters, they be called three parceners ; 
 and four daughters, four parceners ; and so forth (2) f- 
 
 ^UR author having treated in his two former bookes, first of 
 estates of lands and tenements, and in his second booke of 
 tenures whereby the same have beene holden, now in his third 
 booke doth teach us divers things concerning both of them ; as, 
 1. The qualities of their estates. 2. In what cases the entry of 
 him that right hath may be taken away. 3. The remedies, and 
 in what cases the same may be prevented, or avoyded. 4. How 
 a man may be barred of his right for ever, and in what cases the 
 same may be prevented or avoyded. 
 
 For the first, he, having spoken of sole estates, divideth the 
 quality of estates into individed and conditionall. Individed, into 
 coparcenary, joyntenancy, and tenancy in common. 
 Coparcenary into parceners by the S^~ common law, T163. ~j 
 and parceners by the custome; and be beginneth his | b. 
 Vide Sect. 3S5. third book with parceners claiming by descent, which, 
 
 comming by the act of law and right of bloud, is the noblest and 
 worthiest means whereby lands do fall from one to another. 
 Conditionall, into conditions expresse or in deed, and conditions 
 in law. Conditions in deed, into gages; which he divideth into 
 vadia mortua and vadia viva. Vadia mortua, so called because 
 either money or land may be lost, : and viva, because neither 
 money nor land can be lost, but both preserved. Then speaketh he 
 of descents, whereby the entry of him that right hath may be taken 
 away. And next to that of the remedy how to prevent the same, 
 viz. by continuall claim. Then he teacheth, how a man, having a 
 defeasible or an imperfect estate, may perfect and establish the 
 same by three meanes, viz. by release, by confirmation, and at- 
 tournment, where that is requisite. Having spoken of a descent, 
 being. an act in law which taketh away an entry, he doth then 
 speake of a discontinuance, the act of the party whereby the 
 entry of them that right have shall be taken away. And next unto 
 that he teacheth in what case the same may be avoided by remit- 
 ter. After he had treated of descents and discontinuances which 
 take away entries, but bar not actions, lastly, he setteth forth 
 the learning of warranties, (a curious and cunning kind of learn- 
 
 ing 
 
 *f These are notes 1, and 2, of 163. b. in the IZth and 14th, editions. 
 
 (2) In L. and M. and in Iloh. it is daughters instead of issues. 
 
 (1) *See below note 3. 
 
 (2) f in L. and M. and in Iloh. an dc. comes in here.
 
 L. 3. C. 1. Sect. 241. Of Parceners. [163. b. 164. a. 
 
 ing I assure you) whereby both entry, action, and right may be 
 barred, and the remedies how they may be prevented before 
 they fall, and in what cases they may be avoyded after they be 
 fallen. And thus have you an account of the thirteene severall 
 chapters of his third booke. And now his method being under- 
 stood, let us heare what our author will say unto us concerning 
 parceners. 
 
 " Et quanta files els sont forsque un heire a lour [a] aneester." [a] Bract, lib. 2. 
 This is false printed ; for the originall is, et quan que files els sont, ^'^'l 1 ' * c j 
 els sont parceners, et sont forsque un heire a lour auncestor (3). ub. 5. fo. 443. 
 
 Brit. fo. 58. 112. 
 " Parceners." [b~\ Jus descenait quasi uni Ticeredi propter juris 128* 183, 184, 
 unitatem, sicut sunt plures filias, &c. Et ubi omnes simid et in i, , : \??\ *' 
 
 \ -I i -t -* • -T It t. 110. 0. C£L* «?• 
 
 solidum hozredes sioit, plures cohozredes sunt quasi unum corpus, n. 6. ca. 47. 
 propter unitatem juris quod habent. Whereupon it followeth, Glan. li. 7. ca. 3. 
 that albeit where there be two parceners [c] they have moities j£vr3 3 *j\ o 
 in the lands descended to them, yet are they both but one f . g6. 76. Flet. 
 heyre ; and one of them is not the moiety of an heire, but both ubi supr. Brit, 
 of them are but unus hceres. Jjjj 8 ^ p ' H * b 2j" 
 
 And it is to be observed, that there is a diversity betweene a iyj vide Sect. 8. 
 descent, which is an act of the law, and a purchase, which is an vers. fin. 
 act of the party. [</] For if a man be seised of lands in fee, and W I let y\ * 5 * 
 hath issue two daughters, and one of the daughters is attainted ^ 6. ca. 47.' 
 of felony, the father dieth both daughters being alive ; the one 
 moitie shall descend to the one daughter, and the other moitie 
 shall escheat. But if a man make a lease for life, the remainder 
 to the right heires of A. being dead, who hath issue two daughters, 
 whereof the one is attainted of felony ; in this case some have 
 said, that the remainder is not good for a moitie, but voyd for 
 the whole, for that both the daughters should have beene (as 
 Littleton saith) but one heire (4). 
 
 [16-i. ~| 8©* x\ maa makes a gift in taile, reserving two (Post. 196. b.) 
 a. | shillings rent to himselfe during his life, and if he die 
 his heire within age then reserving a rent of twentie 
 shillings to his heires for ever ; he dieth having issue two daurrh- 
 ters, the one of full age, the other within age : in this case the 
 donee shall hold by fealty onely insomuch as the one daughter as 
 well as the other is his heire, and both of them (as Littleton saith) 
 make but one heire, ergo, his heire is not within age, neither is his 
 heire in that case of full age. But if the reservation had been, 
 " and if he die, his heire neither being within age, nor of full age, 
 " &c." in this case the reservation had beene good. And if it 
 doth not begin in his next heire, it shall never begin as this case is, 
 for that the precedencie is not performed, [e] But yet if one of [e] Temps E. 1. 
 them be of age, and the other within age, she shall have her age A s e > 128 - 8 E - 2 - 
 and other priviledges and advantages that an heire within age shall 3 q jj? eme 7 ° ' 
 
 44 E. 3. Age, 47. 26 Ass. 65. 13 E. 3. Age, 51. 28 Ass. 22. 29 Ass. 25. 57. 
 34 H. 6. 4 Ass. 17. 
 
 have; 
 
 (3) The words are as here corrected by lord Coke both in L. and M. and in 
 Boh. 
 
 (4) See ant. 25. b. 26. b. and post. 196. b. 374. b. Here lord Hale intro- 
 duces the following note. — Donee in tail on condition not to discontinue. Donee 
 has issue two daughters. One discontinues. The donor may enter. R. 26 
 Eliz. G. B. sir W. Moore's case. Hal. MSS.— [Note 2.]
 
 164. a.] Of Parceners. L. 3. C. 1. Sect. 241. 
 
 have; and when they are demandants, for the nonage of the one 
 
 [/] Fleta,Hb.5. the paroll shall demurre against them both (1). [/] Sunt autem 
 
 ca. 9. et lib. 6. pl ures participes quasi unum corpus in eo quod unum jus habent ; 
 
 (l Co. 103. et oportet quod corpus sit integrum, et quod in nidla parte sit de- 
 
 2 Ro. Abr. 416.) fectus. And when the right heire doth claime by purchase, he 
 
 must be (say they) a compleat right heire in judgement of law (2). 
 
 And therefore if lands be given to a man and to the heires 
 
 females of his bodie, and he hath issue a son and a daughter, 
 
 and dieth, the daughter shall have the land by descent ; but if a 
 
 remainder be limited to the heires females of the bodie of I. S. 
 
 and he hath issue a son and a daughter, his daughter shall never 
 
 take it by purchase, for that she is not heire female of the body 
 
 of I. S. because he hath a son. 
 
 If a man give lands to another, and to the heires males of his 
 body, upon condition, that if he die without heire female of his 
 bodie, that then the donor shall re-enter, this condition is utterly 
 voyd (3), for he cannot have an heire female, so long as he hath 
 an heire male. 
 
 And as they be but one heire, and yet severall persons; so 
 have they one entire freehold in the land, as long as it remaines 
 [g] 10 E. 4. undivided, in respect of any stranger's praecipe. [g~\ But 
 17 E. 3. 46. betweene themselves to many purposes they have in judgement 
 (Mo. 60.) f j aw s evera ll freeholds ; for the one of them may infeoffe 
 
 [A] 37 H. 6. 8. another of them of her part, and make liverie. [/t] And this 
 19 H. 6.45. coparcenarie is not severed or divided by law by the death of 
 ( oa . . a.) aQ y Q £ t ^ em . f or jf one jjjg^ ker part shall descend to her issue, 
 
 and one praecipe shall lie against them, for they shall never joyne 
 as heires to severall ancestors in any action ancestrell, but when 
 one right descends from one ancestor : and thenpropter unitatem 
 juris, though they be in several degrees from the common an- 
 cestor, yet shall they joyne. But the issues of severall copar- 
 ceners, because severall rights descend, shall never joyne as 
 heires to their mothers ; and yet when they have recovered, a 
 
 Vid. Sect. 313. writ of partition lieth betweene them. 
 
 [?•] 7 E. 3. 30. 34. For example, [t] If a man hath issue two daughters, and is dis- 
 
 48 E. 3. 14. 
 
 24 E. 3. 13. F. N. B. 221. 35 H. 6. 23. 27 E. 3. 89. 31 H. 6. 14. b. 
 
 seised, 
 
 (1) But in the writ de partitione faciendd the younger sister shall not have 
 her age against the elder. Post. 171. a. — [Note 3.] 
 
 (2) In a former note I have much at length, and as I fear tediously, en- 
 deavoured to support lord Coke in this doctrine. Ant. 21. b. note 3. But 
 since the writing of that note a case has been published, in which the court 
 of king's bench, after three arguments, decided against applying the rule to a 
 will. See Willes and others v. Palmer and others, 5 Burr. 2615. In another 
 case also, which was three times argued, the court of exchequer, as I under- 
 stand, refused to apply the rule to a marriage-settlement. Evans on demise of 
 Burtenshaw v. Weston, determined in a special verdict in Scaccar. Mich. 1774, 
 or Hill. 1775. This latter case had been previously determined in B. R. in a 
 case reserved in an ejectment in which Mr. Burtenshaw was defendant, and 
 there too the case was argued three times. In both courts the judgment was 
 against Mr. Burtenshaw. But the question on the construction of heirs female 
 of the body, considered as words of purchase, was only a secondary point; and 
 whether it was debated in B. R. or not, I am not at present informed. After 
 such authorities, it can be scarcely necessary to guard the reader against in- 
 cautiously adopting my private ideas. — [Note 4 ] 
 
 (3) As to effect from a condition's being void, see post. 206. a. & b.
 
 L. 3. C. 1. Sect. 241. Of Parceners. [164. a. 164. b. 
 
 seised, and the daughters have issue and die, the issue shall 
 joyne in a, praecipe: because one right descends from the ances- 
 tor : and it maketh no difference, whether the common ancestor, 
 being out of possession, died before the daughters or after, for 
 that in both cases they must make themselves heires to the 
 grandfather which was last seised, and when the issues [k] have [fc] 37 H. 6. 8. 
 recovered they are coparceners, and one praecipe shall lie j^E'Vi^'ir. 
 against them. And likewise if the issues of two coparceners, (8 c ' , 86- Post. 
 which are in by severall descents, be disseised, they shall joyne 196. a. 364. b.) 
 in assise. But in the same case if the two daughters had beene 
 actually seised, and had beene disseised, after their deceases 
 the issues shall not joyne; because severall rights descended to 
 them from severall ancestors : and yet when they have severally 
 recovered, they are coparceners (4), and one prcecipe lieth 
 against them, and a release made by one of them to the other 
 is good. And so note a diversitie inter descensum in capita, et 
 in stirpes. 
 
 And the statute of Gloucester, cap. 6, made anno G Edw. 1. 
 speaketh si home murge, &c. if a man dieth ; so as that statute 
 extendeth not but where one dieth, and hath divers heires, (F. N.B.195.H.) 
 whereof one is son or daughter, brother or sister, nephew or 
 neece, and the others be in a further degree, all their heires 
 from henceforth shall have their recoverie by writ of mort- 
 dauncestor. And this seemeth to me to be the common law; 
 for Bracton, who writ before this statute, saith, [/] in casu cum W Br , act J [^- 4 - 
 sit assisa mortis antecessoris conjungenda cum eonsanguinitate, f i ' 181 182 / 
 
 -» -!•"» ••..7 
 
 potius procedat assisa qudm praecipe, quia id, quod est magis 
 
 remotum, non trahit adse quod est magis junctum, sed e contrario 
 
 in omni casu. And herewith agreeth the most of our [m] |- WI ] 19 e. 3. 
 
 bookes ; and two coparceners shall have a writ of ayel, and by tit. Joyndre in 
 
 their count suppose the common ancestor to be grandfather to Acti on,l\. u 
 
 the one, and great grandfather to the other (5). 27 E. 3. 89. 
 
 48 E. 3. 14. 24 E. 3. 13. F. N. B. 221. Register. Vide 32 E. 1. Joindre in 
 Action, 34. 13 E. 3. ibid. 29. Temps E. 2. ib. 35. 30 E. 1. ibid. 36. 25 H. 6. 23. 
 
 I have beene the longer herein, for that this inheritance of co- 
 parceners is the rarest kind of inheritance that is in the law. 
 
 Furthermore it is to be observed that herein also in case of co- 
 parceners, [n~\ sometimes the descent is in stirpes (viz.) to stockes [»] Bracton, 
 or roots; and sometimes in capita, to heads. As if a man hath ^itton^cap. 71. 
 issue two daughters and dyeth, this descent is in capita, viz. that pi eta) Lib. 5. 
 every one shall inherit alike, Littleton here saith. cap. 9._et 6. 
 T164.1 But if a man hath issue two daughters, and $sg~ the ca P" 4 '- 
 b. I eldest daughter hath issue three daughters, and the 
 youngest one daughter, all these foure shall inherit ; 
 but the daughter of the youngest shall have as much as the 
 three daughters of the eldest, ratione stirpium. and not ratione 
 capitum, for in judgement of law every daughter hath a several 
 stocke or root. 
 
 Also if a man hath issue two daughters, and the eldest hath 
 issue divers sonnes and divers daughters, and the youngest 
 
 hath 
 
 (4) See the like as to jointenants, post, 188. a. 
 
 (5) See F. N. B. 197. B.
 
 164 b.] Of Parceners. L. 3. C. 1. Sect. 241. 
 
 hath issue clivers daughters, the eldest son of the eldest daugh- 
 ter shall onely inherit; for the 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 moitie (viz.) his mother's part; so that men descending 
 of daughters may be coparceners, as *well as women, and shall 
 joyntly implead and be impleaded, as is aforesaid. 
 To] 20 E. 2. [°] If there be two coparceners, and the one bring a ratio- 
 
 Nuper ob. 14. nabili parte or a nuper obiit against the other, the defendant 
 F. N. B. 197. claime by purchase, and disclaime in the blood, the plaintiffe 
 shall have a mortdauncester against her as a stranger for the 
 whole (1). 
 
 7 E. 3. 13. 
 
 Bract, lib. 2. " Parceners are of two sorts." Here Littleton doth divide 
 
 fe. 66. 71, &c. parceners ; and herewith do asree the ancient books of law. 
 
 Brit. ca. 71. V } ° 
 
 Fleta, li.5.ca. 9. , ,, -r» 
 
 " Alia they are called parceners. rarceners, partxctpes, 
 
 et dicunturparticipes, quasi partis capaces, sive purtem capientes; 
 
 qtiia res inter eas est communis ratione plurium personarum. 
 
 This tenancie in the ancient books of law is called adaequatio, 
 
 and sometime familia herciscunda (2), an inheritance to be 
 
 divided; and many times parceners are called coparceners. 
 
 " Breve de participatione facienda." This is false printed (3), 
 
 and should be De partione facienda (4), a writ whereby the 
 
 [p] Regist. coparceners are compelled to make partition, [p] Item est alia 
 
 Orig. 76. 316. actio mixta, quo? dicitur actio familise herciscundoe ; et locum 
 
 egist.Jud. 0. ^ (l j e * i n t er eos q U { communem habent hereditatem, &c. Et locum 
 Brit, ubi sup. ' .,-*. 7 , 7 . . , 
 
 Flet. ubi sup. habet, et vtdetur, inter cohozredes, ubi agitur de proparte sororum ; 
 
 Bract, ubi sup. vel inter alios, ubi res inter partes et cohozredes dividi debeat, 
 
 sicut sunt plures sorores, quse sunt quasi unus hieres, vel inter 
 
 plures fratres, qui sunt quasi unus hozres ratione rei qua} divisi- 
 
 bilis est inter plures, musculos, &c. 
 
 (Ant. .32. a. " Of lands or tenements." It is to be considered of what 
 
 150, 151.) inheritances daughters shall be coparceners, and how and in 
 
 what manner partition should be made between them. Wherein 
 it is to be observed, that of inheritances some be entire and 
 some be severall : againe, of entire, some be divisible, and 
 some be indivisible. And here it appeareth by Littleton, that 
 parceners take their appellation, because they are compelled to 
 make partition by writ of partitione facienda ; where, note, 
 that Littleton alloweth well to finde out the true derivation of 
 words, as often hath been and shall be observed. 
 
 If a villeine descend to two coparceners, this is an entire 
 inheritance ; and albeit the villeine himselfe cannot be divided, 
 yet the profit of him may be divided; one coparcener may 
 have the service one day, one weeke, &c. and the other another 
 day or weeke, &c. And for the same reason a woman shall be 
 endowed of a villeine, as before it appeareth in the Chapter of 
 
 Dower 
 
 (1) See post. 175. 242. a. 
 
 (2) See the verbe hercisco or ercisco used ant. 86. a. 
 
 (3) But in L. & M. and in Rob. it is the same. 
 
 (4) Monsieur Bouard derives this writ from the capitulars of the first 
 
 French kings. 1 Hou. Littl. 318.
 
 L. 3. C. 1. Sect. 241. Of Parceners. [164. b. 165. a. 
 
 Dower (5). Likewise an advowson is an entire inheritance; [q] [ q ] 13 e. 2. tit. 
 and yet in effect the same may be divided betweene coparceners, Q uar - Ilr) P- !7°- 
 for they may divide it to present by turnes(6). i,', r\- 5 9 
 
 Mirror, cap. 2. sect. 17. 
 
 0] 44 E. 3. tit. 
 Partic. 6. & tit. 
 Avowrie, 75. 
 (2 H. 6. fol. 11. 
 Ant. 148. a.) 
 
 [«] 2 E. 2. tit. 
 Dower, 123. 
 
 [t] 17 E. 2. 
 Nuper obiit, 12. 
 16 E. 2. ibid. 11. 
 5 Mariae, 
 Dier, 153. 
 [m] 17 E. 3. 72. 
 H 13 E. 2. 
 Quare Imp. 170. 
 Fleta, lib. 5. 
 cap. 9. 
 [as] Mich. 24 
 et 25 Eliz. inter 
 Comitem de 
 Huntingdon 
 et Seignior 
 Mountjoy. 
 (Mo. 174.) 
 
 A rent charge is entire, and against common right; [r] yet 
 may it be divided betweene coparceners, and by act in law the 
 tenant of the land is subject to severall distresses, and partition 
 may be made before seisin of the rent. 
 
 Entire inheritances not divisible, we finde divers in our bookes ; 
 and some inheritances that are divisible, and yet shall not be 
 parted or divided betweene coparceners, as hereafter shall appeare. 
 [s] If a man have reasonable estovers, as housebote, heybote, 
 &c. appendant to his freehold, they are so entire as they shall 
 not be divided betweene coparceners. [<] So if a corody incer- 
 taine be granted to a man and his heires, and he hath issue 
 divers daughters, this corodie shall not be divided betweene 
 them ; but of a corodie certaine partition may be made. 
 
 [u~\ Homage and fealtie cannot be divided betweene coparce- 
 ners (7). [w]So a pischarie incertaine, or a common saunsnoni- 
 bre(H), cannot be divided betweene coparceners, for that would 
 be a charge to the tenant of the soile. — [.r]The lord Mountjoy, 
 seised of the mannor of Canford in fee, did by deed indented 
 and inrolled bargaine and sell the same to Browne in fee, in 
 which indenture this clause was contained. Provided ahvayes, 
 and the said Browne did covenant and grant to and with the 
 said lord Mountjoy, his heires and assignes, that the lord Mount- 
 joy, his heires and assignes, might dig for ore in the lands {which 
 were greate wasts) parceU of the said mannor, and to dig turfe 
 also for the making of allome. And in this case three poynts 
 were resolved by all the judges. First that this did amount to 
 a grant of an interest and inheritance to the lord 
 Mountjoy, to digge, &c. Secondly, that B@ Q> notwith- 
 standing this grant, Browne his heires and assignes 
 might dig also, and like to the case of common sauns 
 nombcr. Thirdly, that the lord Mountjoy might assigne his 
 whole interest to one, two, or more; but then, if there be two or 
 more, they could make no division of it, but work together with 
 one stock; neither could the lord Mountjoy, &c. assigne his in- 
 terest in any part of the wast to one or more, for that might 
 worke a prejudice and a surcharge to the tenant of the land; and 
 therefore if such an incertaine inheritance descendeth to two co- 
 parceners, it cannot be divided betweene them(l). 
 
 But 
 
 (5) Ante 32. a. 
 
 (6) See an instance of a partition of an advowson between jointenants in 
 Carth. 505. ' 
 
 (7) See ante 67. b. and Dav. Rep. 61. b. 
 
 (8) Ace. as to common sans nombre, ante 149. a. See the note on this sort 
 of common, ante 122. a. 
 
 (1) This same case of the earl of Huntingdon and lord Mountjoy is reported 
 in Godb. 17. 1 And. 307. and Mo. 174. "Lord Anderson gives the opinion 
 of the judges as it was certified in writing to the privy council; but this 
 certificate takes no notice of the point of indivisibility ; nor is it one of the 
 questions stated by lord Anderson to have been referred to the judges. — In 
 
 Mo. 
 
 m 
 
 (Ant. 122. a. 
 1 Saund. 351.) 
 Vide 5 Maria?, 
 Dier, 153. 
 (Noy, 145. Cro. 
 Jam. 256, 257. 
 1 Mod. 74.)
 
 165. a.] 
 
 (6 Co. 1.) 
 
 [</] 2 E. 2. 
 Dower, 123. 
 13 E. 2. 
 Quar. imp. 170. 
 Fleta, ubi supra. 
 Vide Mirror, 
 ca. 2. sect. 17. 
 
 [z] Bracton, 
 
 lib. 2. 76. 
 
 Britton, cap. 71, 
 
 72. 
 
 Fleta, lib. 5. 
 
 cap. 9. 
 
 (Ant. 18. b. 
 27. a.) 
 
 [*] 23 H. 3. tit. 
 Partition, 18. 
 contra, Cruise 
 on Dig. 143. 
 
 [«] 3 H. 3. 
 tit. Prescrip- 
 tion, (5). 
 
 Of Parceners. L. 3. C. 1. Sect, 241. 
 
 But then it may be demanded, what shall become of these in- 
 heritances? The answer is, that it appeareth in our bookes, that 
 regularly [y] the eldest shall have the reasonable estovers, com- 
 mon, pischary, corody incertaine, &c. and the rest shall have a 
 contribution, that is, an allowance of the value in some other of 
 the inheritance, and so of the like. But what if the common an- 
 cestor left no other inheritance to give any thing in allowance, 
 what contribution or recompence shall the younger coparceners 
 have ? It is answered, that if the estovors or pischary or common 
 be incertaine, then shall one coparcener have the estovers, pis- 
 chary, or common, &c. for a time, and the other for the like 
 time; as the one for one yeare, and the other for another, or 
 more, or lesser time, whereby no prejudice can grow to the 
 owner of the soile. Or in case of the pischary, the one ma} r have 
 one fish, and the other the second, &c. or the one may have the 
 first draught, and the second the second draught, &c. And if it 
 be of a park, one may have the first beast, and the second the 
 second, &c. And if of a mill, one to have the mill for a time, 
 and the other the like time; or the one one toll dish, and the 
 other the second, (2) &c. And this appeareth to be the ancient 
 law; for it is said [2] Sunt alias ces hasreditarias quae veniunt in 
 partitionem, quae, cum dividi non possunt,conceduntur, uni; ita 
 quod alias cohaeredes alibi de communi hasreditate habeant ad 
 valorem, sicut sunt vivaria, piscarias, parci; vel saltern quod 
 partem habeant pro defectu, sicut secundum piscem, tertium vel 
 quartum; vel secundum tractum, tertium vel quartum. Item, 
 in parcis sccundam, tertiam aut quartam bestiam. 
 
 But now let us turne our eye to inheritances of honour and 
 dignity. And of this there is an ancient booke case, [*] in 23 
 H. 3. tit. Partition, 18, in these words : Note, if the earldome 
 of Chester descend to coparceners, it shall be divided betweene 
 them, as well as other lands, and the eldest shall not have this 
 seigniory and earldome entire to herselfe; quod nota, adjudged 
 per totam curiam (3). By this it appeareth, that the earledome, 
 (that is, the possessions (4) of the earledome) shall be divided; 
 and that where there be more daughters than one, the eldest 
 shall not have the dignity and power of the earle, that is, to be 
 a countesse. What then shall become of that dignity? The 
 answer is, [«] that in that case the king, who is the soveraigne 
 
 of 
 
 Mo. 707, the same case is cited arguendo; and there four judges are represented 
 to have been equally divided in opinion as to the first point mentioned by lord 
 Coke. But according to Anderson the difference of opinion was only, whether 
 any remedy was furnished by law for the interest reserved to lord Mountjoy by 
 the proviso. As to this latter point, see 8 Co. 46. Noy, 145. — [Note 5.] 
 
 (2) How dower is to be assigned out of indivisible inheritances, see ant. 32. a. 
 
 (3) See Dav. Rep. 61. b. 
 
 (4) In 2 Ro. Abr. 254, the case of 23 H. 3, relative to the earldom of Ches- 
 ter, is mentioned as if the daughters might have been coparceners of the dignify 
 itself, and not merely of the possessions of the earldom. How the earldom of 
 Chester became annexed to the crown in the reign of lien. 3, on the death of 
 John Scot the last earl, leaving three sisters his coheirs, is explained in 1 
 Dugd. Bar. 45. See further on this point of indivisibility, Bract. 76. b. Brit. 
 187. Flet, 313. and Dav. Rep. 61. b.— [Note 6.] 
 
 (5) Fitz. Abr. Prescription, 56.
 
 L. 3. C. 1. Sect. 241. Of Parceners. [165. a. 
 
 of honour and dignity, may for the incertainty conferre the 
 dignity upon which of the daughters he please. And this hath 
 been the usage since the Conquest, as it is said (6). 
 
 But if an earle that hath this dignity to him and his heires 
 dieth, having issue one daughter, the dignity shall descend to 
 the daughter ; for there is no incertainty, but onely one daugh- 
 ter, and the dignity shall descend unto her and her posterity, 
 as well as any other inheritance. And this appeareth by many 
 precedents, and by a late judgement given in Sampson Leonard's 
 case, who married with Margaret the only sister and heire of 
 Gregory Fines lord Dacre of the South, and in the case of Wil- 
 liam Lord Ros (7). 
 
 But there is a diiference betweene a dignity or name of nobi- 
 lity, and an office of honor. For if a man hold a mannor of the 
 king to be high constable of England, and dye having issue two 
 daughters, the eldest daughter taketh husband, he shall execute 
 the office (8) solely, and before marriage it shall be exercised by 
 
 some 
 
 (6) This doctrine about the abeyance of titles of honour, and their being 
 revived by the royal nomination, though our books furnish little matter on the 
 subject, is undoubtedly law; and there are many instances of an exertion of 
 this prerogative. One of the most remarkable took place during the present 
 reign in the person of the late Mr. Norborn Berkley, who in 1764 was called 
 to the house of peers in right of the old barony of Botetourt, after an abeyance 
 of several centuries, and was allowed to sit according to the antiquity of that 
 barony. See Cas. in Dom. Proc. for 1764. Another instance in the_present 
 reign is the case of Sir Francis Dashwood, late lord Despenser; for in 1763 
 he was called to the ancient barony of that name in right of his deceased 
 mother, who was eldest sister and one of the coheirs of an earl of Westmoreland, 
 on whose death that barony had become in abeyance ; and being so summoned 
 he took his seat as premier baron in place of lord Abergavenny, who before 
 possessed that distinction. — [Note 7.] 
 
 (7) The first of these cases was in 1596, and the second in 1616. Both are 
 now in print, having been published from manuscripts of the time by Mr. Collins, 
 in his claims concerning baronies, &c. See p. 24, & 162. It must not be 
 inferred from the purpose for which lord Coke cites them, that the descent ot 
 a barony to a female, where in the creation it was not confined to heirs male, 
 was controvertible. The points debated in those cases were of another kind. 
 In Sampson Leonard's the question was, whether the husband can be tenant 
 by the courtesy of a title of honour. See my observation as to that point, 
 ante 29. b. note 1. That of Lord Ros depended on the effect of superadding 
 an earldom in tail male to one having a barony before descendible to heirs 
 general, it being contended, that the former should attract the latter in point 
 of descent so as to be inseparable whilst the earldom continues. — [Note 8. J 
 
 (8) In a late contest about the office of great chamberlain, which arose in 
 consequence of the late Duke of Ancaster's leaving two sisters his co-heiresses, 
 one of whom was married to Mr. Burrell, the then attorney-general made a 
 report in conformity to the doctrine here stated by lord Coke as to the office 
 of high constable ; and this report, of which I have a copy, contains a very 
 learned investigation of the subject. But afterwards, when the case came 
 before the lords, the judges gave it as their opinion, that the office belongs to 
 both sisters; that the husband of the el/lest is not of right entitled to execute it ; 
 and that both sisters may execute it by deputy to be appointed by them, such 
 deputy not being of a degree inferior to a knight, and to be approved of by the 
 Una. See Journ. Dom. Proc. 25 May 1781, the printed cases of the several 
 claimants, and the Pari. Reg. for 1780-1, v. 4. 258 to 297.— [Note 9.]
 
 165. a. 165. b.j Of Parceners. L. 3. C. 1. Sect. 241. 
 
 some sufficient deputy ; and all this was resolved by all the 
 [b] llEliz.Dier, judges of England, in the case of [&] the duke of Buckingham. 
 285, the duke of But the dignity of the crowne of England is without all 
 Buckingham's q Uest i on descendible to the eldest daughter alone, and to her 
 case (9). posterity (10), and so hath it beene declared by act of par- 
 
 r*l 25 H. 8. liament. * [*] For, regnum non est divisibile. And so was the 
 cap. 22. descent of Troy : 
 
 yj_£j] Prwterea sceptrum, Ilione quod gesserat olim 
 1 iEneid. Maxima natantm Priami. 
 
 \b] Bract, lib. 2. [&] If a castle that is used for the necessary defence of the 
 
 fol. 76. Fleta. realme, descend to two or more coparceners, this castle might 
 
 lib. 5. cap. 9. jj e divided by chambers and roomes, as other houses be. But 
 
 yet, for that it is pro bono publico etpro de/ensione regni, it shall 
 
 not be divided; for as one saith, propter jus gladii dividi non 
 
 [*] Britton, 186, potest ; and another saith, [*]j9«r le droit del espbe que ne soeffre 
 
 187. division en aventure que la force del realme ne defaillepax taunt. 
 
 But castles of habitation for private use, that are not for the 
 
 necessary defence of the realme, ought to be parted betweene 
 
 Vide Sect. 36. coparceners as well as other houses ; and wives may thereof be 
 
 endowed, as hath been said in the Chapter of Dower (11). 
 
 If there be two coparceners of certaine lands with 
 warranty, and they make partition BSp-of the land, the ["165.1 
 warranty shall remayne ; because they are compellable L b. J 
 [c] 29 E. 3. to make partition, [c] But otherwise it was of joyn- 
 Garrantie, 70. tenants at the common law, as shall be said hereafter in his 
 (6 Co \ 12 - 1 3 -) proper place. — [d~\ Thomas de Eberston, seised of the mannor of 
 ing. " Eberston within the forrest of Pickering, had kept time out of 
 
 8 E. 3. Rot. 34. mind a woodward for keeping of the woods parcell of that 
 (Ant. 115. a.) ma nnor, and had the barke of all the trees felled in the said 
 woods by any of the forresters of that forest as belonging to his 
 mannor (which he could not have without a prescription) (1). 
 Thomas of Eberston infeoffed two of the said mannor; betweene 
 whom partition was made, so as one of them had the one halfe 
 in severalty and the other the other halfe (2). Robert Wyerne 
 afterwards had the one halfe, and Thomas Thurnise the other ; 
 and they in the eyre of Pickering claimed to keepe a woodward 
 within the said woods, and the barke aforesaid ; and the truth 
 hereof and the usage being specially found by the forrestors, 
 verderors and regardors, Willoughby, Hungerford and Eanburie, 
 
 justices 
 
 (9) S. C. Keilw. 170. b. 4 Inst. 127. 
 
 (10) See ant. 15. b. 
 
 (11) Ant. 31. b. 
 
 (1) The claim of a like privilege as appurtenant to a mannor is mentioned in 
 Crompt. Jurisd. Co. 192. b. See further concerning the office of woodward in 
 Manwood's For. Laws by Nelson, 339. — [Note 10.] 
 
 (2) It is observable in this partition, that no provision is made in respect to 
 the office of woodward, and privilege of having the bark of felled trees, which 
 were appurtenant to the manor. In a former place lord Coke states the par- 
 tition of a manor to which an advowson was appendant, and explains what the 
 effect is on the advowson, where from want of any particular agreement 
 between the parties it is left to the law to regulate how the advowson shall be 
 disposed of. Ant. 122. a.— [Note 11.]
 
 L. 3. C. 1. Sect. 242, 243. Of Parceners. [165. b. 166. a. 
 
 justices itinerants within that forrest, gave judgment as follow- 
 eth : Ideo consider •atum, est quod prsedici Robertus et Thomas 
 habeant woodwardum et corticem in bosco prsedicto de quercubus 
 prsedictis sibi et hseredibus suis in perpetuum. Salvo semper 
 jure, &c. 
 
 Sect, 242. 
 
 ALSO, if a man seised of tenements in fee simple or in fee-tayle dieth 
 without issue of his bodie begotten, and the tenements descend to his 
 sisters, they are parceners, as is aforesaid. And in the same manner, 
 where he hath no sisters, but the lands descend to his aunts, they are par- 
 ceners^), eft?. But if a man hath but one daughter, she shall not be 
 called parcener, but she is called daughter and heire, §c. 
 
 " f}R in fee tayle." This must»be intended of an estate taile 
 made to the father and to the heires of his body ; for other- 
 wise if the state tayle were made to a man and to the heires of 
 his body, his sisters cannot inherit. And not only daughters 
 shall be coparceners, but sisters, aunts, great aunts, &c. 
 
 " Daughter and heire, &c." Here by (&c.) is implyed sister 
 and heire, aunt and heire, great aunt and heire, and so upward. 
 
 Sect. 243. 
 
 A ND it is to be understood, that partition may be made in divers 
 manners. 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 it selfe in severalty and of 
 equall value ; and if there be three parceners, to divide the tenements in 
 three parts by it selfe in severalty, §c. 
 
 BY this Section, and the (&c.) in the end of it, it is to be under- 
 stood, that there are two kind of partitions betweene copar- 
 ceners ; the one in deed or expresse, and the other in law or im- ( Ant - 46 - a ) 
 plicite. Of partitions in deed or expresse, some be voluntary, 
 whereof Littleton enumerates four manners ; and one compul- 
 sory, that is, by writ of partition (4). 
 fl66.~] 3®°* The first partition in deed betweene coparceners, (F. N. B. 167.) 
 a. J is that which Littleton here speaketh of, viz. When they 
 agree and make partition of tenements, &c. each part 
 by itself e in severalty and of equall value, &c. If coparceners 
 make partition, at full age and unmarried, and of sane memorie, 
 
 of 
 
 (3) they areparceners not in L. and M. nor Roh. 
 
 (4) The reference in the margin to fol. 46. a. is to an instance of the differ- 
 ence in point of effect on the lessee for years of a coparcener, between partition 
 by writ and partition without. — [Note 12].
 
 166. a. 166. b.] Of Parceners. L. 3. C. 1. Sect, 244, 245. 
 
 of lands in fee simple, it is good and firme for ever, albeit the 
 values be unequall ; but if it be of lands entailed, or if any of 
 the parceners be of non sane memorie, it shall binde the parties 
 themselves, but not their issues unlesse it be equall; or if any 
 be covert, it shall bind the husband, but not the wife or her heires ; 
 or if any be within age, it shall not bind the infant ; as shall be 
 said more fully hereafter (1). The second partition followeth 
 in the next Section. And here the (t£c.) implyeth further, that 
 Vide Sect. 241. if there be four parceners, then four parts, if five, five parts, 
 and so forth. It further implyeth, that all this must be in seve- 
 ralty; whereof, and with what limitations, this is to be under- 
 stood, it hath been declared before. 
 
 Sect, 244. 
 
 A NOT HER partition there is, viz. to choose, by agreement betweene 
 themselves, certaine of their friends, to make partition of the lands or 
 tenements in forme aforesaid. And in these cases, 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, then the fourth another 
 part, §c- if so be that there be more sisters, $c. unlesse it be otherwise 
 agreed between them. For it mag be agreed between them, that one shall 
 have such tenements, and another such tenements, $c. without any pri- 
 mer election. 
 
 31 Ass. 26. it m HEN the fourth another part, &c." Here the (&c.) im- 
 
 plyeth the 5 sister, and after her the 6, and so forth. 
 
 u For it may be agreed betweene them, that one shall have such 
 tenements, and another such tenements, &c." Here by this (i£c.) 
 is implyed divers rules of law proving the conclusion of Little- 
 (1 Sid. 193. 269. ton in this Sect. viz. Modus et conventio vincunt legem. Facto 
 Cro. Eliz. 664.) aliquid licitum est, quod siyie pacta non adm ittitv r. Qu ilibet potest 
 (1 Sid. 339.) renunciare juri pro se introduct', but with this limitation, that 
 these rules extend not to any thing that is against the common- 
 wealth or common right. For conventio privatorum non potest 
 publico juri derogare. 
 
 *@r Sect. 245. [ 1( £ 6 -] 
 
 AND the part which the eldest sister hath, is called in Latine enitia 
 
 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 last for her part, and after 
 
 every one of her sisters, &c. (1)*- 
 
 ' *• V ' » ENITIA 
 
 (1) See post. Sect, 255 to 258, inclusive. See also 173. b. 
 (1) *The &c. not in L. and M. nor Roh.
 
 L. 3. C. 1. Sect. 245. Of Parceners. [166. b. 
 
 " JpNITIA pars." It is called in old bookes* seisneda, which * Bract, li. 2. 77. 
 ■& is derived of the French word elsne for eldest, as much as £gjJ a J^ 9 - 
 to say the part of the eldest; for Bracton saith, quod eisnetia 
 semper est prceferenda propter privilegium cetatis; sed esio, quod 
 filia primogenita relicto nepote vel nepte in vita patris vel matris, 
 decesserit, prceferenda erit soror antenata tali nepoti vel nepti 
 quantum ad eisnetiam, qui mortem par entum expectavit. And 
 herewith agreeth Fleta, also, quod nota : whereby it appeareth 
 that enitiapars is personall to the eldest, and that this prerogative 
 or priviledge descendeth not to her issue, but the next eldest 
 sister shall have it. [/]And here is a diversity to be observed [/]45 E. 3. 
 betweene this case of a partition in deed by the act of the parties, J^f'f^ v '^ ? '- 
 for there the priviledge of election of the eldest daughter shall J* 8 U ^; 2 . ibid. ' 
 not descend to her issue; and where the law doth give the eldest 176. 5 H. 5. io. 
 any priviledge without her act, there that priviledge shall de- 38 H. 6. 9. 
 sceud. As if there be divers coparceners of an advowsonf, and n ° 6 ® 117- y id . 
 they cannot agree to present, the law doth give the first present- Bract. 238. 249. 
 ment to the eldest; and this priviledge shall descend to her issue; f5H. 7.8 
 nay her assignee shall have it (2); and so shall her husband, that g g- J jj 
 is tenant by the curtesie, have it also (3). 20 E. 3. Quar. 
 
 imp. 63. 
 " Then it is said that the eldest sister shall choose last, &e." 34 E. 3. Hk198. 
 By this and the &c. in the end of this Section is iniplyed, the Pres e n t. n. 
 rule of law is, cujus est divisio, alter ius est electio. And the 17 E. 3. 20, 21. 
 reason of the law is for avoyding of partiality, 21 E. | 21. 
 
 (Ipsce etenim leges cupiunt ut jure regantur) (Post. 186. b.) 
 
 which 
 
 (2) Ace. P. 18 E. Quare Impedit, 176. Post. 186. b. 3 Co. 22. b. 2 
 Inst 365. 2 Ro. Abr. 316. Mallory's Quare Impedit, 145. Three judges 
 also held accordingly, East, 23 Eliz. in Harris & Hales v. Nichols, Cro. Eliz. 
 18. But Anderson chiefe justice doubted whether a grantee should have the 
 privilege. In Keilwey there is a case of 18 H. 7, in which Frowike chief jus- 
 tice is made to give it to the grantee of the eldest sister, only where it has 
 b£en once exercised by herself. But he afterwards doubted his own distinction, 
 and seemed to incline to the grantee's right generally ; in consequence of which 
 the report concludes thus: Stude bene et qucere. Keilw. 49. Upon the whok- 
 therefore it seems, that the point is not quite settled; and to determine it pro- 
 perly would require a very careful examination of the numerous cases cited by 
 lord Coke here and in the Second Institute. See 7 Ann. c. 18. I was led intr- 
 this note by a reference to the case from Cro. Eliz. in a Coke upon Littleton 
 of the late Mr. Beversham Filmer, and by an opinion of the same very learned 
 gentleman, in which he represents the point to be doubtful, and therefore dis- 
 suaded accepting the title to the next presentation of an advowson belouging to 
 three sons as heirs in gavelkind, unless they would all join in the grant. The 
 eminence of Mr. Filmer as a barrister, more especially in the conveyancing 
 line, will, I presume, fully justify me for thus introducing his name. The 
 doubts of a lawyer so profound and correct, as he was universally allowed to 
 be, will ever claim high respect; and it is with peculiar pleasure that 1 take 
 this opportunity of expressing the veneration with which I hold him in my re- 
 membrance. See H. Black. 412.— [Note 13.] 
 
 (3) Agreed by lord Anderson in the case from Cro. Eliz. cited in the pre- 
 ceding; note.
 
 166. b. 167. a.] Of Parceners. L. 3. C. 1. Sect. 246-47. 
 
 which might apparently follow if the eldest might both divide 
 and choose (4). Now followeth the third partition in deed. 
 
 Sect. 246. 
 
 A NOTHER 'partition or allotment is, as if there be four parceners, 
 and after partition of the lands be made, every part of the land by 
 itself is written in a little scrowle and is covered all in waxe in manner 
 of a little ball, so as none may see the scrowle, and then the 4 balls of 
 waxe are put in a hat to be kept in the hands of an indiffer- 
 ent man, and then the eldest daughter shall first figg* put her ri67.1 
 hand into the hat, and take a ball of waxe with the scrowle |_ a - J 
 ivithin the same ball for her part, and then the second sister 
 shall put her hand into the hat and take another, the 3 sister the 3 ball, 
 and the 4 sister the 4 ball, §c. and in this case every one of them ought 
 to stand to their chance and allotment. 
 
 " A LLOTMENT." Of this partition by lots ancient authors 
 «Flet. lib. 5. *write, that in that case coparceners fortunam faciunt ju- 
 
 ca. 9. Bracton, dicem. And Littleton here termeth it chance ; for in the end of 
 Britton^ca 72 ^ is Section he saith, that in this case every of them ought to 
 on, cap. . j^j herselfe to her chance; and of this kind of division you 
 Vide Numbers, shall read in holy scripture, where it is sayd, dedi vobis posses- 
 ca. xxvi. ver. 54, sionem quam dividetis forte. 
 
 56 ' ^Tof adi The &C - in the end ° f this Section irQ ply etll > that if tbere te 
 
 vision by lots. " more coparceners there must be more balls according to the 
 number of the parceners. 
 
 Sect, 247. 
 
 ALSO, there is another partition. As if there be four parceners, 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 
 tivo, or three of them may have a writ of partitione facienda against the 
 fourth, at their election. 
 
 HERE followeth the fourth partition in deed. Littleton having 
 spoken of voluntary partitions, or partitions by consent: 
 now he speakes of a partition by the compulsory means of law 
 where no partition can be had by consent. Now of what inherit- 
 ance partition may be made by the writ of partitione facienda 
 may partly appeare by that which hath been sayd. Moreover 
 it is to be observed that the words of the writ de partitione 
 * 3 E. 3. 47, 48. facienda be *quod citm eadem A. et B. insimul et pro indiviso 
 tcneant tres acras terrse cum pertincn' ,&c. And note that this word 
 
 {tenet) 
 
 (4) See Hob. 107, where the doctrine is cited with apprehension.
 
 L. 3. C. 1. Sect. 247. Of Parceners. [167. a. 167. b. 
 
 (tenet) (1) in a writ doth always imply a tenant of a freehold. 
 And therefore [g~\ if one coparcener maketh a lease for yeares. [g\ 21 E. 3. 57. 
 yet a writ of partition doth lie (2). But if one or both make a ^ £: g- 62, G - 
 lease for life, a writ of partition doth not lie between them : n h. 4. 3. 
 because non insimul et pro indiviso tenent, they do not hold the 4 H. 7. 10. b. 
 freehold together, and the writ of partition must be against the ( Post - 176 - b -) 
 tenant of the freehold, [h] If one coparcener disseise another, [A] 4 H. 7. 9. 
 during this disseisin a writ of partition doth not lie between them ; ** Ass - 23 - . 
 for the non tenent insimul et pro indiviso. lsj^a ) 
 
 But there be other partitions in deed than here have been 
 mentioned, [i] For a partition made between two coparceners, [**] Temps E. 1. 
 that the one shall have and occupy the land from Easter untill Partition* 21. 
 the first of August only in severalty by himselfe, and that the (7 Co.*".)** * 
 other shall have and occupie the land from the first of August 
 until the feast of Easter yearly to them and their heires, this is 
 a good partition (3). Also if two coparceners have 
 
 t 167.1 two mannors by descent, jg@°* and they make partition, 
 b. [ that the one shall have the one manor for one yeare, 
 and the other the other manor for this yeare, and so 
 alternis vicibus to them and their heires, this is a good partition. 
 The same law is, if the partition be made in forme aforesaid, for 
 two or more years, and each coparcener have an estate of inheri- 
 tance, and no chattell, albeit either of them alternis vicibus have 
 the occupation but for a certaine terme of yeares. 
 
 Of partitions in law, some be by act in law without judgement, 
 and some be by judgement, and not in a writ de partitione 
 faciendd. And of these in order. 
 
 \k~] If there be lord, three coparceners mesnes, and tenant, [*] 36 H. 6. 7. 
 and one coparcener purchase the tenancy, this is not onely a par- ( Post 192, a- ) 
 tition of the mesnalty, being extinct for a third part, but a divi- 
 sion of the seigniory paramount, for now he must make severall 
 avowries (1). 
 
 [I] If one coparcener make a feoffment in fee of her part, this [I] 37 H. 6. 8. 
 is a severance of the coparcenarie, and several writs of praxipe 43 E - 3 * *■ 
 shall lie against the other coparcener and the feoffee (2). 
 
 [m] If two coparceners be, and each of them taketh husband [m] 17 E. 3. 
 and have issue, the wives die, the coparcenary is divided, and 14 > 15 - 
 here is a partition in law. 
 
 [n] If two coparceners be, and one disseise the other, and the [»] 12 E. 3. 
 
 disseisee bringeth an assise, and recover, it hath been said, that £ u . dgm ;P 2, 
 
 ' ' 7 Ass. 10. 
 
 7 E. 3. 49. 10 Ass. 17. 12 Ass. 5. 17. 10 E. 3. 40. 43. 28 Ass. 35. 23 Ass. 18. 
 20 E. 3. Ass. 62. 3 E. 3. 48. b. 19 II. 6. 45. 7 H. 6. 4. 3 E. 4. 10. 
 
 she 
 
 (1) See the various applications of the verb tenet explained ant. fol. 1. a. & b. 
 
 (2) So too execution of dower is not prevented by a lease for years subsisting 
 at the husband's death. Ant. 32. a. How lessee for years is affected by such 
 a partition, is before explained by lord Coke in fol. 46. a. — [Note 14.] 
 
 (0) See the case of a moveable fee simple, stated ant. fol. 4. a. 
 
 (1) But according to Bro. Nouv. Cas. 108, the lord should have notice of 
 the partition. — [Note 15.] 
 
 (2) Ace. ant. 67. b. post. 175. a. 195. a. But this sort of partition is not a 
 partition in the sense in which Littleton writes of partitions, nor in the common 
 sense of the word. He means a division of the land itself; whereas what lord 
 Coke here calls a partition is a mere severance of the unity of the title, which 
 operates as Littleton afterwards states, by making a tenancy in common. See 
 Sect. 309.— [Note 16.] 
 
 Vol. II.— 2
 
 167. b.] Of Parceners. L. 3. C. 1. Sect. 248. 
 
 she shall have judgement to hold her moity in severalty. And 
 this seemeth (they say) verie ancient, and thereupon vouch 
 
 * Bract, lib. 4. Bracton, * si resfuerit communis, locum habere looter it communi 
 foi 2 zW 48 dividendo judicium. And [o] so (say they) if the one coparcener 
 21 R. 2. tit. ' recover against another in a nvper obiit or a rationabili parte, the 
 Nuper ob. 22. judgement shall be, that the demandant shall recover and hold in 
 4 H. 7. 10. severalty. But Britton is to the contrary ; for he saith, * et si 
 ob.^3. 1 ' UPSr ascun des parceners soit enget on disturbe de la seisin per ses auters 
 F. N. B. 9. B. parceners, un, ou ])lusors, al disseisee viendra assise per severcdl 
 
 * Britton, pleint sur les parceners et recovera, mes nemy a tener et sevcraltie, 
 hui 6 1 Co. a i2, & mes en common solonque ceo que avant le fist, &c. [p~\ And this 
 13. Morrice's seemeth reasonable ; for he must have this judgement according 
 case accord. ^o his plaint, and that was of a moitie, and not of any thing in 
 (Post. 187. a.) severa i t i e) an( i the sherife cannot have any warrant to make any 
 
 partition in severalty or by metes and bounds. 
 
 Sect. 248. 
 
 A ND when judgement shall be given upon this writ, the judgment shall 
 be thus ; that partition shall be made between the parties, and that 
 the sherife in his proper 'person shall go to the lands and tenements, £c. 
 and that he by the oath of 12 lawful men of his bailiwick, §c. shall make 
 partition between the parties, and that one part of the lands and tene- 
 ments shall be assigned to the plaintif or to one of the plaintifs, arid 
 another part to another parcener, $c. not making mention in the judge- 
 ment of the eldest sister more than of the youngest. 
 
 Bract, fo. 66,&c. ATOTE, the first judgement in a writ of partition, whereof 
 
 Brit. 71, Ac _[\ jjtfaton here speaketh, is quod partitio fiat inter partes pra:- 
 
 Fleta^Hb. 5. dictas de tenementis praidietis, cum pcrtinentiis, after which judge- 
 
 ca. 9.' ment. By this &c. viz. tenements, &c. is implyed that a writ 
 
 shall be awarded to the sherife, quod assumptis tecum 12 libers 
 
 et legalibus hominibus de vicineto tuo, per quos rei Veritas melius 
 
 sciripoterit, in jjrojiria persona tuaaccedas adtenementapradirfa 
 
 cum pertinentibus, etibidem per eorum sacramentum, inprwsentid 
 
 partium (3) prttdictarnm per te prccmuniendarum si interesse 
 
 voluerint, 
 
 (3) These words, enjoining the partition to be made in the presence of the 
 parties, show that the proceeding before the sheriff is quite opm. So too, as it 
 seems should be the execution of a commission of partition issued by chancery 
 as a court of equity, such commission being in nature of a writ at common 
 law for the like purpose. But I understand that there have been instances of 
 treating the commission of partition as a close proceeding, and that on that 
 idea it has been sometimes the practice to annex an oath of secrecy to the 
 commission. This practice, I presume, has grown from not attending to the 
 difference between commissions to divide lands and commissions to examine 
 witnesses merely. In the latter sort of commissions an oath to keep the depo- 
 sitions secret is expressly required by an order of chancery of the 9th of Feb- 
 ruary, 1721 ; and exclusively of the order the proceeding implies secrecy, the 
 depositions being ever kept close under seal till leave is obtained to divulge 
 them by the passing of publication. But neither the language nor spirit of 
 this order is applicable to commissions of partition, which like the writ of par- 
 tition ought to be openly executed. — [Note 17.]
 
 L. 3. C. 1. Sect, 248. Of Parceners. [167. b. 168. a. 
 
 voluerint, prsedicta tenement cum pertinentibus per sacramentum 
 bonorum et legalium hominum prsedtctorum, habito respectu ad 
 vcrum valorem earundem, in duaspartes sequales partiri et dividi, 
 et unam -partem partium illarum, &c. 
 
 This last &c. in this Section is evident. Ockam ca. quid 
 
 sit liber judi- 
 
 [168.~| " Judgement" J6^° Judicium est quasi juris dictum, so ^JJ"^"^ 45 
 a. J called, because so long as it stands in force pro veritate 9 Ass. 2. 
 accipitur (1) and cannot be contradicted. And there- 8 Ass. 35. 
 upon antiquitie called that excellent booke in the exchequer, ^ e ^' gt 3 ' 2 " 
 Domesday, Diesjudicii. Sicut enim districti et terribilis examinis -p. N. B. 16. 
 ilia novissima sententia nulla tergiversationis arte valet elndi, &c. 
 sic sententia ejusdem libri inficiari non potest, vel impune decli- 
 nari; ab hoc nos eundem librum judiciarium nominamus, &c. 
 aubd ab eo sicut a prsedicto judicio nonlicet ullaratione discedere. 
 By Littleton it appeareth, that the formes of judgements, pleas, 
 and other legall proceedings, do conduce much to the right un- 
 derstanding of the law and of the reason thereof; as here Little- 
 ton rightly collecteth upon the forme of the judgement, that the 
 sherife 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 sherife. And it is to be observed, that there be 
 two judgments in a writ of partition. Of the former Littleton 
 speaketh in this place. And when partition is made by the 
 oath of twelve men, and assigneraent and allotment thereof, 
 and so returned by the sherife, then the latter judgment is, idea 
 consideratum est, quod partitio prsedicta firma et stabilis in per- 
 petuum teneatur, and this is the principal! judgement. [§] And [0] 11 Co. 40. 
 of the other, before this be given, no writ of error doth lie (2). JpIL 39 Eliz. 
 
 ' o J v / R ot> 327 ( ln 
 
 Banke le Roy, 
 "Sherife." Shireve is a word compounded of two Saxon words, inter An. 
 
 viz. shire, and reve. Shire, satrapia, or comitaius, commeth of ^ oun ' es . de . War - 
 the Saxon verbe shiram, i. e. partiri, for that the whole realme B er e kiey. SD10r 
 is parted and divided into shires; and reve is prsefectus, or pree- (Fortesc 52. 
 positus; so as shireve is the reve of the shire, prsefectus satrapise, Ant, ^°- a- 
 provincise, or comitatus. And he is called prsefectus, because he 
 is the chiefe officer to the king within the shire ; for the words of 
 
 his 
 
 (4) See Dialog, de Scaccar. lib. 1. cap. 16. which hath the same title. 
 
 (1) See same explantion of judicium, ante 39. a. 
 
 (2) The difference between an interlocutory judgment or award and a final 
 principal or plenary judgment is hereby pointed at; as to which see Metcalf's 
 case, 11 Co. 30, both questions in it depending on the distinction. See also 
 Office of Exec. ed. 1676, chap. 17. p. 279. How the civil and can on laws dis- 
 tinguished between interlocutory and definitive sentences, especially in point of 
 appeal, and between sentences merely interlocutory, and interlocutory sentences 
 having the effect of definitive, may be collected in some degree by consulting 
 Voet. ad Dig. lib. 42. tit. 1. s. 4. Perez, in Cod. lib. 7. tit. 62. Wood's Civ. L. 
 8vo. ed. 379. and Gilb. Chanc. c. 10. As to the difference between interlo- 
 cutory and final decrees or orders in our courts of equity, see Pract. Reg. in 
 Chanc. 122, and 153, and Nosle v. Foot, in Dom. Proc. 12 March 1739. On 
 the same subject in our ecclesiastical courts, see 1 Ought. Ord. and Comett's 
 Prac. of Spirit. Co. 3d edit. 229 to 250. These references may assist inquiry; 
 but a far more extended information will be'necessary before the distinctions 
 can be well ascertained, and the use of them in point of appeal, conclusion, or 
 otherwise, be fully understood. — [Note 18.]
 
 168. a. | Of Parceners. L. 3. C. 1. Sect, 248. 
 
 his patent be, commisimus vobis custodiam comitates nostride, &c. 
 And he bath a threefold custodie, triplicem custodiam, viz. First, 
 vitas justiciar ; for no suit begins, and no processe is served but 
 by the sherife. Also he is to returne indifferent juries for tbe 
 triall of mens lives, liberties, lands, goods, &c. Secondly, vitas 
 legis; he is, after long suits and chargeable, to make execution, 
 •which is the life and fruit of the law. Thirdly, vitas reipublicse ; 
 he v& principalis conservator pads, within the countie ('6), which 
 is the life of the common wealth, vita reipublicas pax. 
 Vide the Second He is called before, Sect. 234, viscount, in Latyne, vicecomes, 
 Part of thelnsti- { e% v { ce comitis, that is, in stead of the earle of that countie, who 
 tutes. . .c. . j n ant j en ^ ti me h a( j t h e regiment of the countie under the king. 
 *Mirror, cap. 1. For it is said in the Mirror ,* that it appeareth by the ordinance 
 sect. 3. of antient kings before the Conquest, that the earles of the 
 
 counties had the custodie or gard of the counties, and when the 
 earles left their custodies or gards, then was the custodie of 
 counties committed to viscounts, who therefore (as it hath been 
 Ockam, cap. sayd)are called vicecomitcs. And Ockam cap. quid ceniuria, &c. 
 QuidCentur. &c. jjorro vicecomes dicitur quod vicem comites suppleat. 
 
 11 Marculjihu-s saith, this office is judiciaria dignitas; Lampri- 
 Fortescue, cap. dins, that it is officium dignitatis. Fortescue saith, quod vicecomes 
 24. 12 R. 2. es f nobilis officiarius. And see there, and observe well his honour- 
 able and solemne election and creation at this day. But to con- 
 firme all that hath been said touching this point, and to conclude 
 the same, among the lawes of Edward the Confessor (4) I finde 
 Lambert, it thus recorded. Vcriim quod modd vocatur comitatus olim apnd 
 
 fol. 129. 12. Britones temporibus Roma?iorum in regno isto Britaninse vocaba- 
 
 tur consulatus et qui modd vocantur vicecomites tunc temporis vice- 
 consides vocabantur ; ille verb dicebatur viceconsid, qui consule 
 absente ipsius vices supplebat injure et in foro (5). Herein many 
 
 things 
 
 (3) See Lamb. Just, ed. of 1602, p. 12, 13. and 2 Inst. 174. in both of which 
 books the coroner is so styled. 
 
 (4) Concerning the dispute about the authenticity of these laws, see notes 
 3 and 4. ant. 68. b. to which add Preface to 8 Co. Rep. 1 Tyrr. Hist. b. 6. p. 103. 
 Ibid. v. 2. p. 62. Brad. Introd. to Eng. Hist. 260. and a note by the late 
 bishop of St. David, Dr. Squire, in his book on the Anglo-Saxon Gov. in Engl. 
 ed. of 1753, p. 219. Mr. Selden's opinion of these laws was, that "as the 
 " ordinary copies are, and as they speak in the published volume of Saxon 
 " laws, they are not without many mixtures of somewhat later transcribers." 
 Seld. on Tithes, ed. 1618, p. 225. A like temperate caution concerning these 
 laws is interposed by Sir Henry Spelman and Mr. Somner. Spelm. Gloss. 
 3d td. 67. Reliq. Spelm. 61. Somn. on Gavelk. 101. But Dr. Brady is not 
 content with this; for, moved by that excess of party spirit, which is so de- 
 structive of truth, and so much tarnishes his learned writings on the English 
 history, he indiscriminately and passionately rejects the whole body of these 
 laws. His words in one place are as follow: "The factious bishops and 
 " churchmen, and the seditious and dissolute barons, made a noise for king 
 " Edward's laws. But what they were it is now a hard matter to know. 
 " Those put forth under his name with Mr. Lambard's Saxon laws were none 
 " of his. They are incoherent farce and mixture, and a heap of nonsense, 
 " put together by some unskilful bishop, monk, or clerk, many years after his 
 " death, to serve the ends and designs of the present times." General Pref. to 
 15 .id. Eng. Hist. xxx. See further Wright Ten. 65. note (i).— [Note 19.] 
 
 ( ) The passage here cited from the laws of Edward the Confessor seems 
 rather a remark by the copier or translator of the law, than a part of the law 
 
 itself;
 
 L. 3. C. 1. Sect. 248. Of Parceners. [168. a. 168. b. 
 
 things are worthy of observation. First, for the antiquitie of 
 counties. Secondly, that which we called comitatum, the 
 Romans more Latinely called consulatum. Thirdly, whom the 
 Saxons afterwards called (as hath been said) shireve or earle, 
 the Romans called consul. Fourthly, that the sherife was deputy 
 of the consull or earle; and therefore the Romans called him 
 viceconsul, as we at this day call him vicecomes. Fifthly, that 
 the sherife in the Romans time, and before, was a minister to 
 the king's courts of law and justice, and had then a court of 
 his own, which was the county court, then called curia consu- Caesar Polichr>. 
 laths, as appeareth by these words, ipsius vices supplebat in jure Huntingdon. 
 el in foro. Sixthly, that this realme was divided into shires i e °e S "Mohmic i 
 and counties, and those shires into cities, burroughs, and towns, Hooker, lib. 2. 
 by the Brittains : so that king Alfred's division of shires and 
 couuties was but a renovation or more exact description of the 
 same (6). Lastly, the consequence that will follow upon these 
 things being so ancient, (as in the time of, and before the 
 Romans) the studious reader will easily collect. And after- 
 wards, fol. 135, amongst the laws of the same king it appeareth, 
 that those whom the Saxons sometimes called (and now we call) 
 aside?- men or eo?-les, the Romans called se?iatores, et similiter olim 
 apud Britones temporibus Romanorum in regno isto Britannia; 
 vocabantur senator es, qui postea temporibus Saxonum vocabantur 
 aldermani, non propter cetatem, sed propter sapientiam et digni- 
 tatem cum quidam aclolescentes essent, jurisperiti tamen et super 
 hoc experti (7). 
 
 t 168.1 H®"* " Of his bailiwick." It appeareth before, that 
 b. J the enquest must be de vicineto of the place where the 
 lands doe lie, and not generally de balivd tua. By this 
 it appeareth, that the sherife is balivus, and his county called 
 baliva ; and therefore it is good to be seen what balivus origi- 
 nally signified, and whereof it is derived. 
 
 Baylife (1) is a French word, and signifies an officer concerned Flet. lib. 2. 
 
 cap. 67. (Cro. Jam. 178. Plowd. 28. b. 1 Ro. Abr. 339.) Bract, lib. 3 tract. 2. 
 cap. 33. nu. 3. Idem, lib. 3. fol. 121. b. 
 
 in 
 
 itself; and perhaps it is on this account that Lambard distinguishes this pas- 
 sage in the printiug by an Italic letter. But whether the passage is to be 
 deemed part of the law or not, the comparison it draws of the Roman deno- 
 minations of their territorial government and officers in Britain with those of 
 the Saxons, seems to me quite imaginary. At least I am not able to find any 
 trace of authority to prove such an use or application of the words " consu- 
 " latus, co?isid and viceconsul" amongst the Romans whilst Britain was a part 
 of their empire, as this extract supposes. — [Note 20.] 
 
 (G) This agrees with the idea of Sir John Spelman in his life of Alfred, and 
 of Mr. St. Amand in his Essay on the Legislative Power of England. Dr. 
 Stuart in his Historical Dissertation of the English Constitution makes some 
 additional remarks in support of the same opinion. See 2d ed. of this latter 
 book, 250.— [Note 21.] 
 
 (7) The remark above in note 5, on the former extract from Lambard's 
 Anglo-Saxon Laws equally applies to this second one. As to the origin and 
 office of sheriffs, see further Preface to 3 Co. Rep. Dav. Rep. 60. Dalt. on 
 Sher. Spelm. Gloss, vocibus comites comitatus et vicecomes, Seld. tit. Hon. ed. 
 1681, p. 627. 2 Henry's Hist. Gr. Brit. 242. a note by lord Fortescue in his 
 ancestor's book on absolute and limited monarchy, 112, and Stewart's Hist. 
 Dissert, on Engl. Const, ed. 241.— [Note 22.] 
 
 (1) See ante 61. b. at the bottom. The additional references in the margin 
 on the side of the word bailiff relate to bailiffs of manors.
 
 168. b.J 
 
 Bract, lib. 3. 
 156. b. 
 Britt. fol. 56. 
 Flet. li.2. ca.63. 
 (10 Co. 103. 
 Post. 195. a.) 
 
 Glanv. ILL ca.9. 
 
 10 H. 4. 4. 
 
 (Cro. Jam. 551 
 584.) 
 
 *Mirror, ca. 5. 
 sect. 2. Vi. 
 Bract, fo. 409. 
 Fleta, lib. 2. 
 cap. 63. 56. 
 
 Of Parceners. L. 3. C. 1. Sect. 249. 
 
 in the administration of justice of a certaine province ; and be- 
 cause a sherife hath an office concerning the administration of 
 justice within his county or bailiwick, therefore he called his 
 county baliva sua. For example, when he cannot find the de- 
 fendant, &c. he returneth, non est inventus in baliva mca. 
 
 I have heard great question made, what the true exposition of 
 this word balivus is. In the statute of Magna C'harta, chap. 28, 
 the letter of that statute is, nullus balivus cle axtero ponat id i quern 
 ad legem manifestam nee ad juramentum simplici loqueld sua 
 sine testibus fidelibus ad hoc inductis. And some have said, that 
 balivus in this statute signifieth any judge; for the law must be 
 waged and made before the judge. And this statute (say they) 
 extends to the courts of common pleas, king's bench, &c. for 
 they must bring with them fidcles testes, &c. and so hath been 
 the usage to this day. 
 
 But I have perused a very ancient and learned reading upon 
 this statute ; and the reader taketh it, that, at the common law 
 before this statute, he, that would make his law in any court of 
 record, must bring with him fideles testes. And this opinion 
 herein is warranted by Glanvil, who wrote in the reign of Henry 
 the second. But the reader holdeth, that in the courts which 
 were not of record (2), as the county court, the hundred court, 
 the court baron, &c. there the defendant without any faithfull 
 witnesses might before this stat. have made his law, for remedy 
 whereof this act was made ; and therefore (saith he) the statute 
 extendeth to the judges of such courts as are not of record. In 
 10 H. 4. it is holden, that if a lord, that hath a franchise in a 
 leet, doth not enquire of things enquirable, and punish them, 
 the sherife shall enquire in his turne, et si le vicount ne /aire en 
 son tome, le baylie, le roy enquirer' quant il vient, ou a/uterment 
 serra inquise per justice en eire, where baylie le roy is understood 
 justice le roy. And in the Mirror* it is holden, that the statute 
 doth extend to everie justice, minister of the king, steward, &c. 
 and all comprehended under this word baylife. 
 
 The chiefe magistrates in divers antient corporations are called 
 baylifs, as in Ipswich, Yarmouth, Colchester, &c. And baylife 
 in French is diaxetes, nomarcha, in English, a bailife or gov- 
 ernor. But of this thus much shall suffice. 
 
 Sect, 249. 
 
 A ND of the partition which the sherife hath so made, he shall give 
 notice to the justice (3) under his seale, and the seales of every of the 
 12, 8fc. And so in this case you may see, that the eldest sister shall not 
 have the first election (4), but the sherife shall assigne to her her part 
 which she shall have, §c. And it may be that the sherife ivill assigne 
 first one part to the youngest, $c. and last to the eldest, frc- 
 
 " UXDER 
 
 (2) Concerning the distinction of courts of record, see ante 117. 
 
 (3) In L. and M. and in Roh. there is an &c. here. 
 
 (4) An &c. here in L. and M. and in Roh.
 
 L. 3. C. 1. Sect. 249. Of Parceners. [168. b. 169. a. 
 
 " TINDER his seale." Note, the partition, made and deli- ^ c r c it -- B f °; c 1 t 85 1 - \' 
 
 vered by the sherife and jurors ought to be returned into %*'n™ Ci 
 the court under the seale of the sherife, and the seales of the Fleta,'l. 5. ca. 9. 
 twelve jurors ; for the words of the judieiall writ of partition, 
 which doth command the sherife to make partition, are assumptis 
 tecum 12, &c. (so as there must be twelve) et partitionem inde, 
 &c. scir' facias justiciar Us, &c. sub sigillo tuo, et si<jillis eorum 
 per quorum sacr amentum partitionem illam fcceris, &c. And 
 this is the reason, wherefore in this case the partition, which they 
 make upon oath ought to be returned under their seales : and 
 the reason of that is for the more strengthening of the 
 
 [169. 1 B@°* partition by the 12, and that the sherife should Lib. 11. fol. 40. 
 a. ' not returne what partition he would. Now after all u» Metcalf's 
 this, this {&c.) viz. 12, &c. doth imply, that the case " 
 principall judgement upon the partition so returned is, ideo con- 
 sideratum est per curiam quod partitio firma et stabilis imper- 
 petuum teneatur (1). The latter two (<fec. ) are evident (2). 
 
 (1) See ace. ant. 168. a. 
 
 (2) Here I shall subjoin to Littleton's explanation of the different modes ot 
 express partition the following notices for the aid of students : 
 
 I. Since Littleton's time a statute has been made for newly regulating the 
 proceedings on a writ of partition, with a view to render them less dilatory and 
 more effectual; and this statute equally extends to parceners, join-tenants, and 
 tenants in common. See 8 & 9 W. 3. c. 31. What the form of proceeding 
 under the writ of partition was before, is explained in Flet. lib. 5. c. 9. Bract, 
 lib. 2. c. 33. Brit. c. 71, 72, 73, and Booth on Real Actions, 244. 
 
 II. Partition by release between co-parceners, which I do not observe to be 
 noticed by Littleton or Coke, is mentioned in 2 Fulbeck's Paral. fol. 57. b. 
 
 III. There is a partition by judgment exclusive of that on the partitione 
 faciendd. An instance of it is stated in 6 Co. 12. b. m 
 
 IV. Littleton hereafter adds to the forms of partition explained by him in 
 this chapter, one other form ; namely, partition by throwing into hotchpot, 
 which is the subject of Sect. 266. 
 
 V. Besides the writ of partition mentioned by Littleton there was anotner 
 also issuing out of chancery, which was called a writ of livery and partition. It 
 applied, where land holden of the king in capite descended to two or more 
 as co-parceners, in which case they could not have livery of their land from 
 the crown without a partition, the reason of which is explained in btaunt. 
 Preroc 24 b. 81. b. The various forms of this writ of partition may be seen 
 by consulting F. N. B. 256. F. 259. C. 261. B. C. and Reg. Orig. 316, 31/. 
 It differed from the common writ de partitione faciendd in almost every respect. 
 That was directed to the sheriff, this to the escheator : that was returnable in 
 the common pleas, this in chancery : that was executed with a jury, this with- 
 out : that was given for the benefit of the party suing it, this grew out ot a 
 policy to increase the number of the king's tenants in capite for his advantage : 
 the partition in that was confirmed by a judgment of the court, on return 
 of the writ, the partition in this had no such solemnity added to it; and 
 lastly, the partition on that was conclusive on the parties, though infants, 
 and all claiming under them, but the partition on this was open to subsequent 
 inouirv, and if unequal avoidable by scire facias in chancery or a partitione 
 faciendd at common law. See Staunf. Prerog. and Fitz. N. B. in the places 
 before cited, and post. 171. a. & b. See further on the force of such partition 
 in chancery 29 Ass. pi. 3. Bro. Abr. Jurisdiction, 114. Partition, pi. 10. .But 
 this species of partition under the writ of livery is no longer in force : for it 
 was a mere incident to livery; and livery being taken away by the 12 Uia. I. 
 c. 24, as one of the great grievances from tenure in capite, all writs of livery 
 of course are, as a very learned writer has forcibly expressed it, uno statu dis- 
 persed.
 
 169. a.] Of Parceners. L. 3. C. 1. Sect. 249. 
 
 persed. See Mr. serjeant Wynne's observat. on F. N. B. in his Miscellany of 
 Law Tracts, p. 51. 
 
 VI. Another kind of partition in chancery unnoticed by Littleton was, 
 where two persons succeeded as co-parcenary heirs to land holden of the king 
 in capite, and one of them being within age was in ward to the crown ; for then 
 the king's committee of the infant heir might assent to make partition with the 
 other co-parcener, in which case the writ for livery to the co-parcener of full 
 age recited that with such assent the king had assigned certain estates for the 
 purparty of such co-parcener, and directed the escheator to give livery accord- 
 ingly. F. N. B. 260. B. This mode of partition in chancery is also at an 
 end from the same cause as the writ of partition and livery. 
 
 VII. A new compulsory mode of partition has sprung up, and is now fully 
 established; namely, by decree of chancery exercising its equitable jurisdiction 
 on a bill filed praying for a partition : in which case it ia usual for the court 
 to issue a commission for the purpose to various persons, who proceed without 
 a jury. How far this branch of equitable jurisdiction, so trenching upon the 
 writ of partition, and wresting from a court of common law its ancient exclusive 
 jurisdiction over this subject, might be traced by examining the records of 
 chancery, I know not. But the earliest instance of a bill for partition I 
 observe to be noticed in the printed books is a case of the 40 Eliz. in Tothill's 
 Transac. of Chanc. title Partition. According to the short report of this case 
 the court interposed from necessity in respect of the minority of one of the 
 parties, the book expressing that on that account he could not be made party 
 to a writ of partition ; which reason seems very inaccurate ; for, if lord Coke 
 is right, that writ doth lie against an infant, and he shall not have his age in it, 
 and after judgment he is bound by the partition. See post. 171. b. But pro- 
 bably in lord Coke's time this was a rare and rather unsettled mode of com- 
 pelling partition ; for I observe in a case in chancery of the 6 Cha. 1. which was 
 referred to the judges on a point of law between two co-parceners, that the 
 judges certified for issuing a writ of partition between them, and that the court 
 ordered one accordingly ; which, I presume, would scarce have been done if 
 the decree for partition and a commission to make it had then been a current 
 and familiar proceeding with chancery. 1 Cha. Rep. 49. However it appears 
 by the language of the court in a very important cause, in which the grand 
 question was, whether the lord chancellor here could hold plea of a trust of 
 lands in Ireland, that in the reign of James the Second bills of partition were 
 become common. 1 Vera. 421. 2 Cha. Cas. 189. For other reported cases on 
 bills of partition, see Toth. Transact, tit. Partition, 1 Cha. Rep. 235. 3 Cha. 
 Rep. 29. 2 Cha. Cas. 214. 237. 2 Vern. 232. 1 P. Wms. 446. 2 P. Wms. 518. 
 As to the forms of a commission of partition, see 1 Prax. Aim. Cur. 3d ed. 
 93, 94. Clerk's Tutor in Chanc. 3d ed. 360. and 2 Harrison's Chanc. last 
 ed. 396. For cases in which chancery interposes by awarding commissions to 
 ascertain boundaries, which subject in some degree connects with commissions 
 of partition, see Tothill, 84. 126. 130. Nels. Ch. Rep. 14. 121. 1 Cha. 
 Rep. 41. 63. 259. Rep. temp. Finch. 17. 154. 239. 462. 96. Car. Rep. 
 107. 1 Cha. Cas. 145. 1 Vern. 359. 456. 2 Vern. 38. and 1 Ves. 453. 
 To these add Fitzh. N. B. 133. See further 4 Ves. 180. 6 Ves. 293. 9 Ves. 
 344. on the writ de perambulatione facienda, which being considered, may 
 perhaps throw some light on the origin of this branch of equitable juris- 
 diction ; and concerning the modes of partition by our law, see the cases 
 under that title in Fitzh. Abr. Bro. Abr. and Viner. — Concerning partition by 
 the Roman law, see Fulbeck in his Parallel of the Civil, Canon, and English 
 Laws, b. 2. p. 57. This neglected but ingenious writer extracts from the Roman 
 law three actions having the like object with our writ of partition. These are 
 the action defamilid herciscunda, the actionpro socio, and the action de communi 
 dividendo. He applies the first to partition amongst co-heirs, the second to 
 that amongst join-tenants, and the third to that amongst tenants in common ; 
 an assimilation in which he is partly followed by lord Stair in respect to the 
 
 law
 
 L. 3. C. 1, Sect. 250-51. Of Parceners. [169. a. 
 
 Sect. 250. 
 
 AND note, that partition by agreement between parceners may be 
 made by law betweene them, as well by paroll without deed, as by 
 deed (3). 
 
 HERE it appeareth, that [r] not onely lands and other things M, 8 Bj*. 9,10 
 that may passe by livery without deed, but things also that n ^ " 4 3 * 
 do lie in grant, as rents, commons, advowsons and the like, that 9 H. 4. Partition, 
 cannot passe by grant without deed, whether they be in one county 13. 81]*S. S8. 
 or in severall counties, may be parted and divided by paroll with- [ 8 ^ a 198 \ £* ' 
 out deed, [s] But a partition between joyntenants is not good ^ Vide Sect. 
 without deed, albeit it be of lands, and that they be compellable 290. 3 H. 4. 1. 
 to make partition by the statutes of 31 H. 8. cap. 10*, and 32 ™ H. 6.25. 
 H. 8. cap. 32, because they must pursue that act by writ de par- g E ^ ^ j 
 titione faciendd ; and a partition between joyntenants without 47 E. 3. 22. 
 writ remaines at the common law, which could not be done by 47 Ass.. &. 
 paroll. And so it is and for the same reason of tenants in com- 17 E ' 3 ' 46 . 
 mon. But if two tenants in common be, and they make parti- 30 Ass. 8. lib. 4. 
 tion by paroll, and execute the same in severalty by livery, this jo. 73. lib. 6. 
 is good, and sufficient in law. And therefore where books say, 2 °^ f ft ' Dier> 
 the joyntenants made partition without deed, it must be intended is Eliz. 358. 
 of tenants in common and executed by liverie. 31 H. s. Dier,4G. 
 
 Nota, between joyntenants there is a two-fold privity, viz. in jj 8 i£" 8 . ier ' ' ' 
 estate and in possession : betweene tenants in common, there is Dier,'29. 
 privity only in possession, and not in estate : but parceners 1 Mar. Dier, 98. 
 have a threefold privity, viz. in estate, in person, and in possession, j^Jj ^ 
 
 8 Co. 42. Post. 186. a. 193. b. 200. b. 335. a. 2 Inst. 403.) 
 
 * It should be cap. 1. The 31 H. 8. c. 10, regulates precedency in the house of lords, 
 und in no wise relates to the subject of jointenants. 
 
 Sect. 251. 
 
 A LSO, if two meses descend to two parceners, and the one mease is 
 
 worth twenty shillings per annum, and the other but ten shillings 
 
 per annum, in this case partition may be made between them in this 
 
 manner ; to wit, the one parcener to have the one mease, and the other 
 
 parcener 
 
 law of Scotland. Stair's Instit. 48. The second and third of these Roman 
 actions are treated of in lib. 10. tit. 2 & 3. of the Digest, tit. 1. of the same 
 book, being upon the action finivm regundorum, which partly answers to our 
 bill in equity for ascertaining boundaries. It is remarkable also, that Fleta 
 represents the three Roman actions last mentioned as part of our law. Flet. 
 lib. 5. c. 9. p. 309. See further as to the Roman law about partition, 
 1 Dom. Civ. L. by Strah. 326. For partition according to the French law, 
 see tit. parlage in their book ; and for the like subject in the Scotch law, see 
 concerning the obligation of division, hcires, portioncrs, commonties and writs 
 of division, in Stair's Instit. 48. 477. 169. 576. and in Erskine's Instit. 468. 
 —[Note 23,] 
 
 (3) In 1 Atk. 542. there is a case in equity, in which lord Hardwicke allows 
 of a parol agreement for a partition. See infra note 4, and 1 Vera. 472. — 
 [Note 24.]
 
 169. a. 169. b.] Of Parceners. L. 3. C. 1. Sect. 252. 
 
 parcener the other mease; and she which hath the mease worth 20 shil- 
 lings per annum and her heires shall pay a yeerely rent of five shillings 
 issuing out of the same mease to the other parcener and to her heires for 
 ever, because each of them should have equality in value. 
 
 Sect. 252. 
 
 A ND such partition made by par oil is good enough ; and that parce- 
 ner, who shall have the rent, and his heires, may distrein of common 
 right for the rent in the sayd mease worth twenty shillings, if the rent 
 of 5 shillings be behinde at any time, in whose hands soever the same 
 mease shall come, although there never were any writing of this made 
 betiveene them for such a rent. 
 
 [t\ 8 E. 3. 16. " T>Y paroll" Nota, here [/,] a rent may be granted for 
 21 E^ 38 1 ' owelty of partition without (4) deed, even as a rent in case 
 
 11 II. 4. 61. of a lease for years, for life, or a gift in taile, may be reserved, 
 45 E. 3. 21. without deed; and so may a rent be assigned to a woman out 
 2 1 I \v 6 g 1 j] of the land, whereof she is dowable, &c. without deed. But al- 
 
 l Mar. Dier, 91. beit an exchange for lands in the same county may be without 
 (Ant. 34. b.) deed ; yet a rent granted for egality (5) of the same exchange 
 (Mo. 29.) cannot be without deed. And the cause of the difference is ap- 
 
 parent ; for coparceners are in by descent, and compellable to 
 make partition. 
 
 " The rent, &c." 
 
 The same law is of common of estovers, or a corodie, 
 or a common J6@°" of pasture, &c. or a way granted (~ 169.1 
 upon the partition by the one coparcener to the other. L D > J 
 All which and the like, albeit they lie in grant, yet 
 upon the partition may they be granted without deed. 
 
 [*] 1 Mariae, "Issuing out of the same mease, &c." [x] For if it be granted 
 
 Dyer, 91. ou t of other lands, then descended to the coparceners, then there 
 
 [z] 29 Ass. 23. must be a deed, [z] But if the rent be granted generally (out of 
 
 29 E. 3. 9. b. no land in certaine) for owelty of partition, pro residuo terrae, 
 
 Pi. Com 34 - t gnfl jj k e intended out of the purpartie of her that granteth it. 
 
 (Post. 252. b.) _ __ , , , ii i -i- j 
 
 [«] 15 II. 7. 14. \_ n \ H there be three coparceners, and they make partition, and 
 
 29 Ass. 23. one of them grant twentv shillings per annum out of her part to 
 
 ?5 c 3 s 9 ' b * ner two s ^ sters aQ d their heires for equality of partition, the gran- 
 
 Wynciham's tees are no ^ joyntenants of this rent ; but the rent is in nature of 
 
 case. 3. Co. 22. b. coparcenary, and after the death of the one grantee the moiety of 
 
 p 4 *' \ 7 ' 2 ' , the rent shall descend to her issue in course of coparcenary, and 
 
 not survive to the other, for that the rent doth come in recom- 
 
 pence of the land, and therefore shall ensue the nature thereof; 
 
 and if the grant had beene made to them two of a rent of twenty 
 
 shillings, 
 
 (4) Here the eleventh edition of this book has a note questioning whether 
 such parol grant would be good now in respect of the 29 Cha. 2. c. 3, and Mr. 
 Serjeant Hawkins in his Abridgment makes a like question. See supra note 3. 
 —[Note 25.] 
 
 (5) Of equality in exchanges, see ant. 50. b. 51. a. & b.
 
 L. 3. C. 1. Sect. 253-54. Of Parceners. [169. b. 1 70. a. 
 
 shillings, viz. to the one ten shillings, and to the other ten 
 shillings, yet shall they have the rent in course of coparcenary, 
 and joyne in action for the same. 
 
 [b~\ If one coparcener be married, and for owelty of partition [b] 29 Ass. 23. 
 the husband and wife grant a rent to the other two out of the 29 E - 3 - 9. 
 part of the fern covert, this partition being equall shall charge * 
 the part of the fern covert for ever. 
 
 [<;] If two coparceners by deed indented alien both their [ c ] 38 E. 3. 
 parts to another in fee, rendring to them two and their heires a 26. b. ; but see 
 rent out of the land, they are not joyntenants of this rent, but ante 12 ' b- 
 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. 
 
 " May distrein of common right, &c." That is, [d] in this [rf] 1 Maris, 
 
 case the law doth give a distresse, lest the grantee should be fl? er l Cj h 
 
 without remedy, for the which upon the partition she hath other the bookes 
 
 given a valuable recompence in land, which descended, &c. abovesaid. 
 And so in the case of dower abovementioned (1). 
 
 Sect. 253. 
 
 TN the same manner it is of all manner of lands and tenements, £c. 
 wliere 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 (1)* had and reserved for equality of partition (2) f. 
 
 "TANDS and tenements, &c." Here (&c.) im- 
 
 [170. ~| plyeth a caution, viz. that they be such lands 
 
 a. $©" and tenements out of which a rent for egaltie 
 
 of partition may be granted, whereof sufficient hath 
 been said before. 
 
 " Reserved to one." Here reservation is taken for a grant ; 
 and if it be used upon the partition, doth amount in this case 
 to a grant, which is worthy the observation. 
 
 Sect. 254. 
 
 AND note, that none are called parceners by the common-law, but 
 
 females or the heirs of females, which come to lands or tenements by 
 discent ; for if sisters purchase lands or tenements, of this they are 
 called joyntenants, and not parceners. 
 
 This needs no explanation. 
 
 Sect. 
 
 *f These are notes 1, and 2, of 170. a. in the \3th and 14th editions. 
 
 (1) See ante 34. b. 153. a. and Shep. Common. Assur. 425. 
 
 (1) * See ante 153. a. note 1. 
 
 (2) -j- In L. and M. &c. here.
 
 170. a. 170. b.J Of Parceners. L. 3. C. 1. Sect. 255. 
 
 Sect. 255. 
 
 A LSO, if two parceners of land in fee simple make partition between 
 themselves, and the part of the one valueth more than the part of the 
 other, if they were at the time of partition of full age, sc. of 21 yeares, 
 then the partition shall alway remaine, and be never defeated. But if 
 the tenements {whereof they make partition) be to them in fee taile, and 
 the part of the one is better in yearly value than the part of the other, 
 albeit they be concluded during their lives to defeat the partition ; yet if 
 the parcener, zvhich hath the lesser part in value, hath issue and dye, 
 the issue may disagree to the partition, and enter and occupy in common 
 the other part which was allotted to her aunt, and so the other may enter 
 and occupy in common the other 'part allotted to her sister, ^c. as if no 
 partition had been made (1) f. 
 
 " rp HEN the partition shall alway remaine, &c." Hereby 
 
 it appeareth, that the inequality of the value shall not 
 
 9 H. 6. 5. and impeach a partition made of lands in fee simple between copar- 
 
 ab h ov r eiid b00keS ceners of ful1 a S e ( 3 )> no more than h sha11 do in case of an 
 exchange (4). 
 
 " They be concluded during their lives." This inequall par- 
 tition doth so conclude the parceners themselves, as she that 
 hath the unequall part shall not avoid it during her life. 
 
 (Post. 352. a.) " Concluded." This word is derived of con and claudo (5), 
 
 and in this sense signifieth to close or shut up her mouth that 
 she cannot speake to the contrary. 
 
 11 Ass. p. 2. U^S" Husband and wife tenants in speciall taile of |~170.1 
 
 certaine lands in fee have issue a daughter, the wife | b. 
 dyeth, the husband by a second wife hath issue another 
 daughter, both the daughters enter (where the eldest is only 
 See after the inheritable) and make partition ; the eldest daughter is con- 
 chapter of War- eluded during her life to impeach the partition, or to say that 
 (Doctor and ^e youngest is not heire, and yet she is a stranger to the taile, 
 Stud. 65). but in respect of privity in their persons the partition shall 
 
 conclude, for a partition between mere strangers in that case 
 is voyd, but the issue of the eldest shall avoid this partition as 
 issue in taile. 
 0] 21 E. 3. 34, [i/] I- S. seised of lands in fee hath issue two daughters, Rose 
 
 35. 2 E. 2. and Anne, bastard eio-ne and mulier puisne, and diet h. Rose and 
 
 Bastardy, 19. ° 1 
 
 11 Ass. 23. 30 Ass. 7. 17 E. 3. 59. (8 Co. 101. b. Post. 244. b.) 
 
 Anne 
 
 f This is note 1 of 170. b. in the 13th and 14f7t edition*. 
 
 (3) Ante ace. 166. a. 
 
 (4) Ante 51. a. 
 
 (5) Ace. ante 37. a. 
 
 (1) | This case of Littleton turns upon the inequality of the partition; for 
 if the parts arc equal, it binds notwithstanding infancy. Ante. 166. a. Post. 
 173 b.— [Note 26.] 
 
 (2) See the case of discontinuance stated by lord Coke, post. 373. b.
 
 L. 3. C. 1 . Sect 256-57. Of Parceners. [170. b. 171. a. 
 
 Anne do enter and make partition. (3) Anne and her heires are 
 concluded for ever (4). 
 
 Sect. 256. 
 
 ALSO, if tivo parceners of lands in fee take husbands, and they and 
 their husbands make partition beticeen them, if the part of the one 
 be lesse in value than the part of the other, during the lives of their hus- 
 bands 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, 
 that woman which hath the lesser part may enter into her sisters part as 
 is aforesaid, and shall defeat the partition (et defeatera la particion). 
 
 " WHEY and their husbands." Here it appeareth, that the 
 
 wife must be party to the partition, and so are the books* »42 Ass. 22. 
 
 to be intended that speak of this matter. 8 E - 4 - 4 - 
 
 r 9 E. 3. 38. 
 
 " And shall defeat the partition." Note, the partition shall *? E - *• ^ 
 
 not be defeated for the surplusage onely to make the partition 2 g Abb. 23. ' 
 
 equall, but here it appeareth that it shall be avoyded for the 9 H. 6. 5. 
 
 whole. But of this more shall be said hereafter in this chapter, 48 Ass - 14 - 
 
 sectione 264. [A] And though the partition be unequall, yet is [*] Vid. 2 E.^2. 
 
 not the particion voyd, but voydable; for if after the decease of Cui in vlta 17 - 
 
 the husband, the wife entereth into the unequall part, 
 [ 171. "I and agreeth thereunto, this shall binde, and therefore 
 [_ a. J Littleton 8@" used the word (defeatera,) which proveth 
 
 it to be voydable. 
 
 Sect. 257. 
 
 JRUT if the partition made betweene the husbands [perenter les 
 barons (1)] were thus, that each part at the time of the allotment 
 made ivas of equall yearely value, then it cannot afterwards be defeated 
 in such cases. 
 
 " J)ETWEENE the husbands (perenter les barons)." This is 
 mistaken, for the originall is perenter eux, that is, betweene 
 the barons and ferns, and not as it is here betweene the barons, 
 therefore this error would be hereafter reformed. 
 
 "At 
 
 (3) In a Coke upon Littleton I have with MS. notes and references, the 
 annotator is for excluding from such an estoppel as is here stated, a partition 
 in pais. His note is thus expressed : " If two make partition in court of record, 
 "when one of them had no right, he thereby shall gain a moiety by estoppel 
 "or conclusion. Bro. Nouv. Cas. pi. 306. But otherwise I conceive of a 
 "partition in pais; though the book speaketh generally; and upon this differ- 
 ence you shall read a like case in this booke, fob 46. a." — [Note 27.] 
 
 (4) Ace. Dr. & Stud. dial. 1. c. 19. where mulier puisne sues livery with 
 bastard eigne. See Bro. Abr. Entrie congeable, 31. and Biscent,9. But it 
 is said that this sort of estoppel will not bind in chancery. Cary's Rep. 26. 
 See further 2 Co. 4. b. Cro. Cha. 110. Pollexf. 67. and 3 Com. Dig. 278.— 
 [Note 28.] 
 
 (1) Instead of les barons it is eux in L. and M. and Roh.
 
 171. a.J Of Parceners. L. 3. C. 1. Sect, 258. 
 
 "At the time of the allotment." Hereby it appeareth, that if 
 
 the parts at the time of the partition be of equall yearely value, 
 
 9 H. 6. 5, and neither the wives nor their heyres shall ever avoyd the same; 
 
 other the bookes and the reason hereof is, for that the husbands and wives were 
 
 ?p 0V ? S i- d 9 \ 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 processe of (2) law. If the annuall value of the land be 
 
 equall at the time of the partition, and after become unequall by 
 
 any matter subsequent, as by surrounding, ill husbandry, or such 
 
 like, yet the partition remaines good. 
 
 Judicis ojficium est, ut res ita tcmpora rerum 
 Queer ere; qusesito tempore tutus eris. 
 
 But if the partition be made by force of the king's writ, and 
 
 judgement thereof given, it shall binde the feme-coverts forever, 
 
 albeit the parts be not of equall annuall value ; because it is made 
 
 by the sherife by the oath of twelve men by authority of law ; 
 
 aud the judgement is, that partition shall remaine firme and 
 
 r«l F. N. B. stable for ever, as hath beene said, [a] But a partition in the 
 
 256. 259, 260, chancery where one coparcener is of full age and sueth livery, 
 
 261, 262, 263. an( j one other is within age and hath an unequall part allotted 
 
 °l E 3 b 31 to ner > tu ^ s sna ^ not binde her at full age; for in a writ directed 
 
 to the escheator to make partition, there is a salvo jure, and there 
 
 is no judgement upon such a partition. But if such a partition 
 
 be equall, it shall binde, so that a part of the land holden in 
 
 capite be allotted to every of the coparceners, for to that end 
 
 [£] Vide there is an expresse proviso in the writ. \Jj] And this partition 
 
 21 E. 3. 31. may be avoyded either by scire fac' in the chancery, or by a writ 
 
 de partitione faciendd at the common law at her full age (3). 
 
 Sect. 258. 
 
 A LSO, if two coparceners be, and the youngest being within the age of 
 ^ twenty-one gears, partition is made betweene them, so as the part which 
 is allotted to the youngest is of lesse value than the part of the other, in 
 this case the youngest, during the time of her nonage, and also when she 
 commethto full age, scil. of 21 yeares, may enter into the part allotted to her 
 sister, and shall defeat the partition. But let such parcener take heed 
 when she comes to her full age, that she taketh not to her owne use all the 
 profits of the lands or tenements ivhich ivere allotted unto her ; for then 
 she agrees to the partition at such age, in which ease the partition shall 
 stand and remaine in its force. But per adventure she may take the profits 
 of the moitie, leaving the profits of the other moitie to her sister (1)*. 
 
 Ab 
 * This is note 1 of 171. L. in the XZth and Hth editions. 
 
 (2) In 1 Atk. 541. there is a case, in which lord chancellor Hardwicke is 
 represented to say, that a partition by agreement between two husbands will 
 not bind the inheritance of their wives. But notwithstanding this high autho- 
 rity, I take the doctrine of Littleton and Coke, that such a partition will bind 
 the wives, if parties, unless it be unequal, to be clear law, and for the cogent 
 reason here given by the latter. See ace. F. N. B. 62. F. — [Note 29.] 
 
 (3) Ace. F. N. B. 62. H. Yet see before 166. a. which seems contra, un- 
 less what is there expressed is applied, not to a fee-simple, but to an estate- 
 tail, which probably was lord Coke's meaning. 
 
 (1) *In L. and M. and Boh. an &c. here.
 
 L. 3. C. 1. Sect. 259. Of Parceners. [171. a. 171. b. 
 
 A 
 
 S before in the case of the fem covert, [c] so it is in the case [c] 43 Ass. 14. 
 of the enfant ; for if the partition be equall at the time of 9 j*. 6. 5^ 6. 
 the allotment, it shall binde him forever, because he is com- 8 E | 3 ' 2 ' 4 \ 
 pellable bylaw to make partition, and he shall not have 10H. 4. 5. 
 
 [171.1 his age in zpartitione &T facienda (2) ; and though j*}^ 5 " 3 - 1 ^ 
 b. J the partition be unequal, and the infant hath the lesser , x R J j^ T " 
 
 part, yet is not the partition void but voidable by his 138 Hob. 179.) 
 entry ; for if he take the whole profits of the unequall part, 
 after his full age, the partition is made good for ever. And 
 therefore Littleton here giveth him a caveat, that in that case 
 he take not the whole profits of his unequall part, neither shall 
 an unequall partition in the chancery binde an infant, as appeareth 
 before (3). But a partition made by the king's writ departitione 
 faciendd by the sherife by the oath of twelve men, and the 
 judgement thereupon given, shall binde the infant, though his 
 part be unequall, causa qua supra. 
 
 Sect. 259. 
 
 A ND it is to be understood, that when it is said, that males or females 
 be of full age, this shall be intended of the age of 21 yeares ; for if 
 before such age any deed (ascun fait) or feoffment, grant, release, confir- 
 mation, obligation, or other tvriting, be made by any of them, §c. or if 
 any within such age be baylife or receiver to any man, Sfc all serve for 
 nothing, and may be avoided.* Also a man before the sayd age shall not 
 be sworne in an enquest, Sfc. (l)f« 
 
 rPHE law hath provided for the safety of a man's or woman's 
 -I- estate, that || before their age of twenty-one yeares they y Yid Sect> 402j 
 cannot binde themselves by any deed (4), or alien any land (5), 403. 
 goods or chattels (6). g n.Vim. G. 
 
 Post. 246. a. 337. b. 350. a. & b. 380. a. Ante 171. a. 8 Co. 44. b.) 
 
 " Aye 
 f This is note 1 of 172. in the \Zth and lith editions. 
 
 (2) Acc. 6 Co. 4. b. But there the reason given for an infant's not having 
 his age in partition is different, namely, that both coparceners are in possession. 
 In the Year-Book of 9 H. 6. 6. b. the reason is expressed to be the prejudice 
 which otherwise there might be to the infant. — [Note 30.] 
 
 (3) See the case of partition of an advowson between coparceners, where one 
 is within age, in F. N. B. 36. D. 
 
 * See Lord Chief Justice Eyre's remark on this, 2 H. Black. 514. 
 (1) f No. &c. in L. and M. nor Rob. 
 
 (4) See ante 51. b. note 2. and 52. a. note 2. To the references there add 
 3 P. Wins. 208. 
 
 (5) Not even though a special power is given to him, though it is otherwise 
 with a feme covert. So held by lord chancellor Hardwicke in a case in 
 1 Ves. 298. and 3 Atk. 695. See Mo. 512. But by the 7 An. c. 19, an infant 
 having a real estate only as a trustee or under a mortgage is enabled to convey 
 undeAhe direction of the court of chancery or the court of exchequer. How- 
 ever this act is deemed not to extend to trusts merely constructive. 2 P. Wms. 
 549. 3 P. Wms. 387. Another exception to an infant's not being able to alien 
 land arises from the custom of particular places, as the custom of Kent in respect 
 to gavelkind lands, which may be aliened by an infant on attaining 15. See the late 
 Mr° Robinson's excellent Treatise on Gavelk. 193. and Mo. 512.— [Note 31.] 
 
 (6) But an infant may before 21 dispose of personal estate by last will, though 
 it is controverted at what age this testamentary power begins to attach in 
 
 infants.
 
 171. b. 172. a.J Of Parceners. L. 3. C. 1. Sect. 259. 
 
 " Age of 21 i/eares." Before this age a man or woman is 
 called an enfant. 
 
 Brit. fol. 65, 60. " Deed (fait)." (1). Factum, Anglice, a deed, and signifieth 
 
 ™ 101 ',i. o in the common law, an instrument consisting of three things, 
 
 Fleta,hb. 3. . ... ,. , , ,. , & ,. , . & ' 
 
 cap. 14. V1Z - writing, sealing, and delivery, comprehending a bargaine or 
 
 (Perk. sec. 135.) contract between party and party, man or woman. It is called of 
 
 the civilians literarum obligatio. 
 
 " Feoffement." Of this word sufficient hath been riV2."| 
 figg^sayd before in the first chapter of the first booke. | a. 
 
 Lib. 3. fol. 63. " Grant," Concessio, is in the common law a conveyance of 
 
 in Lincolne Col- a thing that lies in grant and not in livery, which cannot passe 
 ge case without deed ; as advowsons, services, rents, commons, rever- 
 
 sions, and such like. Of this also sufficient likewise hath been 
 said in the first chapter of the first booke. 
 
 " Release, confirmation, &c." Of these shall be spoken here- 
 after in their proper places and chapters. 
 
 " Obligation" is a worde of his own nature of a large extent : 
 but it is commonly taken in the common law, for a bond con- 
 taining a penalty, with condition for payment of money or to 
 do or suffer some act or thing, &c. and a bill is most commonly 
 taken for a single bond without condition. 
 
 " Or other writing, be made by any of them, &c." Here by 
 [d] 18 E. 4. 2. this &c. is implied some exceptions out of this generality, \d\ as 
 ?ni To 6 f l" s7 an ' n ^ ant ma y bind himself to pay for his necessary meat, drinke, 
 Pinchon'scase. apparell, necessary physicke, and such other necessaries, and 
 (2 Ro. Abr. 146. likewise for his good teaching or instruction, whereby he may 
 Cro. Ehz. 920. p ro fit himselfe afterwards : but if he bind himselfe in an obligation 
 Cro. Cha. 179. or other writing with a penalty (2) for the payment of any of 
 Cro. Jam. 494. these, that obligation shall not bind him. [e] Also other things 
 56 °- . , _ of necessity shall bind [him], as a presentation to a benefice (8), 
 Plowd 364 ) ' f° r otherwise the laps shall incur against him. Also if an infant 
 [c] 8 E. 4. 4. be an executor upon payment of any debt due to the testator, 
 9 H. 6. 5. ue ma y ma ke an acquittance : but in that case a release 
 
 29 Ass 25 without payment is voyd (4); and generally whatsoever an 
 
 2 Maria, Dyer, 104, 105. (5 Co. 29. b. 27. a. 6 Cro. 3. Cro. Cha. 324. 590. 502. 
 Mo. 105. Cro. Jam. 320. 1 Sid. 41. 259. 446.) infant 
 
 infants. On this point I have therefore expressed my notions at length. See 
 note 6. of fol. 89. b.— [Note 32.] 
 
 (1) In the cases of Wells v. Gough, and of Oxenham v. Horsfall, in B. R. 
 Mich. T. 37 G-. 3, the court is said to have holden sealed award by an arbitrator 
 to be a deed within the stamp duties, though it was contended, that to constitute 
 a deed there should be a contract and delivery, as well as sealing ; and that 
 otherwise all wills, and all warrants of magistrates, would become liable to the 
 deed-stamp-duties ; but quaere as to the grounds of the decision ; and note, that 
 I have seen a subsequent opinion of Mr. serjeant Hill concerning an award by 
 commissioners of an iuclosure act, not quite accord with the cases in B. R. I 
 have thus referred to. 
 
 (2) Ace. 1 Ro. Abr. 729. pi. 8. Mo. 679. Cro. Eliz. 920. Godb. 219. 
 But lord Coke's words imply, that a single bond, that is, one without a penalty, 
 being given for necessaries, may be good against an infant : and so it hath 
 been frequently adjudged. See March. 145. 1 Ro. Abr. 729. pi. 8. and 1 
 Lev. 86.— [Note 33.] 
 
 (3) See ace. ante 89. a. and note 1, there. 
 
 (4) Ace. post. 264. b.
 
 L. 3. C. I. Sect. 259. Of Parceners. [172. a. 
 
 infant is bound to do "by law, the same shall bind him, albeit he 
 doth it without suit of law (5). But of this common learning 
 this little tast shall suffice. 
 
 " Bayh'fe or receiver to any man, &c." By this &c. many Fjetj* 1 J- 2- ^ 
 things are implied, as that by baylife is understood a servant Br'itto'n, foT 62.' ' 
 that hath administration and charge of lands goods and chattels 70 Fleta, lib. 2. 
 to make the best benefit for the owner against whom an action c ^ 6 f 39 
 of account doth lie for the profits which he hath raised or made, 46 E ' j] 
 or might by his industry or care have reasonably raised or made, Account, 40. 
 his reasonable charges and expenses deducted. [/] But one 2 R. 2. ibid. 45. 
 under the age of twenty-one yeares shall not be charged in any 3 £ 3 ; \q 
 such account (6) ; because, by intendment of law, before his full (Cro. Jam. 177. 
 age he hath not skill and ability to raise or make any such im- 1 Leon. 219.) 
 provement and profit. Infant 9. 
 
 17 E. 2 Account, 121. 21 E. 3. 8. 10 H. 4. 14. 2 H. 4. 13.' Regist. 
 135. (Finch, L. 302, 303. Noy, 12.) 
 
 An account against the receiver is, when one receiveth money 
 to the use of another to render an account ; but upon his account 
 he shall not be allowed his expences and charges, [g] And y] 43 E. 3. 31. 
 therefore a man cannot charge a baylife as a receiver j because J 6 H E, 6 3- 2 3 7 ' b * 
 then the bailife, should lose his expences and charges. (1 R .*Abr. 119. 
 
 In an account against a receiver, the plaintife must declare by 2 Inst. 379. 
 whose hands the defendant received the money which he shall * j£°a e 39 ' 87 } 
 not doe in the case of a baylife. [h] But in some case in an ac- ^ 30 E ep 3 {' 
 tion of account against one as receptor denariorum, he shall have Account, 127. 
 
 allowance of his expences and charges, and also shall account 47 E. 3. 22. 
 for the profit he received (7) or might reasonably receive ; and Brac j ^ \ 
 this was provided by law in favour of merchants, and for ad- f i. 334. 
 vancement of trade and trafficke. Britt fol. 62. 
 
 And if two joynt merchants occupy their stocke goods and ca J_ B £ 4 ) & 5 ' 1# 
 merchandizes in common to their common profit, one of them 5 e. 3. i. 
 naming himselfe a merchant shall have an account against the Lib. intrat 17. 
 other naming him a merchant, and shall charge him as receptor ^?' N ^ uy D 
 denariorum ipsius B. ex qudcunque causa & contractu ad com- p os t. 182. a. 
 munem utilitatem ipsortim A. & B. provenien' sicut per legem Cro. Jam. 410. 
 mercatoriam rationabiliter monstrare poterit. 
 
 [1] If there be two joyntenants or tenants in common of lands, p E 45 3 E 2 7 3- 10- 
 and the one make the other his baylife of his moity, he shall 39 E 3 27 
 have an action of account against him as bailife ; and so are the 47 e. 3. 22. 
 bookes to be intended, that speake of an action of account in that F. N. B. 118. 
 
 , ON ' r (Post. 186, 200. 
 
 case (0). . . b.) 
 
 So as there be but three kinds of writs of account, viz. against 
 one as gardian, whereof Littleton hath spoken before in the 
 Chapter of Socage ; the second against one as baylife; and the 
 third as receiver; as here it appeareth. [&] For a man shall J^JJJJfi 
 
 41 E. 3. ibid. 34. 8 E. 3. 46. 8 E. 4. 6. b. F. N. B. 119. D. (2 Inst. 379. 
 F. N. B. 119. C. 1 Ro. Abr. 119.) 
 
 not 
 
 (5) See F. N. B. 168. D. and the notes b. &c. in the 4to edition as to infant's 
 binding himself to serve. 
 
 (6) See ace. ante 88. b. 
 
 (7) See Dy. 21. b. 
 
 (8) But now one jointenant or tenant in common may have account against 
 the other as bailiff for receiving more than his share of profits, though there is 
 no appointment of him as bailiff. See 4 Anne, c. 16. s. 27. See too 1 Leon. 
 219.— [Note 34.] 
 
 Vol. II.— 3
 
 172. a. 172. b.] Of Parceners. L. 3. C. 1. Sect. 260. 
 
 not be charged in an account as surveyor, controller, apprentice, 
 reve, or heyward. And to maintain an action of account, there 
 must be, either a privity (9) in deed by the consent of the partie, 
 [l] 2 Mar. B. for [I] against a disseisor or other wrongdoer no account doth 
 ^ cc ° u ° t ' ^ 9 - lie ; or a privity in law ex provisione legis made by the law, as 
 pi. Com! 542! against a gardian &c. whereof sufficient hath been spoken in the 
 2 H. 4. 12. Chapter of Socage (10). 
 33 H. 6. 2. r 
 
 4. H. 7. 6. &c. (F. N. B. 119. C.) 
 
 " fi@* Shall not be sworne in an enquest, &c." By ri7£.~| 
 
 01 Bract, lib. 5. this &c. is implied a maxime in law, [m] quod minor |_ b. J 
 fol. 340. b. jurare non potest. For example \n\ an infant cannot 
 
 Lev 50 make his law of non summons ; [o] and therefore the default 
 
 [o] 26 E. 3. 63. shall not grieve him ; for seeing the meane to excuse the de- 
 
 2 Marioe, fault is taken away by law, the default it selfe shall not pre- 
 
 r fvid d vant J uc ^ ce n ^ m - But y efc tn ^ s ru ^ e natn au exception, that [p] an 
 
 cap. de Homage infant when he is of the age of 12 yeares, shall take the oath of 
 
 etcap.de Fealty, allegiance to the king (1) : and this was as Bracton saith secun- 
 
 Sect. 85. 91. ( j^ irn i e g e% sanc ti Edwardi; but indeed such was the law in the 
 
 fol. 124. "" time of king Arthur (2). [o] An infant cannot upon his oath 
 
 Britt. fol. 73, 74. make his law an action of debt. [?•] And the husband and wife 
 
 m f f' i-k 1 °f f uU a g e j f° r tae debt of the wife before the coverture, shall 
 
 xleta, lib* 1. 1.1 • 1 
 
 cap. 27. make their law. 
 
 [q] 11 H. 40. 1 H. 7. 25. 15 E. 4. 24. (Post 295.) [r] 46 E. 3. 10. 9 E. 4. 24. 
 15 E. 4. 2. 21 H. 3. 23. (Post. 295. a. Cro. Eliz. 161.) 
 
 Sect. 260. 
 
 ALSO, if lands or tenements be given to a man in taile, who hath as 
 much land in fee simple, and hath issue two daughters and die, and 
 his two daughters make partition betweene them, so as the land in fee- 
 simple is alloted to the younger daughter in allowance for the lands and 
 
 tenements 
 
 (9) See as to this and the king's prerogative in charging persons as account- 
 ants the earl of Devonshire's case, 11 Co. 89. a. 
 
 (10) Ante 90. b. 
 
 (1) Ace. ante 68. b. and 78. b. See also 128. a. — Another exception is, 
 that he may be sworn as a witness at 14, and before if he appears to under- 
 stand an oath, or rather as it is expressed by lord Hale, hath competent 
 discretion. 11 Mod. 228. 2 Hal. H. P. C. 271.— Also according to lord 
 Hale in some cases of exigence, as in rape, an infant of tender years may be 
 examined without oath. — In 1 Stra. 700, there is a case in which an infant of 
 7 years was refused. There too the point about examining infants as wit- 
 nesses is ably argued. The same point was touched upon incidentally in the 
 great case of Omichund and Barker, before lord chancellor Hardwicke, about 
 receiving the Gentoo's evidence ; which I more particularly refer to here, be- 
 cause in it lord Hale's doctrine of admitting infants to give evidence in crimi- 
 nal cases without oath is said to have been over-ruled at the Old Bailey after 
 mature deliberation ; and also by lord Raymond. 1 Atk. 29. See 1 Hal. 
 Hist. P. C. 302. 634. and 2 Hal. H. P. C 279. and Lamb. Just. 24. 1602. p. 
 85.— [Note 35.] 
 
 (2) See notes 3 and 4 of fol. 68. b.
 
 L. 3. C. 1. Sect. 260. Of Parceners. [172. b. 173. a. 
 
 tenements (en allowance des terres et (3) tenements) in taile allotted to 
 the elder daughter, if, after such partition made, the younger daughter 
 "alieneth her land in fee simple to another in fee, <f hath issue a son or 
 daughter and dies, the issue mag enter into the lands in taile and hold and 
 occupy them in purparty with her aunt. And this is for two causes. One 
 is, for that the issue can have no remediefor the land sold by the mother, 
 because the land was to her in fee simple; and in as much as she is one of 
 the heires in taile, § hath no recompence of that which belongeth to her of 
 the lands in taile, it is reason that she hath her portion of the lands tailed, 
 and namely when such partition doth not make any discontinuance (1) f- 
 But the contrary is holden M. 10 H. 6. scil. that the heire may not enter 
 upon the parcener who hath the intailed land, but is put to a formedon. 
 
 " rpIIE 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 (4 Co. 121. b.) 
 entailed to the eldest. This partition primd facie is good (4) ; 
 and herein the partition differeth from the exchange, where in (Ant. 51. a.) 
 the exchange the estates must be equal. 
 
 But yet this partition by matter subsequent may become void- 
 able (as Littleton here puts the case.) The eldest coparcener 
 hath by the partition and the matter subsequent barred herself 
 of her right in the fee simple lands, insomuch as when the 
 youngest sister alieneth the fee simple lands and dieth, and her 
 issue entreth into halfe the lands entailed, yet shall not the eldest 
 enter into halfe of the lands in fee simple upon the alienee: for 
 by the alienation, the privitie of the state is destroyed. 
 
 " The younger daughter alieneth her land in fee simple, 
 
 t 173.1 &c." The same law it is, if the youngest figsT" daughter (Post. 174. b.) 
 a. J had made a gift in tayle, for the reversion expectant 
 upon an estate tayle is of no account in law (2), for that 
 it may be cut off by the tenant in tayle. Otherwise it is of an 
 estate for life or yeares. If in this case the youngest daughter 
 alien part of the land in fee simple, and dieth, so as a full recom- 
 pence 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 taile shall never be barred without a 
 full recompence, though there be a warranty (3) in deed or in law 
 descended. If on the other side the eldest coparcener alien the 
 
 land 
 
 f This is note 1 of 173. rt. in the 13th and 14th editions. 
 
 (3) In L. and M. instead of terres et it is autres. 
 
 (1) f In L. and M. Roh. and the two Cambridge MSS. these words arc 
 added, of the tail, as will be said hereafter in the chapter of Discontinuance. 
 What follows in this Section is not in L. and M. Roh. nor the MSS. 
 
 (4) Ace. F. N. B. 62. M. — Here lord Hale's MS. makes a question, whether 
 such partition be void or voidable, being made by husband, and cites M. 30, 
 31 Eliz. B. R. Morris and Maule.— [Note 36.] 
 
 (2) For the effect of this doctrine about reversions on estates tail, and with 
 what qualification it should be understood, see the authorities collected in 
 1 Vin. Abr. 141. pi. 2. to which add 2 Atk. 206. and post. 174. b. 
 
 (3) Lord Coke may be here presumed to mean a lineal warranty; because 
 hereafter he allows, and in his time it was the common learning, that collateral 
 warranty would bar the issue in tail without recompense. Post. 374. b. — 
 [Note 37.]
 
 173. a.] Of Parceners. L. 3. C. 1. Sect. 261. 
 
 land entayled anddyeth, her issue shall have a formedon alone (4) 
 for the whole land entailed; for so long as the partition con- 
 tinueth in force (5), she is only enheritable to the whole land 
 entailed. 
 
 " And hath no recommence." This is intended, as it appeareth, 
 of a full recompence. 
 
 See more of this " Such partition doth not malce any discontinuance." And the 
 in the Chapter of reason thereof is, for that it passeth not by livery of seisin, but 
 
 SwtiSe 11 -?." 106 ' the P artion is m trutn lesse tnan a g rant > for tnat i* maketn no 
 degree, but each coparcener is in by descent from the common 
 
 ancestor. 
 
 "But the contrary is holden, &c." This is no part of Littleton, 
 
 and is contrary to law, as appeareth by Littleton himselfe ; and 
 
 besides, the case intended is not truly vouched, for it is not in 
 
 20 H. 6. 14. 10 H. 6, but in 20 H. 6, and yet there is but the opinion of 
 
 Newton, obiter, by the way. Vide F. tit. part 1. 
 
 •f Probably Sect. 618; for the general words there used, or at least the first &C. in the 
 section, may, it seems, be said to include the case of a partition ; and in the commentary 
 on the same section lord Coke expressly mentions the case of an exchange, though not that 
 of a partition : but he adds an <tc. 
 
 Sect, 261. 
 
 A NOTHER reason is, for that it shall be accounted the folly of the 
 
 eldest sister (pur ceo que il serra rette la folly del eigne soer), that 
 
 she would suffer or agree to such a 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 losse- 
 
 " A NOTHER reason, &c." This is another reason to prove, 
 that by the partition the eldest daughter hath concluded 
 her selfe, as is aforesaid. 
 
 " 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 tayle, for the prejudice that might after 
 ensue, but might have challenged the one moiety of the lands in 
 taile, and another moiety of the lands in fee simple, and this she 
 might do ex provisione legis. But when she will not submit her 
 to the policie and provision of the law, but betake herselfe to her 
 owne policy and provision, there the law will not ayde her, as 
 here by Littleton it manifestly appeareth. And so it is in the 
 (*) 26 E. 3. other case. (*) As if a man be seised of three mannors of equal 
 ? 7 °p er A 1 ^ 3 ' value in fee, and taketh wife, and chargeth one of the mannors 
 Dower 164. w ^ tn a rent ' charge, and dyeth, she may by the provision of the 
 18 H. 6. 27. law take a third part of all the mannors and hold them dis- 
 tant. 32. b. charged; but if she will accept the entire mannor charged, it is 
 Dyer, 1 Mar. 98. holden that she shall hold it charged. 
 
 A partition 
 
 \ 
 
 (4) In a Coke upon Littleton I have with MS. notes there is the following 
 remark. — " Quaere of this; for I think the formedon must be brought in the 
 " name of the issue and the surviving parcener, and then the parcener to be 
 " summoned and severed, and then the issue to make a special count and show 
 " the partition."— [Note 38.] 
 
 (5) See post. 176. b. and Sect. 274.
 
 L. 3. C. 1. Sect, 262. Of Parceners. [173. b. 
 
 [173.1 B^*A partition of lands intailed betweene parce- 
 b. | ners, if it be equall at the time of the partition, shall 
 bind the issues in taile for ever(l), albeit the one do 
 alien her part. 
 
 But here it may be demanded, that seeing Littleton saith, that it 
 shall be taken to be the folly of the eldest parcener, &c. what if 
 so be the eldest did not know of the estate tayle either in respect 
 of the antiquity thereof, or for want of having of 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 owne land; and on the 
 other side it should be arrected(2) great folly in her to be igno- 
 rant of her owne title. And therefore the reason of Littleton 
 doth firmly hold. 
 
 Sect. 262. 
 
 A LSO, if a man be seised in fee of a carve of land by just title, and he 
 disseise an infant within age of another carve, and hath issue two 
 daughters, and dyeth seised of both carves, the infant being then within 
 age, and the daughters enter and make partition, so as the one carve is 
 allotted for the part of the one, as per case to the youngest in allowance of 
 the other carve which is allotted to the purpartie of the other, if after- 
 ward the infant enter into the carve whereof he was disseised upon the 
 possession of the parcener which hath the same carve, then the same par- 
 cener may enter into the other carve which her sister hath, and hold in par- 
 cenary with her- But if the youngest alien the same carve 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 carve ; because 
 by her alienation she hath altogether dismissed her self to have any part 
 of the tenements as parcener. But if the youngest before the entry of the 
 infant make a lease of this for terme of yeares, or for terme of life, or in 
 fee tayle saving the reversion to her, and after the infant enter, there per- 
 adventure otherwise it is; because she hath not dismissed her self e of all 
 which was in her, but hath reserved to her the reversion and the fee, fyc. 
 
 BEFORE (3) it appeareth that when the privity of the estate 
 is destroyed by the feoffment of one coparcener, that upon 
 eviction of a moity by force of an entayle against the other she 
 shall not enter upon the alienee. But in that case that Little- 
 ton here putteth, when the privity of the state remaineth, and 
 the part of the one is evicted (*), she shall enter and hold in co- (*)15 E. 4. 3. a. 
 parcenary with her other coparcener; and so it is in the case of P" Littleton. 
 an exchange. By reason of the &c. in the end of this Section ^j ' B °^ star j' s 
 there may two questions be justly demanded. case. 
 
 What 
 
 (1) Ace. ant. 166. a. 2 Vern. 233. 
 
 (2) This word, which is so uncommon that I cannot find it noticed in any 
 dictionary I have seen, is apparently used for reckoned. Lord Coke seems to 
 borrow it from Littleton's use of the word relte at the beginning of the Section 
 here commented uponf. — [Note 89.] 
 
 (3) Ant. 172. b. 
 
 f It has been said that the icord arrected teas formed from the French arre"t6, ad- 
 judged; and that il serra rette teas used for il serra arre"te", it shall bo adjudged. See 
 Mr. Ritso's Intr. p. 110. n. 19.
 
 [n] 13 E. 4. 3. 
 
 42 Ass. 22. 
 
 [o] Bastard's 
 case, lib. 4. 
 fol. 121. 
 
 [T] 
 
 173. b. 174. a.] Of Parceners. L. 3. C. 1. Sect. 262. 
 
 What if the whole estate in part of the purparty of one par- 
 cener be evicted by a title paramount; whether is the whole par- 
 tition avoyded, for that Littleton here putteth the case that the 
 whole purpartie of the one is defeated? 
 
 The second question is, whether if but part of the state of one 
 coparcener be evicted, as an estate in taile, or for life, leaving a 
 reversion in the coparcener, whether that shall avoid the parti- 
 tion in the whole? 
 
 To the first it is answered, that if the whole estate in part of 
 the purparty be evicted, that shall avoyd the partition in the 
 whole, be it of a mannor, that is entire, or of acres of ground, 
 or the like, that be severally [»] for the partition in that case 
 implyeth for this purpose both a warrantie and a condition in 
 law (4), and either of them is entire, and giveth an 
 entry in this case into the whole. And so hath JSig^it 
 been lately resolved [o\ both in the case of exchange 
 and of the partition. 
 
 To the second, if any estate of freehold be evicted from the 
 coparcener in all or part of her purparty, it shall be avoyded in 
 the whole (1). As if A. be seised in fee of one acre of land in 
 possession, and of the reversion of another expectant upon an 
 estate for life, and he disseise the lessee for life who makes con- 
 tinuall clayine; A. dyeth seised of both acres, and hath issue 
 two daughters; partition is made, so as the one acre is allotted 
 to the one, and the other acre to the other; the lessees enter -f: 
 the partition is avoided for the whole, and so likewise hath [p] 
 it hath been lately resolved. 
 
 [q] Yet there is a diversity betweene the warranty, and the 
 condition which the law createth upon the partition. Where 
 one coparcener taketh benefit of the condition in law (2), she de- 
 feateth the partition in the whole. But when she voucheth by 
 force of the warranty in law for part, the partition shall not be 
 defeated in the whole, but she shall recover recompence for that 
 part. And therein also there is another diversity betweene a 
 recovery in value by force of the warranty upon the exchange 
 and upon the partition. For upon the exchange he shall recover 
 a full recompence for all that he loseth. But upon the partition 
 she shall recover but the moity, or halfe of that which is lost, 
 to the end that the losse may be equall (3). 
 
 Many other diversities there be between exchanges and parti- 
 tions; for there are more and greater privities in case of parti- 
 tions in persons bloud and estates, than there is in exchanges; 
 all which were too tedious to rehearse in this place, seeing so 
 much as hath been said herein is sufficient for the explanation 
 of the cases of partition which Littleton hath put. 
 
 "Then 
 
 "j" As lessee, in the singular number, is before spoken of by lord Coke, grammatical 
 accuracy here requires the words the lessee enters, instead of the lessees enter. See 
 Mr. Ritso's Intr. p. 118. 
 
 (4) That is, a condition to give re-entry and a warranty to vouch and have 
 recompense. See post. 384. a. 
 
 (1) So it is of an exchange. Hob. 152. Calthorpe's reading on Lord and 
 Copyholder, 92. 1 Ko. Abr. 815.— [Note 40.] 
 
 (2) This is, by entry. 
 
 (3) See ace. the case of dower, post. 384. b. See also the provision in 
 favour of the lord for the third part not devisable by the statute of wills 34 
 and 35 H. 8. c. 5. s. 11. 
 
 [p] Bastard's 
 case, ubi supra. 
 
 [q] Vide 5 E. 3. 
 ti't. Voucher 249. 
 
 (6 Co. 12. b. 
 1 Ro. Abr. 815. 
 4 Co. 122.) 
 
 18 E. 2. 
 
 tit. Aid, 171. 
 
 19 H. 6.26. 
 [Ant. 50. b.)
 
 L. 3. C. 1. Sect. 262. Of Parceners. [174. a. 174. b. 
 
 " Then she cannot enter into the other carve, &c." By this is 
 also approved that which hath beene often said before, that when 
 the whole privity betweene coparceners is destroyed, there 
 ceaseth any recompence to be expected either upon the condition 
 in law or warranty in law by force of the partition. 
 
 " By her alienation she hath altogether dismissed herself to (Post. 243. b.) 
 have any part of the tenements as parcener." Hereupon it fol- 
 loweth, that if one parcener maketh a feoffment in fee, and after 
 her feoffee is impleaded and voucheth the feoffor, [r] she may [r]4l E. 3. 24. 
 have aid of her coparcener to deraigne a warranty paramount (4), ™ ^.'3.' Aid, 24. 
 but never to recover pro rata against her by force of the war- ( Hob ' # 21. 26.) 
 ranty in law upon the partition ; for Littleton here saith, that by 
 her alienation she hath dismissed her selfe to have any part of 
 the land as parcener, and without question as parcener she must 
 recover pro rata, upon the warranty in law, against the other 
 parcener. 
 
 And yet in some case the feoffee of one coparcener shall have 
 aid of the other parceners to deraigne the warranty paramount. 
 And therefore [a] if there be two coparceners, and they make M 43 E. 3. 23. 
 partition, and the one of them enfeoffes her son and heire J 1 ^""^ 
 apparent and dyeth, the son is impleaded, albeit he be in by the 6 E ' 3 " 7> ' 
 
 feoffement of his mother, yet shall he pray in ayd of 38 E. 3. 17, Ac. 
 
 t 174.1 J®*" the other coparcener to have the warranty para- 
 b. J mount ; and the reason [b] of the granting of this aid [&] 2*|m 
 
 is, for that the warranty betweene the mother and the j^ j jf bidf ' 163 
 son is by law annulled (1), and therefore the law giveth the son (Post. 384. b.) 
 albeit he be in by feoffment, to pray in ayd of the other parcener, 
 to deraigne the warranty paramount ; wherein is to be observed 
 the great equity of the common law in this case; 
 
 Jpsa3 etenim leges cupiunt ut jure regantur. 
 [*] But if a man be seised of lands in fee, and hath issue two [*] 2 H. 6. 16. 
 daughters, and make a gift in taile to one of them, and dye ^Je^ase.) 
 seised of the reversion in fee which descends to both sisters, and 
 the donee or her issue is impleaded, she shall not pray in aid of 
 the other coparcener, either to recover pro ratd, or to deraigne 
 the warranty paramount ; for that the other sister is a stranger 
 to the state taile, whereof the eldest was sole tenant, and never 
 particion was or could be thereof made (2). 
 
 " But if the youngest before the entry of the infant make a (Ant. 173. a.) 
 lease of this, &c. or in fee tayle saving the reversion to her, &c " 
 This (upon that which hath been said) (3) needeth no explana- 
 tion. Only this is to be observed, that, albeit it is in the power 
 of tenant in taile to cut off the reversion, yet if the infant enter 
 before it be cut off, the law hath such consideration of this re- 
 version, that she that loseth it shall enter into her sister's part, 
 and hold with her in coparcenary, for that the privity betweene 
 them was not wholly destroyed (4). 
 
 Sect. 
 
 (4) See 31 H. 8. c. I. s. 3. 4 H. 7. 3. a. and Plowd. Mansel's case, 7. a. &b. 
 
 (1) Ace. post. 390. a. 
 
 (2) See post. 177. b. contra as to land given in frankmarnage. See also 
 
 2 H.6. 16. 
 
 (3) Ant. 173. a. and note 2, there. 
 
 (4) See ant. 103. a. & b.
 
 174. b. 175. a.] Of Parceners. L. 3. C. 1. Sect. 263-64. 
 
 Sect. 263. 
 
 ALSO, if there be three or four coparceners, $c. which make partition 
 betweene them, if the part of the one parcener be defeated by such 
 
 awfull entrie, she may enter and oceupie the other lands with all the 
 other parceners, and compell them to make new partition betweene them 
 of the other lands, §c. 
 
 " T>ETWEENE them of the other lands, &c." This &c. 
 implieth, that so it is betweene the surviving parceners 
 and the heires of the other, or betweene the heires of parceners, 
 all being dead. 
 
 Sect. 264. 
 
 A LSO, if there be two parceners, and the one taketh husband, and the 
 husband and wife have issue betiveene them, and his wife dieth, and 
 the husband keepes himself e in as tenant by the curtesie, in this case the 
 parcener which surviveth, and the tenant by the curtesie may well make 
 partition between them, §c. And if the tenant by the curtesie will not 
 agree to make partition, then the parcener ivhich surviveth may have 
 against the tenant by the curtesie a ivrit de partitione facienda, &c and 
 compel him to make partition. But if the tenant by the curtesie would 
 have partition to be made bettveen them, and the parcener which surviveth 
 will not have this, then the tenant by the curtesie cannot have any remedy 
 to have partition, §c. For he cannot have a ivrit of partitione facienda, 
 because he is no parcener. For such a writ lyeth for parceners only. 
 And so you may see, that a writ of partitione facienda lyeth against 
 tenant by the curtesie, and yet he himself e cannot have the like writ. 
 
 " Hfl HE husband keepes himself e in as tenant by the curtesie." 
 [b] 24 E. 3. 29. -*- This is no severance of the state in coparcenary, [6] for 
 i 1 E ; 3 '„n the other coparcener and the tenant by the curtesie shall be 
 
 iSriefe, 339. . ,. , r ■. , aii.i A i c 
 
 9 E. 4. 13. j oyntly impleaded; for he doth continue the state or coparce- 
 
 19 H. 6. 26. nary, as the other parcener did (5). 
 
 3 H. 6. 26. r x 
 
 3 H. 6. Ass. 1. 37 H. 6. 8. 21 E. 3. 14. (Ant. 167. b.) 
 
 "Against the tenant J8@°" by the curtesie a writ de f 175. T 
 partitione facienda, &c." Here by the &c. is implyed, |_ a. J 
 that albeit that the tenant by the curtesie be an 
 [c] 3 E. 3. 47. estranger in blood, yet the [c] writ de partitione facienda clearly 
 
 ?J?1 o" 1 * 3 ."* ,„„ lies against the tenant by the curtesie, because he continueth 
 16 E. 3. Aid, 129. . , ^ , «, J ' 
 
 19 E. 3. ib. 144. the estate ot coparcenary. 
 
 28 E. 3. 5. If two coparceners be, and one doth alien in fee, they are 
 
 tenants in common, and severall writs ot praecipe must be brought 
 
 agams t 
 
 (5) Ace. post. 175. b. See also fo. 192. a. and Bro. Joinder in Action, 40.
 
 L. 3. C. 1. Sect. 264. Of Parceners. [175. a. 175. b. 
 
 against them (1) ; 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 curtesie. 
 
 " Such writ lyeth for parceners only." Hereby it appeareth, 
 that neither the tenant by the curtesie, nor (much less) the 
 alienee of a coparcener shall have a writ of partione faciendd 
 at the common law (2) ; for Littleton saith here, that such a writ [*] 3 E. 3. 47, 48. 
 lyeth onely for parceners, [*] but it may be brought by a parce- p *;^. toe b.) 
 ner against strangers, as it appeareth before. But a nuper obitt 
 and a rationalili parte (3) do lye only betweene two coparceners 
 on both sides. 
 
 If three coparceners be, and the eldest doth purchase the part Dier, 1 Mariae, 
 of the youngest, the eldest, having one part by descent and the 98 - 
 other by purchase, shall have a writ of partition at the common 
 law against the other middle sister, et sic de similibus. And so p. N. B. 52. 
 it is in a far stronger case, if there be three coparceners, and the Registr. 
 eldest taketh husband, and the husband purchase the part of 
 the youngest, the husband for his part is a stranger and no parce- 
 ner, 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 (4). 
 
 " To have partition, &c." Here by this &c. is included all 
 others that be strangers in blood, whether they come to their 
 estates by purchase or by act in law. Since Littleton wrote by 
 the statutes \d~\ one joyntenant or tenant in common may have \d\ 31 H. 8. 
 a writ of partition against the other ; and therefore at this day cap. L 32 H. 8. 
 the alienee of one parcener may have a writ of partition against Yid ' g" e * ct 290> 
 the other parcener, because they are tenants in common ; and 
 the like had been attempted in former parliaments [*], but pre- [«] Rot. ParL 
 vailed not until these latter statutes. _ 1 R - 2 - nu> 82> 
 
 Tel The tenant by the curtesie shall have a writ of [e] Brooke, tit. 
 T 175.1 partition upon the statute of OCT 32 H. 8. ca. 32. for Partl ^ D - «■ 
 b. I albeit he is neither jointenant nor tenant in common, 
 for that a prsecipe lyeth against the parcener and ten- 
 ant by the curtesie, as hath been said, yet he is in equall mis- 
 chiefe as another tenant for life. 
 
 [/] If there be three coparceners and a stranger purchase [/] Mich. 7 & 
 the part of one of them, he and one other of the coparceners f J g h £ te ^* t ; 
 shall not joyne in a writ of partition, neither by the common law, ton & Cooke (1 )| 
 nor by force of the statute; for the words of the preamble of the Dier, 3 Marias, 
 statute be (and none of them by the law doth or may know their J 2 ^- and 
 severall parts, &c. and cannot by the laws of this realme make 
 partition thereof, without other of their mutuall assents, &c.) Now 
 in this case the one of the plaintifes, 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 joyne in one writ. 
 
 Chap. 
 
 (1) Ace. ant. 176. b. But it is no severance if the alienation be only for 
 life. Post. 192. a. 
 
 (2) See ace. Dy. 98. b. 
 
 (3) See ant. 164. b. 
 
 (4) See in F. N. B. 62. S. the form of the writ in such a case. 
 (1) f S. C. is also in Dy. 260. b.
 
 175. b.J Of Parceners by Custome. L. 3. C. 2. Sect. 265. 
 
 Chap. 2. Parceners by Custome. Sect. 265. 
 
 pAROENEMS by the custome are, where a man seised in fee simple, 
 or in fee tayle, of lands or tenements which are of the tenure called 
 gavelkind ivithin the countie of Kent, and hath issue divers sons and 
 die, such lands or tenements shall descend to all the sons by the custome, 
 and they shall equally inherit and make partition by the custome, as 
 females shall do, and a writ of partition lieth in this case as between 
 females. But it behooveth in the declaration to make mention of the 
 custome. Also such custome is in other places of England, and also 
 such custome is in North- Wales (2) (3), §c. 
 
 " T>UT it behooveth in the declaration to make mention of the 
 custome." Well said Littleton, [g~\ that he in his declara- 
 
 (1 Sid. 136. 
 Ant. 140. a.) 
 
 ancient authors tion must make mention of the custome, as to say, that the land 
 of the law con- is of the custome of gavelkinde ; hut he shall not prescribe in it. 
 Vnd^ubftrla And so xi is of £wr Sl h -English. And these two vary in that 
 Lambert verbo' point from other custonies; for the law, when they are generally 
 Terra exscript. alledged, taketh knowledge of these two (4). 
 [</] 5 E. 4. 8. b. j n r/^j Domesday it is thus said duo fratres tenuerunt in par- 
 Flo Com 129 b a Ui° (^) ^uisque habuit aulam suam, etpotuerint ire quo voluerint. 
 in Buckleis case. 
 
 Vide Sect. 8. « j^ so suc ] t custome is in other places of England." Of this 
 
 a'sid.lsr' sufficient hath been said before (6). 
 
 Doctr. Plac. 105-) [/<] Berochesciro. Hereford. 
 
 " North 
 
 (2) In L. and M. and the two MSS. it is in Northumberland and North 
 Wales, &c. 
 
 (3) But by the 34 and 35 H. 8, gavelkind descent of lands in Wales is ex- 
 pressly taken away, and all lands there are made descendible to the eldest son 
 according to the common law of England. See that statute c. 26. s. 91. and 
 128. Also in Kent various estates have been descendible according to the 
 common law by speciall statutes for this purpose. See Robins, on Gavelk. 75. 
 —[Note 41.] 
 
 (4) But according to a very accurate writer on gavelkind this doctrine must 
 be restrained to the speciall descent of gavelkind and Borough English lands, 
 which is considered as the essence of both ; and therefore the other customs in- 
 cident to gavelkind and Borough English land must be specially pleaded. See 
 Robins, on Gavelk. 41. For this difference several authorities are cited; 
 namely, as to gavelkind, a case in Cro. Cha. 562. another in Lev. 79. 1 Sid. 
 137. and Raym. 76. and a third in 2 Sid. 153. and as to Borough English, a 
 case in 1 Salk. 243. I the rather introduce these references because Mr. Robin- 
 son's Treatise is become very scarce. — [Note 42.] 
 
 (5) This word means equality, being derived from the adjective par, and 
 made a substantive by the addition of agium. Read more concerning the termi- 
 nation of agium, ant. 86. a. See also as to disparagatio, ant. 80. — [Note 
 43.] 
 
 (6) Ant. 14. a. and 140. a. See also book 1. chap. 7. of Robinson on 
 Gavelkind, where the reader will see a most learned dissertation on the origin, 
 antiquity and universality of partible descents.
 
 L.3.C.2. S.265. Of Parceners by Custonie. [17o.b.l76.a. 
 
 " North- Wales. Wales, Wallia. It commeth [t] of the Saxon [<] Lamb. verb, 
 word wealth, which signifieth peregrinus, or exterus; for the Welshmen. Sil- 
 Saxons so called them, because in troth they were strangers to ves er ira Ua ' 
 them, being the remaine of the old and ancient Britons, a wise 
 and warlike nation inhabiting in the west part of England. 
 These men have kept their proper language for above these 
 thousand years past; and they to this day call us Englishmen 
 Saisons (that is) Saxons. And the like custome, as our author 
 here saith was in North Wales, was also in Ireland; for there 
 the lands also (which is one marke of the ancient Brittons) were 
 of the nature of gavelkinde: but where by their 
 
 tiyG.l Brehon law the OCT* bastards inherited with their Vide Sect. 212. 
 a. legitimate sons, as to the bastards that custome was 
 
 abolished (1). And agreeing with Littleton in this 
 point, see an old statute.* Aliter usitatum est in Wallia qudm • stat Wallise, 
 in Anglid, quoad successionem hsereditatis, eb quod hsereditas an. 12 E. 1. 
 partibilis est inter liceredes mascxdos, et & tempore cujus non ex- 
 titit memoria partibilis extitit, dominus rex non vult, quod con- 
 suetado ilia abrogetur, sed quod hazreditates remaneant partibles 
 inter comimiles hasredes sicut fieri consuevit, et fiat par titio illius 
 sicut fieri consuevit (2). 
 
 " Parceners by the custome, &c." \ Well sayd Littleton, "by 
 the custome," for sons are parceners in respect of the custome 
 of the fee or inheritance, and not in respect of their persons, as 
 daughters and sisters, &c. be. \K\Etsunt participes quasi par- [h] Bract, lib. 5. 
 tern capientes, &c. ratione ipsius rei quae partibilus est, et non f°\ 428 - 
 ratione personarum, quo3 non sunt quasi unus hmres et unum F [' t ""V-u 11 ?' " 
 corpus, sed diversi hceredes, ubi tenementum partibile est inter C ap. 9. 
 plures cohosredes petentes, qui descendant de eodem stipite et sem- 
 per solent dividi ab antiquo. 
 
 Sect. 
 
 (1) The gavelkind descent of lands in Ireland was an incident, to the custom 
 of tanistry, and as such fell to the ground with its principal in consequence of 
 a solemn judgment against the latter in a case of the fifth of James the First. 
 For in this case, which is excellently reported by Sir John Davis, who was 
 attorney-general in Ireland at the time, see Dav. Rep. 28. But in the reign 
 of queene Anne the policy of weakening the Roman Catholic interest in Ire- 
 land was the cause of an Irish statute to make the lands of papists descendible 
 according to the gavelkind custom, unless the heir conformed within a limited 
 time. See Robins, on Gavelk. 17. However now by an Irish statute of 17 
 & 18 G. 3. c. 49. s. 1. the descent of the lands of papists is again reduced to 
 the course of the common law. Lord Coke, from his supposing that the Brehon 
 law of partibility except as to bastards, remained in Ireland, seems not to have 
 been aware of the case of tanistry. Indeed what he writes in this respect was 
 before that case more applicable to Wales than Ireland; for the statute of 
 Wales cited in the next passage, confirms the partible descent of lande there 
 amongst males, with an exception excluding bastards, whereas I doubt whether 
 there is any evidence of confirmation of the Brehon law with such an exception. 
 See ante 141. a. where lord Coke himself takes notice of a total abolition of 
 the Brehon law. — [Note 44.] 
 
 (2) See ante 175. b. note 4.
 
 176.a.l76.b.] Of Parceners by Custome. L.3.C.2.S.266-7. 
 
 Sect. 266. 
 
 ALSO, there is another partition which is of another nature arid of 
 another forme than any of the partitions aforesaid be. As if a man 
 seised of certaine lands in fee simple hath issue two daughters, and the 
 eldest is married, and the father giveth part of his lands to the husband 
 with his daughter in frankmarriage, and dyeth seised of the remnant, 
 the which remnant is of a greater yearely value than the lands given 
 in frankmarriage. 
 
 11 filVEtll part of his lands to the husband tcith his daughter 
 in frankmarriage." 
 Here it appeareth, that a gift in frankmarriage may be made 
 after marriage, as hath been sayd in the Chapter of Fee Tayle (3). 
 
 U 
 
 " Which remnant is of greater yearely vahie, &c." Admit 
 that the lands given in frankmarriage are of greater value than 
 the lands descended in fee simple, shall the other sister have 
 any remedy against the donees? It is plaine she shall not; be- 
 cause it is lawfull for a man to dispose of his own lands at his 
 will and pleasure. 
 
 Sect. 267. 
 
 TNthis case, neither the husband, nor wife, shall have any thing for 
 their purpartie of the said remnant, unless they will put their lands 
 given in frankmarriage in hotchpot, ivith the remnant of the land with 
 her sister. And if they will not do so, then the youngest may hold and 
 occupie the same remnant, and take the profits onely to her selfe. And 
 it seemeth, 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 behooveth 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. 
 
 " TN this case neither the husband, nor wife, shall have any 
 ms H 3. ihin 9 f or tlxeir purpartie, &c" [i']This gift in frankniar- 
 
 Breve, 880. riage shall prima facie be intended a sufficient advancement; 
 34 E. l. Nuper an( j therefore the remnant shall descend to the other coparce- 
 
 4 b E t '3 15 49 <1JUdg ' ner > onel y with tnis P rovision m law taciCe annexe<i > 
 
 10 Ass'. P .*14. that if the figg- donees will put the land into hotchpot, j"176."l 
 
 Vi. 10 E. 3. 38. t h en she shall out of the remnant make up her part |_. b. J 
 
 Bractonf'lib. 2. e q ualL But the doneeS mUSt d ° the firSt &Ct > ^ in 
 fol. 77. lib. 5. fol. 428. Britton, cap. 72. Fleta, lib. 6. cap. 47. 
 
 the 
 
 (3) See ante 21 b. See also ace. as to dower ex assensu patris after mar- 
 riage, F. N. B. 151. L.
 
 L. 3. C. 2. Sect. 267. Of Parceners by Custoine. [176. b. 
 
 the meane time the whole fee simple land descends to the other. 
 And this is warranted here by Littleton, viz. that the donees 
 shall have nothing for the purpartie of the remnant, unlesse 
 they will put their lands given in frankmarriage in hotchpot so as 
 the donees must do the first act ; and more expressly after in this 
 Chapter (1), where he directly saith, that the other sister shall 
 enter into the remnant, and them to occupy to her own use, 
 unlesse the husband and wife will put the lands given in frank- 
 marriage into hotchpot. And herewith agreeth Fleta (2), who 
 saith, cum dicat tenens excipiendo, quod non tenetur petenti 
 respondere, quia A. participem habet, &c. replicari poterit d 
 petente quodprsedict' A. tenet quandam partem in maritagium de 
 communi hsereditate, nee vult Mud in partem, ponere. And here 
 are three things (that I may speak once for all) to be observed. 
 First, that in this speciall case where there be two daughters, 
 one of them only shall inherit the lands in fee simple. Secondly, 
 that in this case there lieth no writ of partition : because non 
 teneni insimid et pro indiviso. Thirdly, if the parcener, to 
 whom the land in fee simple descended, will not put the lands 
 in hotchpot, then may the donees enter into the fee simple lands, 
 and hold them in coparcenarie with her. 
 
 And it seemeth by our old bookes, [&] that by the ancient law [*] Glanvil. 
 there was a kind of resemblance hereof concerning goods. Si B ra J t ' ™ P iib.'2. 
 autem post debita deducta, et post deductionem expensarum quae f i. 60. ' 
 necessariae erunt, id totum, quod tunc super/uerit, dividatur in Fleta, lib. 2. 
 tres partes; quaram una pars relinquatur pueris (3) si pueros ^agna Carta, 
 
 cap. 18. F. N. B. 222. 30 E. 3. 25. 31 E. 3. Resp. 60. 31 Ass. U. 17 E. 2. 
 Detinue, 3. 17 E. 3. 17. 1 E. 2. Detinue, 56. 31 H. 8. tit. Rationab. parte bonorum, 6. 
 
 habuerit 
 
 (1) See Sect. 268. 
 
 (2) See also ace. F. N. B. 197. 0. 
 
 (4) The chapter of Fleta is here referred to erroneously. It should be 
 
 cap. 57. . 
 
 (3) Though pueri more commonly means boys, yet it is plain that here it 
 comprehends children of both sexes ; because afterwards liberi is used for 
 the same purpose. The word is used in the same large sense in the writ de 
 rationabili parte bonorum; and therefore Fitzherbert observes, that the son and 
 daughter may join in that writ. F. N. B. 122. C. Also this large sense of 
 pueri is warranted both by the application of the word in the Roman law, and 
 by its derivation from the Greek word sr«*c, which is masculine or feminine 
 according to the article before it. To this effect Justinian's Digest, in the 
 title de verborum signification, gives the following extract from the Commen- 
 tary of the Roman lawyer, Julius Paulus, on his famous predecessor Sabinus. 
 Pueri appellatione etiam puella significatur : nam et fceminas puerperas appel- 
 lant recentes ex partu ; et Greece natdiov communitur appellatur. See Big. 
 lib. 50. tit. 16. leg. 163. and Menag. Jur. Civil. Ainoenitates, cap. 39. voce 
 puerpera, where that learned French writer expatiates on the etymology of 
 puer. I have been induced to give this explanation of the word puer by a 
 case in our own law-books, which actually turned upon the question, Whether 
 a daughter could take lands under that description. The case arose on a 
 remainder in a settlement made by a man on his first marriage seniori puero 
 of the husband and the heirs of his body ; and this was decided by two 
 judges against one to entitle a daughter and only child of the first marriage 
 in preference to the son of a second. Dy. 337. b. However there is a 
 much earlier case on the construction of pueri, in which it was interpreted 
 to exclude females. Hob. 33. and the case there cited from 30 Ass. 47. 
 
 and
 
 1 76. b. | Of Parceners by Custome. L. 3. C. 2. Sect. 267. 
 
 habuerit de/unctus, secunda uxori si superstes fuerit, et de tertid 
 
 parte habcat testator liberam disponendi facidtatem. Si autem 
 
 liberos non habeat, tunc medietas defuncto, et alia medietas uxori: 
 
 si autem sine uxore decesserit liberis existentibus, tunc medietas 
 
 defuncto, et alia medietas liberas tribuatur : si autem sine uxore 
 
 et liberis, tunc id totum de/uncto remanebit. And by the law 
 
 * Lamb. f. 119. before the Conquest * was thus provided, sive quis incuria sive 
 
 68. (Post. 185. b. ynortc repentind fuerit intestatus mortims, dominus tamen nullam 
 
 n e ' ' } rerum suarum partem (prseter earn quse jure debetur herioti 
 
 nomine) sibi assumito, verum eas judicio suo uxori liberis et 
 
 cognatione proximis juste pro suo cuique jure distribuito. 
 
 [/] Regist. 142. But it appeareth by the Register [I] and many of our bookes, 
 
 34 E. l. that there must be a custome alledged in some county, &c. (5) 
 
 IE* 4 U< 6 to i uaD ^ e tne w if e or children (5) f to the writ de rationabili parte 
 
 7E.4.21. 43 E. 3. 38. (F. N. B. 122. L.) 
 
 bonorum ; 
 
 and 30 E. 3. 27. But now indeed, when legal instruments are so universally ex- 
 pressed in the English tone, it is not probable that any dispute should arise in our 
 courts of justice about the interpretation of this Latin word. — [Note 45.] 
 
 (5) The places usually named as those in which the customary division of 
 personalty on a death prevailed, and so in favour of wife and children restrained 
 the testamentary power to a third or a moiety, are these : the province of York, 
 the city of London, and various districts of Wales. But since lord Coke's time 
 several statutes have been made to remove this restraint in each of these 
 different places ; and under those statutes the whole of the personal estate is 
 now disposable by last will in them through England and Wales, with this 
 exception however, that there is still no statute affecting either the city of 
 Chester, which is part of the province of York, or such other places not within 
 that province, or London or Wales, as may have such a custom ; though whether 
 there be any such places, I am uncertain. See for the province of York, 4 W. 
 
 6 M. c. 2. and 2 & 3 An. c. 5; for London 11 G. 1. c. 18; and for Wales, 
 
 7 & 8 W. 3. c. 38. Indeed Sir William Blackstone treats the testamentary 
 power over personal estate as now prevailing through all England. 2 Blackst. 
 Comm. 9th ed. 493. But if there be no other statutes than those he cites, 
 being the same as are before mentioned, I take this to be a mistake, so far at 
 least as regards the city of Chester. The fact is, that both the cities of York 
 and Chester were excepted in the 4 of W. & M. and that the 2 & 3 An. take 
 away the exception as to the city of York only. As too, the statutes, which 
 subject the custom of dividing the personal estate of deceased persons to the 
 testamentary power, do not name any place in England except London and the 
 province of York, it follows, that the local custom of any other part of England 
 on this subject is not disturbed by any statutory provision. It now only 
 remains to add here, that though the testamentary power is thus extended over 
 the whole personalty, notwithstanding the customs within London or the 
 province of York, or within any part of Wales, yet in the case of an intestacy 
 the customs of those places still operate, there being a special provision to save 
 them and all other peculiar customs in the statute of Cha. 2. for distributing 
 the personal estates of intestates. See 22 & 23 Cha. 2. c. 10. See further as 
 to the statutes about these customs in the latter part of note 9, infra; also 4 
 Burn. Eccl. Law, 2d edit. 346.— [Note 46.] 
 
 (5) f In Swinburne on Testaments there is a curious dissertation explaining 
 the custom of the province of York in respect to filial portions; and in the 
 course of it, the question, What sort of advancement shall exclude a child, is 
 considered at large. This valuable part of Swinburne is not in the first 
 edition ; but was afterwards added by him. It is otherwise as to many 
 additions in the latter editions of his book ; these being full of enlargements 
 
 coming
 
 L. 3. C. 2. Sect. 267. Of Parceners by Custome. [176. b. 
 
 bonorum (6) ; and so hath it beene resolved in parliament [m]. [m] 3 E. 3. 
 But such children, as be reasonably advanced by the father in Jj 5 ^ 5 ^ 
 his life time with any part of his goods, shall have no further 
 part of his goods; for the words of the writ be, nee in vita 
 patris promoti fuerunt (7). 
 
 Note, the custom of London is, that if the father advance 
 
 any of his children with any part of his goods, that shall bar 
 
 t hem to demand any further part, unlesse the father under his 
 
 hand or in his last will do expresse and declare, that it was 
 
 but in part of advancement (8), and then that child so partly 
 
 advanced 
 
 coming from others, but printed without discriminating them from Swin- 
 burne's own work. This manner of treating authors in new editions is ever 
 dissatisfactory and unjustifiable; but in respect to law-books, it is peculiarly 
 inconvenient, the weight and authority of these so much depending on the 
 character of the author. To Swinburne on this subject add the title wills in 
 Dr. Burn's Eccles. Law, in the course of which it is learnedly attempted to 
 give the result of every thing to be met with on the subject in Swinburne's 
 book or elsewhere. — [Note 47.] 
 
 (6) Ace. 2 Inst. 33. But in this point some of great respect differ from 
 lord Coke. Fitzherbert in his commentary on the de rationabili parte bono- 
 rum contends, that the distribution, which excludes the testamentary power 
 from one third or one moiety of the personal estate, was in his time the 
 general law of the land, and therefore needed not a special custom to support 
 it. He is followed by Swinburne in the same idea, and even by our great 
 modern commentator on the law of England, who cites Finch's law to prove, 
 that the general law was taken to be as represented by Fitzherbert as late as 
 the reign of Charles the First. However, Mr. Justice Blackstone states, 
 that about this period the general law insensibly changed ; which amounts to 
 an admission that lord Coke's doctrine of the necessity of a special custom 
 for the rationabili parte bonorum became perfectly established within a few 
 years after his advancing it, and that this was so without the aid of any statute. 
 It is observable also, that Mr. Justice Blackstone considers Bracton and Fleta 
 as clear authorities against lord Coke. But Mr. Somner, whose very learned 
 and extended discussion of this subject seems to have escaped the author of the 
 Commentaries, though not inclined to an entire agreement with lord Coke, cites 
 various passages of the same ancient authors, from which it appears, that their 
 writings in this respect are contradictory. See in Somn. G-avelk. 91. a disser- 
 tation on the question, Whether the writ de rationabili i>arte bonorum 
 was by the common law, or by custom. Nor is it a slight testimony of its being 
 settled law in lord Coke's time not to allow of the writ de rationabili parte 
 bonorum without a special custom, that Mr. Somner, whose book before cited 
 was finished as early as 1647, though not published till the Restoration, observes 
 on the order of partition under this writ, that it was then, and that not lately, 
 antiquated, and vanished out of use in Kent and other counties, surviving only 
 in the province of York, and some few cities. — [Note 48.] 
 
 (7) What under the custom of the province of York ought to be deemed a 
 reasonable advancement sufficient to bar the right to a filial portion, is largely 
 discoursed upon in Swinburne on Testaments, part 3. sect. 18. For the cases 
 since Swinburne's time, see Eq. Cas.Abr. 1G0, 161. 1 Vin. Abr. 198. Burn's 
 Eccl. L. tit. Wills.— [Note 49.] 
 
 (8) Mr. Somner writes doubtfully on the preceding doctrine, and makes it 
 questionable, whether the child advanced may not wave his former portion, and 
 elect to take benefit of the customary partition in the way of hotchpot. Somn. 
 Gavelk. 91. By others the doctrine is absolutely denied in another form, by 
 insisting, that the advancement must be equal to the customary share ; and 
 that, if the child advanced can prove the advancement to be less, then such 
 
 child
 
 176. b.'J Of Parceners by Custome. L. 3. C. 2. Sect. 267. 
 
 advanced shall put bis part in hotchpot with the executors and 
 widow (9), and have a full third part of the whole, accounting 
 
 that 
 
 child on the terms of throwing the advancement into hotchpot is entitled to 
 the benefit of the customary partition, notwithstanding any declaration of the 
 father to the contrary. Green's Priv. Lond. 52, 53. But in a case before 
 lord Chancellor Somers, the mayor and aldermen of London certified the custom 
 in terms not wholly agreeing either with lord Coke or with the differences from 
 him before stated. According to this certificate, though the advancement shall 
 not be equal to the customary share at the father's decease, yet the child so 
 advanced shall be excluded from any further part of the customary estate, 
 unless the father shall by his last will, or some other writing signed with his 
 name or mark, declare the value of such advancement ; in which case the child 
 advanced, bringing the advancement into hotchpot, shall, notwithstanding the 
 father's declaration of having fully advanced the child, have as much more as 
 will make the advancement a full customary share. This certificate was con- 
 sidered by Lord Somers as conclusive of the question ; and has been since 
 referred to by Lord Chancellor Hardwicke, as settling the point. See the case 
 of Chase v. Box, in 1 L. Raym. 484. & 1 Eq. Cas. Abr. 154, in which latter 
 book the certificate from the city is given at length. See also lord Hardwicke's 
 words in 1 Ves. 16, and those of Fortescue, Master of the Bolls, in 3 Atk. 45. 
 Being therefore taken as the rule of future decision, the certificate demands 
 particular attention. The result, with respect to its operation upon the several 
 ideas, which, as is before stated, have prevailed concerning this point of the 
 custom, may be thus stated : — Mr. Somner's notion, of a yeneral right of elec- 
 tion in the child to wave his advancement and claim the customary share, 
 seems to fall to the ground : there being no election, except where the father 
 under his hand ascertains the advancement by confessing what its value was, 
 and being so ascertained it can be proved to be less than what the custom gives. 
 The opinion, that the advanced child is universally at liberty to prove his cus- 
 tomary share greater than the advancement, and so entitle himself to the benefit 
 of the customary partition, seems to fail ; because the terms of the certificate 
 appear to admit no other evidence to ascertain what the value of the advance- 
 ment was, than the father's hand-writing; though it must be confessed, that 
 excluding other evidence is scarce to be satisfactorily accounted for, unless the 
 common reason of the difficulty of taking an account of such advancement shall 
 be deemed a sufficient one. As to lord Coke's representation of the custom, 
 this also receives some qualification from the before-mentioned certificate ; for, 
 though it leaves him perfectly right, where the father is silent about the 
 advancement, yet it crosses lord Coke's opinion of the effect of the father's 
 declaring the advancement to be in full, and makes such declaration inoperative 
 where the advancement admitted by the father's hand-writing is not actually 
 full and adequate. — [Note 50.] 
 
 (9) Here lord Coke extends the putting into hotchpot so as to make it for 
 the benefit of both of the executors in respect of the testamentary third and of 
 the wife for her third part. But Salkeld reports it as the opinion of Sir Edward 
 Northey, that the custom requires the advanced share to be brought into 
 hotchpot for the benefit of other children only ; and therefore that in case of 
 there being no other child besides the advanced one, such child shall have his 
 full orphan's part without any regard to what has been already received. 
 Salk. 426. See ace. 1 Vera. 345. 2 Vera. 281. and 629. See further 
 concerning this custom of London, a discourse in justification of it in 2 Stow's 
 Survey of London. Strype's edition of 1720, first Appendix, 61. and the 
 statute of 11 Geo. 1. c. 18. For the cases on the custom, and the statute of 
 11 Geo. 1, concerning it, see Eq. Cas. Abr. 159 to 160. the title Custom of 
 London, in New. Abr. Viner's Abr. and 2 Eq. Cas. Abr. Com. Dig. tit. Guar- 
 dian } Gr. 2. and the Contin. in same part, and Burn's Ecc. L. tit. Wills. Add 
 
 to
 
 L. 3. C. 2. Sect. 268. Of Parceners by Custome. [177. a. 
 
 that which was formerly given unto him as part thereof. And this 
 is that in effect, which the civilians call collatio bonorum (10). 
 
 [177.1 " And it seemeth, that this word (hotchpot) is in 
 
 a. | English a pudding, &c." Littleton both here and in 
 other places searcheth for the signification of words, 
 in all arts; a thing most necessary; for ignoratis terminis igno- 
 ratur et ars. Vide for Etymologies, Sect. 95. 119. 135. 154. 164. 
 204. 234, &c. 
 
 Hutspot or hotspot is an old Saxon word, and signifieth so Vide Brit. cap. 
 much as Littleton here speaks. And the French use hotchpot t^^'w ^' 
 for a commixion of divers things together. It signifieth here 10 % 3. 38. 
 metaphorically in partem positio. In English we use to say 24 B. 3. 27. 
 hodgepodge, in Latine farrago or miscellaneum. Re N i'sf'32<) 2 ' 
 
 The residue of this section needeth no explication. F1 e e g t ^ ' lib * 6- 
 
 ca. 47. (1) Mich. 10 E. 1. coram, rege Hereford in thesaur. 
 
 Sect. 268. 
 
 A ND tliis tearme (hotchpot) is hut a tearme similitudinary, and is as 
 much to say, as to put the lands in frankmarriage and the other 
 lands in fee simple together ; and this is for this intent, to know the value 
 of all the lands, scil of lands given in frankmarriage, and of the 
 remnant lohich were not given, and then partition shall be made in form 
 folloiving. As, put the case that a man be seised of 30 acres of land in fee 
 simple, every acre of the value of 12 pence by the yeare, and that he hath 
 issue two daughters, and the one is covert baron, and the father gives ten 
 acres of the 30 acres to the husband with his daughter in frankmarriage, 
 and dyeth seised of the remnant, then the other sister shall enter into the 
 remnant, viz. into the 20 acres, and shall occupy them to her own use, 
 
 unlesse 
 
 to these March, 107. Forrest. 130. Barnard. Ch. Rep. 430. 2 Atk. 43. 523. 
 644. and 3 Atk. 213. 616. See also Flet. 1. 2. p. 125.— Note, that though the 
 11 Gr. I.e. 18, enables making a will of the whole personalty notwithstanding 
 the custom, yet this is with the exception of freemen agreeing by writing 
 upon or in consideration of marriage, or otherwise to be subject to the custom. 
 In this respect therefore there is a difference in the form of the statute altera- 
 tion of the custom as to London, and the alteration as to Wales and the pro- 
 vince of York, the statutes as to these too latter not providing for an agree- 
 ment to abide by the custom. Perhaps however it may be doubted whether 
 an express provision was necessary to create such an exception ; but on this 
 point I do not meau to offer any opinion. — [Note 51.] 
 
 (10) See on the Collation of Goods, Dig. lib. 37. tit. 6. 1 Dom. Civ. L. by 
 Strah. 687. — The Roman law in respect to the collation of goods deserves the 
 particular attention of the English lawyer ; as our statute for distribution of the 
 personal estate of intestates contains a like provision to prevent children 
 advanced in the lifetime of the intestate from having double portions, which 
 was apparently borrowed in some degree from the collatio bonorum, and may 
 therefore be considerably influenced in the construction by the rules of the 
 Roman law and the doctrine of the civilians on that title. See 22 &23 Ch. 2. 
 c. 10. s. 5. Forrest. 276. See also for the cases in general on this part of the 
 statute of distribution, 11 Vin. Abr. 189. 2 Com. Dig. 145. Continuation of 
 same book 176. and Eq. Cas. Abr. 248.— [Note 52.] 
 
 (1) This reference to Fleta is wrong. It should be lib. 5. cap. 9. p. 314. 
 
 Vol. II.— 4
 
 177.a.&b.l78.a.] Parceners by Custome. L.3.C.1.S.269. 
 
 unlesse the husband and his wife will put the 10 aeres given in frank- 
 marriage with the 20 acres in hotchpot, that is to say, together ; and then 
 when the value of every acre is known, to wit, ivliat every acre valueth 
 by the year, and it is assessed or agreed between them, that every acre 
 is worth by the year 12 pence, then the partition shall be 
 ffieg^made in this manner, viz. the husband and wife shall have ("177. "I 
 besides the 10 acres given to them in frank-marriage 5 acres in b. 
 
 severaltie of the 20 acres, and the other sister shall have the 
 remnant, scil. 15 acres of the 20 acres for her purpartie, so as accounting 
 the 10 acres which the baron and feme have by the gift in frankmarriage, 
 and the other 5 acres of the 20 acres, the husband and wife have as 
 much in yearly value as the other sister. 
 
 Bract, lib. 2. A ND herewith in expresse tearmes agreeth B radon, Britton, 
 
 fol. 77. lib. 5. jli an( j Fleta, and all the books abovesaid and many others, 
 
 cap 72. and 1 -^nd ** ls worthy the observation [n], that after this putting into 
 
 Fleta, lib. 6. hotchpot, and partition made, the lands given in frankmarriage 
 
 ca - 47 - are become as the other lands which descended from the com- 
 
 10 E 3 37 mon ances tor, and of these lands if she be impleaded [o] she 
 
 [?(] 10 E. 3. 37. shall have aide of another parcener as if the same lands had 
 
 10 Ass. 14. descended (1). So the coparcener that hath a rent granted to 
 
 To! 29 Ass 23 ner ^ or owe ^y °f partition, as is aforesaid, hath the rent, as if it 
 
 (Ant. 169. b.)' had descended to her from the common ancestor. 
 
 (Hob. 10.( (Ant. 23. a.) beCl. 269. 
 
 A ND so alwaies upon such partition the lands given in frankmarriage 
 remaine to the donees and to their heires according to the forme of the 
 gift : for if the other parcener should have any of that which is gioen in 
 frankmarriage, of this ivould 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 
 giveth 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 
 [frankmariage) is an advancement, and for advancement of his 
 daughter, or of his cousin, and namely when Jggeg 110 the donor |~178. "1 
 and his heires shall have no rent nor service of them, but feal- | b. 
 tie, untill the fourth degree be past (l)f, (tanque le quart 
 degree soit passe, &c) And for this cause the law is, that she shall 
 have nothing of the other lands or tenements descended to the other par- 
 cener, $c. unlesse she will put the lands given in frankmarriage in hotch- 
 pot, as is said. And if she will not put the lands given in frankmar- 
 riage in 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 agreeth and holds her selfe content. 
 
 "OF 
 
 (1) See ant. 174. b. contra as to gift in tail to a daughter not being in 
 frankmarriage. 
 
 (2) t See ant. 21. b.
 
 L. 3. C. 2. S. 270-71-72. Of Parceners. [178. a. 178. b. 
 
 "flF this would ensue an inconvenience and a thing against 
 reason, which the law will not suffer." 
 Quod est inconveniens aut contra rationem non permission est Regula. 
 in lege. Hereby it appeareth, as it hath been often noted, [o] that [o] Vid. Sect. 
 an argument ab inconvenienti aut ab eo quod est contra rationemis ^> *39. 231. 
 forcible in law. [p] Nihil enim quod est inconveniens, est licitum-\. ^2. 
 
 " Untill the fourth degree be past, (tanque le quart degree soit ^ 23 ^ 
 passe, &c.)" Here by &c. is implyed how the degrees shall be sect. 20. 
 accounted, whereof sufficient hath been said before. 
 
 Sect. 270. 
 
 THE same law is between the heirs of the donee in frankmarriage, and 
 the other parceners, £c. if the donees in frankmarriage die before 
 their ancestor, or before such partition, $c. as to put in hotchpot, $c. 
 
 BY these three &c. in this Section is implied, that if either the 
 donees dye before the ancestor, or survive the ancestor and 
 die before such a 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 heritable, and descendible to the issues. 
 
 Sect. 271. 
 
 A ND note, that gifts in frankmarriage were by the common law before 
 the statute of Westm. second, and have been alwaies since used and 
 continued, §c. 
 
 " (CONTINUED, &c." By this &c. is to be understood, that 
 
 ^ before the statute it was a fee simple, and 5®°" since 
 
 ri78."l the statute a fee taile. So as it is true, that [q] the 
 
 b. I gifts do continue (as our author here saith) but not g ^ 2 3 H - 4 - 1L 
 the estates ; for the estate is changed, as at large ap- Gard " { l6 
 peareth in the Chapter of Estates in Taile. And albeit our (A nt. 21. a.) 
 author here saith, that such gifts have beene alwais since used 
 and continued, yet now they be almost growne out of use, and 
 serve now principally for moote cases and questions in law that 
 thereupon were wont to rise. 
 
 Sect. 272. 
 
 A LSO, such putting in hotchpot, $e. is, where the other lands or tene- 
 
 ments which were not given in frankmarriage descend from the donors 
 
 in frankmarriage only ; for if the lands shall descend 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 othei- 
 
 wise ; 
 
 f As to the qualification with which this maxim should be understood, see ante note l./ol. 66. o.
 
 178. b. 179. a.] Of Parceners. L. 3. C. 2. Sect. 273. 
 
 wise ;for in such case she, to whom such gift infranhnarriage is made, 
 shall have her part, as if no gift in frankmarriage had been made, be- 
 cause that she was not advanced by them, £c. but by another, £c. 
 
 THE lands given in frankmarriage and the lands in fee simple 
 must move from one and the same ancestor, for the lands 
 given in frankmarriage are in respect of the advancement ac- 
 counted in law, as hath been said (1), as if the same had de- 
 scended from the same ancestor who died seised of the fee simple 
 lands, and there is no reason to barre the donee of her full part 
 of the fee simple lands that descended from another ancestor 
 from whom she had no such advancement. 
 
 " Not by the donor, &c." Here &c. implieth no more but that 
 donor that made the gift of frankmarriage. The other two d?c. 
 in this Section need no explanation. 
 
 Sect. 273. 
 
 A LSO, if a man be seised of 30 acres of land everie acre of equall 
 annuall value, and have issue two daughters as aforesaid, andgiveih 
 15 acres hereof to the husband with his daughter in frankmarriage, and 
 dies seised of the other 15 acres, in this case the other sister shall have the 
 15 acres so descended to her alone, and the husband and wife shall not in 
 this case put the 15 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, $c. For if the lands given in 
 frankmarriage be of equall or of more yearely value than the remnant, in 
 vaine and to no purpose shall such tenements given in frankmarriage be 
 put in hotchpot, §c for that she cannot have any of the other lands de- 
 scended, £c. for if she should have any parcell of the lands descended, 
 then she shall have more in yearly value than her sister, £e. which the law 
 will not, £c. And as it is spoken in the cases aforesaid of tivo 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, £c. 
 
 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 the gift in £@~ frankmarriage. ["179. "| 
 But it is clear, that the value shall be accounted as it [_ a. J 
 was at the time of the partition j for if the donor pur- 
 chase more land after the gift, or if the land given in frank- 
 marriage 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 
 (Ant. 32. a. e converso, the law shall adjudge of the value as it was at the time 
 171. a.) ' of the partition, (unlesse 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 
 
 (1) Ant. 177. b.
 
 L. 3. C. 2. Sect. 274-76. by Custoine. [179.a.&b.-180.a. 
 
 for otherwise the other sister shall have more benefit than the 
 donee, which should be against the reason of our author. 
 
 " In vaine and to no purpose, &c." For it is a maxinie in law, Regula. Vid. 
 lex non prcecipit inutilia, quia inutilis labor stultus. ^ j_ ^ g9> ' 
 
 f 1 ^ 9 *] m~ Sect. 274 (Antem.b.) 
 
 A ND it is to be understood, that lands or tenements given in frank- 
 marriage shall not be put in hotchpot, but where lands descend in 
 fee simple ; for of lands descended in fee taile partition shall be made, 
 as if no such gift in frankmarriage had been made. 
 
 T?OR of lands intailed the donee in frankmarriage shall have 31 Ass. pi. 14. 
 
 J- as much part as the other coparcener, because over and 
 
 besides the land given in frankmarriage, the issue in taile 
 
 claimeth per formam doni, and both of the parceners must 
 
 equally inherit by force of the gift, et voluntas donatoris, &c. 
 
 observetur. 
 
 Sect. 275. 
 
 ALSO, no lands shall be put in hotchpot with other larids, but lands 
 given in frankmarriage only ; for if a woman have any other lands 
 or tenements by any other gift in taile, 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. 
 
 FOR if the ancestor infeoffeth one of his daughters of part of 13 E. 2. tit. 
 his land, or purchase lands to him and her, and their heires, 6 ^ e £ 3 - 0<b 
 or giveth to her part of his lands in taile speciall or generall, 4 h. 3. 49. 50. 
 she notwithstanding this shall have a full part in the remnant 
 of the lands in fee-simple ; for the benefit of putting, &c. into 
 hotchpot is only appropriated to a gift in frankmarriage, (quia 
 maritagium cadit in partem) which shall be (as is aforesaid) Bracton, 
 accounted as parcell of her advancement. llb - 2 - foL 77- 
 
 Sect 276. 
 
 A LSO, another partition may be made between parceners, which varieth 
 from the partitions aforesaid. As if there be three parceners, and 
 the youngest will have partition, and the other two will not, but 
 T180.1 will hold in parcenarie that which to them Jggr belongeth, with- 
 L a - J out partition, in this case, if one part be allotted in severalty to 
 the youngest sister according to that which she ought to have, 
 then the others may hold the remnant in parcenarie, and occupy in com- 
 mon 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.
 
 180. a.] Of Joyntenants. L. 3. C. 3. Sect. 277. 
 
 please. But where partition shall be made by force of a writ of par- 
 titione faciendu, there it is otherwise ; for there it behoveth, that every 
 parcener have her part in severalties $c. 
 
 More shall be said of parceners in the Chapter of Joyntenants, and 
 also in the Chapter of Tenants in Common. 
 
 24 H. 3. tit. TTERE it is to be observed, that this partition is good by con- 
 Partic. 19. JJL gentj for consensu tollit errorem ; but if it be by the king's 
 
 writ, then everie parcener must have his part. And here you 
 Refula. may see that modus et conventio vincunt legem. 
 
 "In severaltie, &c." Here by this &c. is implied another 
 kind of severaltie than our author hath mentioned: and that 
 is, that the one parcener shall have the land in severaltie from 
 the feast of Easter untill the gule of August, (that is, the first 
 of August) and the other in severaltie from thence until the 
 feast of Easter or the like, et sic alternis vicibus to them and 
 their heires in perpetuum, whereof sufficient hath been spoken 
 before (1). 
 
 Chap. 3. Of Joyntenants. Sect. 277. 
 
 J YNTENANTS are, as if a man be seised of certaine lands or 
 tenements, $c and infeoffeth two, three, four, or more, to have and 
 to hold to them for terme of there lives, or for terme of another's life by 
 force of which feoffment or lease they are seised, these are joyntenants. 
 (Joyntenants sont, sicome home seisie de certaines terres ou tenements, 
 &c. et enfeoffe deux, trois, quater, ou plusors, a aver et tener a eux pur 
 term de lour vies, ou pur terme d'auter vie, per force de quel feoffment 
 ou lease ils sont seisies, tiels sont joyntenants.) 
 
 Bract, lib. 4. FT 'HIS agreeth not with the original (2), for it should bee, 
 
 fol. 262. (3). JL joyntenants sont, sicome home seisie de certaine terres ou 
 
 Britton, cap. 35. J J ; 
 
 & fol. 112. tenements, 
 
 (1) Ante 4. a. and 167. a. 
 
 (2) Notwithstanding lord Coke's censure of the text here, it agrees with the 
 print of the two earliest editions, neither the edition by L. and M. nor the 
 Rohan one having any of the words added by lord Coke, except ent before 
 enfeoffe. But I think that this addition seems requisite to the sense intended 
 to be conveyed by Littleton, as well for the reason assigned by lord Coke, as 
 because otherwise Littleton's description of the jointenancy might be construed 
 to exclude an estate in fee, which certainly could not be his intention. Pro- 
 bably therefore the omission of an estate in fee was an error in the manuscript 
 from which Littleton was first printed. The addition of an estate in fee to 
 Littleton's description of jointenancy was first introduced by Rastell in his 
 edition of 1534, which I was first led to observe by a note I was favoured with 
 from Mr. Justice Blackstone. — [Note 53.] 
 
 The edition by Machlinia alone of the existence of which I was not apprised 
 when I wrote the note, agrees with L. and M. 
 
 (3) I take this reference to Bracton to be erroneous. But in fol. 28. a. of 
 Bracton there is a chapter which connects with Littleton's on jointenantcy : 
 the first branch of it being de dona tionibus fact is pluribus simul she successive. 
 See also Bract, fo. 12. b. and 13. a.
 
 L. 3. C. 3. Sect. 277. Of Joyntenants. [180. a. 180. b. 
 
 tenements, &c. et ent enfeoffc deux, ou trois, ou quater, ouplusors, ^^j.^ ^ C!iA - 
 a aver et tener a eux et a lour heires, ou lcssa a eux pur terme de ca " 47 /(4) " 
 lour vies, ou pur terme d'auter vie, per force de quel feoff ement (2 Ro. Abr. 86.) 
 ou lease, &c. The error may easily be perceived by that which 
 is in print, viz. " by force of which feoffment or 
 
 tl80."| lease," &c. er<jo there must figg** be feoffment and 
 b. | lease spoken of before. 
 
 There be also joyntenants by other conveyances 
 than Littleton here mentioneth, as by fine, recoverie, bargaine 
 and sale, release, confirmation, &c. So there be divers other limi- 
 tations than Littleton here speaketh 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. untill he be married, and to B. untill he be advanced to 
 a benefice, they be joyntenants in the meane time, notwithstand- 
 ing the severall limitations (1); and if A. die before marriage, 
 the rent shall survive ; but if A. had married, the rent should 
 have ceased for a moitie, et sic e converso on the other side. 
 
 Littleton having spoken of one kinde of tenants pro indiviso, 
 viz. of parceners, commeth now to another, viz. joyntenants : and 7 E. 4. 29. 
 first of joyntenants of freehold. If an alien and a subject purchase 11 H- 4^26. , 
 lands in fee, they are joyntenants, and the survivorship shall hold ^° 
 place (2), et nullum tempus occurrit regi, upon an office found. 
 
 "Joyntenants." So called, because the lands or tenements, &c. 
 are conveyed to them joyntly, conjunct ini feoff ati, &c. ox qui con 
 
 junctim 
 
 (4) It should be cap. 48. to which, as a corresponding part of an almost 
 cotemporary writer, add Bract, fol. 428. a. 
 
 (1) See ant. 169. b. post. 183. b. Hob. 171. and Sheppard's Common 
 Assurances, 389. In the two latter books, especially in Hobart, there is a 
 variety of curious matter expounding the nature and use of a scilicet, and how 
 far it may qualify the premises or habendum in a conveyance. See also 1 P. 
 Wins. 18. and the case of a bond to two with a scilicet severing the money 
 between the n in Dy. 350. Lord Hobart seems to consider the scilicet as a sort 
 of ancillary clause, which may explain, but cannot operate in absolute contra- 
 diction of the premises or habendum. In a Coke upon Littleton I have, the 
 learned annotator considers the scilicet as less potent than the habendum, ob- 
 serving upon the case here stated by lord Coke, that though the scilicet cannot 
 sever the joint estate given in the premises and the habendum, yet that the 
 habendum might so control the premises. He therefore holds, that if the grant 
 of ten pounds had been to A. and B. habendum to A. till he be married, and 
 to B. till he be advanced to a benefice, there they would be tenants in common. 
 This nice distinction between the habendum and the scilicet in point of effect I 
 leave to the consideration of the learned reader. — [Note 54.] 
 
 (2) See post. 186. a. — Lord Coke in his Reports qualifies this by adding 
 till office found under the great seal. 5 Co. 52. b. But if the natural-born sub- 
 ject survives the alien, and then the king's title is found by office, shall it by 
 relation to the creation of the jointenancy defeat the subject's title by survi- 
 vorship ? The words of lord Coke both here and in the fifth Report are am- 
 biguous. His first words here favour the surviving jointenant. But his sub- 
 sequent introduction of the rule of nullum tempus occurrit regi, with the quali- 
 fication in the fifth Report, tends to a different conclusion. Though too lord 
 Coke takes notice of a joint purchase by an alien and a subject, yet there is 
 not enough to solve the difficulty. See post, 288. a. See as to this point of 
 relation in offices finding the king's title, W. Jo. 78. and Nichols's case, Plowd. 
 481.— [Note 55.]
 
 180. b.] Of Joyntenants. L. 3. C. 3. Sect. 278. 
 
 Fleta, lib. 6. cap. junctim tenent, and are distinguished from sole or severall 
 47. Bract, lib. 5. tenants, f rom parceners, and from tenants in common, &c. and 
 (Noy 3 l3. a * Ant. anciently they were called partkipes, et non hceredcs. And these 
 164. Cro. Jam. joyntenants must joyntly implead and joyntly be impleaded by 
 83. 166. Post, others (3), which propertie is common between them and co- 
 Sect. 311.) parceners; but joyntenants have a sole quality of survivorship, 
 which coparceners have not. Littleton, having now spoken of 
 parceners and of joyntenants of right, doth next speake of joyn- 
 tenants by wrong. 
 
 Sect. 278. 
 
 ■ 
 
 A LSO, if two or three, $c. disseise another of any lands or tenements 
 
 to their own use, then the disseisors are joyntenants. But if they 
 
 disseise another to the use of one of them, then they are not joyntenants ; 
 
 but he to ivhose use the disseisin is made is sole tenant, and the others have 
 
 nothing in the tenancy, but are called coadjutors to the disseisin, §c. 
 
 IT is to be observed, that some disseisors be tenants of the 
 land, and some be no tenants of the lands; and of both these 
 kinds Littleton here speaketh. 
 
 50 E 3 2 . " &c." In the first &c. nothing is implied but four or five, or 
 
 17 Ass. 14. more. But in the latter &c. many things be to be understood. 
 
 14 Ass. 12. ^g f disseisors that be no tenants, some are coadjutors, whereof 
 l^E.'i'tf Littleton here speaketh, some counsellors, commanders, &c. 
 10 Ass. 22.' when the disseisin is not to be done to any of their uses. _ Also 
 23 H. 8. tit. j^ ^ disseise one to the use of B. who knoweth not of it, and 
 28 Tstli. 77 ' B. assent to it, in this case till the agreement A. was tenant of 
 27 Ass! 30." the land, and after agreement B. is tenant of the land, but both 
 12 E. 4. 9. f them be disseisors : for omnis ratihahitio retrotrahitur et 
 38^1 7 7 b ' mandato equipatarur (4). And it is worthie of the observation, 
 21 H. 7.35. and implied also in the latter &c. that seeing coadjutors, coun- 
 29 Ass. 50. sellors, commanders, &c. are all disseisors, that albeit the disseisor 
 
 35 S' 6 6i' wnich is teQant dieth > y et tne assise lieth a g ainst the coadjutor, 
 21 E.' 4.' 46*. counsellor, commander, &c. and the tenant of the land (5), 
 
 15 E. 4. 15. though he be no disseisor (6). 
 F. N. B. 179. G. & v 
 
 (Mo. 53. Post. 374. a. Ant. 10. a. 1 Ro. Abr. 660. Post. 188. a.) 
 (Post. 245. a. 258. a.) (1 Ro. Abr. 663.) 
 
 The 
 
 (3) See the statute de conjunctim feoffatis, 34 E. 1. lord Coke's notice of it 
 in 2 Inst. 527, and Theloall's Dig. Orig. Br. in the Chapter on Jointenanls in 
 
 b. 2. fol. 456. 
 
 (4) But infants and femes covert are exceptions to this rule ; for command- 
 ment before or agreement after is not sufficient to make them disseisors, but it 
 must be by their actual entry, or their own proper act. Post. 357. b. F. N. B. 
 179. Gr. 3 H. 4. 17. a. Also in the case of persons of full age, if a disseisin 
 to the use of another be accompanied with a forcible entry, his subsequent 
 agreement, though it makes him a disseisor, shall not charge him with the 
 force on the statute of 4 H. 4. actual entry being necessary for that purpose. 
 Ant. 16. a. & b— [Note 56.] 
 
 (5) That is, he that is seised of the freehold by title from the disseisor, as 
 by feoffment, lease, or descent from him. 
 
 (6) See ant. 154. b.
 
 L. 3. C. 3. Sect. 279. Of Joyntenants. [180. b. 181. a. 
 
 [a] The demandant and others in a praecipe did disseise the fa] 50 E. 3. 2. 
 tenant to the use of the others, and the writ did not abate; for ( Cro - Cha. 303. 
 the demandant was a disseisor, but gained no tenancy in the L, °" p br l 661 ' 
 land, for that he was but a coadjutor. 323! a .) 
 
 A man disseiseth tenant for life to the use of him in the re- 
 version, and after he in the reversion agreeth 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 di- 
 
 [181. ~| vested (7), which (say they) cannot be fi^T" revested 
 a. by the agreement of him in the reversion, for that it 
 maketh him a wrong doer, and therefore no relation 
 of an estate by wrong can help him(l). 
 
 " Coadjutor." Coadjutor est qui auxiliator alteri, and is de- 
 rived a coadjuvando. Anglice a fellow helper. 
 
 Sect. 279. 
 
 AND note that disseisin is properly, where a man entreth into any 
 lands or tenements where his entry is not congeable, and ousteth 
 him which hath 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. (2) whereof 
 sufficient hath been said before (3) in the Chapter of Rents; and 
 so in effect Littleton described it before the edition of his book. 3 e. 4. 2. 
 And note here, that every entry is no disseisin, unlesse there be 34 Ass. 11, 12. 
 an ouster also of the freehold. And therefore Littleton doth not ^ ^ ss- Y 1 ' 
 set down an entrie only but an ouster also, as an entry and a 24 E. 3. 31. 
 claimer, or taking of profits, &c. PL Com. 89. 
 
 Now as there be joyntenants by disseisin, so are there joyn- ^ arso n "?® 1Io " y 
 tenants by abatement, intrusion, and usurpation, all which are \\ Ass. 25. 
 included in the latter &c. 12 E. 3. tit. 
 
 Ass. 88. 
 45 Ass. 7. 9 Ass. 19. 39 Ass. 1. 18 E. 2. Ass. 374. 
 
 Sect. 
 
 (7) Why disseisin of tenant for life makes a fee in the disseisor is thus ac- 
 counted for by lord Hobart with his usual peculiarity and energy of phrase. 
 " A grant to J. S. and his heirs during the life of ./. I), is no fee, but a special 
 "occupancy, as is resolved in Chudleigh's case. But a disseisin of an estate 
 "for life by necessity in law makes a quasi fee; because wrong is unlimited, 
 "and ravens all that can be gotten, and is not governed by terms of the estates, 
 "because it is not contained within rules." Hob. 323. — [Note 57.] 
 
 (1) Ace. 277. b. To what lord Coke has written on disseisin by procure- 
 ment, a learned annotator in a Coke upon Littleton I have, adds the following 
 references relative to procurers of trespass, namely 11 II. 7. 6. a. 12 H. 7. 14. 
 a. 21 H. 7. 22. a. 13 H. 7. 13. a.— [Note 58.] 
 
 (2) In respect to disseisin of rents, read post. 306. b. 323. a. and b. 
 
 (3) Ant. Sect. 233. and the comment thereon.
 
 181. a. 181. b.] Of Joyntenants. L. 3. C. 3. Sect. 280. 
 
 Sect. 280. 
 
 A ND it is to be understood, that the nature of joyntenancy is, that he 
 which surviveth shall have only the entire tenancie, according to 
 such estate as he hath, if the joynture be continued, $c. As if three 
 joyntenants bee in fee simple, and the one hath issue and dieth, yet they 
 which survive shall have the whole tenements, and the issue shall have 
 nothing. And if the second joyntenant hath issue and dye, yet the 
 third which surviveth shall have the whole tenements to him and to his 
 heires for ever. But otherwise it is of parceners ; for if three parcen ers 
 be, and before any partition made the one hath issue and dyeth, that 
 which to him belongeth shall descend to his issue. And if such parcener 
 die without issue, that ivhich belongs to her shall descend to her co-heires, 
 so as they shall have this by descent, and not by survivor, as joyntenants 
 shall have, §c. 
 
 " 7 ~F the jointure be continued, &c." 
 
 Here by this &c. many points of learning are to be observed. 
 As that it is proper to joyntenants only to have lands by sur- 
 vivor; for no survivor of other tenants pro indiviso shall have 
 the -whole by survivor, but only joyntenants: and this is called 
 in law jus accrescendi. Omnes feoff ati sunt simul habendi et 
 tenendi, nee totum nee 'partem separatam nee per se, sed ut qui- 
 libet eorum totum habeat cum aliis in communi; et cum unus 
 moriatur, non descendit aliqua pars hseredi morientis, nee sepa- 
 rata nee in communi ante mortem omnium, sed pars ilia com- 
 munis per jus accrescendi accrescit superstitibus de persona ad 
 personam usque ad ultimum superstitem. But although sur- 
 vivorship be proper to joyntenants, yet it is not proper 
 quarto modo (that is) omni, soli et semper ; for there |~ 181.1 
 may be JB^sT'joyntenants, though there be not equall l_ b. J 
 benefit of survivor on both sides. As if a man letteth 
 lands to A. and B. during the life of A. if B. dyeth, A. shall 
 have all by the survivor, but if A. dyeth, B. shall have nothing (1). 
 Two or more may have a trust or an authoritie committed to 
 them jointly, and yet it shall not survive. But herein are divers 
 diversities to be observed. First, there is a diversitie between 
 a naked trust or an authoritie, and a trust or authoritie joyned to 
 an estate or interest (2). Secondly, there is a diversitie between 
 authorities created by the partie for private causes, and authoritie 
 [b] 39 Ass. p. 17. created by law for execution of justice. As for example, [o] if 
 30 H. 8. tit. a man devise that his two executors shall sell his land, if one of 
 Dyl^ El 190. tnem d y e > the survivor shall not sell it(2); but if he had devised 
 
 49 E.' 3. 16. 2 Eliz. Dyer, 177. 23 Eliz. Dyer, 371. 4 Eliz. Dyer, 210. (Mo. 61. 341.) 
 10 H. 4. 2, & 3. 14 H. 4. 34. 39 H. 6. 42. 31 Ass. 20. 33 H. 8. Joynt. Br. 62. 
 30 H. 8. Condition, Br. 190. 
 
 his 
 
 Bracton, lib. 4. 
 fol. 262. b. 
 Britton, cap. 35 
 Fleta, lib. 3. 
 ca. 4. & ca. 10. 
 49 E 3. fol. 5, 6. 
 
 (9 Co. 75. b.) 
 
 (1 Sid. 6.) 
 
 (1) See further as to benefit of survivorship on one side only, post. 193. a. 
 239. b. & Dy. 10. b. 
 
 (2) See Ant. 112. b. 113. a. post. 297. a. 
 
 (3) In a former part I have ventured to make a doubt of this, and to con- 
 tend that the power to sell being given to the executors by reason of an office 
 and interest, which do go to the survivor, may well survive with them. See 
 ant. note 2 ; to 113. a.— [Note 59.]
 
 27 H. 8. fol. 6. 
 
 L. 3. C. 3. Sect. 281. Of Joyntenants. [181. b. 182. a, 
 
 his lands to his executors to be sold, there the survivor shall sell 
 it j which diversitie is iraplyed by our author, for he saith, that 
 he that surviveth shall have the entire tenancie. 
 
 If a man make a letter of atturney to two, to do any act, if 
 one of them dye, the survivor shall not do it; but if a venire 
 facias be awarded to four coroners to impannell and returne a 
 jury, and one of them dye, yet the other shall execute and re- 
 turne the same. 
 
 If a charter of feoffment [c] be made, and a letter of atturney [ c ] 38 II. 8. 8. 
 to four or three joyntly or severally to deliver seisin, two of D y er > 62 - 
 them cannot make liverie ; because it is neither by them four or ,- Co ' gj 
 three joyntly, nor any of them severally ; but if the sherife upon Yelv. 25, 26. 
 a capias directed to him make a warrant to four or three joyntly Cro. Eliz. 913, 
 or severally to arrest the defendant, two of them may arrest him, rif" p M0 |. 
 because it is for the execution of justice [</], which is pro bono 4.5 Eliz. in the 
 publico, and therefore shall be more favourably expounded, than king's beneh 
 when it is only for private ; and so hath it been adjudged (4). k^n^es^ 
 Jura publica ex privato promiscue decidi non debent. (Hutt. 127.) 
 
 " And dieth." Note, there is a naturall death and a civil death, 
 and Littleton's case is to be intended of both ; and therefore [e] [e] 21 R. 2. 
 if two joyntenants be, and one of them entreth into religion, the Judgement, 263. 
 survivor shall have the whole (5). ^ 
 
 Sect. 281. 
 
 A ND as the survivour holds place betiveene joyntenants (6) in the same 
 
 manner it holdeth place between them which have joynt estate or 
 
 possession with another of a chattell, reall or personall. As if a lease 
 
 of lands or tenements be made to many for terme of years, he, which 
 
 survives of the lessees, shall have the tenements to him only 
 
 ri82.~J during the terme by force of $@Tthe same leaseil). And 
 
 L a - A if a horse, or any other chattell personall be given to many, 
 
 he which surviveth shall have the horse only. 
 
 HEREBY it is manifest, that survivor holdeth place regularly (Cro. Eliz. 33. 
 as well between joyntenants of goods and chattels in posses- 2 Ro. Abr. 86, 
 sion or in right, as joytenants of inheritance or freehold. 
 
 " Chattell," or Catell, whereof commeth the word used in law 
 [/] Catalla, and is, as Littleton here teacheth, two-fold, viz. reall [/] Regist 
 and personall, and putteth examples of both. 
 
 origin. 139. 244. 
 Bract, lib. 2. 
 39 II. 6. 35. Staunford Pr. 45. 
 
 Sect. 
 
 (4) See ace. as to warrant of the peace to two, Lambard's Justice, ed. 1602, 
 p. 84. 
 
 (5) See ant. note 7, of fol. 3. b. and note 1, of fol. 132. b. Add Ley's 
 case, 2 Ro. Abr. 43. 
 
 (6) &c. in L. and M. andRoh. 
 
 (1) And this benefit of survivorship takes place on a lease for years to two, 
 though one of the lessees dies before entry. Ant. 4G. b. — [Note 60.]
 
 N 
 
 182. a.] Of Joyntenants. L. 3. C. 3. Sect. 282, 283. 
 
 Sect. 282. 
 
 TN the same manner it is of debts and duties, Sec. for if an obligation 
 be made to many for one debt, he which surviveth shallhave the ivhole 
 debt or dutie. And so it is of other covenants and contracts, §c (3). 
 
 OW he speaketh of debts, duties, covenants, contracts, 
 (fee. (2). 
 
 (1 Ro. Abr. 6.) " Debts and duties, &c." Here by force of this dr. an excep- 
 F. N. B. 117. E. tion is to be made of two joynt merchants; for the wares, mer- 
 38 E. 3. 7. chandizes, debts or duties, that they have as joynt merchants or 
 
 parteners, shall not survive, but shall go to the executors of him 
 (Ant. 172. a. t ^ at deceaseth ; and this is per legem mercatoriam, which (as 
 
 lRo J Abr. 3 6° 6 ' bath beene said ) is P art of the lawes of this realm > f ? r tb ; e ad " 
 Cro. Cha. 301. vancement and continuance of commerce and trade, which is pro 
 
 1 Sid. 236. bono publico ; for the rule is, thatj'ws accrescendi inter mercatores 
 
 '' ' ' pro beneficio commercii locum non habet (4). 
 
 [See l Ch. R. ^nd to the latter dr. in this Section the like exception must 
 
 57. 1 Vera. r j 
 
 217. 3 Wms. be made - 
 
 158. 2 Atk. 54. See also 1 Vera. 33. & Nott. MSS. 1146. See further 3 Atk. 734. 
 
 1 Vera. 361. 2 Vera. 556. 1 Br. Ch. R. 118. 1 Atk. 467. 4 Bro. P. C. 224.] 
 
 Sect, 283. 
 
 ALSO, there may be some joyntenants, which may have a joynt estate, 
 and be jointenants for terme of their lives, and yet have severall in- 
 heritances. As if lands be given to two men and to the heires of their 
 two bodies begotten, in this case the donees have a joint estate for term of 
 their two lives, and yet they have severall inheritances ; for if one of the 
 donees hath issue and dye, the other ivhich surviveth shallhave the whole 
 by the survivor for terme of his life, and if he which surviveth hath also 
 issue and die, then the issue of the one shall have the one moitie, and the 
 issue of the other shall have the other moity of the land, and they shall 
 hold the land between them in common, and they are not joyntenants, 
 but are tenants in common. And the cause, ivhy such donees in such 
 case have a joynt estate for terme of their lives, is, for that at the beginning 
 the lands were given to them two, which zvords ivithout more saying make 
 a joynt estate to them for terme of their lives. For if a man will let land 
 to another by deed or ivithout deed, not making mention what estate he 
 shall have, and of this make liverie of seisin, in this case the lessee hath 
 an estate for terme of his life ; and so in as much 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 betiveen them ingendred, as a man and 
 woman may have, §c. the law will that their estate and inheritance be 
 
 such 
 
 (3) No. dr. in L. & M. nor Roh. 
 
 (2) See further, as to things of which there shall be a survivorship, and 
 where express words are necessary to give that benefit, 11 Co. 3. b. 2 Ro. Ab:. 
 86. B. 2. 2 P. Wms. 672. and tit. Survivor, in Vin. Abr. and tit. Jontei an's, 
 B. 1. & D. ibid. 
 
 (4) See more fully as to this, 2 Brownl. 99. See also ace. Noy, 55. 
 
 (5) These additional references are retained, though they scarcely deserve it ; 
 for they only relate to different instances of the lex mercatoria, and do not touch 
 the particular rule against the jus accrescendi.
 
 L. 3. C. 3. Sect. 283. Of Joyntenants. [182. a. 182. b. 
 
 such as is reasonable, according to the forme and effect of the words of 
 the gift, and this is to the heires which the one shall beget of his body by 
 any of his wives (1) f [and to the heirs which the other shall beget of his 
 body by any of his wifes,~] cfc. so as it behoveth by necessitie of reason, 
 that they have several inheritances. And in this case if the issue of one 
 of the donees after the death of the donees dye, so that he hath no issue 
 alive of his body begotten, then the donor or his heir may enter into the 
 moity as in his reversion, $c. (Et en tiel cas si Tissue d'un des donees 
 apres la mort des donees devie, issint que il n'ad ascun issue en vie de 
 son corps engendre donque le donor ou son heire poet enter en la moity 
 come en son reversion, &c.) although the other donee hath issue alive, 
 §c. And the reason is, forasmuch as the inheritances be several, $c. the 
 reversion of them in law is severall, $c. and the survivor of the other 
 shall hold no place to have the whole. 
 
 " HTEEY have a joint estate for term of their two lives, &c." Vido Sect. 296. 
 Note, albeit they have severall inheritances in taile, and a (Pos " 189, b>1 
 particular estate for their lives, yet the inheritance doth not ex- 
 ecute and so break the joyntenancy, but they are joyntenants for 
 life, and tenants in common of the inheritance in tayle. 
 
 "As a man and woman may have, &c." Here a diversity is VideWestcotte's 
 iraplyed, when the estate of inheritance is limited by c e \ so ' 
 
 t 182.1 one conveyance, S^as in this case it is, there are no (i Sid. 83.) 
 b. J severall estates to drown one in another. But when 
 the estates are divided in severall conveiances, their 
 particular estates are distinct and divided, and consequently the 
 one drowns the other. As if a lease be made to two men for 
 terme of their lives, and after the lessor granteth the reversion to 
 them two, and to the heires of their two bodies, the joynture is 
 severed, and they are tenants in common in possession. And it 
 is further implied, that in this case of Littleton there is no di- vid. 12 E. 4. 
 vision between the estate for lives, and the severall inheritances ; 2. b. 
 for in this case they cannot convey away the inheritances after 
 their decease (1), for it is divided only in supposition and con- 
 sideration of law, and to some purposes the inheritance is said 
 to be executed, as shall be said hereafter. ( Sect - 285 -) 
 
 If a man make a lease for [/] life, and after granteth the re- [/] 39 H. 6. 
 version to the tenant for life and to a stranger and to their 2 -\ 
 
 ... . ,» i ? l j.i (* keon. .17. 
 
 heires, they are not joyntenants ot the reversion, but tlie reversion Post 2 99. b. 
 
 is by act of law executed for the one moitie in the tenant for Cro. Jam. 260, 
 
 life, and for the other moity he holdeth it still for life, the re- 261 -) 
 version of that moity to the grantee. (*) 
 
 And so it is, if a man maketh a lease [</] to two for their lives, [g] Wesoofa 
 
 f This is note 1 of 183. a. in the 13th and Uth editions. and case, ubi supra. 
 
 (1) f In L. & M. and Roh. the following words here placed between brackets 
 are omitted. 
 
 (1) See post. 184. b. 
 
 (*) A lessee for years accepts an estate to him and another as joint tenants 
 for life ; whether lease merged wholly, or for a moiety merged, and for a moiety 
 was suspended, see Cro. El. 532. This book seems rather an authority for a 
 total merger and extinction, and, as I incline to think, rightly in principle; 
 joint tenants being seised per my et per tout, and each therefore having entire 
 possession of the whole, as well as of every part. See however Lev. 127. See 
 further, 3 Keb. 431. and what lord Coke writes here, according to which it is 
 otherwise where reversion in fee is conveyed to tenant for life and a stranger. 
 On what reason is it, that the merger should be of the whole in the one case, 
 but only of the moiety in the other ? See also 2 Saund. 380.
 
 182. b. 183. a. 183. b. j Of Joyntenants. L.3.C.3.S.283. 
 
 and after granteth the reversion to one of them in fee, the joyn- 
 ture is severed, and the reversion is executed for the one moitie, 
 and for the other moitie there is tenant for life the reversion to 
 the grantee (2). 
 T . . , ,, tt fi If lessee for life granteth his estate to him in the reversion, 
 and to a stranger, the joynture is severed and the reversion ex- 
 ecuted for the one moitie by the act of law (3). 
 
 fi®~If a man maketh a lease for life and granteth ri83.~| 
 the reversion to two in fee, the lessee granteth his L a - J 
 estate to one of them, they are not joyntenants of the 
 reversion; for there is an execution of the estate for the one 
 moitie, and an estate for life, the reversion to the other of the 
 other moity (2) f . 
 
 Here Littleton hath well resolved a doubt ; for of ancient time 
 [h] 17 E. 3. 15. jt hath been said, [A] that when lands have been given to two 
 50 E 8 3 B 3 39 women and to the heires of their two bodies begotten (which 
 Statham. tit. case our author putteth in the next Section) that the husband 
 Don. 50, E. 3. having issue should be tenant by the courtesie living the other 
 Feoffments j gter f or tnat as some held the inheritance was executed, and 
 
 that the sisters were tenants in common in possession, and con- 
 (Ant. 13. a.) sequently the husband to be tenant by the curtesie, which he 
 could not be if the women had a joynt estate for terme of their 
 Taifet 13. lives 5 and likewise it was said [i] that the issue of the one 
 
 8 Ass'. 33. should recover the moytie in a formedon living the other sister. 
 
 24 E. 3. 29. g ut ver i a snn t hcec, and Littleton^ grounding himselfe upon good 
 Cortes case, authority in law, hath cleered this doubt. 
 
 4 Mar 8 Dier 145 " Not making mention what estate he shall have." Here Littlc- 
 See before in the ton addeth materially (not making mention of what estate); for 
 Chapter of Ten. r-£"j if j n the premisses lands be letten, or a rent granted, the ge- 
 Sectione T e8ie ' neral intendment is, that an estate for life passeth j but if the 
 (Ant.°30." a. habendum limit the same for years or at will, the habendum doth 
 2 Ro. Abr. 90.) qualifie the generall intendment of the premisses. And the rea- 
 
 fhro P1 mor°ton's in son ° f this is > f ° r tuat lt is a max i me in law > that ever y man ' s g rant 
 
 case°. gm ° r ° n S shall be taken by construction of law most forcible against him- 
 
 (2 Co. 23. 55. selfe. Quadibetconcessio fortissime contra donatorem interpretan- 
 
 2 R°" Abr 66 ) ^ a cst > wnicn is so to ^ e understood, that no wrong be thereby 
 
 Regula. r done ; for it is another maxime in law, quod legis constructio non 
 
 (5 Co. 8. a. facit injuriam. And therefore if tenant for life maketh 
 
 Plowd. 161 a. a j eage generally, this shall be taken by J&®° construe- ["183. "1 
 
 Ant. 42. a.) ^ ^ ^ ^ ^^ ^ ^ Qwn ^ ^^ ma( j e ^ l eage . |_ b. J 
 
 for if it should be a lease for the life of the lessee, it 
 should be a wrong to him in the reversion. And so it is if tenant 
 in taile make a lease generally, the law shall contrive this to be 
 such a lease as he may lawfully make, and that is for terme of 
 his owne life ; for if it should be for the life of the lessee, it should 
 
 be 
 
 2 Sect. 35. — The first case stated in the second paragraph o/*183. a. is mentioned be/ore 
 near the end of fol. 30. a. with a marginal reference tofol. 183, as being contra. 
 
 (2) Vid. Hil. 35 Eliz. B. R. rot. No. 96. Perkins & Pecke, 21. Dy. 12. 41 
 E. 3. 21 H. 6. 40. 40 Ass. 45 E. 3. 2.— Hil. 37 Eliz. Dickson v. Marsh, 
 B. R. rot. No. 103. Devise to eldest son and another for life. Held, that they 
 are jointenants though the fee descends; but male. Hal. MSS. See as to the 
 latter case, Cro. Jam. 260. — [Note 61.] 
 
 (3) See post. 192. 200. b. 335. a. 
 
 (2) f But it is otherwise on a surrender ; for that enures to both jointenants 
 of the reversion. Post. 192. a. See further, Perk. sect. 80.— [Note 62.]
 
 L. 3. C. 3. Sect. 283. Of Joyntenants. [183. b. 
 
 be a discontinuance, and consequently the state which should 
 passe by construction of law should worke a wrong (1). 
 
 u And so inasmuch as the lands were given to them, they have 
 a joint estate for term of their lives." This is plaine, but with this 
 exception, unlesse the habendum doth otherwise limit the same. 
 And therefore if a lease be made [I] to two, habendum to the one |7] 8 E. 3. 427. 
 for life, the remainder to the other for life, this doth alter the j? 1 - F . eoff t™' 
 general intendment of the premises (2), and so hath it been 30 y 8 ' ' t { t ] 
 oftentimes resolved. And so it is if a lease be made to two, Joynt. Br. 53. 
 habendum the one moiety to the one, and the other moitie to the ^yer, fo. 361. 
 other, the habendum doth make them tenants in common; and /n'ob°i7i 
 so one part of the deed doth explaine the other, and no re- Post. 190. b. 
 pugnancy between them, et semper expressum facit cessare 2 Ro - Abr - 65 - 
 taciturn (3). fieon. 10, n.) 
 
 u By any possibility." Here it is to be observed, that where ^ Ro. Abr. 66. 
 the grant is impossible to take effect according to the letter, 5 Co. 19. a. 
 there the law shall make such a construction as the gift by pos- Hob> 313 -) 
 sibilitie may take effect, which is worthy of observation. Be- 
 nignse faciendse sunt interpretationes cartarum propter simplici- 
 tatem laicorum, ut res magis valeat qndni pereat. 
 
 " So as it behoveth by necessity of reason." The reason of the 
 law is the life of the law; for though a man can tell the law, yet 
 if he know not the reason thereof, he shall soone forget his su- 
 perficial knowledge. But when he findeth the right reason of 
 the law, and so bringeth it to his natural reason, that he com- 
 prehendeth 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 remaine with him. All which is plainly implyed by the 
 words and &c. of our author in this Section. 
 
 " And in this case if the issue of one of the donees after the death 
 of the donees dye, &c. — Et en tiel case si I' issue d'un des donees 
 apres la mort des donees devie, issint que il n'ad ascun issue en 
 vie de son corps engendre, donques le donor ou son heire poet 
 enter en le moitie." This is mistaken in the imprinting, and 
 varieth from the originall, (4) which is, si I'un donee ou I' issue 
 d'un des donees apres la mort des donees devie, issint que il n'ad 
 ascun issue, &c. For it is evident that if the one donee him- 
 selfe dieth without issue, the inheritance doth revert for a 
 moitie, and after the decease of the other donee, the donor may 
 enter into that moitie; and whether the issue of the one donee 
 dieth without issue at any time, either in the life of the other 
 donee, or after his decease, it is not materiall, for whensoever 
 no issue is remaining of the one donee, so as the state taile is 
 spent, the donor may after the decease of the surviving donee 
 enter into that moity (5). 
 
 "And 
 
 (1) Ace. ant. 42. a. and there the reason is more fully expressed. 
 
 (2) Ace. Perk. sect. 174. 
 
 (3) Ace. Sect. 298. See also 2 Co. 55. a. & b. ant. 180. b. post. 189. a. 
 299. b. 
 
 (4) But lord Coke's correction is not conformable either to L. and M. or the 
 Ron. edition. 
 
 (5) See Hob. 33.
 
 183. b. 184. a.] Of Joyntenants. L. 3. C. 3. Sect. 284. 
 
 " And the reason is, forasmuch as the inheritances, &c." Lit- 
 tleton in this Chapter hath often said, and the reason is, which is 
 worthie of observation, for then we are truely said to know any 
 Arist. 1. Meta- thing when we know the true cause thereof. Tunc unumquodque 
 phys. sc i re dicimur, cum primam causam scire putamus. Scire autem 
 
 proprie est rem ratione et per causam cognoscere. 
 
 Virg. 2 Georg. Felix, qui potuit rerum cognoscere causas. 
 
 And therefore all students of law are to apply their principall 
 indeavour to attaine thereunto, all which is implyed by the 
 words and several &c. in this Section. 
 
 Here the cause of the entrie of the donor into a moitie in this 
 case is, that in as much as the inheritance is severall, the rever- 
 sion is severall. Therefore upon the severall determination of 
 the estate in taile, the donor may enter. And the law termeth 
 a reversion to be expectant upon the particular estate, because 
 (Post. 191. b. the donor or lessor, or their heirs, after every determination of » 
 Hob. 33.) an y particular estate, doth expect or look for to enjoy the lands 
 
 or tenements again. 
 
 Dyer, 14 El. 300. " The reversion of them in law is severall, &c." Hereby, and by 
 this &c. is implyed, that upon one joint or entire gift or lease 
 there is one joynt or entire reversion, and upon severall gifts or 
 leases there be severall reversions. And this is to be understood 
 of the reversion in the donor or his heires. But albeit the gifts 
 or leases be severall, yet if the donors or lessors grant the re- 
 version to two or more persons and their heirs, they are joyn- 
 tenants of the reversion. And so it is of a remainder. _ And 
 therefore if a gift be made to two men and the heires of their two 
 bodies begotten, the remainder to them two and their heires. 
 they are joyntenants for life, tenants in common of 
 the state taile, and joyntenants of the J8@* fee simple F184."! 
 in remainder; for they are joynt purchasers of the fee |_ a - J 
 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. 
 
 Sect. 284. 
 
 A ND as it is said of males, in the same manner it is where land is 
 given to two females, and to the heires of their two bodies engendered. 
 
 44 E. 3. tit. 1 F a man giveth lands to two men and one woman, and the 
 Taile, 13. 1 heires of their three bodies begotten, in this case they have 
 
 ( (2 R*o 2 Abr' 48 severa11 inheritances; for albeit it may be said, that the woman 
 l Co°'i20. r ' may by possibility marry both the men one after another; yet 
 156. b. Ant. 46. b. first, she cannot marrie them both in prsesenti, and the law will 
 10 Co. 50. b.) neyer j nten( j a possibilitie upon a possibility, as first to marry the 
 one, and then to marry the other (1); secondly the form of the 
 
 gift 
 
 (2 Co. 60. b. 
 Post. 299. b.) 
 
 (1) Yet in fol. 20. b. lord Coke allows a present estate tail in a case of 
 double possibility equal to that here supposed ; namely, the case of a gift to the 
 husband of A. and the wife of B. and the heirs of their bodies. See further 
 on this head, Vin. Abr. tit. Possibility, and Fearne on Conting. Rem. 3d ed. 
 176.— [Note 63.]
 
 L. 3. C. 3. Sect. 285. Of Joyntenants. [184. a. 184. b. 
 
 gift is, to the heires 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 mu- 
 tandis. In the same manner, if a gift in taile be made to a man [ m ] is e. 3. 39. 
 and his mother, [m] or to a man and his sister (2), or to him and 7 H. 4. 16. 
 his aunt, &c. in this and like cases, albeit the gift is made 
 to a man and a woman, yet they have severall inheritances ; be- 
 cause they cannot marry together, and are within the rule and 
 reason of our author. 
 
 Sect. 285. 
 
 A LSO, if lands be given to two and to the heires of one of them, this 
 is a good joy nture, and the one hath a freehold, and the other a fee 
 simple. And if he which hath the fee dieth, he which hath the freehold 
 shall have the entiertie by survivor for terme of his life. In the same 
 manner it is, where tenements be given to two and the heirs of the body 
 of one of them engendrecl, the one hath a freehold, and the other a fee 
 taile, $c. 
 
 BY this Section, and the <&c. in the end of it, they are joyn- (2 Co. 60. b.) 
 tenants for life, and the fee simple or estate taile is in one of 
 them ; and because it is by one and the same conveyance, they 
 are joyntenants, and the fee-simple is not executed to all pur- 
 poses as hath been said before (3). ( Seet - 283 -) 
 
 If a fine be levied to two, \n~\ and to the heires of one of M 42 E. 3. 0. 
 them, by force whereof he is seised, he that hath fee dieth, and 31 ' E 3 " Sc ' ire ' 
 after the joyntenant for life dieth, and an estranger abates, in facias, 19. 
 this case the heire may either suppose the fee-simple executed, 29 H. 8. 
 and have an assise of Mortdauncester, the words of which writ be, 4 E 3 ' g£ 
 Si R. pater fuit seisi/us die quooliit in dominico suo ut defeodo; r. N. B. 196. 
 which cannot be said of him that hath but a remainder expectant 219. 4 E. 3. 
 upon an estate for life ; but in respect that he is seised of a fee 2 4K 3. 70* J ' 
 simple, and of a joynt estate in possession, the words in the writ ( 2 Co. 61.) 
 be true, that he was seised in dominico mo tit defeodo (4). Like- (1 R°- Abr. 
 wise the heir may have a writ of right, which also in some sort %J U 281 j 
 proves the fee simple executed ; or the heire may have a scire 
 facias to execute the fine, by which the heir supposeth 
 pi84.. "I $££*- that the fee was not executed, or he may main- 
 b. I taine a writ of intrusion where the heire maketh the 
 like supposition, and shall terme it a remainder. (1). 
 And yet when land is given to two and to the heires of one 
 of them, he in the remainder cannot grant away his fee simple, 
 as hath been said (2). 
 
 Sect. 
 
 (2) See Dy. 326. a. 
 
 (3) Ant. 182. b. See also post. 297. b. Fearne on Conting. Rem. 23, 24. 
 26. 28, 29. Bro. Nouv. Cas. pi. 260. 303. 387. These references will intro- 
 duce the reader to most of the learning on this curious point. 
 
 (4) See however Bro. Nouv. Cas. pi. 115. which is contra. 
 
 (1) Ace. F. N. B. 204. E. So also such heir shall have a writ of entry in 
 consimili casu, where the surviving tenant for life aliens in fee. F. N. B. 207. 
 B.— [Note 64.] 
 
 (2) See ant. 182. b. — There is a seeming difficulty in this passage. But 
 I conceive lord Coke's meaning to be, that, though for some purposes the 
 estate for life of the jointenant having the fee is distinct from and unmerged 
 
 Vol. II.— 5 in
 
 184. b.J Of Joyntenants. L. 3. C. 3. Sect. 286. 
 
 Sect. 286. 
 
 A LSO, if two joyntenants be seised of an estate in fee simple, and the 
 one grants a rent charge by his deed to another out of that which be- 
 long eth to him{2>), in this case during the life of the grantor the rent 
 charge is effectuall ; but after his decease the grant of the rent charge is 
 void, as to charge the land, for he which hath the land by survivor shall 
 hold the whole land discharged. And the cause is, for that which he survi- 
 veth claimeth and hath the land by the survivor (4) and hath not, nor can 
 claime any thing by descent from his companion, Sfc. But otherwise it is of 
 parceners, for if there be two parceners of tenements in fee simple, and 
 before any partition made the one char g eth that which to her belong eth by her 
 deed with a rent charge, Sfc. and after dieth without issue, by which that 
 
 which 
 
 in his greater estate, yet for granting it is not so, but both estates are in that 
 respect consolidated notwithstanding the estate of the other jointenant; and 
 therefore that the fee cannot in strictness of law be granted as a remainder eo 
 nomine, and as an interest distinct from the estate for life. This explanation 
 is confirmed by a note in a Coke upon Littleton I have, in which it is strongly 
 observed, that " the two estates, viz. for life and in fee, or rather one knotted 
 " estate, are so confounded together in one person, that he cannot sever them 
 " and make them distinct estates, for he cannot grant the estate for life re- 
 " serving to himself the fee simple nor can he grant the fee simple and reserve 
 " the estate for life, but he may pass away all his interest by feoffment, or he 
 " may forfeit all." See Bro. Nouv. Cas. pi. 115. It also much agrees with the 
 language of lord Coke's report of Wiscot's case, especially where he observes, 
 that when an estate is made to three and the heirs of one, he, icho hath the fee, 
 cannot grant over his remainder, and continue in himself an estate for life, for 
 which lord Coke cites 12 E. 4. 2. b. See 3 Co. 61. a. Besides if the passage 
 here should be understood to signify, that the jointenant having the fee could 
 not in any form pass away the fee subject to the estate of the other jointenant, 
 it would not only be contrary to the power of alienation necessarily incident 
 to a fee simple, but would be inconsistent with lord Coke's own doctrine in a 
 subsequent part of his commentary. See the case of an estate to father and 
 son and the heirs of the father, post. 367. b. See also post. Sect. 578. Indeed 
 lord Coke's position thus qualified appears to have a strictness in it, which 
 with some may perhaps render it questionable. However he seems justified 
 by the words in the year-book, which he cites as his authority; for they are, 
 that, if two have land to them and the heirs of one, he v:ho hath fee cannot grant 
 the reversion of his companion to another ; but if both alien all passeth. See 
 further as to grant of a remainder or reversion by one having a present and 
 previous estate, Shepp. Touchstone, 237. and Shepp. Common Assur. 12, 13*. 
 — [Xote 65.] 
 
 (3) &c. in L. & M. & Roh. 
 
 (4) &c. in L. & M. & Roh. 
 
 * Where hinds were limited to the use of A., for life, remainder to trustees during the 
 life of A. to preserve contingent remainders ; remainder to his sons succesively 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 conso- 
 lidated, as to render it impossible for A. to convey his remainder or reversion in fee, sepa- 
 rately and distinctly front 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 the trustees for preserving contingent remainders during his life, remainder 
 to the sons of A. successively in tail male ; by way of confirmation or establishment of 
 those uses under the settlement ; with the proposed remainders ov er. 

 
 L. 3. C. 3. Sect. 286. Of Joyntenants. [184. b. 185. a. 
 
 which helongeth to her descends to the other parcener, in this case the 
 other parcener shall hold the land charged, $-c. because she came to this 
 moity by descent, as heir, §c. 
 
 " C^LAIME any thing by descent from his companion, &c." 
 
 By which &c. is implyed, that so it is if one joyntenant f. N. B.204. 207. 
 acknowledge a recognisance or a statute, or suffreth a judgment 7 H. 6. 2. 
 in an action of debt, &c. and dieth before execution had, it shall jjj *"■• J* ||- 
 not be executed afterwards (5). But if execution be sued in 17 r. 2. tit* 
 the life of the conusor, it shall bind the survivor. And it is Charge, 15. 
 further implyed, that both in the case of the charge and of the ^ ■"*• 5. 8. 
 recognisance statute and judgment, if he that chargeth, &c. sur- / 6 Co! 79.'a.) ' 
 vive, it is good for ever. 
 
 And so it is (0) if a man be possessed of certaine lands for [ ] 9 H. 6. 32. 
 term of yeares in the right of his wife, and granteth a rent (Hob. 3. Plowd. 
 charge, and dyeth, the wife shall avoyd the charge (6); but if the ' 
 
 husband had survived, the charge is good during the terme. 
 
 If a villeine purchase lands, and binde himselfe in a recogni- 
 sance, if the lord enter before [p~\ execution, the lord shall avoyd [^] 8 E. 3. 
 the same, as hath been said. But otherwise it is if he had made tit. Execution. 
 a lease for yeares, for the reason that Littleton here yieldeth in Stataam - 
 this Section (7). 
 
 If two joynetenants be of a terme, [<?] and the one of [ q ] 14 H. 8. 22. 
 
 [185. "I them grant to I. S. that figg-if he pay to him ten pound PL Com. 263 % b. 
 a. I before Michaelmasse, that then he shall have his terme, ™** me Hales 
 the grantor dyeth before the day, I. S. pays the summe (Finch's L. 97. 
 to his executors at the dav, vet he shall not have the tearme, but 6 Co. 35. 2 Ro. 
 the survivor shall hold place: for it was but in nature of a com- £ Dr- ^' 8y " 
 
 • i\ i •/•111 i i r 1 • Cro. Jam. 91, 
 
 munication(l): but 11 he had made a lease tor yeares, to begin 92.) 
 at Michaelmasse, it should have bound the survivor (2). 
 
 And where Littleton putteth the case of a rent charge, it is so 
 likewise implyed, that if one joyntenant granteth a common of 
 pasture, or of turbary, or of estovers, or a corody, or such like, 45 E. 3. 13. 
 out of his part, or a way over the land, this shall not bind the Vide Sect. 289. 
 survivor: for it is a maxime in law, that jus accrescendi prsefer- 
 tur oneribus; and there is another maxime, that alienatio rex 
 prsefertur juri accrescendi. 
 
 If one joyntenant in fee simple be indebted to the king, and 
 dyeth, [r] after his decease no extent shall be made upon the [r] 40 Ass. 36. 
 land in the hands of the survivor. p°4 SS r 5 'i4q 
 
 If a recovery be had against one joyntenant, who dyeth before p j c ' om ' 3 2 i'_ 
 execution, the survivour shall not avoid this recovery : because (i Co. 86. Post. 
 that the right of the moitie is bound by it. 352 - a -) 
 
 If one joyntenant in fee take a lease for yeares of an estranger 
 by deed indented and dyeth, the survivour shall not be bound by * 
 
 the conclusion; because he claymes above it, and not under it. 
 
 "And 
 
 (5) See ace. 7 H. 7. 13. b. & 2 Ro. Abr. 88. 
 
 (6) Yet the husband's alienation of the term itself, or of any part of it, bind.- 
 the wife surviving. Post. 351. a. The reason of this difference is explained 
 post. 185. a. It is also well explained in Finch's L. 13 and 98. and in the New 
 Abridgment, tit. Baron et feme, C 2. See further, 1 Vern. 396. — [Note 66.] 
 
 (7) See also the reason given in Sect. 289. Plow. 419. See further 466. 
 
 (1) See Dy. 337. a. 
 
 (2) See post. Sect. 289.
 
 185. a.] 
 
 [*] 14 E. 4. 1. b. 
 18 E. 2. 
 Briefe, 830. 
 8E. 2. Entry, 77. 
 18 E. 3. 28. 
 38 E. 3. 26. 
 8 H. 6. 25. 
 Vid. 46 E. 3. 77. 
 35 H. 6. 39. 
 [t] Dier. Mich. 
 2 & 3 Eliz. 187. 
 lib. 1. fol. 96. 
 Vide lib. 6. 
 fol. 78, 79. 
 (Post. 318. a.) 
 
 [u] 33 H. 6. 5. a. 
 9Eliz.Dyer,263. 
 
 [ic] 37 H. 8. 
 tit. Alienation, 
 Br. 31. 
 10 E. 4. 3. b. 
 40 E. 3. 41. b. 
 33 H. 6. 5. 
 22 H. 6. 42. b. 
 per Pole. 
 35 E. 3. 
 Release, 43. 
 33 E. 3. 
 Avowry, 195. 
 14 H. 8. 2.(6) 
 (Cro. Jam. 696. 
 Plowd. 198. 
 6 Co. 79. a. 
 
 8 Co. 145. 
 
 9 Co. 107. b. 
 Post. 233. b.) 
 
 Of Joyntenants. L. 3. C. 3. Sect. 286. 
 
 "And the cause is, for that he which surviveth claimeth and 
 hath the land by the survivor, dx." Here again Littleton sheweth 
 the reason : and the cause, wherefore the survivour shall not 
 hold the land charged, is, for that he claynieth the land from 
 the first feoffor (3), and not by his companion, which is Littleton's 
 meaning when he saith, (that he claimeth by survivor) for [s] 
 the surviving feoffee may plead a feoffment to himself without 
 any mention of his joynt feoffee (4). And this is the reason, 
 that if two joyntenants be in fee, and the one maketh a lease for 
 yeares, reserving a rent and dyeth, the surviving feoffee [i] shall 
 have the reversion by survivor, but he shall not have the rent, 
 because he claimeth in from the first feoffor, which is paramount 
 the rent. If there be two joyntenants in fee, and the one joyn- 
 tenant granteth a rent charge out of his part, and after releaseth 
 to his joynt companion and dyeth, he shall hold the land charged, 
 for that he is out of the reason and cause set downe by Littleton, 
 because he claimeth not by survivor, in as much as the release 
 prevented the same. And of this opinion was Littleton him- 
 selfe [u] before the edition of his booke. But all men agree, 
 that if A. B. and G. be joyntenants in fee, and A. chargeth his 
 part and then releaseth to B. and his heirs, and dyeth, that 
 the [ic] charge is good for ever; because in that case B. cannot 
 be in from the first feoffor, because he hath a joynt companion 
 at the time of the release made, and several writs of praecipe 
 must be brought against them (5). And albeit the release of 
 one joyntenant to the residue of the joyntenants makes no de- 
 gree in supposition of law, neither is there any severall estate 
 between them, but the estate of him that releaseth is as it were 
 extinguished and drowned in their estate and possession, so as 
 one prsecipe lyeth against them (7), yet shall they hold the land 
 charged as is aforesaid. As if tenant for life grant a rent charge, 
 and after surrendreth 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 (8). 
 
 u But othertcise it is of parceners, for if there be two parceners, 
 &c." This is to be intended as well of parceners by custome as 
 of parceners by the common law; and here is implyed the reason 
 of the diversitie, for that the survivor doth claime above the 
 charge, and the heire by descent under the charge (9). 
 
 Sect. 
 
 (3) For this same reason a wife shall not have dower out of lands of which 
 her husband was jointenant. Ant. 37. b. See post. 385. a. a case of warranty 
 depending on the same principle. — [Note 67.] 
 
 (4) Ace. F. N. B. 219. B. 
 
 (5) As to the partial effect of such a release on the jointenancy, see post. 
 Sect. 304. 
 
 (6) It should be 12. a. 
 
 (7) See the case of waste in Brownl. Rep. 238. 
 
 (8) Ace. 338. b. 233. b. 
 
 (9) In Calthrope's reading on Copyholds, 64. the doctrine of admission on 
 the death of copyholders being jointenants or parceners is stated according to 
 this diversity.
 
 L. 3. C. 3. Sect. 287. Of Joyntenants. [185. a. 185. b. 
 
 Sect. 287. 
 
 A LSO, if there be two joyntenants of land in fee simple within a 
 borough where lands and tenements were devisable by testament, and 
 if the one of the said two joyntenants deviseththat which to him belongeth 
 by his testament, $c. and dieth, this devise is voide. 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 commeth by lata to his companion, 
 ivhich surviveth, by the survivor ; the which he doth not claime, nor hath 
 any thing in the land by the devisor, but in his own right by the survi- 
 vor according to the course of lata, <fc. and for this cause such devise is 
 void. But othenoisc it is of parceners seised of tenements devisable in 
 like case of devise, §c. causa qua supra. 
 
 " T>Yhis testament, &c." Either in writing or nuncupative, l Bl. R. 476. 
 
 X> J- . «i . 3 Burr. 1488. 
 
 according to the custome. Amb. 617. 
 
 See also Perk. 
 u And the cause is, for that no devise can take effect till after the s. 500. 
 
 death of the devisor (10) and by his death all the land Eq> Ca " Ab * m> 
 
 t 185.1 presently commeth by the law to his companion, B@f&c." 
 b. | Here both their claims commence at one instant; 
 
 and although an instant est unum indivisibile tempore PI. Com. in Ful- 
 quod non est tempus nee pars tempores, ad quod tamen partes merston's case. 
 tempores connectuntur, and that instans est finis unius temporiset 
 prineipium alterius (1) ; yet in consideration of law there is a 
 prioritie of time in an instant, as here the survivor is preferred 
 before the devise ; for Littleton saith, 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 commeth by the law to his 
 companion. Whereby it appeareth, that Littleton by these 
 words post mortem et per mortem, though they jump at one 
 instant, yet alloweth priority of time in the instant which he 
 distinguisheth hyper and post. And the reason of this prioritie (Plowd. 258. b. 
 is, that the survivor claymeth by the first feoffor (as hath been Ante 30 - ai) 
 said) and therefore in judgment of law his title is paramount 
 the title of the devisee, and consequently the devise void, 
 and the rule of law is, that jus accrescendl prwfcrtur ultima; 
 voluntati (2). 
 
 Two ferns joyntenants of a lease for yeares, one of them taketh (Plowd. 418. 
 husband and dieth, yet the term shall survive : for though all * Iob - ' ';. 
 
 , . \ J , . , , .- , ' . . .i Cro. Luz. 3d.) 
 
 chattels reals are given to the husband, it he survive, yet the 
 survivor between the joyntenants is the elder title, and after the 
 
 marriage 
 
 (10) Ace. ante 112. a. b. as' a reason for the goodness of a devise by 
 husband to wife. 
 
 (1) Therefore in Fitzwilliam's case, 6 Co. 32. it was argued, that the 
 indulgence of the law in connecting two times to make one instant time cannot 
 be extended to three times. See post. 298. a. a case in which priority of time 
 in an instant is allowed, for sake of saving the remainder in fee of a rent from 
 the effect of a suspension of the particular estate. — [Note 68.] 
 
 (2) Ace. as to goods, Office of Exec. ed. 1676, p. 26. Perk. sect. 526. 
 Swinb. on Testam. part. 3. sect. 6.
 
 185. b. 1 86. a. J Of Joyntenants. L. 3. C. 3. Sect, 288. 
 
 marriage the feme continued sole possessed ; for, if the hus- 
 band dyeth, the feme shall have it, and not the executors of 
 the husband (3). But otherwise it is of personal goods. 
 1 H. 5. Execu- If a ™ an De seised of a house, and possessed of divers heir- 
 tors, 108. lomes, that by custom have gone with the house from heire to 
 heire, and by his will deviseth away the heirelomes, this devise 
 is void; for Littleton here saith, the will taketh effect after 
 his death, and by his death the heirlomes by ancient custome 
 are vested in the heire (4), and the law preferreth the custome 
 before the devise. And so it is if the lord ought to have a 
 heriot when his tenant dieth, and the tenant deviseth away all 
 his goods, yet the lord shall have his herriot for the reason 
 aforesaid. And it hath been anciently said, that the herriot 
 [r] Fleta, lib. [2. s h a n b e pa id before the mortuary. \x\ Imprimis autem debet 
 cap. 50.(5) -7-7 . , . -a j • j t ™ 
 Bracton lib. 2. qmhbet, qus testaverit, dominum suum de meliore re quam 
 
 fol. 60. habuerit recognoscere, et postea ecclesiam de alia meliore, &c. 
 
 Britton, fol. 178. w herein the lord is preferred, for that the tenure is of him. This 
 _ amb. ol. 119. ^ ut y fcQ ^ e } or( j j s verv antient ; for in the laws before the 
 Conquest is said, sive quis incurid, sive morte repentind, fuerit 
 intestat' mortuus, dominus tamen nullum rerum suarum partem 
 (prseter earn qucejure debetur heriot i nomine) sibi assumito (6). 
 In the Saxon tongue it is called heregeat, as much to say 
 (as I take it) as the lord's [beste] ; for here is lord, and geat is 
 [beste]. But let us return to Littleton. 
 
 " But otherwise it is of parceners seised of tenements deviseable 
 in like case of devise, &c. causa qua. supra." 
 
 The reason is evident, for that there is no survivour between 
 coparceners, but the part of the one is descendible, and conse- 
 quently may be devised. 
 
 JS@- Sect. 288. 
 
 m 
 
 A LSO, it is commonly said, that every jointenant is seised of the land 
 
 which he holdeth jointly (1) per my et per tout ; and this is as much 
 
 to say, as he is seised by every parcell and by the ivlwle, $c, and this is 
 
 true, for in every parcell, and by every parcell and by all the lands and 
 
 tenements he is joyntly seised iviih his companion (2). 
 
 Vide Sect. 697. « A LSO, it is commonly said, &c." That is, it is the common 
 opinion, and communis opinio is of good authority in law. 
 A communi observant id non est recedendum (3), which appeareth 
 here by Littleton. 
 
 " Per 
 
 (3) See ante 46. b. post. 351. a. and the case of a purchase by husband and 
 wife jointly, the former being a villein, in 2 Ro. Abr. 733. D. pi. 2. 
 
 (4) Ace. ante 18. b. 
 
 (5) It should be cap. 57. 
 
 (6) See this same passage cited ante 176. b. 
 
 (1) &c. in L. & M. & Boh. 
 
 (2) &c. in L. & M. & Boh. 
 
 (3) This same maxim is cited post. 229. b. and 364. b. In Wingate's Max- 
 ims, 752, there is a variety of cases collected to illustrate the application of 
 this rule. Other rules immediately connected with this are, that communis 
 
 error
 
 L. 3. C. 3. Sect. 288. Of Joyntenants. [186. a. 
 
 " Per my et per tout." Et sic totum tenet et nihil tenet, scil. ( p ° 8t ^ 350. a. 
 lotum conjunctim, et nihil per se separatim. And albeit they are £ R °' Abt\ 86.) 
 so seised (as for example where there be two joyntenants in vide Bracton, 
 fee) yet to divers purposes each of them hath but a right to a lib. 5. fo. 430. 
 moitie ; as to enfeoffe give or demise, or to forfeit (4) or lose njjj^flf 
 by default in a, praecipe (5). If my villein \jf\ and another pur- ca p. 4. 
 chase lands to them two and their heires, I may enter into a 40 E. 3. 40. 
 
 ., 18 E. 2. Bre. 831. 
 
 m0lt y- 35 H. 6. 39. 
 
 Vide the second part of the Institutes upon the 6 chapter of the statute de 
 bigamis. Fleta. lib. 1. cap. 28. 40 Ass. 79. 48 E. 3. 16. [y] Vid. 6 E. 3. 4. 
 7 E. 4. 29. 11 El. Dyer, 183. (2 Co. 58. a. Cro. Jam. 91. 1 Leon. 47.) 
 
 And where all the joyntenants joyne in a feoffment, every of 
 them in judgment of law doth give but his part (6). If an alien 
 and a subject purchase lands jointly, the king upon office found 
 shall have but a moity (7). And Littleton afterwards in this 
 Chapter (8) saith that one joynt tenant hath one moity in law, 
 and the other the other moity. And therefore if two joynten- 
 ants be [z\ and both they make a feoffment in fee upon condition, [«] PI. Com. 
 and that for breach thereof one of them shall enter into the f;™™ g £P' 
 whole, yet he shall enter but into a moitie, because no more in ^ ? ' osU 192/a.) 
 judgment of law passed from him (9) : and so it is of a gift in 
 taile or a lease for life, &c. 
 
 Yet everv ioyntenant may warrant the whole; [a] because a M Vide the 
 
 J J J •> , _ v.- /ia\ second part of 
 
 man' may warrant more than passetn trom nim (1U). the institutes 
 
 If two joyntenants make a feoffment in fee [b] and one of the upon the 6 
 feoffors dye, the feoffee cannot plead a feoffment from the sur- jJjPjJJ^ of 
 vivor of the whole because each of them gave but his part; bi g a s mis> 
 but otherwise it is on the part of the feoffee, as hath been said [&] u E. 4. 5. 
 before and the otber 
 
 And where two joyntenants be, the one of them [c] may make s °j° d es 
 the other his baylife of his moiety, and have an action of account [ e ] 21 E. 3. 60. 
 (11) against him. And one joyntenant [d~\ may let his part for (Post 200 b.) 
 yeares or at will to his companion. 60.33. 
 
 If two joyntenants be of certaine lands, and the one of them (p ost . 193. b. 
 by deed indented Tel bargaineth and selleth the lands, and the 335 a.) 
 
 J l j o Qe j 6 E. o. tit. 
 
 Faits inroll. 9. Br. (Cro. Ch. 217. 569. 1 Co. 173. 
 
 other 
 
 error facit jus, and res judicata pro veritate habetur, and also that minime 
 mutanda sunt qnm certam interpretation-em habuerunt, as to which see post. 
 365. a. Hob. 147. Wing. Max. 758. and ant. 52. b. in the niargin. In a late 
 ecclesiastical case of great importance, in which bonds of resignation were con- 
 demned by the supreme court of appellant jurisdiction, these four maxims ap- 
 pear to me to have included the chief topic of argument in favour of such 
 bonds.— [Note 69.] 
 
 (4) Ace. as to copyholders being jointenants, Calthorpe's Reading, 9/. Kitcn. 
 
 French ed. 82. a. 
 
 (5) See ant. 125. b. 
 
 (6) Ace. 11 H. 7. a. pi. 5. 
 
 (7) See ant. 180. and note 2, there. 
 
 (8) Post. Sect. 291. . 
 
 (9) See ant. 47. a. & post. 214. a. the case of a lease by two jointenants with 
 reservation of rent to one, and the difference there taken between such a lease 
 by parol and one by deed indented. See also Dy. 263. a. 
 
 (10) See post. Sect. 700. 
 
 (11) See ant. 172. a.
 
 186. a. 186. b.] Of Joyntenants. L. 3. C. 3. Sect. 289. 
 
 other joyntenant dyeth, and then the deed is inrolled, there shall 
 passe nothing but the moity which the bargainor had at the time 
 of the bargain (12). 
 
 . Sect. 289. 
 
 A LSO, if two joyntenants be seised of certaine lands in fee simple, 
 and the one letteth that to him belongeth to a stranger for terme of 
 forty yeares and dyeth before the terme beginneth, or within the terme, 
 in this case after his decease the lessee may enter and occupie the moitie 
 let unto him during the terme, fyc. although the lessee had never the 
 possession thereof in the life of the lessor, by force of the same lease, $c. 
 And the diver sitie betweene the case of a grant of a rent charge (1) 
 [aforesaid, and this case, is this. For in the grant of a rent charge by] a 
 joyntenant, £c. the tenements remaine alwayes as they were before, with- 
 out this, that any hath any right to have any par cell 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 the joynten- 
 ant to another for tearme of yeares, §c. presently by force of the lease 
 the lessee hath right in the same land, (videlicet) of all that which to the 
 lessor belongeth, and to have this by force of the same lease during his 
 terme (2). And this is the diversitie (3). 
 
 " J) Y force of the same lease, &c." 
 
 [/] Vid Sect ■*-* By this &c. is implyed, [/*] that where our author speak- 
 
 i 8 S & t 6 2°* et ^ °^ j°y ntenants seised in fee, that so it is if two be seised 
 
 (Dyer, 187. a. for life, and one make a lease to begin presently or 
 
 2 Ro. Abr. 89.) jg@p~ infuturo, and dieth, this lease shall binde the sur- ["186. ~j 
 
 [7] 11 H. 4. 90. vivor, as it hath been adjudged (4). [g] And if one [ b. J 
 
 17 E 4 6a joyntenant grant vesturam terrce or herbagium terrce, 
 
 9 H. 6. 52. for yeares, and dieth, this shall binde the survivor; for such a 
 
 21 H. 7. 29. lessee hath right in the land. So it is if two joyntenants be of 
 
 18 E 3 * a water > an d tne one granted the several pischary. 
 Execution, 56. 11. El. Dy. 285. Plow Com. 160. a. Temps. E. 1. Ass. 422. 
 20 H. 6. 4. 7 H. 7. 13. 10 H. 7. 24. (Ante 4. b.) 
 
 " The one letteth." If two joyntenants be of an advowson, 
 [h] 6 E. 3. and [A] the one presenteth to the church, and his clerke is 
 
 l% Z l' on' 01 admitted and instituted, this in respect of the privity shall 
 17 E. 3. 37. b. not put the other out 01 possession (5); but it that joynten- 
 
 22 E. 3. 9. ant that presenteth dieth, it shall serve for a title in a quare 
 
 11 H 4 54 irapedit brought by the survivor (6). But yet if one joyntenant 
 
 15 E. 3. Dar. Presentment, 11. 10 E. 4. 94. 1 H. 7. 1. b. 2 R. 3. Quar. Imp. 102. 
 9 El. Dy. 259. 36 H. 8. Br. Present. 27 H. 8. fo. 11. 5 H. 7. 8. 6 E. 4. 10. b. 
 Doct. & Stud 116. 34 H. 6. 40. 20 E. 3. Quar. Imp. 63. F. N. B. 34. V. (2 Ro. Abr. 355.) 
 
 or 
 
 (12) See ante 147. b. 
 
 (1) The following words between brackets not in L. & M. nor B,oh. 
 
 (2) life instead of terme in L. & M. & Roh. 
 
 (3) &c. in L. & M. & Roh. 
 
 (4) See ace. Cro. Jam. 91. & 2 Brownl. 175. 
 
 (5) See post. 243. a. 249. a. 
 
 (6) Ace. more fully, 2 Inst. 365. According to F. N. B. 34. the law is the 
 same between coparceners which agrees with lord Coke's doctrine about them 
 in 2 Inst. 365. and post. 243. a. See further the case of usurpation of a right 
 
 of
 
 L. 3. C. 3. Sect. 290. Of Joyntenants. [186. b. 187. a. 
 
 or tenant in common present, or if they present severally, the 
 ordinary may either admit or refuse to admit such a presentee, 
 unlesse they joyn in presentation, and after the sixe moneths he 
 may in that case present by lapse (7). 
 
 But if two or more coparceners be, [f] and they cannot agree [»'] Bract. It 4. 
 to present, the eldest shall present; and if her sister doth dis- Brit^ol 2 ^ 247 
 turbe her, she shall have a quare impedit against her; and so 45 e. 3. 
 shall the issue and the assignee of the eldest, and yet he is Fines, 41. 
 tenant in common with the youngest (3). And in the same I ' ?' ,-„ 
 
 1 11 • /> ill 1 11 Quar. Imp. l/o. 
 
 manner the tenant by the curtesie of the eldest shall present. 33 h. 6. 9. 
 But if there be foure coparceners, and the eldest and the second 19 E. 3. ib. 50. 
 present, and the other two present joyntly or severally, the or- p 1 ^ 5 ^ 1 ^ v 
 dinary may refuse them all; for the eldest did not present alone, (pi ,vd. 332. b. 
 but she and one other of her sisters. But now let us returne to 333. a. 
 Littleton (9). 
 
 10 Co. 135. b. 
 2 Ro. Abr. 346. 
 F. N. B. 33. E. Ante 166. b. Post, 243. a. & Sect. 299.) 
 
 m 
 
 s^ Sect. 290. 
 
 A LSO, joyntenants (if they will) may make partition between them, 
 and the partition is good enough ; but they shall not be compelled to 
 do this by the law ; but if they will make partition of their own will and 
 agreement, the partition shall stand in force. 
 
 " TUt AT make partition." But this partition must be [Jc] by ( Post -. 198. b.) 
 
 J deed, as hath been said before. But joyntenants for jJJKnaL 
 yeares may [I] make partition without deed. (Ante 169. a. 
 
 " They shall not be compelled." This is true regularly; but r/-j ^-£ L 
 by the custome of some cities and boroughs, one joyntenant or Dyer, 350. 
 tenant in common may compell his companion, by writ of par- r - N - B. 62. b. 
 tition grounded upon the custome, to make partition (1). But 
 since Littleton wrote jointenants and tenants in common gene- 
 rally are compellable to make partition by writ framed upon 
 the statutes [m] of 31 & 32 H. 8. as before hath been said (2). [ m ] 31 H. S.c.l. 
 
 32 H. 8. cap. 32. Vide Sect. 264. 247. 259f. Mich. 16 & 17 El. 1. 340. inter Harris 
 & Eden, adjudge, ace. 18 El. Dy. 350. b. Vide before in the Chapter of Partition, 
 many bookes cited concerning this matter. (Ante 175. a. Sect. 250. Mo. 29. Dy. 350. 
 Ante 167. b.) 3 E. 3. 48. F. N. B. 9. B. 7 Ass. 10. 7 E. 3. 29. 10 Ass. 17. 10 E. 3. 40. 
 43. 12 Ass. 15. 17. 12 E. 3. Judgement, 102. 20 E. 3. Ass. 62. 28 Ass. 35. 23 Ass. 
 10. 7 H. 6. 4. 19 H. 6. 45. 3 E. 4. 10. Vide Sect. 247. Brit. fo. 112. lib. 6. fo. 12 
 & 13. Morrice's case. 
 
 And 
 
 of presenting, ante 149. a. See also the case of attornment to one of two 
 jointenants, post. Sect. 566. Add 5 Co. 97. b. — [Note 70.] 
 
 (7) See 5 H. 7. 8. a. Burn. Eccl. L. tit. Advowson, Wats. Compl. Incumb. c. 8. 
 
 (8) See my note on this subject ante 166. b. Hob. 119. Dy. 55. a. 
 
 (9) See further on presentation where more than one have an interest in an 
 advowson, 2 Gibs. Cod. 1st ed. 804. ante 17. b. 18. a. 17 Vin. Abr. 325. 
 Mallory's Quare Impedit, 71 to 75. 
 
 (1) For instances of such custom, see for London, F. N. B. 62. B. and for 
 gavelkind land, ante Sect. 265. and Robins, on Gavelk. 108. 
 
 (2) Ante 169. a. — In a Coke upon Littleton I have, there is the following 
 
 note 
 
 * It should be Sect. 250, «* it seems. See the vote below. 
 
 + Probably Sect. 250, and the Comment thereon, were intended to be re/erred to; for 
 Sect. 259 treats of the period when infants are said to attain their full age, and is quite 
 irrelevant to the subject of partition.
 
 187. a,] Of Joyntenants. L. 3. C. 3. Sect. 291. 
 
 And albeit they be now compellable to make partition, yet 
 seeing they are compellable by writ, they must pursue the sta- 
 tutes, and cannot make partition by 'parol, for that remaines 
 at the common law. And by Littleton's authoritie herein it 
 seemeth to me, that if one joyntenant or tenant in common 
 disseise another, and the disseisee bring his assise for the moytie, 
 that in this case, though the plaintife prayeth it, yet no judge- 
 ment shall be given to hold in severaltie, for then at the common 
 law there might have beene by compulsion of law a partition 
 between joyntenants and tenants in common, and by rule of 
 law the plaintife must have judgement according to his pleint 
 or demand. 
 [«] 29 E. 3. If two joyntenants be [n] of land with warranty, and they 
 
 tit. Garr. make partition by writing, the warrantie is destroyed ; but if they 
 
 make partition by writ of partition upon the statute, the warran- 
 tie remaines, because they are compellable thereunto (3). 
 
 Sect. 291. 
 
 ALSO, if a joynt estate be made of land to a husband and wife and 
 to a third person, in this case the husband and wife have in law in 
 their right but the moity, (4) [and the third person shall have as much as 
 the husband aad tvife, viz. the other moity, ^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 jointenants, ivhere the one hath by force of 
 the joynture the one moity in law, and the other, the other moity , $c.(l). 
 In the same manner it is where an estate is made to the husband and ivife 
 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. 
 
 AlORE shall be said of the matter touching jointenancy, in the 
 Chapter of Tenants in Common, and Tenant by Elegit, and Tenant 
 by Statute Merchant. 
 
 (Post. 299. b. fTfllE husband and wife have in late in their right but the 
 9 5 p a «8 moity, &c." William Ode and Joane his wife [o] purchased 
 
 Ante 28. b. n. 1. l an ds to them two and their heires ; after William Ode was at- 
 [o] Mich. 33. E. 3. coram rege Salop, in Thesaur. (Post. 326. a 
 1 Ro. Abr. 388, 389. 9 Co. 140.) 
 
 tainted 
 
 note on the extent of the statutes of 31 and 32 H. 8. " Adjudged by St. John 
 " chief justice, and Windham and Archer justices, Hilary 1659 in the common 
 "bench, in the cause between Major and the lord Coventry, that a tenant by 
 " elegit may have a writ of partition by the statute of 32 H. 8, and it is within 
 "the meaning thereof." This is followed with a reference to Cro. Cha. 44. 
 where it is said that the statute doth not extend to copyholds. — [Note 71.] 
 
 (3) Ace. ante 165. a. and b. as to parceners, because they are compellable 
 to make partition at common law. See the case of aid between parceners after 
 partition, ante 174. a. and b. 
 
 (4) The words following between brackets not in L. and M. or Roh. 
 (1) No &c. in L. and M. or Roh.
 
 L. 3. C. 3. Sect. 291. Of Joyntenants. [187. a. 187. b. 
 
 ri87. 
 
 ] 
 
 F. N.B. 194. 
 Calth. Co. 92. 
 2 Bl. 1211. 
 5 T. R. 652. 
 Com. Dig. 
 Baron & Feme, 
 1 Ro. Abr. 271. 
 
 Vide Sect. 665. 
 
 [p] Bracton, 
 lib. 5. fol. 416. 
 20 II. 3. 
 Discent, 52. 
 lib. 4, vol. 68. 
 Toker's case. 
 PI. Com. 483. 
 Nichol's case. 
 
 tainted of high treason for the murthcr of the kind's father, E. 2. 
 and was executed; Joan his wife survived him; E. 3. granted 
 the lands to Stephen de Bitterly and his heires; John Hawkins 
 the heire of the said Joan in a petition to the king discloscth 
 this whole matter, and upon a scire facias against the 
 patentee hath judgement to recover the B^"" lands, for 
 L b. J the reason here yielded by our author. 
 
 But if an estate be made to a man and woman and 
 their heires before marriage, and after they marry, the husband 
 and wife have moities between them, which is implyed in these 
 words of our author, husband and wife (2). 
 
 " But one person in laic." Bracton saith, [^>] vir et uxor sunt 
 quasi unica persona quia euro una et sanguis units (3). It hath 
 been said, that if a reversion be granted to a man and a woman 
 and their heires, and before attornment they entermarrie, and 
 then attornment is made, that the husband and wife shall have 
 no moieties in this case (4), no more than if a charter of feoff- 
 ment be made to a man and a woman, with a letter of atturnie 
 to make livery, they entermarry, and then livery is made secun- 
 dum forma m chartce, in which case it is said that they have no 
 moities. But certain it is, that if a feoffment were made before 
 the statute of 27 H. 8. of uses to the use of a man [<?] and a 
 woman, and their heirs, and they entermarry, and then the sta- 
 tute is made, if the husband alien it is good for a moity : for the 
 statute executes the possession according to such qualitie, man- 
 ner, forme, and condition, as they had in use, so as though it vest 
 during the coverture, yet the act of parliament executes severall 
 moities in them, seeing they had several moities in the use (5). 
 
 If an estate be made to a villeine and his wife [r] being free, 
 and to their heires, albeit they have severall capacities, viz. the 
 villeine to purchase for the benefit of the lord, and the wife for 
 her owne, yet if the lord of the villeine enter, and the wife sur- 
 viveth her husband, she shall injoy the whole land, because there 
 be no moieties between them. 
 
 A man makes a lease to A. and to a baron and feme, viz. to 
 A. for life, to the husband in taile, and to the feme for yeares, 
 iu this case it is said, that each of them hath a third part in 
 respect of the severaltie of their estates. 
 
 If a feoffment be made to a man and a woman and their heires 
 with warrantie, [s] aud they entermarrie, and after are im- 
 pleaded and vouch and recover in value, moities shall not be 
 between them; for though they were sole when the warrantie 
 was made, notwithstanding at the time when they recovered 
 and had execution they were husband and wife, in which time 
 they cannot take by moities. 
 
 Albeit 
 
 (2) See ace. as to this difference between a joint estate to husband and 
 wife before marriage and one after, Calthorpe's Read, on CfJpyh. 92. F. N. B. 
 191. B. See further case of Butler and Baker, 3 Co. the case of Margery 
 More, ante, 133. a. the case of 4 Ass. 4. cited in 1 Ho. Abr. 271. and the case 
 of Ward and Walthew, Yelv. 101. 
 
 (3) See ante 112. a. where the same passage from Bracton is cited. 
 
 (4) See ace. post. 310. a. and there the doctrine is more positively expressed. 
 See further the case of a lease for life to baron and feme, and afterwards Con- 
 firmation, post. 299. b. 
 
 (5) See Dy. 200 a. 
 
 [</] 4 Marias, 
 Dyer, 149. 
 3 Marias, 
 Dyer, 122. 
 29* H. 8. 
 Dyer, 32. 
 
 [r] 40 Ass. p. 7. 
 
 0] PI. Com. 483. 
 Nichol's case.
 
 187. b. 188. a. J Of Joyntenants. L. 3. C. 3. Sect. 291. 
 
 10 H. 7. 20. 
 
 [«] 11 E. 3. 
 Cui in vita, 9. 
 16 E. 3. ibid. 
 36 E. 3. ib. 20. 
 35 Ass. pi. 15. 
 31 H. 6. tit. Eat. 
 congeable, 54. 
 19 H. 6. 45. 
 F.N.B. 193.K. 
 
 Vide Sect 302. 
 (Post. 327. b.) 
 
 * Vide the sta- 
 tute of 32 fl. 8. 2. 
 It is no discon- 
 tinuance at this 
 day. 
 
 [»] PL Com. 419. 
 
 Bratchbridge's 
 case. 
 
 Albeit baron and feme (as Littleton here saith) be one person 
 in law, so as neither of them can give any estate or interest to 
 the other (6), yet if a charter of feoffment be made to the wife, 
 the husband as atturney to the feoffor may make liverie to the 
 wife (7) : and so a feme covert, that hath power to sell land by 
 will, may sell the same to her husband, because they are but in- 
 struments for others, and the state passeth from the feoffor or 
 devisor. 
 
 If a husband, wife, and a third person purchase lands to them 
 and their heires, (J) and the husband before the statute of 32 H. 8. 
 cap. 1, had aliened the whole land to a stranger in fee, and died, 
 the wife and the other joyn tenant were joyntenants of 
 the right, and if the "wife OCT had died, the other joyn- ["188.1 
 tenant should have had the whole right by survivor (1 ), | a. 
 for that they might have joined in a writ of right (2), 
 and the discontinuance should not have barred the entrie of the 
 survivor, for that he claymed not under the discontinuance, but 
 by the title paramount above the same by the first feoffment (3), 
 which is worthie of observation. But if the husband had made 
 a feoffment in fee but of the moity, and he and his wife had 
 dyed, their moity 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 entrie may stand 
 in joynture; for at the common law the alienation of the hus- 
 band was a discontinuance to the wife of the one moity, and a 
 disseisin of the other, so as after the death of the husband, the 
 wife hath a right of action to the one moity, and the other 
 joyntenant a right of entry into the other, but they are join- 
 tenants of the right, because they may joyne in a writ of right. 
 
 Secondly, that a right of action or a bare right of entrie 
 cannot stand in joynture with a freehold or inheritance in pos- 
 session, and therefore if the husband make a feoffment of the 
 moitie, this was a discontinuance of that moity,* and the other 
 jointenant remained in possession of the freehold and inherit- 
 ance of the other moity, which for the time was a severance of 
 the jointure (4) : and so are all the books, which seemed to varie 
 amongst themselves, clearly reconciled. 
 
 If two joyntenants be of a rent, and the one of them disseise 
 the tenant of the land, [»] this is a severance of the joynture for a 
 time ; for the moitie of the rent is suspended by unitie of posses- 
 sion (5), and therefore cannot stand in joynture with the other 
 moitie in possession. And this is to be observed, that there shall 
 never be any survivor, unless the thing be in joynture at the in- 
 stant of the death of him that first dyeth (6) ; for the rule is, nihil 
 de re accrescit ei, qui nihil in re quando jus accrescent habet. 
 
 Also if a man demiseth lands to two, to have and to hold to 
 the ^ne for life, and the other for yeares, they are no joyn- 
 tenants; 
 
 (6) Ace. ante 112. a. and observe note 6, there. 
 
 (7) Ace. ante 52. a. 
 
 (1) Ace. 2 Ro. Abr. 88. D. pi. 3. 
 
 (2) See post. 337. a. 
 
 (3) See post. 364. b. and ante 185. a. 
 
 (4) Ace. post. 337. b. 
 
 (5) See ante 148. b. 
 (G) Ace. post. 193. a.
 
 L. 3. C. 3. Sect. 291. Of Joyntenants. |_ 18a a - 
 
 tenants; for a state of freehold cannot stand in joynture with 46 E. 3. 21. 
 a terme for yeares : and a reversion upon a freehold cannot stand ™ H. 6. 4o. 
 in joynture with a freehold and inheritance in possession, as 3 E 4 ' 10 * 
 shall be said in the next Chapter (7). Neither can a seisin in 
 the right of a politique capacity stand in jointure with a seisin 
 in a natural capacity, as shall be said hereafter (8). 
 
 If two femes be joyntly seised, and they take barons, and the 
 barons joyne in an alienation and dye, the wives are joyntenants 
 of the right, and may joyne in a writ of right ; and yet they may 
 have severall writs of cuiinvita at their election; but when they 
 have recovered in those severall writs, they shall be joyntenants 
 againe. But if the barons had aliened severally, this had been a 
 severance of the joynture for a time, for the reason abovesaid. 
 
 If two joyntenants, the one for life, and the other in fee, lose 
 by default, the one shall have a writ of right, and the other a 
 quod ei deforced*; and yet when they have severally recovered, 
 they shall be joyntenants againe (9). So it is if two joyntenants 
 be disseised, and an assise is brought, and the one is summoned 
 and severed, and the other recover the moitie, and after another 
 assise is brought, and he that recovereth * is summoned and 
 severed, and the other recover, albeit they severally recover, yet 
 they are joyntenants againe (10). 
 
 And in all cases where the joyntenants pursue one joynt vide Lit. cap. 
 remedy, and the one is summoned and severed and the other Remitter, the 
 recover, he that is summoned and severed shall enter with him; ,p ogfc ^^ ^ 
 but where their remedies be severall, there the one shall not io H. 6. 10. 
 enter with the other, till both have recovered : and the same law 31 H. 6. tit. 
 is of coparceners. If lands [to] be demised for life, the remainder Jf jfj*ffbl 
 to the right heires of /. S. and of I.A r . I. S. hath issue and 3 E . 4. 10. 
 dieth, and after I.N. hath issue and dieth, the issues are not 37 H. 6. 8. 
 joyntenants, because the one moity vested at one time, and the jM^ ^ -^ 
 other moity vested at another time(ll). And yet in some 38 E . 3 . 
 cases there may be joyntenants, and yet the estate may vest in (Cro. Jam. 259.) 
 them at severall times. _ Brent's case (12) 
 
 If a man [x] make a feoffement in fee to the use of himselfe iLd.Baym.311. 
 and of such wife as he should afterwards marrie, for terme of 
 their lives, and after he taketh wife, they are joyntenants, and 
 yet they come to their estates at severall times (13). 
 
 * "recovereth" seems to be here inserted for recovered. See Mr. Ritso's Intr. p. 118. 
 
 And 
 
 (7.) Post. Sect, 302. near the end. 
 
 (8) Post. Sect. 297. 
 
 (9) See post. 214. a. and Bro. Abr. Join tenants, 6. 
 
 ^10) A like case of parceners is stated before, and resolved in the same way. 
 Ante 164. a. See further 19 H. 6. 45. b. 
 
 (11) For other cases where joint words are construed to operate severally for 
 the like reason, see the arguments in Mr. Justice Windham's case, 5 Co. 7. a. 
 
 (12) It is in Dy. 339. b. pi. 48. but without any name. It is also much at 
 large in 2 Leon. 14. 
 
 (13) See contra as to an estate at common law, the case of a gift to one and 
 his children, ante 9. a. The reason of the difference is, that in the case of the 
 use the estate is vested and settled in the feoffees till the future use comes into 
 esse. See further as to this difference and the reason of it, 1 Co. 100. b. 101. 
 a. and Dy. 274. b.— [Note 72.]
 
 188.a.&b.l89.a.] Of Tenants in Common. L.3.C.4.S.292. 
 
 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 joyn- 
 tenants. 
 
 In this Section are three &e. The first and second are at 
 large explained before; the last is intended where more parties 
 take than three. 
 
 (Noy, 13.) 
 
 b^Chap. 4. [188.] 
 
 Of Tenants in Common. Sect. 292. 
 
 ^TENANTS in Common are they, which have lands or tenements in 
 fee simple, fee taile, or for terme of life, $c. and they have such 
 lands or tenements by severall titles, and not by a joynt title, and none 
 of them know of this his severall, but they ought by the law to occupie 
 these lands or tenements in common, and pro indiviso to take the profits 
 in common. And because they come to such lands or tenements by 
 severall titles, and not by one joynt title, and their occupation and pos- 
 session shall be by law between them in common, they are called tenants 
 in common. As if a man infeoffe two joyntenants in fee, and the one 
 of them alien that which to him belong eth to another in fee, now the 
 alienee and the other jointenant are tenants in common, because they 
 are in such tenements by severall titles, for the alienee commeth to the 
 moytie by the feoff ement of one of the joyntenants, and the other joy un- 
 tenant hath the other moitie by force of the first feoff ement made to him 
 and to his companion, $c. (1). And so they are in by severall titles, 
 that is to say, by several feoff ements, $c. (2). 
 
 Fleta, lib. 3. J ITTLETON having spoken of parceners, which are onely 
 cap. 4. -*^ by descent, and of joyntenants, which are onely by purchase 
 
 and by joint title, speaketh now of tenants in common, which 
 may be by three means, viz. by purchase, by descent, or by pre- 
 scription, as hereafter in this Chapter shall appeare(3). 
 
 S@T" Or for term of life, &c" Here &c. implyeth ri89.~| 
 pur terme d'auter vie, or for tearm of yeares, or for |_ a - J 
 any other fixed estate in the land. 
 
 And here it appeareth, that the essential difference between 
 joyntenants and tenants in common is, that joyntenants have the 
 lands by one joint title and in one right(l)f, and tenants in com- 
 mon by severall titles, or by one title and by severall rights; 
 Vide Sect. 296. which is the reason, that joyntenants have one joint freehold, and 
 tenants in common have severall freeholds. Onely this propertie 
 
 is 
 
 (1) No &c. in L. and M. or Roh. 
 
 (2) No &c. in L. and M. or Roh. 
 
 (3) See Sect. 310. which gives an instance of tenancy in common by pre- 
 scription. 
 
 (1) f See post. 299. b. the first line.
 
 L.3. C. 4. S.293-4-5. Of Tenants in Common. [189. a. & b. 
 
 is common to them both, viz. that their occupation is individed, 
 and neither of them knoweth his part in severall. 
 
 The example that Littleton putteth in this Section is perspicu- 
 ous, and needeth no explication. 
 
 Sect. 293. 
 
 (Ant. 1. b.) 
 11 Co. 38. 
 
 AND it is to be understood, that ivhen it is said in any booke that a 
 
 man is seised in fee, without more saying, it shall be intended in fee 
 
 simple; for it shall not be intended by this word {in fee) that a man is 
 
 seised in fee tayle, unlesse there be added to it this addition, fee tayle, $c. 
 
 THIS is evident, and secundum excettentiam it shall be taken Vide devant, 
 for the highest and best fee, and that is fee simple. { ™ Qt 73 ' a>) 
 
 " Addition, fee tayle, &c." Here is implyed a maxime in law, 
 viz. that additio probat minor itatem, as it is vulgarly said, the 
 younger son giveth the difference (2). 
 
 Sect, 294. 
 
 ALSO, if three joyntenants be, and one of them alien that which to 
 him belongeth to another man in fee, in this case the alienee is tenant 
 in common with the other two joyntenants : but yet the other tivo joyn- 
 tenants are seised of the two parts which remain (3) joyntly (5), and of 
 these two parts the survivor between them two holdeth place, $c. (4). 
 
 THIS needeth no explication, onely the &c. in the end of this 
 Section implyeth, that the same law is where there be more 
 joyntenants than three. 
 
 j-iso.j ^ Sect! 295. 
 
 ALSO, if there be two joyntenants in fee, and the one giveth that to 
 
 him belongeth to another in tayle, (1) [and the other giveth that to 
 
 him belongs to another in taile,~] the donees are tenants in common, £c 
 
 rpHE &c. in the end of this Section implyeth, that so it is Vide Sect. 300. 
 1 when a lease for life or pur auter vie is made, for in that 
 case also the lessees are tenants in common. 
 
 Sect, 
 
 (2) The difference of arms is meant. See more particularly as to this ant. 
 
 140. b. 
 
 (3) which remain not in L. and M. or Roh. 
 
 (4) No &c. in L. and M. or Roh. 
 
 (5) See Sect. 304 & 312. 
 
 (1) The words between brackets not in L. and M. or Roh.
 
 189. b. 190. a.] Of Tenants in Common. L. 3. C. 4. S. 296. 
 
 Sect. 296. 
 
 J^ UT if lands be given to two men, and to the heires of their two 
 bodies begotten, the donees have a joy nt estate for tearme of their lives; 
 and if each of them hath issue and dye, their issues shall hold in com- 
 mon, Sfc. But if lands be given to two abbots, as to the abbot of West- 
 minster and to the abbot of St. Albans, to have and to hold to them and to 
 their successors, in this case they have presently at the beginning an 
 estate in common, and not ajoynt estate. And the reason is, for that every 
 abbot or other soveraigne of a house of religion, before that he ivas made 
 abbot or soveraign, $c. was made but as a dead person in law, and when he 
 is made abbot (2), he is as a man personable in law onely to purchase and 
 have lands or tenements or other things to the use of his house, and not 
 to his own proper use, as another secular man may, and therefore at the 
 beginning of their purchase they are tenants in common ; and if one of 
 them die, the abbot which surviveth shall not have the whole by survivor, 
 but the successor of the abbot which is dead shall hold the moiety in 
 common with the abbot that surviveth, §c. 
 
 " TF lands be given to two men, &c." Of this sufficient hath 
 [«] Sect. 285. been spoken in the Chapter [a] of Joy n tenants. 
 
 (Ant. 182. a.) 
 
 " But if lands be given to two abbots, &c." In this case of 
 (2 Saund. 319.) the two abbots in respect of their several capacities, albeit the 
 i6^H^' i\ 9 v. b ' wor( ^ s ^ e J°y nt > y et tQe l aw M doth adjudge them to be seve- 
 3 H. V.ii.' ' rall y seised (3). 
 
 10 E. 4. 16. b. 5 H. 7. 25. 18 E. 3. 27. 49 E. 3. 25. b. (2 Ro. Abr. 91. 2 Saund. 319.) 
 
 Vide Sect. 200. The &c. in the end of this Section implyeth, that so it is, if any 
 18 E 3 27 t> 5 ' L c ~\ b°dy politique or corporate, be they regular as dead persons 
 in law (whereof our author here speaketh) or secular : 
 as if figg"" lands be given to two bishops, to have and to ri90.~l 
 hold to them two and their successors : albeit the |_ a. J 
 bishops were never any dead persons in law, but always 
 of capacitie to take, yet seeing they take this purchase in their 
 politique capacitie, as bishops, they are presently tenants in com- 
 mon, becaue they are seised in severall rights, for the one bishop 
 is seised in the right of his bishoprick of the one moietie, and the 
 
 other 
 
 (2) &c in L. and M. and Roh. 
 
 (3) Here joint words are construed to make several estates in respect of the 
 several capacities of the donees. In a former part vesting at several times makes 
 joint words to operate severally. Ant. 88. a.* and Mr. justice Wyndham's 
 case, 5 Co. 7. a. there cited in a note. A few passages farther, lord Coke gives 
 an instance of joint words passing two entire things to two grantees in conse- 
 quence of the several quality of the things granted. Post. 190. the case of a 
 corody. See further as to the effect from several capacities in the grantees, 
 post. 191. b. ant. 183. b. near the end. — [Note 73.] 
 
 * Wyndham's case is cited in note 11. of 188. a. which is, probably , the, part meant tobe 
 re/erred to,asfol. 88. a. being upon guardianship in socage, is quite irrelevant to the sub- 
 ject of jointenants.
 
 L. 3. C. 4. Sect. 297. Of Tenants in Common. [190. a. 
 
 other is seised in the right of his hishoprick of the other moitie, 
 and so hy severall titles and in severall capacities, whereas joyn- 
 tenants ought to have it in one and the same right and capa- 
 citie, and by one and the same joynt title. The like law is, if 
 lands be given to two parsons and their successors or to any (5 Co. 8. a. 
 other such like ecclesiasticall bodies politique or incorporate, as J h u a s ^, c s e c ^ n ) 
 hath been said. 
 
 If a corodie be granted to two men and their heires, in this 
 case, because the corodie is incertaine and cannot be severed, it 
 shall amount to a severall grant to each of them one corodie ; 
 for the persons be severall, and the corodie is personall(l). 
 
 Sect, 297. 
 
 A LSO, if lands be given to an abbot and a secular man, to have and 
 to hold to them, viz. to the abbot and his successors, and to the secu- 
 lar man to him and to his heires, they have an estate in common, causa 
 qua supra. 
 
 AND so it is, if lands be given to the parson of Dale and to F. N. B. 49. 1, 
 a lay man, to have and to hold them, that is to say, to the 16 EUkJatadn 
 parson and his successors, and to the lay man and his heires, 16 Asg p { x ' 
 they are presently tenants in common for the causes abovesaid. 2 R. 3. 16. 
 So of a bishop, &c. Et sic dc similibus. ' ^ 7 g j 4 
 
 (5 Co'. 8.) 
 
 If lands be given to the king and to a subject, to have and to pi. Com. in seig. 
 hold to them and to their heires, yet they are tenants in com- Barkley's case, 
 mon, and not joyntenants; for the king is not seised in his 
 naturall capacitie, but in his royall and politique capacitie, in (Ant. 16. a.) 
 jure coronae, which cannot stand in joynture with the seisin of 
 the subject in his naturall capacitie. So likewise if there be two 
 joyntenants, and the crowne descend to one of them, the joynture 
 
 (1) Lord Coke cites no authority for this. But in 8 E. 4. 17. there is a 
 case which tends to confirm and explain his doctrine as to a corody not being 
 grantable to more than one. The case arose on grant of a corody by Hen. b. 
 to two and the longer liver, where one was dead, the question being, whether 
 during the life of the survivor this was sufficient to justify the prior of Fns- 
 with, on whom the corody was chargeable, in refusing a new grantee sent by 
 Edward the fourth. Upon this case Nele serjeant argued for the king, that 
 a corody tohich is for one man cannot be given to two, for two men cannot hair 
 the maintenance of one man; and thence he inferred that the grant to the two 
 was void. But the judges distinguished; for they all said, that if the coma,, 
 be to have certain bread and certain service, this may be granted to twenty 
 men, &c. as to have 20 breads or 6 gallons of ale, <fcc. but that a corody to sit 
 every day in the hall of the prior and to be served as the men of the prior are, 
 this cannot be granted to many, for every one of them would have as much as 
 one had heretofore, ivhich would not be reason, &c— I was carried to this case 
 in the year-book of E. 4. by a reference in Fitzherbert's Natura Brevium, 
 which in the commentary on the writs de corrodio habendo et de annud pen- 
 sione contains a great variety of learning on this antiquated subject. See b. 
 N. B. 230. F.— [Note 74.] 
 Vol. II.— 6
 
 190.a.l90.b.] Of Tenants in Common. L.3.C.4.S.298-99. 
 
 is severed and they are become tenants in common. But if lands 
 
 be given to A. de B. bishop of N. and to a secular man, to have 
 
 and to hold to them two and to their heires, in this case they 
 
 are joyntenants; for each of them take the lands in their natu- 
 
 rall capacitie. 
 
 (Post. 310. b. If lands be given to John bishop of Norwich and his succes- 
 
 2 Ro. Abr. 91.) gors and to John Overall doctor of divinity and his heires, being 
 
 16 H 7*15 14 one anc ^ tne sarue Person, he is tenant in common [d~\ with hiin- 
 
 9 H. 6. 25. selfe. But our author's rules do not hold in chattels reals or 
 
 45 E. 3. 25. personals; for if a lease for yeares 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 joyntenants, because 
 
 they take not in their politique capacitie (2). 
 
 m* Sect. 298. [ 19 h°] 
 
 A LSO, if lands be given to two to have and to hold, scil. the one moity 
 to the one and to his heires, and the other moity to the other and to 
 his heires, they are tenants in common. 
 
 (Cro. Cha. 75. A ND the reason is, because they have severall freeholds and 
 Ant. 183. a. b.) Ix. an occupation pro indivisos. 
 
 Here is to be observed, that the habendum doth sever the 
 (2 Ro. Abr. 89, premises that prima facie seemed to be joynt; for an expresse 
 90. Ant. 183. b.) es t a t e CO ntrolls an implyed estate as hath been said. 
 
 Sect, 299. 
 
 ALSO, if a man seised of certaine lands infeoffe another of the moitie 
 of the same land without any speech of assignement or limitation of 
 the same moity in severaltie at the time of the feoffment, then the feoffee 
 and the feoffor shall hold their parts of the land in common (2)f. 
 
 And 
 
 (2) In a former part lord Coke explains the reason of this to be, that no 
 chattel can go in succession in the case of a sole corporation, no more than a 
 lease for years to one and his heirs can go to heirs. Ant. 46. b. But there 
 are exceptions to this rule. The king is mentioned as one by lord Coke, ant. 
 90. a. Another is, where there is a special custom, as the care* of the cham- 
 berlain of London, for orphanage monies. Fulwood's case, 4 Co. 65. a. to 
 which add Arundel's case, Hob. 64. and ant. fo. 9. a. note 1, there, 90. a. and 
 the case of a bond to a lay person and abbot in F. N. B. 120. B. — [Note 75.] 
 
 (1) In L. & M. and Iioh. this Section is placed immediately after Sect. 300. 
 
 (2) f Brooke in his Abridgment, title Feoffemenls de Terres, pi. 75. cites 
 this Section of Littleton, and in support of it refers to various cases in Fitzher- 
 bert's Abridgment. See further Bro. Nouv. Cas. 154. 124. 6 Co. 1. and 
 Dy. 187. a. pi. 5. 
 
 * "care" seems to be here inserted fur case.
 
 L. 3. C. 4. Sect. 299. Of Tenants in Common. [190. b. 
 
 \ ND the like law is, if the feoffment he made of a third part n Ass. pi. 16. 
 
 t± or a fourth part, &c. And if there be an advowson appen- 45 E - 3. 12. 
 dant, they are also tenants in common of the advowson (3). And 
 
 albeit it is said, that such a feoffment of a moitie or third part, 21 E - 4 - 22 - 1>. 
 &c. is not good without writing, for that (as they say) a man 
 cannot create an uncertaine estate in land by parol ; yet is the 
 law clear, that such a feoffment is good by parol without writ- 
 ing, and such an uncertaine estate shall passe by livery, and so 
 it appeareth in our bookes. 
 
 If a verdict finde, that a man hath duas partes manerii, &c. in 
 
 tres partes divisas, this shall not be intended to be in common; but 21 E. 4. 22. b. 
 
 if the verdict be in trespartes dividendas, then it seemeth that they Tem ' ^ ' j 
 
 are tenants in common by the intendment of the verdict (4). Feoffments, 115. 
 
 But if a man be seised of a mannor whereunto an advowson 34 E. 1. Quar. 
 
 is appendant, and maketh a feoffment of three acres parcell of j™^ ^y er2 s 
 
 the mannor together with the advowson to two, to have and to 22 E. 3. 6. 
 
 hold the one moity together with the moitie of the advowson Feoffments, 116. 
 
 to the one and his heires, and the other moity together with the g^ 3 ^ ^ 
 
 other moity of the advowson to the other and his heires, this 9 E _ 3. ' w< * 
 
 cannot be good without deed; for the feoffor cannot annex the 17 E. 3. 3. 
 
 advowson to these three acres, and disanncx it from the rest of ]? *?• f ■ ' *?• 
 
 • 1 i i /c \ 46 -hi. 6. zo. 
 
 the mannor, without deed (0). 33 h.6. 5. a. 
 
 (Post. 333. b. Cro. Cha. 473. Cro. Jam. 15.) 23 Ass. 8. 
 
 Sect. 
 
 (3) See post. 307. a. 
 
 (4) In a case in the king's bench during lord Holt's time, the question was, 
 how the surrender of a copyhold to the use of three sons and two daughters 
 equally to be divided and their respective heirs ought to be construed ; and this 
 passage of the Coke upon Littleton was much relied upon by two of the judges 
 as an authority to show, that the words equally to be divided imply a tenancy 
 in common. But lord Holt, who was for ajointenancy, observed, that no such 
 matter appears in the case of 21 E. 4, here cited by lord Coke in the margin as 
 his authority, and that he was not positive therein, but only wrote it as his con- 
 jecture. 1 P. Wins. 19, in the case of Fisher v. Wigg, which is also reported in 
 Salk. 391. Com. 88. 92. 12 Mod. 296. and 1 Ld. Rayni. 622. In the two latter 
 books and in P. Williams this case is reported very much at large; and as the 
 arguments on each side are very elaborate, it is an authority fit to be resorted 
 to, wherever the doubt is, whether there shall be a tenancy in common or join- 
 tenancy. See also the case of the Earl of Anglesea v. Ram, in Dom. Proc. Sept, 
 1727. Barker v. Gyles, 2 P. W. 280. and 3 Bro. P. C. 297. Hall v. Digby and 
 others, 4 Bro. P. C 224. Hawes v. Hawes, 1 Wils. 165, and Gaskinv. Gaskin, 
 M. 18 G. 3. B. R. in Mr. Henry Cowper's Rep. just published. In this last 
 case the word egually was deemed sufficient to create a tenancy in common in 
 a xoill; and lord Mansfield declared the opinion of the two judges who differed 
 from Holt to be the better and more liberal one ; and Mr. justice Aston noticed, 
 that equally to be divided had been adjudged a tenancy in common even in 
 a deed. I am happy in having this early opportunity of citing a collection of 
 Reports, which promises so much new and useful information to the Profession. 
 See further as to the words sufficient to make a tenancy in common, particu- 
 larly the cases in equity on the subject, 2 Com. Dig. 175. and Continuation* 
 to the same work, 201. 2 Bro. C. C. 233.— [Note 76.] 
 
 As to tenancy in common or jointenancy of personal estate, more particu- 
 larly see 1 Atk. 495. 2 Bro. 0. 0. 220. 6 Joddrell's MS. R. 169. 3 Bro. 
 C. C. 215. 324. 3 Ves. 628. 1 Taun. 234. 
 
 (5) Besides the references in the margin, se Dy. 48. b. pi. 3 and Doddridge 
 on Advowsons, 30. 
 
 * In the editions subsequent to that cited by Mr. Hargrove the " Continuation" here 
 mentioned is incorporated into the original work.
 
 19a b. 191. a.] Of Tenants in Common. L. 3. C. 4. S. 300. 
 
 Sect. 300. 
 
 A ND it is to be understood, that in the same manner as is aforesaid 
 of tenants in common, of lands or tenements in fee 
 simple, or in fee taile, in the same (£r manner may it be |~191 1 
 of tenants for terme of life. As if two joyntenants be in fee, |_ a. J 
 and the one letteth to one man that which to him belongethfor See Note. 
 terme of life, and the other joyntenant letteth that which to him 
 belongeth to another for term of life, §c. the said two lessees are tenants 
 in common for their lives, $c. 
 
 Vide Sect. 295, where this is sufficiently explained before. 
 
 [191. a.] At this page Mr. BUTLER'S Notes commence. 
 IN the concluding paragraph of the preface to the 13th edition of this work, 
 the present Editor requested the attention of the public, to the circumstances, 
 under which he engaged in it : with a renewal of the same request, he now 
 presents the Reader with the following Attempt to complete Mr. Hargrave's 
 Annotation on Feuds, at the beginning of the Second Book. In doing this, 
 he will endeavour, 
 
 I. To give a succinct account of the different nations, by whom they 
 were established : 
 
 II. A succinct account of their nature, and particularly of those peculiar 
 marks and qualities, which distinguish them from other laws : 
 
 III. Some account of the principal written documents, which are the 
 sources, from which the learning respecting them is derived : 
 
 IV. Some account of the principal events, in the early history of the 
 feuds of foreign countries : 
 
 V. Some account of the States-General, Parliaments and Nobility of the 
 nations on the Continent, in which the feudal policy has been esta- 
 blished; and of the difference between the Parliament and Nobility of 
 those nations, and the Parliament and Nobility of England : 
 
 VI. And an historical view of the revolutions of the feud in England. 
 But, as his researches are intended merely by way of supplemental anno- 
 tation on Littleton, and, as the work of that author treats of real property 
 only, his observations will be principally directed, through every branch of 
 his inquiry, to the influence of the feudal law on that species of property. 
 But this, he means, should be particularly the case, when he treats of the 
 feudal jurisprudence of England. Under that head he will offer some general 
 observations. 
 
 (1st,) On the time when feuds may be supposed to have been first esta- 
 blished in England ; (2dly), On the fruits and incidents of the feudal tenure ; 
 and, (3dly,) On the feudal policy of this country, with respect to the inhe- 
 ritance and alienation of land : Under this head he will attempt to state the 
 principal points of difference between the Roman and Feudal Jurisprudence, 
 in the articles of heirship. (Ithly,) The order of succession, and, (5thly,) the 
 absolute and unqualified property of the subject of the civil law, and the limited 
 and qualified property of the feudal tenant, in their respective possessions. 
 (Bthly,) He will then attempt to show the means, by which some of the 
 general restraints upon the alienation of real property, introduced by the 
 feud, have been removed. (7thly,) He will treat of entails. (Sthly,) He will 
 endeavour to show the means by which the restraints created by entails were 
 eluded or removed. Having thus treated of that species of alienation, which, 
 
 being
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 being the act of the party himself, is termed voluntary alienation : (9thly,) He 
 will afterwards treat of that species of alienation, which being forced on the 
 party, is termed involuntary. Under this head he will briefly consider the 
 attachment of lands for debt ; first, in regard to its effect upon them, while 
 they continue in the possession of the party himself; then in regard to its effect 
 upon them, when in the possession of the heir or devisee; and afterwards, in 
 regard to the prerogative remedies for the recovery of crown debts. (lOthly), 
 He will then offer some observations on testamentary alienation; and (llthly), 
 conclude by a detail of some of the principal circumstances in the history of 
 the decline and fall of the feud in this country. 
 
 I. The feudal law was established by the nations which overturned 
 the Roman empire. The first of these were the Vandals, the Suevi, and the 
 Alani. They inhabited the countries bordering on the Baltic. About the 
 year 406, they made an irruption into Gaul; from Gaul, they advanced into 
 Spain; about the year 415, they were driven from Spain by the Visigoths, and 
 invaded Africa, where they formed a kingdom. About the year 431, the 
 Franks, the Allemanni, and the Burgundians, penetrated into Gaul. Of these 
 nations, the Franks became the most powerful; and having either subdued or 
 expelled the others, made themselves masters of the whole of those extensive 
 provinces, which, from them, received the name of France. Pannonia and 
 Illyricum, were conquered by the Huns; Rhsetia, Noricum and Vindelicia, by 
 the Ostrogoths; and these were, some time after, conquered by the Franks. 
 In 449, the Saxons invaded Great Britain. The Herulians marched into Italy, 
 under the command of their king Odoacer, and in 476, overturned the empire 
 of the West. From Italy, in 493, they were expelled by the Ostrogoths. 
 About the year 568, the Lombards issuing from the Mark of Brandenburgh, 
 invaded the Higher Italy, and founded an empire, called the kingdom of the 
 Lombards. After this, little remained in Europe of the Roman empire, besides 
 the Middle and Inferior Italy. These, on the final division of that empire, 
 between the sons of Theodosius, in 395, had fallen to the share of the emperor 
 of the East, who governed them by an officer called the exarch, whose resi- 
 dence was fixed at Ravenna, and by some subordinate officers, called dukes. 
 In 743, the exarchate of Ravenna, and all the remaining possessions of the 
 emperor in Italy, were conquered by the Lombards. This, as it was the final 
 extinction of the Roman empire in Europe, was the completion, in that quarter 
 of the globe, of those conquests which established the law of the feud. 
 
 The nations by whom these conquests were made, came, it is evident, from 
 different countries, at different periods, spoke different languages, and were 
 under the command of separate leaders; yet they appear to have established, 
 in almost every state, where their polity prevailed, nearly the same system of 
 laws. This system is known by the appellation of the /hula I law. 
 
 II. Sir Henry Spelman, after Cujus, defines a fief to be, "A right which 
 "the vassal hath in land, or some immovable thing of his lord's, to use the 
 "same, and take the profits thereof, hereditarily, rendering unto his lord such 
 "feudal duties and services, as belong to military tenure; the mere propriety 
 "of the soil always remaining to the lord." This definition appears accurate 
 and comprehensive: and an analysis of it may point out those peculiar and 
 
 CHARACTERISTIC MARKS, WHICH DISTINGUISH THE FEUDAL LAW FROM EVERY 
 OTHER. 
 
 1st, Where the soil, and the right to the profits of the noil, meet in the same 
 prrson, he may be said to have an absolute and unmixed estate in his lands. 
 This absolute and unmixed estate, the subject of every kingdom, not governed 
 by the feudal polity, so far as respects the relation between sovereign and sub- 
 ject, appears to possess. But, by the feudal law, with respect to the relation 
 between the sovereign and the subject, the right to the soil and the right to 
 
 the
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 the profits of the soil, were separate; the tenant being invested with the latter, 
 the sovereign continuing to be entitled to the former. This right to the profits 
 was of the most extensive nature; it gave the tenant, except for the purpose of 
 alienation, the complete power or dominion over the land, duriug the term of 
 his tenure. Thus his estate and interest, as to the right of ownership, far ex- 
 ceeded that of the usufructuary in the civil law, to which it has sometimes been 
 compared, as the usufructuary had a mere right to the ordinary profits of the 
 usufruct, and was not permitted to make any change in it, even for its ameliora- 
 tion. It approached nearer to the estate of the emphytcuta, in the same law, as 
 the Dominium directum was absolutely vested in him. It approached, per- 
 haps, still nearer to the estate of a cestui que trust in the actual law of England, 
 which has been termed a feudal idea, grafted on Roman jurisprudence. The 
 precise nature of it, is no where, perhaps, better explained, than in lord Stair's 
 Institutes. "It is," says his lordship, "essential to a fee, and common to all 
 "kinds thereof, that there must remain a right in the superior, which is called 
 " Dominium directum, and withal a right in the vassal, called Dominium utile: 
 "the reason of this distinction, and terms thereof, is, because it can hardly be 
 "determined, that the right of property is either in the superior or vassal alone, 
 "so that the other should only have a servitude upon it; though some have 
 "thought superiority but a servitude, to wit, the perpetual use and fruit; yet 
 " the conciliation and satisfaction of both have been well found out in this dis- 
 tinction, whereby neither's interest is called a servitude; but by the resem- 
 "blance of this distinction in law between jura et actiones directse, and those, 
 "which for resemblance, were reductive thereto, and therefore called utiles, the 
 "superior's right is called Dominium directum, and the vassal's Dominium 
 " utile, and without these the right cannot consist." This right in the vassal 
 to the use and profits of the land, while the direct dominion of the land re- 
 mained in the lord, was, with respect to the relation between the sovereign and 
 the subject, a new and original point of connection, and one of those marks 
 which distinguish the feudal from every other law. 
 
 2. Another of these marks, is, that immovable or real property only, teas 
 admitted to be held in feudality, or in other words, to be the substance of a fief. 
 Wherever the conquerors we speak of established themselves, they seized 
 whatever they desired, of the property of the conquered, and the general 
 allotted it to the superior officers of the army, and these again divided it, in 
 smaller parcels, among the inferior officers. The moveable, as well as the 
 immovable, property of the conquered, was seized and divided by the con- 
 querors; but moveable property, from its fluctuating and perishable nature, 
 was ill calculated to serve, either as the sign, or the subject, of a perma- 
 nent connection. This was particularly the case in those days, when it had 
 in no point of view acquired, or was considered susceptible of those arti- 
 ficial modifications, or other durable qualities, in the intendment of law, 
 which it now possesses. Land, therefore, or immovable property, alone, 
 became the subject of feudal tenure. As the notions of men respecting 
 property increased, the modifications of it were also multiplied, and all 
 of them were considered as susceptible of feudality. Thus every species 
 of right or servitude, to which land is subject, was given in fee. At an 
 early period of the feudal law, we find mention of fiefs de camera and 
 cavena. The former was a pension granted by the lord to be paid out of 
 his treasury; the latter was a quantity of corn, or other grain, granted by 
 the lord, to be delivered out of his granary. In progress of time, money 
 charged upon land was, in some countries, held to be feudal; and even mere 
 money was, at last, in some countries, held by the feudal obligation, and 
 treated as a fief. Whether money thus held be, strictly speaking, a fief, has 
 been the subject of much discussion. Thomasius, whose writings, in the 
 course of this inquiry, have been found highly valuable, treats a pecuniary 
 feud as a chimera, and seems inclined to doubt its existence. Sir Thomas 
 
 Craig
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 Craig thus expresses himself on this question. a The dominium directum of 
 " a fief must necessarily remain in the lord ; the dominium utile must neces- 
 " sarily be granted to the feudatory. When the dominium utile of a move- 
 " able is granted, the profits of it must necessarily belong to the usufructuary. 
 " But the profits of a moveable proceed from the use which is made of it. 
 " Now the use which is made of a moveable, either consumes it or not. In 
 " the first case, the fief is necessarily extinguished ; for it is impossible that a 
 " moveable in continual use should not, by that very use of it, be consumed, 
 " and the lord thereby deprived of it, without any fault on his part, against 
 " his will, and even without his knowledge. But if the moveable be not con- 
 " sumed by use, but may be preserved, the vassal has no profit from it. I 
 " know many writers of great authority hold, that there may be a fief of 
 " moveables, by way of analogy to an usufruct of those things which are con- 
 " sumed by use, where the fruit and the profits belong to the vassal, the pro- 
 " priety remains with the lord. But in this case, the propriety (to use the 
 " expression,) is not of the individual thing, but of a thing of the same genus 
 " or species. And therefore Cujas justly observes, that properly speaking, 
 " these are not fiefs. For natural reason cannot be altered by civil power. 
 " We are therefore of opinion, that there cannot be a fief, though there may 
 " be a quasi fief of a moveable. But even a quasi fief is not allowed by the 
 " law of Scotland. For though stipulations are frequent amongst us, that, for 
 " the use of money, a certain yearly sum, or a certain quantity of grain be 
 " allowed, yet this should not be honoured with the name of fief, as he to whom 
 " the payment is to be made can never be said to die seised of the fee of that 
 " money." But at the first establishment of fiefs, land or immovable property, 
 in the narrowest sense of that word, was the subject of a fief. That this spe- 
 cies of property, to the utter exclusion of every species of moveables, should 
 be a point of connection between the sovereign and the subject, is another dis- 
 tinctive mark of feudality. To this it is owing, that while in this country, and 
 in every other country whose jurisprudence is of a feudal extraction, the differ- 
 ence between real and personal, or immovable and moveable property, is so 
 strongly marked, and the legal qualities and incidents of the two species of 
 property, are, in so many important consequences, utterly dissimilar, the dis- 
 tinction between them in the civil law, except in the term of prescription, is 
 seldom discoverable. 
 
 3. The remaining point of difference between the feudal polity and the polity 
 of other states is, the nature of the relation between the chief and the vassals. 
 This is particularly distinguishable by six circumstances : lstly, The relation 
 between them was purely of a military nature; 2dly, Behind the sovereign and 
 his immediate feudatories there followed a numerous train of arrere vassals, 
 or sub-feudatories, between whom and the first or immediate feudatory there 
 subsisted a relation nearly similar to that between him and the first or chief 
 lord ; 3dly, This relation was territorial, and was not considered to arise from 
 the general allegiance due from a subject to a sovereign, but from an implied 
 obligation supposed to be annexed to the tenure of the fee; 4thly, The right 
 of administering justice was an appendage of this military relation, and 
 originally commensurate to it in its territorial extent ; 5thly, The lord was not 
 allowed to alien the fee without his tenant's consent, nor the tenant, without 
 the consent of his lord; and Gthly, Though in point of dignity, of rank, and 
 of honour, the lord, according to the ideas of those times, enjoyed a splendid 
 pre-eminence over his vassals, his power over them was, comparatively speak- 
 ing, extremely small. Thus, therefore, the supposed preservation of the 
 dominium directum, or real ownership, to the lord, after he had parted with 
 the beneficial ownership, or dominium utile, to the tenant; the exclusion of 
 moveable property, from serving either as the sign or the subject of the relation 
 between the sovereign and the feudatory; and the military nature of this 
 relation, including in it the other circumstances before noticed, should be con- 
 sidered as three principal points which distinguish the law of feuds from every 
 
 other
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 other law. To these the book of fiefs, and Cujas, and after them sir Henry 
 Spelman, add the hereditary nature of fiefs ; and it is observable, that Littleton 
 in his explanation of the word fee, says it is the same as inheritance, without 
 adverting to any other quality of a fief. But, as fiefs were not allowed to go 
 in a course of descent, till after a considerable period of time, from their first 
 introduction, and, as they might always be granted for a less estate, than an 
 estate of inheritance, there seems to be no reason to suppose this descendible 
 quality is essential to their nature. We have therefore omitted it. 
 
 Besides these, (which may be considered as the essentials of a fief,) there are 
 qualities, which every fief should possess, to answer the notions originally 
 entertained of this species of property. Thus, fiefs should be granted without 
 price; to persons duly qualified ; and the services should not be fixed to any 
 particular mode or time of service. A fief possessing the essential and secon- 
 dary qualities, we have noticed, was considered to be a proper fief. The absence 
 of any of the qualities, reckoned essential, necessarily precluded the feudal 
 tenure. But any, or all of the qualities reckoned merely proper, might be 
 dispensed with, at the discretion of the parties, without precluding the tenure, 
 according to the maxim, Modus et conventio vincmit legem. This introduced 
 the distinction between proper and improper fiefs. But, wherever the feudal 
 tenure was admitted, the fief was presumed to be a proper fief, till the contrary 
 was shown, and it could only be shown by referring to the original investiture. 
 Thence the maxim, in these cases, Tenor investiturce est inspiciendus. 
 
 ILL With respect to the PRINCIPAL WRITTEN DOCUMENTS, WHICH 
 ARE THE SOURCES FROM WHICH THE LEARNING OF FOREIGN 
 FEUDS IS DERIVED. These may be divided into CODES OF LA WS, 
 CAPITULARIES, AND COLLECTIONS OF CUSTOMS. It was long 
 after the first revival of letters in Europe, that the learned engaged in the study 
 of the laws or antiquities of modern nations. When their curiosity was first 
 directed to them, the barbarous style in which they are written, and the rough 
 and inartificial state of manners they represent, were so shocking to their classi- 
 cal prejudices, that they appear to have turned from them in disgust and con- 
 tempt. In time, however, they became sensible of their importance. They 
 were led to the study of them, by those treatises on the feudal laws, which are 
 generally printed at the end of the Justinianean collection. These are of Lom- 
 bard extraction. This naturally gave rise to the opinion, that, fiefs appeared 
 first in Italy, and were introduced there by the Lombards. From Italy, the study 
 of jurisprudence was imported into Germany : this opinion accompanied it there. 
 At first it appears to have universally prevailed. But, when a more extensive 
 knowledge of the antiquities of the German nations was obtained, there ap- 
 peared reason to call it in question. Many thought the claims of other nations, 
 to the honour of having introduced the feudal polity, were better founded. 
 Some ascribed them to the Franks ; others, denying the exclusive claim of any 
 nation in particular, ascribed them to the German tribes in general ; and as- 
 serted, that the outline of the law of feuds is clearly discoverable in the habits, 
 manners, and laws of those nations, whilst still inhabitants of the Hercynian 
 wood. The time when feuds first made their appearance, has equally been a 
 subject of controversy. The word itself is not to be found in any public docu- 
 ment, of acknowledged authenticity, before the 11th century. 
 
 III. 1. The most ancient, and one of the most important CODES OF LA W, 
 in use among the feudal nations, is the Salic law. It is thought to derive its 
 appellation from the Salians, who inhabited the country from the Leser to the 
 Carbonarian wood, in the confines of Brabant and Hainault. It was written, 
 probably in the Latin language, about the beginning of the 5th century, by 
 Wesogastus, Bodogastus, Salogastus, and Windogastus, the chiefs of the nation. 
 It received considerable additions from Clovis, Childebert, Clotaire, Charle- 
 magne, and Lewis the Debonnaire. There are two editions of it. These 
 differ so considerably, that they have been treated as distinct codes. The 
 
 Fran' 

 
 L. 3. C. 4. Sect. 300. Of Tenant in Common. [191. a. 
 
 Franks who occupied the country upon the Rhine, the Meuse and the Scheldt, 
 were known by the name of the Ripuarians, and were governed by a collection 
 of laws, which, from them, was called the Ripuarian law. These laws seem to 
 have been first promulgated by Theodoric, and to have been augmented by 
 Dagobert. The punishments inflicted by the Ripuarian law are more severe 
 than the punishments inflicted by the Salic ; and the Ripuarian law mentions 
 the trial by judgment of God, and by duel. Theodoric also appears to have 
 first promulgated the law of the Alemanm. The law of the Bun/undians is 
 supposed to have been promulgated about the beginning of the 5th century ; 
 that nation occupied the country which extends itself from Alsace to the 
 Mediterranean between the Rhone and the Alps. This was the most flourish- 
 ing of the Gallic provinces invaded by the Germans ; they established them- 
 selves in it, with the consent of the emperor Honorius. An alliance subsisted, 
 for a considerable time, between them and the Romans; and seme parts of 
 their law appear to be taken from the Roman law. One of the most ancient 
 of the German codes is that, by which the Anglioncs and the Werini were 
 governed. The territories of these nations were contiguous to those of the 
 Saxons; and the Anglioues are generally supposed to be the nation, known 
 in our history by the name of the Angles. A considerable portion of the 
 law of the Saxons has reached us. The Goths also had their laws, which were 
 promulgated by the Ostrogoths, in Italy; by the Visigoths, in Spain. The 
 Goths were dispossessed of their conquests in Italy by the Lombards. No 
 ancient code of law is more famous than the laiv of the Lombards ; none dis- 
 covers more evident traces of the feudal polity. It survived the destruction 
 of that empire by Charlemagne, and is said to be in force, even now in some 
 cities of Italy. These were the principal laws, which the foreign nations, 
 from whom the modern governments of Europe date their origin, first estab- 
 lished, in those countries, in which they formed their respective settlements. 
 Some degree of analogy may be discovered between them, and the general 
 customs, which, from the accounts of Csesar and Tacitus, we learn to have 
 prevailed among them, in their supposed aboriginal state. A considerable part 
 also of them is evidently borrowed from the Roman law, by which, in this 
 instance, we must understand the Theodosian code. This was the more 
 natural, as notwithstanding the publication of the Ripuarian and Salic codes, 
 the Roman subjects in Gaul were indulged iu the free use of the Theodosian 
 laws, especially in the cases of marriage, inheritance, and other important 
 transactions of private life. In their establishments of magistrates and civil 
 tribunals, an imitation of the Roman polity is discoverable among the Franks ; 
 and, for a considerable time after their first conquests, frequent instances are 
 to be found, in their history, of a deference, and in some instances, even of an 
 acknowledgment of territorial submission to the # emperors of Rome. 
 
 III. 2. In the course of time, all these laws were, in some measure at least, 
 superseded by the CAPITULARIES. The word capitulary is generic, and 
 denotes every kind of literary composition divided into chapters. Laws of this 
 description appear to have been promulgated by Childcbert, Clotaire, Carlo- 
 man and Pepin. But no sovereign seems to have promulgated so many of 
 them, as Charlemagne. That monarch appears to have wished to effect, in a 
 certain degree, an uniformity of law throughout his extensive dominions. With 
 this view, is supposed, he added many laws, divided into short chapters or 
 heads, to the existing codes, sometimes to explain, sometimes to amend, and 
 sometimes to reconcile or remove the difference between them. They were 
 generally promulgated in public assemblies, composed of the sovereign and 
 the chief men of the nation, as well ecclesiastics as secular. They regulated, 
 equally, the spiritual and the temporal administration of the kingdom. The 
 execution of them was intrusted to the bishops, the counts, and the missi regit. 
 Many copies of them were made, one of which was generally preserved in the 
 royal archives. The authority of the capitularies was very extensive ; it pre- 
 vailed in every kingdom, under the dominion of the Franks, and was submitted 
 
 to
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 to in many parts of Italy and Germany. The earliest collection of the capitu- 
 laries, is that of Angesise abbot of Fontenelles. It was adopted by Lewis 
 the Debonnaire and Charles the Bald, and was publicly approved of in many 
 councils of France and Germany. But, as Angesise had omitted many capitu- 
 laries in his collection, Benedict the Levite, that is, the deacon of the church 
 of Mentz, added three books to them. Each of these collections was con- 
 sidered to be authentic, and, of course, appealed to as law. There have been 
 subsequent additions made to them. The best edition is that of Baluze in 
 1677. A splendid republication of this edition was begun by Monsieur de 
 Chiniac in 1780 ; he intended to comprise it in four volumes. Two only have 
 yet made their appearance. In the collections of ancient laws, the capitularies 
 are generally followed by the Formularia, or forms of forensic proceedings and 
 legal instruments. Of these, the formulare of Maaculphus is the most curious. 
 The formularia generally close the collections of ancient laws. With the 
 Merovingian race, the Salic, Burgundian, and Visigothic laws expired. The 
 capitularies remained in force, in Italy, longer than in Germany; and in 
 France longer than in Italy. The Incursions of the Normans, the intestine 
 confusion and weakness of government under the successors of Charlemagne, 
 and, above all, the publication of the dec-return of Gratian, which totally super- 
 seded them in all religious concerns, put an end to their authority in France. 
 
 III. 3. They were, in some measure, succeeded by the CUSTOMARY LA W. 
 It is not to be supposed, that the codes of law, of which we have been speak- 
 ing, entirely abrogated the usages or customs of the countries in which they 
 were promulgated. The laws only were abrogated by them which were 
 contrary to the regulations they established. In other respects the codes not 
 only permitted, but, in some instances, expressly directed, that the ancient 
 usages should remain in force. Thus in all the countries governed by the 
 ancient codes, there existed, at the same time a written body of law, sanctioned 
 by public authority, and usages or customs, admitted to be of public authority, 
 by which those cases were governed, for which the written body of law con- 
 tained no provision. After the ancient codes and capitularies fell into desue- 
 tude, the customs multiplied. By degrees, written collections were made 
 of them. Some of these were made by public authority ; others were the 
 collection of individuals, and depended therefore, for their weight, on the 
 private authority of the individuals by whom they were made, and the autho- 
 rity, which they insensibly obtained, in the courts of justice. Collections 
 of this nature, committed to writing by public authority, form a considerable 
 part of the law of France, and are a striking feature of the jurisprudence of 
 that kingdom. The origin of them may be traced to the beginning of the 
 Capctian race. The monarchs of that line, in the charters by which they 
 granted fiefs, prescribed the terms on which they were to be held. These 
 they often abridged, enlarged and explained, by subsequent charters. They 
 also published charters of a more extensive nature. Some of these contained 
 regulations for the possessions of their own domain ; others contained general 
 regulations for the kingdom at large. In imitation of these, the great vassals 
 of the crown granted their charters, for the regulation of the possessions held 
 of them. In the same manner, when allodial laud was changed ^ to feudal, 
 charters were granted for the regulation of the fiefs ; and, when villeins were 
 enfranchised, possessions were generally given to them, and charters were granted 
 to regulate these possessions. Thus each seigniory had its particular usages. 
 Such was their diversity, that, throughout the whole kingdom, there could 
 hardly be found two seigniories, which were governed in every point, by the 
 same law. With a view more to ascertain, than to produce an uniformity in, 
 these usages, though the latter of these objects was not quite neglected, 
 Charles the Seventh and his successors caused to be reduced to writing, the 
 different local customs, which prevailed throughout the kingdom. In 1453, 
 some time after Charles the Seventh had expelled the English from France, 
 he publised an ordinance, by which he directed, that all the customs and 
 
 usages
 
 L. 3. C. 4, Sect. 300. Of Tenants in Common. [191. a. 
 
 usages should be committed to writing, and verified by the practioncrs of 
 each place, then examined and sanctioned by the great council and parliament: 
 and that the customs, thus sanctioned, and those only, should have the force 
 of laws. Such were the obstacles in the way of this measure, that forty-two 
 years elapsed before the customs of any one place were verified. From that 
 time, the measure lingered, till the reign of Lewis the Twelfth; it was then 
 resumed. About the year 1609, it was completed. The customs of Paris, 
 Orleans, Normandy, and some other places, were afterwards reformed. Those 
 of Artois and Saint Omer were reformed within the last hundred years. The 
 manner of proceeding, both in reducing the customs, and reforming them, was, 
 generally speaking as follows. The king, by his letters patent, ordered an as- 
 sembly of the three states of each province. When this assembly met, it 
 directed the royal judges, greffiers, maires and syndics, to prepare memoirs of 
 all the customs, usages, and forms of practice, they had seen in use, from of 
 old. On receiving these memoirs, the states chose a certain number of nota- 
 bles, and referred the memoirs to them, with directions to put them in order, 
 and to frame a cahier, or short minute of their contents. This was read at 
 the assembly of the states, and it was there considered, whether the customs 
 were such, as they were stated to be in the cahier. At each article, any 
 deputy of the state was at liberty to mention such observations as occurred to 
 him. The articles were then adopted, rejected, or modified, at the pleasure of 
 the assembly. They were then taken to parliament and registered. The 
 customs of each place, thus reduced to writing and sanctioned, were called the 
 coutumier of'that place. These coutumiers were formed into one collection, 
 called the Coutumier de France, or the Grand Coutumicr. The best edition 
 of this is by Richebourgh, in four volumes in folio. It contains near one hun- 
 dred collections of the customs of provinces, and two hundred collections of 
 the customs of cities, towns or villages. Each coutumicr has been the subject 
 of a commentary. Five-and-twenty commentaries have appeared, (some of 
 them voluminous,) on the coutumier of Paris alone. Of these commentaries, 
 that of Dumoulin has the greatest celebrity. Les Establissemv.nt de St. Louis, 
 hold a high rank for the wisdom with which they are written, and the curious 
 matter they contain. The Coutumier de JVbrmandie, for its high antiquity, 
 and the relation it bears to the feudal jurisprudence of England, is particularly 
 interesting to an English reader. Basnage's edition, and his learned commen- 
 tary upon it, are well known. But the most curious of all collections of feudal 
 law, is that intitled, Assizes de Jerusalem. — In 1099, Jerusalem was taken by 
 the Crusaders, under the command of Godfrey of Bouillon. He establi>hed, 
 for the administration of justice i^ that city and the adjacent territory, two 
 tribuuals; one, the Haute Cour, for the nobility; the other, the Cour de la 
 Bourgeoisee, for the commonalty. The sovereign presided over the former, 
 the viscount over the latter : each had its code of law ; the former was com- 
 piled, with the council of the patriarch, the barons, and the sages ; the latter, 
 with the council of the freemen and burghers. As these collections were 
 made by persons governed by the feudal polity, as it prevailed in the principal 
 states of Europe, they may be supposed to have contained some of its most 
 important principles and regulations ; but, as the principal Crusaders came from 
 France, the collections may be supposed to contain more of the laws and usages 
 of that country than of any other. The collection was called the Assizes de 
 Jerusalem ; they were composed in the French language; and the autograph, 
 written in uncial letters, with gilt initials, was signed by the sovereigu and the 
 patriarch, and deposited in the church of the Holy Sepulchre. It became 
 the prey of Saladin, when he retook Jerusalem. Partly from tradition, and 
 partly from its scattered fragments, a new edition of it was made, towards the 
 middle of the loth century, by Jean de Ibelen, count of Joppe and Ascalon, 
 and lord of Rama. A third edition of it was made in 1309 by the direction 
 of Peter of Lusignan, king of Cyprus, and deposited in the church of Nicosia, 
 in a chest, with four seals. All the Christian possessions of the crusaders were 
 
 governed
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 governed by it ; and, when Baldwyn conquei-ed Constantinople, he promulgated 
 it, in that city , for the government of his European subjects. When Cyprus 
 fell under the dominion of the Venetians, the copy deposited at Nicosia, fell 
 into their hands. It was found difficult to understand the language of the text : 
 the Venitian government, in 1535, caused it to be translated into the Italian 
 lano-ua<re, and the translation to be magnificently printed ; the manuscript was 
 deposited in the church of St. Mark. La Thaumassiere published a French 
 translation of it in 1670 ; but, having been made from an imperfect copy, 
 Lewis the 16th obtained a magnificent transcript of the original from the senate 
 of Venice. M. Bernardi, {Be Vorigine et des progres de la legislation Francaise, 
 Paris, 1816, octavo,) from whom this account of the Afsizes de Jerusalem is 
 taken, speaks of it as a work of great merit, and thinks it superior to the Codes 
 Napoleon: these are five in number, the Code Civil, the Code Criminelle, the 
 Code de Commerce, the Code de Conscription, and the Code de Procedure. It 
 is allowed that the first possesses great merit, that the third is very faulty, and 
 that, whatever is good in any of them is rendered almost entirely useless by 
 the last, which has completely confounded and paralysed all the judicature of 
 
 the country. 
 
 Such are the principal sources of the feudal jurisprudence of the kingdom 
 of France. It remains to take notice of some of the chief compilations by which 
 the feudal polity of other kingdoms is regulated. The authority, or at least 
 the influence, which the capitularies, had on these, has been already noticed. 
 After these, the attention is naturally directed to that collection, which, pro- 
 bably in the reign of Frederick the second, Hugolinus, a Bononian lawyer, 
 compiled from the writings of Obertus of Otto and Gerhardus Niger, and from 
 the various customary laws then prevailing in Italy, and added under the title, 
 Decima Collatio, to the Novels. It is to be found in most editions of the 
 Corpus Juris Civilis. In the edition of Cujas it is divided into fivebooks; the 
 first contains the treatises of Gerhardus Niger ; the second and third those of 
 Obertus of Otto; the fourth is a selection from various authors; the fifth is 
 a collection of constitutions of different emperors respecting feuds. To these 
 is added the golden Bull of the emperor Charles the fourth. Authors are by 
 no means agreed, either in the order, or division of this collection. Several 
 editions have been published of it. In that published by Joannes Calvinus or 
 Calvus at Franckfort, in 1611, there is a collection of every passage, in the 
 canon law, that seems to relate to the law of feuds. As this edition is scarce, 
 and it may happen that some English reader may be desirous of peeing all 
 these passages, the following short account of Calvinus or Calvus's selection 
 of them, is transcribed from Hoffman's §>issertatio de Unico Juris feudalis 
 LoMjohardiciLibro. — Jurkpruclentiamfeiulalem,sexlibriscomprehensam,sive 
 potius consuetudines, feudorm, secundum distributioncm Cujarianam edidit, et 
 sub titulo libri feodorum VI. addidit, quidquid alicujus de hoc materia mo- 
 menti, in universo corpore juris canonici expressum invenerat ; hoc est totum 
 tltulum decretalium Gregorii IX. sivecapitula, Insinuationel. Et ex parte tua, 
 2. X. de feudis, porro cap. cseterum, 5 et novit, 13 de Judiciis, cap. Quae in 
 Ecclesiarium, 7 de Constitutionibus, cap. Adaures, 10 In quibusdam, 12 et Gra- 
 vem, 13 BePcenis, cap. Gravcm, 53 de Sent excomm. cap. Ex trans missa, 6 et 
 verum,1 de foro competcnte eorumque summaria. The next treatise _ to be 
 mentioned is, the Treatise de Beneficiis, generally cited under the appellation of, 
 Auctor vetus de Beneficiis. It was first published by Thomasius, at Halle, 1708, 
 with a dissertation on its author and the time when it was written. He considers 
 it to be certain, that it was written after the year 800, and before the year 1250. 
 and conjectures, that it was not written before the emperor Otho, and that it 
 was written before the Emperor Conrad the second. To these must be added 
 the Jus Feudale Saxonicum ; which seem to be part of, or an appendix to, a 
 treatise of great celebrity in Germany, intitled the Speculum Saxonicum. 
 The Jus Feudale Saxonicum, is said by Struvius, to have been translated, by 
 Goldastus, from the German, into the Latin language, for the benefit of the 
 
 Poles
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 Poles. It is supposed to have been published, between the year 1215 and the 
 year 1250. The Sperulam Suevicum seems to have been composed in imitation 
 of the Speculum Saxonicum, probably, between the year 1250 and the year 
 1400. To this is added the Jus Fuedale Allemankum, composed about the 
 same time and probably by the same author. But none of these collections 
 acquired the same authority as the books of the fiefs. They were known by 
 the name of the Lombard law. By degrees they were admitted, as authority, 
 by most of the courts, and taught in most of the academies of Italy and Ger- 
 many. Like the civil and canon law, they became the subject of innumerable 
 glosses. Those of Columbinus were so much esteemed, that, no one, it is said, 
 ventured to publish any after him. About the end of the loth century, James 
 of Ardezene published a new edition of the Gloss of Columbinus, and added, 
 under the title of Capittda Extraordinary, a collection of adjudged cases, on 
 feudal matters. This was inserted in some of the latter editions of the Corpus 
 Juris. About the year 1430, Minuccius de Prato veteri, a Bononian lawyer, 
 by the orders of the emperor Sigismond, gave a new edition of the Books of 
 the Fiefs with the Gloss of Columbinus. These were confirmed by the emperor 
 Sigismond, and afterwards by the emperor Frederick the 3d, and publicly 
 taught in the university of Bononia. Such are the principal sources of the 
 feudal jurisprudence of foreign countries. 
 
 IV. The early history of the feuds of foreign countries is involved 
 in a considerable degree of obscurity. That in the time of Pepin the feudal 
 polity arrived at a degree of maturity and consistence, is certain. It must, 
 therefore, have previously had its rise and progress. Some vestiges of these 
 are discoverable in the scanty materials which have reached us, of the history 
 and antiquities of those early times. We find mention iu them of tlm leuds, — 
 of lands intrusted (commendati) by the king to his followers; — of estates, 
 which, on account of the infidelity, or the cowardice of the proprietary, or his 
 placing himself under another lord, the king takes from him, and restores to 
 the fisc. There is also mention of the pares comitum, and the fideles, and of 
 reinvesting the leudes, who had been unjustly deprived of their possessions. 
 At first kings alone granted fiefs. They granted them to laymen only, not to 
 ecclesiastics'; and to such only who were free, and probably to the most im- 
 portant only of their followers. They were not granted for any certain or 
 determinate period of time ; they were not transmissible to the descendants of 
 the grantee; they were resumable on the bad conduct of the vassal, without 
 the sovereign's being obliged to show the cause of the resumption, or having 
 recourse to any judicial process. The vassal had no power to alienate them. 
 Kvery freeman was subject to the obligation of military duty ; this was the 
 case, in a more particular manner, of the feudal tenants ; they were to attend 
 the sovereign on horseback, and in complete armour, that is, with the breast- 
 plate, the shield, the spear, the helmet, and the sword. They were to guard 
 his life, member, mind, and right honour. They were first called homines, 
 fideles, leudes, antrustiones ; to all these the appellation of vassals succeeded. 
 It appears, that, in early times, the feudal tenants were numerous. A consi- 
 derable part however of the subjects were free from the feudal tenure. The 
 lands held by these, were called allodial. The proprietors of them were under 
 the general obligation of military service, and were subject to general taxation. 
 Their particular nature was chiefly discernable in this, that they differed from 
 the villeins, as they were freemen ; and from the feudal tenants, as their pos- 
 sessions were from the first hereditary. For, originally, the crown itself was 
 not, in the sense in which we now use the word, hereditary. A marked pre- 
 ference was always shown, both by the sovereign and the nation, to the royal 
 lineage. But by each the strict line of hereditary descent was occasionally 
 interrupted by calling to the throne a remote relation, to the prejudice of the 
 actual heir. The government was monarchial ; but strongly controlled by 
 the people. Twice a year, the people, or as they were afterwards called, the 
 
 states,
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 assembled. The first of these general assemblies, was held originally in the 
 month of March, afterwards in the month of May ; and always in open air. 
 Hence from the time of meeting, the expression le champ de Mars, afterwards 
 le champ de Mai. The second assembly was held in the autumn. It was di- 
 vided into two classes. The first comprised the bishops, the abbots, the dukes, 
 the counts, and the elders of the nation ; and all of them had deliberative 
 voices in the assembly. The second contained the magistrates and the inferior 
 offices; but these attended only to receive the orders of the assembly. The 
 kin» proposed the subjects of debate, by his referendary ; the members of the 
 first class deliberated upon them ; the king pronounced the decision. The acts 
 were reduced to writing, under the name of capitularies, and the execution of 
 them was intrusted to the members of the second class. The governors of 
 provinces were called dukes ; the counts were subordinate to them, and ad- 
 ministered justice in the districts committed to their care. The missi regii, 
 were commissaries appointed by the king to attend to the general administra- 
 tion of justice throughout the nation. Next to the counts were the barons, 
 or the chief land-owners ; then followed the general body of freemen ; after 
 these came the artisans, the labourers, and the villeins. The general admin- 
 istration of affairs was intrusted to the almoner, who was at the head of the 
 clertry. The referendary and chancellor were the chief counsellors of state : 
 then followed the chamberlain, the count of the palace, the high steward, the 
 butler, the constable, the marshal, the four first huntsmen, and the grand 
 falconer. 
 
 Such appears to be the general outline of the feudal government, during the 
 Carloviugian line. That line was extinguished, in France, by the accession of 
 the Capetian line ; in Germany in the accession of the House of Saxony ; and 
 in Italy, by the usurpation of the dukes. Soon after, or perhaps some time 
 before this event fiefs became hereditary. Even the offices of duke, count and 
 margrave, and the other high offices of the crown, were transmitted in the 
 course of hereditary descent : and not long after, the right of primogeniture 
 was universally established. It first took place in the descent of the crown, 
 but was soon admitted by every branch of the feud. This stability of pos- 
 session was an immense addition to the power of the crown vassals. It enabled 
 them to establish an independency of the crown. They usurped the sovereign 
 property of the land, with civil and military authority over the inhabitants. 
 The possessions, thus usurped, they granted out to their immediate tenants, 
 and these granted them over to others, in like manner. By this means, though 
 they always professed to hold their fiefs from the crown, they were in fact ab- 
 solutely independent of it. They assumed in their territories every royal pre- 
 rogative; they promulgated laws; they exercised the power of life and death ; 
 they coined money ; fixed the standard of weights and measures ; granted 
 safeguards ; entertained a military force ; and imposed taxes, with every other 
 right supposed to be annexed to royalty. In their titles they styled them- 
 selves, Dukes, &c. " by the grace of God," a prerogative avowedly confined to 
 sovereign power. It was even admitted that, if the king refused to do the 
 lord justice, the lord might make war against him. In the ordounances of 
 St. Lewis, ch. 50, is this remarkable passage : " If the lord says to his liege 
 " tenent, Come with me, I am going to make war against my sovereign, who 
 "has refused me the justice of his court; upon this, the liegeman should 
 " answer in this manner to the lord ; I would willingly go to the king to know 
 "the truth of what you say, that he has denied you his court. And then he 
 " shall go to the king, saying to him in this manner; Sir, the lord in whose 
 " liegeance and fealty I am, has told me you have refused the justice of your 
 " court; and upon this I am come expressly to your majesty to know if it is 
 '' so for my lord has summoned me to go to war with you. And thereupon, 
 " if the king answers, that he will do no judgment in his court the man shall 
 " return immediately to his lord, and his lord shall equip him, and fit him out 
 "at his own expense ; and if he will not go with him, he shall lose his fief by 
 
 "right.
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 "right. But if the king answers, that he will hear him, and do justice to 
 "the lord, the man shall return to him, and shall say: Sir, the king has said 
 " to me, that he will willingly do you justice in his court. Upon which, if the 
 "lord says, I never will enter into the king's court, come therefore with me, 
 " according to the summons I have sent you ; then the man shall say, I will 
 " not go with you ; and he shall not lose his fief for his not going." This 
 shows how powerful and absolute the great vassals were. The same motive 
 which induced the vassals of the crown to attempt to make themselves inde- 
 pendent of the crown, induced their tenants to make themselves independent 
 of them. This introduced an ulterior state of vassalage. The king was 
 called the Sovereign Lord ; his immediate vassal was called the Suzereign; and 
 the tenants holding of him were called the arrere vassals. Between these and 
 the sovereign, the connection was very small. In those reigns, even, when the 
 power of the monarch was greatest, his authority over the arrere vassals was 
 faint, and indirect. Of this the history of Joinville prevents a striking instance : 
 Previously to the departure of St. Lewis on the crusade, he summoned an 
 assembly of his barons to attend him, and required them to swear, that, on 
 the event of his decease during the expedition, they would be loyal and true 
 to his son. Joinville, his historian, a feudatory of the count of Champaigne, 
 though he possessed a most enthusiastic veneration for the king, and the 
 warmest attachment to his person, refused, on account of his vassalage to the 
 count, to take the oath; his words are "11 le me demanda, metis je ne vox /aire 
 point de serement, car je n'estoie pas son home." The consequence was, that 
 in every kingdom there were as many sovereigns, with the power and ensigns 
 of royalty, as there were powerful vassals. With respect to France, Hugh 
 Capet acquired the crown of that kingdom, by availing himself of the extreme 
 weakness, to which it was reduced by the system of subinfeudation. After 
 he acquired the throne, he used his utmost efforts to restore it to its ancient 
 splendor and strength. His successors pursued his views with uudeviating at- 
 tention and policy; and with so much success, that, previously to the accession 
 of Lewis the loth, the seventy-two great fiefs of France were united to the 
 crown, and all their feudal lords attended, at the states general in 1614, the 
 last that were held, till the late memorable assembly of them in 1789. This 
 system of re-union was completed by the accession of the provinces of Lor- 
 raine and Bar to the crown of France, in 1735. See Abbrege Chronologique 
 de grands Fiefs de la Couronne de France. Paris, 1720. Like France, Spain 
 was broken into as many principalities as it contained barons. In the course 
 of time, they were all absorbed in the more powerful kingdoms of Arragon 
 and Castile; and, by the marriage of Ferdinand, the sovereign of Arragon, 
 with Isabella, the sovereign of Castile, they were all united to descend in the 
 same line. No such re-union took place in the empire. Under the immediate 
 successors of Charlemagne, it was broken into innumerable principalities, never 
 to be re-united. If we allow for the difference of public and private manners, 
 it presents the same spectacle at this day, as the other states of Europe pre- 
 sented formerly, but, which is now peculiar to itself — a complex association 
 of principalities more or less powerful, and more or less connected, with a 
 nominal sovereignty in the emperor, as its supreme feudal chief. In England 
 no such dismemberment as that we have been speaking of, took place ; nor 
 did the nobles ever acquire, in England, that sovereign or even independent 
 power, which they acquired in Spain, Germany, or France. The power and 
 influence of some of the English nobles were certainly great, and sometimes 
 overshadowed royalty itself. But it is evident, that Nevil the great earl of 
 Warwick, and the nobles of the house of Percy, the greatest subjects ever 
 known in the country, were, in strength, dignity, power and influence, and in 
 every other point of view, greatly inferior to the dukes of Brittany or Bur- 
 gundy, or the counts of Flanders. The nature of this note neither requires 
 nor allows a further deduction of the public history of the feuds of Europe : 
 the four circumstances we have mentioned, — the heirship of fiefs, the right of 
 
 primogeniture,
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 primogeniture, the intermediate sovereignty of the crown vassals, and the 
 introduction of subinfeudation, completed the triumph of the feud over mon- 
 archy. Here the historical deduction naturally closes. The Carlovingian 
 family is the important link which connects ancient with modern history, 
 Roman jurisprudence with the codes of the German tribes, and the law of 
 civil obligation with the law of tenure. 
 
 V. Before we quit the subject of foreign feuds, it may not be unacceptable 
 to the reader, that we should state, in a few words, the nature, first, of the 
 states general; secondly, of the parliaments; thirdly, of the nobi- 
 lity OF the nations ON the continent, where the feudal polity has been 
 introduced ; and, fourthly, some observations on THE difference between 
 
 THE PARLIAMENT AND NOBILITY OF ENGLAND, AND THE PARLIAMENT AND 
 NOBILITY OF THE COUNTRIES ON THE CONTINENT. 
 
 V. 1. It appears, from what has been already mentioned in this annotation, 
 that the National Assembly on the Champ de Mars, and the Champ de Mai, 
 consisted of a body of individual chieftains, convened by their prince. After 
 the chieftains had made their governments independent and hereditary, the 
 National Assembly was a convention of hereditary chiefs of particular states, 
 briu'Ting to it their own vassals. To this assembly, the Commons, who had no 
 place in the national assembly, as it was originally constituted, obtained, by de- 
 crees, a rio-ht of admittance. Then, the national assembly became constituted, 
 not of the three orders of the state, — for it is anticipating events, to give them 
 this appellation, — but of the three states, of which the nation was composed, the 
 first were those governed by the great ecclesiastical vassals ; the second were 
 those governed by the great lay vassals ; the third, were civil communities, go- 
 verned by municipal officers. The two former attended in person, bringing, as 
 we have said, their own vassals with them ; the last attended by deputies. Af- 
 terwards, the great ecclesiastical and great lay vassals sinking in power, the 
 general body of the clergy arose into consequence, and became the order of the 
 clergy. On the similar depression of the great lay vassals, the general body of 
 the nobles rose into consequence, and became the order of the nobility; the 
 commonalty retained their place, but increased in consequence. Thus consti- 
 tuted, the three bodies became the three orders of the state, and in the course 
 of time, the first and second, as well as the third order, appeared by deputies. 
 
 V. 2. But, in the mean time, a new power rose in the kingdom. In most 
 countries on the Continent, and particularly in France and Germany, the sove- 
 reign had a large patrimonial territory, which had its plaids or parliament, for 
 trying the causes of its occupants. This territory descended to his successors; 
 and, as the great fiefs were re-united to the crown, the plaids or parliament of 
 the original patrimonial territory of the sovereign became the plaids or parlia- 
 ment of the land-owners of these estates. At first, particularly while judicial 
 combats lasted, the parliaments administered justice by a species of military 
 law; insensibly, the parliament became a court of civil justice and civil forms, 
 and the kind's supreme council. By degrees, it superseded the national con- 
 vention of the states, so far, that the national convention was less frequently 
 called, and at length fell into such desuetude, that the assembly of the states, 
 in 1614, was the last that was held, before the memorable assembly of the 
 states in 1789. 
 
 V. 3. With respect to foreign nobility, — in France, soon after the accession 
 of the Capetian line; in Germany, soon after the house of Hapsburgh became 
 imperial, the distinction was introduced, of lineage royal, lineage noble, and 
 lineage purely free. The first was composed of princes, or those who claimed 
 a royal descent, through royal descents : the second was composed of dukes, 
 counts, marquises, and barons, or those who claimed a noble descent, through 
 noble descents: — after these, came the knights and their esquires; with the 
 esquire the class of nobility ended; and then came the mere freeman. This 
 
 distinction
 
 L. 3. C. 4. S. 300. Of Tenants in Common. [191. a. 
 
 distinction has been preserved in Germany. In France, all the great fiefs were 
 re-united to the crown, and the inferior nobility lost much of their territorial 
 power and influence; so that, towards the end of the reign of Lewis the 13th, 
 they were little more than a priviledged and favoured order, but wholly de- 
 pendent on the king, and subject to the law. — But, it must be remarked, that 
 dukes, marquises, counts, viscounts and barons, as such, were not noble. Those 
 only were noble who could prove their nobility from the time when fiefs became 
 hereditary, these were said to be noble of name and arms; or those who could 
 prove a century of nobility in their family; these were said to be nolle of race 
 and extraction. To these must be added the ennobled in consequence of grant 
 or office. 
 
 V. 4. The difference between the English nobility and English parliament, and 
 the nobility and parliaments of the nations on the Continent, is very remarkable. 
 The three states and three orders of the state on the Continent have been men- 
 tioned. In almost every country on the Continent, the third state, or third 
 order of the state, was originally distinguished from the nobility, and consisted 
 of the commonalty only. In England, all the barons or lords of those manors 
 which were held immediately of the king, were entitled to a seat in the national 
 council. In the course of time, they became numerous, and the estates of many 
 of them became very small. This introduced a difference in their personal im- 
 portance. In consequence of it, the great barons were personally summoned to 
 parliament by the king; the small barons were summoned to it, in the aggre- 
 gate, by the sheriff. They assembled in distinct chambers. The king met the 
 great barons in person ; but except, when he summoned their personal attend- 
 ance, left the latter to their own delibrations. These, and some concurrent cir- 
 cumstances, elevated the great to a distinct order fram the smaller barons, and 
 confounded the latter with the general body of the freeholders. 
 
 In the mean time, a considerable revolution took place in the right to the 
 English peerage. From being territorial, it became personal; — in other words, 
 instead of conferring on a favoured subject a territory, which, being held of 
 the king, made him a baron, and, of course, a peer of parliament, it often hap- 
 pened that the king conferred on him the peerage, with reference to a territory, 
 but without conferring on him any interest in the territory. The same revo- 
 lution took place, in respect to the high offices of dukes, marquises, earls, and 
 viscounts. These were originally territorial offices, which were exercisable 
 within certain districts, and entitled the possessors of them to a seat in the 
 national council. By degrees, these also became mere personal honours, the 
 king frequently granting them to a person and his heirs, with a nominal refer- 
 ence to a district; but, without the slightest authority within it: and, when 
 they were granted in this manner, if the party had not a baronial dignity, the 
 king conferred it on him, and thus entitled him to a seat in the higher house. 
 — Where the dignity was hereditary, if he had more than one male descendant, 
 his eldest son only took his seat in the house; and the brothers and sisters of 
 that son were commoners. Thus, a separate rank of nobility, unknown to 
 foreigners, was introduced in England; and thus, in opposition to a fundamental 
 principle of the French law, that every gentleman in France is a nobleman, — 
 it became a principle of the English law, that no English geutleman is a noble- 
 man unless he is a peer of the upper house of parliament. 
 
 In the manner which we have mentioned, the parliament of England became 
 divided into two houses, the Lords and Commons, and, together with the king, 
 constituted the legislature of the nation; but its judicial power generally fell 
 into disuse, except in causes which are brought before the House of Lords by 
 appeal. The reverse of this happened in every other country on the Continent, 
 — there, the parliament subsided into a high court of justice for the last resort, 
 and a court of royal revenue. — The nature of Roman, German, French, and 
 English nobility, is more fully explained in the writer's Succinct account of the 
 Geographical and Political Revolutions of Germany, or the Principal States 
 which composed the Empire of Charlemagne, from his Coronation in 800, to 
 Vol II.— 7 its
 
 191. a. J Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 its dissolution in 1806; with some account of the Genealogies of the Imperial 
 House of Hapsburgh, and of the Six Secular Electors of Germany, and of 
 Roman, German, French and English Nobility. 
 
 VI. It remains to say something of the REVOLUTIONS OF THE FEUD 
 IN THE JURISPRUDENCE OF OUR OWN NATION. 
 
 VI. 1. AS TO THE TIME WHEN IT WAS INTRODUCED. Whether 
 feuds prevailed in England, before the Norman conquest, has been the subject 
 of much dispute. In 1607, an event happened, which occasioned the question 
 to be discussed, with a profusion of learning. Several estates within the coun- 
 ties of Roscommon, Sligo, Mayo, and Galway, being unsettled as to their titles, 
 king James the 1st, by commission, under the great seal, authorized certain 
 commissioners, of whom Sir Henry Spelman was one, to make grants of these 
 estates. In exercise of this authority, the commissioners made a grant of lands 
 in Mayo to lord Dillon. King Charles the 1st issued a commission, to inquire 
 into defective titles: and orders were given, that all persons, who had any of 
 the estates in question by letters patent from the crown, should produce the 
 letters, or an enrolment of them, before the lord deputy and council. In pur- 
 suance of these orders, the letters patent to lord Dillon were produced. It was 
 found, that the lands were granted to them " to the lord Dillon and his heirs, 
 " to hold by knight service, as of his majesty's castle of Dublin." It was admit- 
 ted, that the commissioners had exceeded their commission, in reserving mmean 
 tenure, to the prejudice of the crown, when they ought to have reserved, either 
 an express tenure, by knight service, in capite, or not to have mentioned any 
 tenure; in which case, the law would have implied a tenure in capite. The 
 question, therefore, was, whether the deficiency of the tenure so far affected 
 the grant, as wholly to destroy the legal effect of it; or, whether the letters 
 patent might not be good, as to the land, and void only as to the tenure. The 
 case was argued, several days, by counsel, on both sides, at)d was afterwards 
 referred to the judges. They were required by the lord deputy and council 
 to consider of it, and to return their resolution. The judges disagreeing in 
 opinion, it was thought necessary, for public satisfaction, to have it argued 
 solemnly by them all. This was done accordingly. Those who contended for 
 the validity of the letters patent, urged, among other arguments, that tenures 
 in capite were brought into England by the conquest, but that grants were by 
 the common law; and, being more ancient than tenures, must, of necessity, 
 be distinct from the thing granted. From this, they inferred, that, though the 
 reservation were void, the grant itself might be good. In the course of their 
 arguments, on this point, they observed, that Sir Henry Spelman was mistaken, 
 when, in his Glossary, under the word Feudum, he referred the original of feuds 
 to the Norman conquest. This drew from him a reply. He published it under 
 the title, "Of the Original Tenure by Knight Service in England." In this 
 work, he argues, with great learning and strength of argument, that tenures, 
 such as they were granted, in the letters patent, by himself and the other com- 
 missioners, in Ireland, were not in use before the conquest. He distinguishes 
 between what he calls the servitia militaria and the servitutes militares. He 
 contends, that the grievances and servitudes of fiefs, as wardships, marriages, &c. 
 which to that day, he says, were never known to other nations, governed by 
 the feudal law, were introduced by the conqueror. But he seems to concede, 
 that, in a general sense, military service and feuds were known to the Saxons. 
 In this middle opinion, he appears to be followed by two very great authorities, 
 lord Hale and sir William Blackstone. Almost all writers, however are 
 agreed, that, in the reign of the conqueror, the feudal law was completely esta- 
 blished. Upon the whole, the most probable conjecture appears to be, that 
 evident traces of something similar to the feud, may be traced in the Saxon 
 polity; that it was established, with its concomitant appendage of fruits and 
 services, by the Norman barons, in the possessions, which were parcelled out 
 among them, by the conqueror; and that, about the middle of his reign, it was 
 
 formally,
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 formally and universally established by law. This universality of tenure, is, 
 perhaps peculiar to England. In other kingdoms, those parts of the lands, 
 which were permitted to remain in the hands of the natives, and a considerable 
 part of those, which the conquerors parcelled out among themselves, were not 
 originally subject to tenure. In the earliest age, however, of the feudal law, 
 some advantages attended tenure, and frequently occasioned the conversion of 
 allodial into feudal property. But in the anarchy, which followed the removal 
 of the Carlovingian dynasty, there was an end of all political government : so 
 that almost all persons found it advantageous to enter into the feud. To effect 
 this, they delivered up their lands sometimes to the sovereign, sometimes to 
 some powerful lord, and sometimes to the church, on condition to receive it 
 back in feudality. Lands thus delivered and returned, received the appella- 
 tion of feuda data et oblata. Some portion of lands, however, still remained 
 free. Of this the proportion differs in the countries on the continent. In 
 some, the courts presume it to be feudal, till it is proved to be allodial. In 
 others, the presumption is in favour of its allodiality. See before 63. a. note 1. 
 But with us, in the eye of the law, tenure is universal; that is, the dominium 
 directum of all the lands in the kingdom is in the crown ; the dominium utile 
 of them is in the tenant. 
 
 VI. 2. AS TO THE FRUITS AND INCIDENTS OF TEE FEUDAL 
 TENURE. These, in the original simplicity of the feud, were reducible to 
 two : on the part of the lord, to the obligation of warranty, that is, to defend the 
 title of his tenant against all others, and, when subinfeudation was introduced, 
 to the further obligation of acquittal, that is, to keep the tenant free from mo- 
 lestation, in respect of the services due to the lords paramount : on the part of 
 the tenant, to an obligation, of giving his lord his aid, that is, his military 
 assistance, and services in defence of the feud. But this primitive simplicity 
 of reciprocal obligation, was soon destroyed. Different sorts of tenures were 
 established, and the fruits and incidents of them were multiplied. A detail of 
 these does not seem to be required in this place ; especially as a full and mas- 
 terly account of them has been already given by Mr. justice Blackstone. 
 
 VI. 3. The branches of feudal jurisprudence, which principally concern the 
 tenures of Littleton and sir Edward Coke's commentary, and which, therefore, 
 may be thought such as at once call for and limit the present investigation, are 
 those which relate to the inheritance and alienation of the feud. — With respect 
 to the INHERITANCE OF THE FEUD, it may be observed, that, at the 
 same time, that succession itself prevails in every civilized country, the princi- 
 ple, by which it is governed, and the order in which it proceeds, are, every 
 where, different. The principle and order of the feudal succession, are peculiar 
 to that system of polity. Nothing, perhaps, will show these in so strong a light 
 as bringing them into contrast with the doctrines of inheritance in the civil law. 
 It has been already observed, that, in the Roman law, the distinction between 
 real and personal property, except in the term of prescription, is seldom discover- 
 able; but that in the feudal law, the legal incidents and qualities of the two 
 kinds of property are entirely dissimilar. This is no where more striking, than 
 in the article of inheritance. The Roman law of inheritance embraces both kinds 
 of property, equally ; the feudal law of inheritance, is, most strictly, confined to 
 real property, and, (it was almost said,) turns with disdain, from all property 
 of the personal kind. By the Roman law, the heir was a person instituted by 
 the party himself, or, in default of such institution, appointed by the law, to 
 succeed both to his real and personal property, and to all his rights and obliga- 
 tions. In the feudal law, he is a person related in blood to the ancestor; and, 
 in consequence of that relationship, entitled, either, merely by act of law, or, 
 by the concurrent effect of law and the charter of investiture, to succeed, at the 
 ancestor's decease, to his real or immovable property, not given away from him 
 by will. In the civil law, he was considered, as representing the person of the 
 deceased; in consequence of that supposed representation, the law cast on him 
 the property and rights of the deceased, and fixed on him all the deceased's 
 
 charges
 
 191. a. I Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 charges and obligations. Thus, by a fiction of the law, the person of the ances- 
 tor was continued in the heir, so that, in all religious, moral, and civil rights 
 and obligations, the heir, in the language of the Roman lawyers, was eadem per- 
 sona cum defuncto. In the feudal system, he succeeded to the real property, 
 only, of the ancestor ; and this, not under any supposed representation to him, 
 or in consequence of any supposed continuation of his person, but as related to 
 him in blood, and, in consequence of that relationship, as a person designated, 
 by the original feudal contract, to succeed to the fief. By the civil law, every 
 person was considered as capable of instituting an heir; where the party died, 
 without instituting an heir, the law introduced a necessary heir. Hence, the 
 distinction in that law, between the harcdes sui, necessarn, nati, nnd/ctcti. In 
 the feudal law, it was an acknowledged maxim, that God only can make an heir. 
 Hence the opposite maxim of the feuds, solus Deus potest facere hceredem, non 
 homo. By the Roman law, in consequence of the fiction, that the heir was the 
 same person with the deceased, he was bound to acquit all the deceased's obli- 
 gations, not only, so far as the property derived by him from his ancestor 
 extended, but, in their utmost extent. The first indulgence granted the heir, 
 was, that, the pretor allowed him a certain time, in which, he might deliberate, 
 whether he would accept the succession or not; at the expiration of which, he 
 was obliged, either absolutely to accept, or absolutely to renounce, the inhe- 
 ritance. Justinian established still further, in favour of the heir, a liberty of 
 accepting the inheritance, with, what was termed, the benefit of an inventor}', 
 that is, a condition, that he should not be liable beyond the value of the pro- 
 perty of the deceased. Nothing of this was known in the polity of the feudal 
 association. In the intendment of that law, the heir, as it has been observed 
 before, came under the original feudal contract : He claimed nothing as a gift 
 from the ancestor : He derived all from the original donor : He could not, 
 therefore, be liable to any of the obligations of the ancestor. Another maxim 
 of the Roman law was, that the representation of the heir to the ancestor, 
 did not take effect, till he determined his election to accept the succession, by 
 what was termed, an additio hosreditatis. In the feud, the law cast the right 
 of heirship on the heir, immediately upon the ancestor's decease; and though, 
 when the doctrine of alienation was introduced, the ancestor, by disposing of 
 all his property, might render his right of heirship perfectly nugatory, so far as 
 related to the property of which the ancestor died seised ; yet, upon this account, 
 he was not less the ancestor's heir. Thus, by the Roman law, as fixed by 
 Justinian, it was at the party's option, whether he would, or would not, be in- 
 vested with the character of heir. The feud left him no option; it forced the 
 heritable quality on him; and the dead man, in the language of that law, gave 
 seisin to the living, and forced on him the character of heir. Hence the maxim 
 and expression of the feud, le mort saisit le vif. From the supposed represen- 
 tation in the Roman law, of the deceased, by the heir, it became a maxim of 
 that law, that no person could die testate, as to part of his property, and intes- 
 tate as to the other part. The consequence of this was, that, whoever succeeded 
 as heir, whether he took the entirety, or a fractionary part only of the property 
 of the testator, was held, in consequence of that heirship, to continue the person 
 of the ancestor. In the feudal law, after testamentary alienation was allowed, 
 the contrary maxim ever prevailed ; the party might die testate, as to one part of 
 his property, and intestate as to another. To sum up the contrast in a few 
 words; — by the Roman law, the heir was a person appointed, indiscriminately, 
 by the law, or the deceased, to represent him; and, in consequence of t hat- 
 representation, was entitled to his property, and bound by his obligations. In 
 the feudal law, the heir was a person of the blood of the ancestor, appointed, by 
 the original contract, to the succession, or, at least invested with a capacity of 
 succession ; and, in consequence of that succession, was supposed, more by the 
 general notions of mankind, than by the notions of the feudal polity, to repre- 
 sent the ancestor. By the Roman law, the heir succeeded to the property of 
 the ancestor, in consequence of his civil representation of him, and supposed 
 
 continuation
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. p. 
 
 continuation of his person: In the feudal law, he acquired a notional repre- 
 sentation to the ancestor, in consequence of the feudal succession. In the 
 Roman law, real and personal property were equally the subject of inheritance : 
 — in the feudal law, inheritance was confined to real property. The Roman 
 heir claims, as such, all from the person last possessed, and nothing from the 
 original donor : the feudal heir claims, as such, all from the donor, and nothing 
 from the person last possessed. 
 
 VI. 4. The same difference prevailed in these laws, with respect to the 
 ORDER OF SUCCESSION. By the Roman law, as it was finally settled by 
 the Novels, on the decease of an intestate, the descendants, of whatever degree, 
 were called to the succession, in exclusion of all other relations, whether ascen- 
 dants or collaterals, and without regard to primogeniture, or preference to sex. 
 Where the intestate left no descendants, such ascendants as were nearest in 
 degree, male or female, paternal or maternal, succeeded to his estate, in exclu- 
 sion of the remoter heirs, and without any regard to representation ; but, with 
 this exception, that, where the deceased left brothers and sisters, of the whole 
 blood, besides ascendants, all succeeded in equal portions, in capite ; and here, 
 if, besides ascendants, the deceased left children of brothers or sisters of the 
 whole blood, the children succeeded to their parent's share, by representation, 
 in stirpes. Where the intestate left no descendants, and no ascendants, the 
 law called the collaterals to the succession, giving preference to the whole 
 blood. By the law of the code, if no one was left in the descending, ascending, 
 or collateral lines, the husband succeeded to the estate of the wife, and the wife 
 to that of the husband. This was altered by the law of the Novels. In default 
 of a legal heir, the estate became a res caduca, and the fiscus or exchequer 
 succeeded. Such appears to be the general outline of the Roman law, res- 
 pecting successions. The feudal regulations respecting successions, differed 
 from it, in almost every respect. Originally fiefs were granted to be held at the 
 will of the donor, and were, therefore, resumable at his pleasure ; then, they 
 were granted for a year certain ; then, for the life of the grantee; then, to such 
 of the sons of the grantee, as the donor should appoint. Then, all the sons, 
 and in default of sons, the grandsons were called to the succession of the fief; in 
 the process of time, it was opened to the 4th, 5th, 6th, and 7th generations, and 
 afterwards to all the male descendants, claiming through males, of the first 
 grantee; and, at last, was suffered to diverge generally, to collaterals. But 
 this, as to such collaterals as were not lineal heirs of the first donee, was effected 
 through the medium of a fiction completely and peculiarly feudal. When a 
 person took by descent, his brothers, though in the collateral line of relation- 
 ship to him, were in the direct course of lineal descent from the ancestor. In 
 proportion as the descent from the ancestor was removed, the number of per- 
 sons thus claiming collaterally from the last, and lineally from the first, taker, 
 was proportionally multiplied. In the course of time, the first taking ancestor 
 was forgot, and then, it was presumed, that all who could claim collaterally 
 from the person last in the seisin of the fee, were of the blood of the original 
 donee. On this ground, in later times, when, upon the grant of a fief, it was 
 intended, that, on failure of lineal heirs, the fief should diverge to the collateral 
 line, it was granted, to be held with the incidents and properties, with which 
 the donee would have held it, had it vested in him by descent, in a line of trans- 
 mission from a distant and forgotten ancestor: and, among them, that of 
 transmissibility to collaterals. — This general heirship of fiefs in the male line, 
 was introduced, in France, soon after the succession of the Capctian line, and, 
 in Italy and Germany, during the period, in which the empire was possessed by 
 the house of Franconia, and the earlier emperors of the house of Suabia. A 
 similar progress in the descent of lands, may be traced in the jurisprudence of 
 our own country. The policy of most feudal countries, has shown some pre- 
 ference of the whole blood to the half blood, and a great unwillingness to 
 admit females into the fief. In England, there has been a more rigid exclusion 
 of half blood, and a less rigid exclusion of the female line, from the feudal 
 
 succession,
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 succession, than is to be found in the law of almost any other country, governed 
 by the feudal polity. To us also, it seems to be peculiar, to exclude the parent 
 and all others in the ascending line, from the immediate succession to the fief. 
 But, the most striking point of difference between the Roman, and the feudal, 
 course of succession, is the prerogative allowed by the latter to primogeniture. 
 To the eldest son, the Roman law showed no preference; wherever the feudal 
 polity has been established, he has been allowed several important prerogatives. 
 In England primogeniture obtained in military fiefs, as early as the reign of 
 William the Conqueror, but with this qualification, that, where the father had 
 several fiefs, the pr im u mpa.tr is feud urn, only, belonged to the eldest son. In the 
 reign of Henry the 2d, primogeniture prevailed absolutely in military fiefs, and 
 in the reign of Henry the 3d, or soon afterwards, the same absolute right to the 
 succession by primogeniture, obtained in socage lands. Thus, in all countries, 
 where the feud has been established, a marked distinction in the order of suc- 
 cession, has, in direct opposition to every principle and practice of the Roman 
 law, been shown to primogeniture. Usu, says Zoesius, ad omnia feuda serpsit. 
 ut vel ex asse majori cedant vel major prcecipuum aliquod in Us habeant. But, it 
 is observable, that a total exclusion of the younger sons is, perhaps, peculiar 
 to England. In other countries, some portion of the fief, or some charge upon 
 it, is, in many cases at least, secured by law, to the younger sons. In some 
 places, this is secured to them for their lives only ; in others, their descendants 
 succeed to it. Still, the eldest son, in the eye of the law, represents the fee. 
 In Spain, the patrimony is divided into fifteen shares. Three shares, that is, a 
 fifth of the whole, are first subtracted ; afterwards, four shares, or a third of 
 the remaining twelve shares. This fifth and third, as they are called, are 
 termed a majoratus, and are at the free disposition of the parents; the re- 
 maining shares are appropriated to the children. The majoratus, may be, and 
 generally is, entailed upon the eldest son of the family, but a greater portion 
 of the patrimony cannot be settled on him, without leave from the crown. 
 The singular nature of this provision, has occasioned a particular mention of 
 it by most feudal writers; it was therefore thought proper to notice it, in this 
 place. Any further mention of the particular customs respecting primogeniture, 
 appears unnecessary. 
 
 VI. 5. x\nother striking point of difference between the Roman and the feudal 
 polity, with respect to real property, is, the contrast between THE AB SOL UTE 
 D OMINION VER TEE INHERITANCE, with which the Roman law in- 
 vested the heir, and the numerous and intricate fetters, with which the feudal juris- 
 prudence (of England particularly) has permitted it to be bound. The Roman 
 law, (it has been already stated at some length,) permitted a person to appoint 
 his heir, and invested him, on the testator's decease, with all his rights and 
 obligations. Before Justinian introduced the benefit of the inventory, as the 
 heir, by accepting the inheritance, subjected himself to all the testator's debts, 
 the office was sometimes refused, as dangerous. This gave rise to the vulgar, 
 the pupillar, and the quasi-pupillar substitution. The vulgar substitution was, 
 where the testator appointed one to be his heir, and, if he refused, substituted 
 another in his place. These conditional substitutions might be extended to 
 any number of heirs. When they were made, the heirs instituted under them, 
 were called, in succession, to accept or refuse, the inheritance. When once an 
 heir accepted the inheritance, it vested in him absolutely, and all the subse- 
 quent substitutions then entirely failed. The pupillar substitution was, where 
 a father substituted an heir to his children, under his power of disposing of 
 his own estate and theirs, in case the child refused to accept the inheritance, or 
 died before the age of puberty. The quasi-pupillar substitution was, where the 
 children past puberty, being unable, from some infirmity of mind or body, to 
 make a testament for themselves, the father, in imitation of the pupillar 
 substitution, made a testament for them. In all these cases, it is evident the 
 dominion over, and substance of, the inheritance were preserved entire and 
 
 unqualified.
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 unqualified. In two instances, and in these only, the R >man law admitted an 
 exception to their integrity. The first was in the case of a usufruct ; where a 
 right was given to one person, to use and enjoy the profits of a thing belong- 
 ing to another. The second was, the case of a fidei commissum, when the in- 
 heritance was disposed, in whole, or in part, to an heir, in trust, that he 
 should dispose of it to another. But neither of these devices suspended the 
 absolute vesting of the inheritance. An usufruct could not be extended 
 beyond the life of the usufructuary. Thefidei commissarius (the person bene- 
 ficially interested in the inheritance) could compel from the hares fiduciarius, 
 (the trustee.) a transfer of the inheritance immediately on the accruer of his 
 right. Thus the property and dominion of the inheritance absolutely vested in 
 him in equity, with an immediate right to compel a legal transfer of it. In this 
 manner, by the Roman law, the heir succeded, in every case, to the absolute 
 property of the inheritance, and to all the rights and obligations of the ancestor. 
 It should, however, be observed, that this account of the simplicity of the 
 Roman law with respect to the tenure, if it may be so called, of property, 
 applies to it only, in the state of simplicity in which it was placed, by the 
 Trebellian and Pegasian decrees. In a further part of this annotation, we shall 
 have occasion to mention the alteration occasioned by the introduction of 
 fidei-commissary substitutions. These are to be considered, as a departure 
 from the genuine spirit of the Roman law, in the doctrines respecting inherit- 
 ances. See Hubert Frcelectiones ad Inst. lib. 2. tit. 23. § 18. From that spirit, 
 nothing could be more different, with respect to the tenure and modifications of 
 property, than the regulations of the feudal law. According to these, the heir 
 derived his title, no otherwise through his ancestor, than from the necessity of 
 mentioning him in his pedigree. This enabled him to describe himself, as an 
 object to whom the succession was originally limited. Thus he was a nominee 
 in the original grant ; he took every thing from the grantor, nothing from his 
 ancestor. The consequence was, that, while the absolute or ultimate owner- 
 ship was supposed to reside in the lord, the ancestor and the heirs took equally 
 as a succession of usufructuaries, each of whom, during his life, enjoyed the 
 beneficial, but none of whom possessed, or could lawfully dispose of, the direct 
 or absolute dominion of the property. Thus, while, by the Roman law, and 
 the law of almost every other country, property is vested in the possessor solely 
 and absolutely, every species of feudal property is necessarily subject to the 
 three distinct and clashing, though concurrent, rights of the lord, the tenant, 
 and the heir. It follows, that, by the original principles of the feudal^ law, 
 fiefs could neither be aliened nor charged with debts, and in direct contradiction 
 to almost every other system of law, the feudal system of polity made laud un- 
 alienable, and absolutely took it out of commerce. 
 
 VI. 6. THE VARIOUS MODES WHICH HAVE BEEN USED, IN 
 THE COUNTRIES WHERE THE FEUD HAS BEEN ESTABLISH- 
 ED, TO ELUDE, OR OVERTHROW, THE RESTRAINTS UPON 
 ALIENATION form one of the most important parts of feudal learning. The 
 mode, by which this has been effected in England, is particular to itself. It 
 has been the principal occasion of the striking difference, to be observed, in the 
 feudal jurisprudence of England, and that of other countries. One artifice to 
 elude the feudal restraint upon alienation, seems to have been resorted to, by 
 every nation where the feudal policy has been established, — that of subinfeudar 
 tion. Its effect, its aggrandizing the vassals, and rendering them independent 
 of the throne, has been already noticed. It also served as an indirect mode of 
 transferring the fief. It was inhibited in England, to all but the king's vassals, 
 by the statute quia emptores terrarum, IS Edward 1st; and this inhibition was 
 extended to the king's vassals, by the statute de prcrogativa regis, 17 Edw. 2. 
 c. G. In most other countries it is still allowed, under some restrictions. The 
 chief of these are, 1st. That it must be real subinfeudation, and not a sale, or 
 other transaction, under the appearance or colour of a subinfeudation ; 2d. That 
 
 the
 
 191. a. ] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 the sub-vassal must be of equal, or at least, of suitable rank and circumstances. 
 And, 3dly. The conditions, so far as the lord is interested in them, must be the 
 same, as those, upon which the original investiture is granted. In other res- 
 pects, the feudal history of alienation has varied. As it now stands, in almost 
 every country, the lord's consent must be had. But in some, it still continues 
 a matter of favour, in others it is a matter of right, to which the tenant is 
 always entitled, on paying certain fines to the lord. The principal of these are 
 the quint and the lods et ventes. These the lord claims on every sale. In 
 other cases, where the fief is transferred from one to another the lord claims the 
 relevium or droit de r achat, which, generally, is one year's produce of the fief. 
 In many countries, where the tenant sells his fief, the lord has a jus retr actus, 
 or retrait feodal, by which, he has a right to become, himself, the purchaser of 
 the fief, on reimbursing the stranger the price paid by him, for the purchase of 
 it, and the costs attending the purchase. In many countries, also, the right of 
 the heir is consulted by giving him the retrait lignager, by which, when a fief 
 is sold, a relation of the vendor, within a certain degree of parentage, may 
 entitle himself to repurchase the fief by an offer of the purchase money, inter- 
 est, costs, and expenses, or as it is termed in the writ, offre de bourse, deniers, 
 loyaux courts a parfaire. Such is the general history of alienation in foreign 
 countries. The history of alienation in England is very different. A liberty 
 of alienating lands of purchase, at least where the party had no son, is allowed 
 by a law of Henry the 1st, and expressly recognized by a law of Henry the 2d. 
 Sometime afterwards, it obtained generally, with little or no limitation. The 
 indirect mode of aliening, through the medium of subinfeudation, the restraint 
 of it, by magna charta, and its total abolition of the statutes quia emptores, 
 and de prerogativa regis, have been already noticed. 
 
 VI. 7. But while the restraints upon alienation, so far as it was contrary 
 to the general principles of the feudal tenure, were thus gradually removed, 
 the policy and private views of individuals, found means to impose new re- 
 strainst upon it. This was done by the introduction of conditional fees at the 
 common law, and afterwards by the INTRODUCTION OF ENTAILS. 
 We shall consider this species of limitation of property with a view to the dif- 
 ferent modes of it, which have been admitted by the Roman law, and by the laws 
 of France, Spain, Germany, Scotland, and England. With respect to the Ro- 
 man law, we have already had occasion to note its simplicity, in the inherit- 
 ance of property as it was settled by the Trebellian and Pegasian decrees, and 
 its alteration, in this respect, by the introduction of thefidei-commissa. These 
 gave rise to successive fidei-commissary substitutions. By multiplying these, 
 and by prohibiting each substitute from aliening the inheritance, property was 
 absolutely taken out of commerce, and fixed in a settled and invariable course 
 of devolution iu particular families. There is reason to suppose this mode of 
 settling property was never common, and the policy of Justinian soon inter- 
 fered to check it. By the 159th Novel, he restrained fidei-commissary substi- 
 tutions to four degrees, including the party himself who instituted the substi- 
 tution. With the third substitute, therefore, the power of the testator expired, 
 the absolute dominion vesting absolutely in him. This, in some measure restored 
 the law to its primitive simplicity. A similar progress is discoverable in the his- 
 tory of French Jurisprudence respecting Substitutions. The law of France ap- 
 pears to have generally admitted perpetual substitutions. The ordonnance of Or- 
 leans, in 1560, restrained them to two degrees, exclusive of the instituant. That 
 ordonnance not having a retrospective operation, and the inconvenience arising 
 from prior substitutions being greatly felt, the ordonnance of Moulins, in 1566, 
 restrained all substitutions, anterior to the ordonnance of Orleans, to the fourth 
 degree of the instituant. The ordonnance of 1747 fixed the law on this impor- 
 tant branch of real property. It was framed with great deliberation, by the 
 chancellor d'Aguesseau, after taking the sentiments of every parliament in the 
 kingdom, upon forty-five different questions proposed to them on the subject. 
 
 These
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 These questions, and the answers of the parliaments, have been published under 
 the title, Questions concernant les Substitutions, Toulouse, 1770. The ordon- 
 nance of 1747 confined substitutions, with some exceptions, to two degrees, and 
 directed the degrees to be computed, by the individuals, in whom the sub- 
 stitution vested. Upon this, it was held, that if the testator appointed several 
 persons, jointly, to the inheritance, they formed, together, but one degree; if 
 he appointed to it several persons successively, though in the same degree of 
 kindred, as brothers or sisters, each person in whom the succession vested, 
 formed one degree. The mode of settlement used in Spain, by what is termed 
 a Majoratus, has been already noticed. In Germany, the restraints imposed by 
 the feudal law, on the alienation of property confined by the original investiture, 
 to a particular channel of descent, still prevail; so that the same intricate 
 entails subsist with them, as with us ; without those modes of eluding them 
 which the laws of England have sanctioned. The tailzies or entails of Scotland 
 appear still more intricate. The least restrictive of these is called a Simple 
 Destination. It is defeasible and attachable by creditors, so that it amounts to 
 no more than a designation who is to succeed to the estate, in case the tem- 
 porary possessor neither disposes of it, nor charges it. The next degree of 
 tailzie, is a tailzie with prohibitory clauses. The proprietor of an estate of 
 this nature cannot convey it gratuitously, but he may dispose of it for onerous 
 causes, and it may be attached by creditors. The substitutes, however, as 
 creditors by virtue of the prohibitory clause, may by a process in Scotland, 
 term,ed an inhibition, secure themselves against future debts or contracts. 
 The third and strictest degree of tailzie, is a tailzie guarded with irritant and 
 resolutive clauses. This is a complete bar to every species of alienation, 
 voluntary or involuntary. The efficacy of these clauses, both against the heir, 
 and the creditors of the tenant in tail, aliening, was established in 1662, by a 
 solemn decision of the judges of Scotland, in the case of the viscount Stormont 
 against the creditors of the earl of Anandale ; and that decision was sanctioned 
 by a statute of the Scottish parliament in 1685. This mode of entail appears 
 to be greatly discouraged by the judicature of the country; and modes of 
 eluding it have been discovered, and allowed in their courts of justice. With 
 respect to English entails, we have taken notice of the maxim of the Roman 
 law, that no man can name an heir to succeed to his heir; and, of the opposite 
 maxim of our law, that God only can make an heir, not man. The latter 
 maxim was understood, with this qualification, that, though the party could not 
 introduce a person into the heirship of the fief, who was not originally capable 
 of inheriting the fief, by being of the blood of the donee, still he might give a 
 preference to a particular class of persons, falling within that description, and 
 might exclude others. Thus, in Englaud, according to sir William Blackstone, 
 (lib. 2. c. 7. s. 2.) as in all other countries, where fiefs have prevailed, they 
 might originally be limited to the male, either in preference to, or in utter 
 exclusion of, the female descendants of the party. In the same manner, they 
 might be limited to a male and his desccndauts, by a particular wife, or to a 
 female and her descendants, by a particular husband, or to both the parents 
 and the heirs of both their bodies. These, at the common law, were all termed 
 Estates in fee-simple, conditional. The condition, from which these estates took 
 their appellation, did not prevent the fee from vesting in the donee, immedi- 
 ately upon the gift; it only authorized the donor to re-enter, if the party had 
 not issue, or, if, having issue, the issue afterwards failed, and neither the donee 
 nor the issue aliened. Upon this principle, it was considered to suspend the 
 power of absolute alienation, till the birth of issue. But upon the birth of 
 issue, the party had the same power of alienation over the conditional fee, as 
 he had over an absolute fee. The statute de donis conditionalibus took away 
 this power. It did not, however, affect the estate of the donee, in any other 
 respect. The consequence of this was, that, a tenant in tail was as much 
 seised of the inheritance, after the statute de donis, as a tenant in fee-simple 
 
 conditional,
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 conditional, was, before it. Thus, therefore, an estate of inheritance remained 
 in the donee; but, a particular description of heirs only being entitled to take 
 under it, it received the appellation of an estate tail, that is, an estate docked, 
 cut off, or abridged, in contradistinction from the estate in fee-simple absolute. 
 Thus, the fee was preserved to the issue, while there was issue to take it, and 
 was preserved to the donor, when the issue failed. This reversionary right of 
 the donor was soon found to be susceptible of the same modifications, as a pre- 
 sent estate, and, therefore, limitations, either of the whole reversion, or of 
 partial estates out of it, were made to strangers. It frequently happened, that, 
 after a limitation to one series of heirs, another series of heirs was substituted, 
 to take the fief, on the failure of the first series. The first person then, to whom 
 this subsequent series was limited, was made the stock, or terminus, of this sub- 
 sequent line of inheritance. In these cases, the substitute did not take in 
 quality of heir to the last taker, but as a new purchaser under the original 
 donor. Thus, in direct opposition to every genuine principle of the Roman 
 law, endless substitutions were introduced, not only of individuals, but of whole 
 lines of descendants, and the estate being thus unalienably preserved to the 
 issue, there was still a more pointed opposition, to the maxim of the Roman 
 law, that the heir necessarily succeeded to the obligations of the deceased. 
 
 VI. 8. These new restraints upon property were never favourably received, 
 and various ARTIFICES WERE USED TO ELUDE TEEM One of 
 these, was carried into execution, through the medium of a discontinuance. It 
 has been observed, that, though the statute de donis took away the power of 
 lawful alienation, it did not suspend the vesting of the fee. The alienation, 
 therefore, of the donee tenant in tail, was no forfeiture ; and the alienee, as he 
 took his conveyance from a person seised of the fee, was considered as coming 
 in, under a lawful transfer of the inheritance. Now, it was an established rule 
 of law, that, whenever any person acquired a presumptive right of possession, 
 his possession was not to be defeated by entry. The consequence of this was, 
 that, in these cases, the alienation was unimpeachable during the life of the 
 alienor, and, after his decease, the heir could not assert his title by the sum- 
 mary process of entry, but, was driven to the expensive and dilatory process of 
 a formedon; this was termed a discontinuance. The expense and delay attend- 
 ing a formedon frequently prevented the tenant in tail from resorting to it, to 
 assert his right. In the course of time, the period for asserting it elapsed, 
 and thus, therefore, virtually, the discontinuance proved a bar to the entail. 
 Another mode of eluding estates tail was, by warranty. When lands were 
 conveyed from one to another, the grantor, for the greater security of the 
 grantee, usually warranted, that is, entered into a covenant to defend the 
 possession to the grantee, and, in case of eviction, to make him a recompense. 
 This obligation of the ancestor was considered to be a covenant real, and 
 therefore, on his decease, descended on the heir. Thus, it frequently happened, 
 that, on the death of the ancestor, his contract of warranty descended on the 
 person, who would, otherwise, be entitled, as his heir, to the lands warranted, 
 so that, the obligation of warranty, and the right to the lands warranted, met 
 in the same person. The consequence of this was, that, as heir in tail, he was 
 entitled to the lands; as heir general, he was bound to defend the title of his 
 ancestor's alienee : thus, if, on the one hand, he was entitled to recover the 
 lands, the alienee was entitled, on the other, to recover an equivalent recom- 
 pense from him. To prevent this circuity, it was held, that the obligation to 
 warranty, precluded him from claiming the lands warranted. Against this, in 
 some cases, the statute de donis, provided. The general doctrine was, that 
 where the heir claimed, as heir, the lands warranted, he was bound by the war- 
 ranty, in those cases only, where he inherited, from the ancestor, fee simple 
 lands of equal value; but, where he claimed as purchaser, he was bound by 
 the warranty, though no such lands descended upon him. This is the mean- 
 ing of the maxim, that warranty, when lineal, is a bar with assets; and when 
 
 collateral,
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 collateral is a bar without assets, to the right of the tenant in tail, on whom 
 it devolved. By these artifices, the force of entails wa3 eluded. In the progress 
 of time, methods were discovered, by which the law allowed them to be 
 obsolutely destroyed. The first of these have received the name of a common 
 recovery. In the language of the courts, a recovery is the effect of a sentence, 
 in a solemn judgment, whereby the party is restored to a former right. In the 
 particular language of our courts, when applied to judgments in adversary 
 actions, it is the effect of a sentence, by ^hich, in a suit instituted for the 
 recovery of an estate claimed by the party, judgment is given him, that he 
 shall recover it, according to his claim. In a suit of this nature, when really 
 adversary, the judgment, whether given after defence, or upon default, equally 
 bound the right to the land. Of this, tenants in tail availed themselves, to 
 deliver their estates from the entails to which they were subject. They per- 
 mitted the entailed lands to be recovered against them, on a fictitious process, 
 but with a secret confidence, reposed in the recoveror, that after the recovery 
 was completed, he should reconvey the lands to the party in fee simple ; and 
 in the meantime, permit him to take the profits of them. Another mode, by 
 which the destruction of entails was allowed to be effected, was the application 
 of the legal operation of fines. In the notion of our courts, a fine is a com- 
 promise, with the leave, and under the sanction of the court, of a real action, 
 for the recovery of land. It is common to all courts of justice, to permit suits 
 commenced in them, to be compromised, and to give their sanction to the 
 compromise. In the civil law, and in the feudal law of other countries, this 
 species of compromise is termed a transaction. The process itself, therefore, 
 we have in common with them. But, it is peculiar to our law, to use it as a 
 mode of eluding the restraints imposed by the law of the land on the alienation 
 of real property. A writ is brought against the tenant in tail, by which the 
 party suing out the writ demands the lands, against the tenant, on his sup- 
 posed previous agreement or covenant, to convey the land to him. The tenant 
 is understood to be satisfied with the justice of the claim, and therefore applies 
 for the license of the court, to make the matter up. This is granted. The 
 parties thereupon enter into a concord or agreement. By this, the tenant 
 acknowledges the lands to be the right of the demandant. This acknowledg- 
 ment, being made with the leave, and under the sanction, and entered on the 
 records, of the court, had the effect of a judgment. Of this process, tenants 
 in tail availed themselves, to bar their estates tail, in the same manner they did 
 of judgments ; they procured a fictitious suit to be instituted against them, and 
 settled it, by a fictitious compromise, in which they acknowledge the right to 
 be in the demandant ; with the same secret confidence reposed in him, that 
 he should hold the same in trust for them, and convey it according to their 
 directions. Thus, through the medium of a collusive suit and judgment, which 
 are now called a common recovery, in one instance, and of a collusive suit and 
 compromise, which are now called a fine, in the other, entails were totally 
 defeated. It is unnecessary, here, to trace the steps by which this has been 
 effected. Common recoveries were originally a deceit upon courts of justice. 
 When the sanction of the courts was first given them, it was done indirectly, 
 with great caution, and some degree of artifice. It was not till the reign of 
 Edward the 4th, that they obtained the unequivocal sanction of a solemn 
 decision of a court : and it was a much later period, before their effects were 
 recognised by the legislature of the country. The introduction of fines, was 
 effected in a much bolder manner. The statute de donis had said fines should 
 be null ; the statute of the 4 of Henry 7, or at least that of the 32 of Henry 8, 
 said they should be valid. The different effects of a fine and a recovery do not 
 fall within this inquiry. (Mr. Cruise's valuable treatises upon them are well 
 known.) It seems sufficient to observe, generally, that a fine is binding on 
 the issue in tail only ; a recovery is binding both on the issue and those 
 claiming in reversion or remainder. A still more summary and easy opening 
 of entails has been granted by the legislature, in favour of the crown, by 
 
 33 Hen. 8.
 
 1 91. a. j Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 33 Hen. 8. c. 39. in favour of the creditors of traders, by the 21 Jac. 1. c. 19. 
 whereby the commissioners are authorised to sell the bankrupt's entailed 
 lands; in favour of general creditors, ty the acts for the relief of insolvent 
 debtors ; and in favour of charitable donations, by the 43 Eliz. c. 4. 
 
 VI. 9. The alienation hitherto spoken of, except that referred to in the last 
 observation, has been confined to cases where it is the act of the party himself; 
 and is, therefore, termed voluntary alienation. But, in many cases, it is pro- 
 duced by the act of law against the party's own will. In these cases, it is 
 termed IN VOL UNTAR Y ALIEN A TION. Here its effects must be considered, 
 with respect to the party himself, his heir, and the special prerogative of the king. 
 In every instance the genius of the feud appears. With respect to the party 
 himself, the tendency of the feud to secure to the lord the services of the 
 tenant, and to take landed property from commerce, has been noticed. It was 
 a consequence of those principles, that the party was not at liberty to subject 
 either himself, or his lands, to the payment of his debts. When, therefore, at 
 the common law, a person sued a recognizance, or judgment for debt, or 
 damages, he could neither take the body, nor the lands of the debtor, except 
 in some special instances, into execution. He could only take in execution 
 his goods and chattels, and the profits of his lands. For those the law gave 
 him the fieri facias, by which the sheriff was commanded to cause the sum, or 
 debt recovered, to be made out of the goods and chattels of the debtor; and 
 the levari facias, by which the sheriff was ordered to seize the debtor's goods, 
 and receive the rents and profits of his lands, till the creditor was satisfied. 
 Thus, at the common law, neither the person nor the lands of the debtor could 
 be attached for debt. But, by the 25th of Edw. 3d. c. 17. the body of the 
 debtor was made liable, by a writ of capias ad satisfaciendum, to imprisonment, 
 till the debt was satisfied; and the statute of Westminster 2. 13th Edw. 1st. 
 ch. 18. granted the writ of elegit, by which the defendant's goods and chattels 
 are delivered, to the creditor, at an appraised value ; and, if these are not 
 sufficient, then the moiety or one-half of the freehold lands of the debtor, are 
 delivered to the creditor, to be retained till the debt is levied, or the debtor's 
 interest in the land is expired. Afterwards, under the statute de mercatoribus, 
 13 Edw. 1, the merchant might cause his debtor to appear before the mayor 
 of London, or any of the other persons mentioned in the act, and there acknow- 
 ledge his debt. This was called a recognizance. If the debt was not paid at 
 the time appointed, the recognizance was held to be forfeited, and the body, 
 lands and goods of the debtor, were to be delivered to the merchant creditor, 
 in execution to compel payment of the debt. The process by which this was 
 done, was called an extent, because the sheriff was to cause them to be 
 appraised, to their full or extended value, before he delivered them to the 
 creditor. By the statute of the 27 Edw. 3. c. 9. a similar process for the 
 recovery of debts was provided for those, whose debts were acknowledged 
 before the mayor of any of the towns, where the staple was held. These 
 securities are generally known by the short appellation of statutes merchant 
 and statutes staple. From their nature, they were, at first, appropriated to the 
 commercial part of the community. By the 23d Hen. 8. a similar security, 
 by a recognizance in the nature of a statute staple, was extended to the com- 
 munity at large. The laws, respecting bankrupts, seem now, to have made the 
 landed property of merchants and other tradesmen, generally subject to their 
 debts. The statutes respecting fraudulent conveyances and devices have pro- 
 ceeded, some way towards making lands generally liable. It may not be 
 improper to close this account of involuntary alienation by an account of invo- 
 luntary alienation in the Roman law, as it is succinctly stated in the Digest, 
 lib. 42. tit. 1. Primo quidem res mobiles animates pignori capi jubentur, mox 
 distrahi ; quarum pretium si suffecerit, bene est , si non suffecerit, etiam soft 
 pignora nt pi jubentur et distrahi. Quod si nulla moventia sint, apignoribus soli 
 initium faciunt. Quod si nee quce soli smit, sufficiunt, vel nulla sint soli pignora, 
 tunc pervenietur etiam ad jura. Si pignora qua , capta sunt, emptorem non 
 
 inveniunt,
 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 inveniant, rescriptum est ut addicantur ipsi cut quis condemnatus est. Addi- 
 cantur autem ea quantitate qua debetur. 
 
 With respect to the heir, — it has been observed, as one of the most striking 
 peculiarities of the feudal system, that the heir claimed nothing from the 
 ancestor, but came in under the original feudal contract. The consequence 
 was, that, originally, though on the decease of the debtor, the executor was 
 answerable, as far as he had assets, the heir was not answerable in respect of 
 the lands descended. But, after the free alienation of land was allowed, the 
 attachment of it, in the hands of the heir, for the debt of his ancestor, followed 
 as a necessary consequence. But, here again, the principal of the feudal law 
 introduced a distinction, which, with some qualifications, prevails at this day; 
 that, the assets in the hands of the executor, are liable generally to the ances- 
 tor's debts of every kind, but the assets in the hands of the heir are liable 
 only to debts of record, and debts by specialty, in which the heir is named ; 
 to the former, in respect of the lien, which the process of the court created, 
 on the lands themselves; to the latter on the supposition, that the heir was 
 comprehended in the original contract. For the ancestor's debts by simple 
 contract, in opposition to the Roman law, and to the most obvious principles of 
 natural justice, the heir still remains not liable. As to involuntary alienation, 
 in respect to the king, it has been observed, that, in the case of a common per- 
 son, the body of the debtor was not liable to execution ; but, in the case of 
 the king, it was different; for, at the common law, the body of the king's 
 debtor is generally supposed to have been always liable to execution. Yet it 
 seems singular, that, when the statute of magna charta restrained the king 
 from seising a man's land for debt, it should leave him at liberty to seise his 
 person. In the course of time, however, it is certain, that the body of the debtor 
 might be seised, and that, after the law made it liable for the debts of the sub- 
 ject, the king had these special prerogatives, that he could protect his debtor 
 against the suits of his other creditors ; and that, at the common law, he had a 
 right to the custody of his debtor's person, in another prison, at the suit of the 
 subject. By the common law also, all the goods and chattels of the king's debtor 
 might be sold for the payment of his debts. But the most important of the pre- 
 rogatives of the crown, at the common law was, that in the king's case, execution 
 issued, not only against the goods and chattels, but against the lands of the 
 debtor. Another important prerogative was, in the case of rent, for which the 
 king might distrain on any of the lands of the debtor. He had other important 
 prerogatives, with respect to priority and preference in execution, and satisfac- 
 tion of his debts, a minute investigation of which does not fall within the sub- 
 ject of this discussion. These extensive prerogatives have been considerably 
 .increased by the statute law of the realm. By the 33d Henry 8. c. 39. all 
 obligations made to the king, are to have the same force, and to be attended 
 with the same remedies, to recover them, as a statute staple. By the 13 Eliz. 
 c. 4. the lands of treasurers, receivers, and other accountants to the crown, 
 were made liable to execution for debts to the crown, in the same manner as 
 if the party had acknowledged a recognizance, under the statute of Henry 8. 
 A doubt arose upon this statute, whether a sale might be made under it, after 
 the death of the accountant or debtor. To remedy this, the explanatory 
 statute of the 27th Eliz. c. 3. was passed, by which a power of sale, after the 
 death of the debtor, was expressly given. Afterwards, by an act made in the 
 39th year of queen Elizabeth, this explanatory act was repealed, and a new 
 exposition was made of the statute of the 13th Eliz. with various new provisions. 
 But the act of the 39th Eliz. being only temporary, and having expired early 
 in the reign of James the first, the explanatory act of the 27th of Eliz. was 
 revived ; but it fell into disuse, and when it came to be examined, on occasion 
 of the late exertions made for the recovery of the crown debts, it was found 
 defective. This gave rise to the act of the 25th of his present majesty, c. 35. 
 by which the court of exchequer is authorized, on the application of his 
 
 majesty's
 
 191. a.J Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 majesty's attorney general, in a summary way, by motion, to order the estates 
 of crown debtors, which should be extended by any writ of extent, or diem 
 clausit extremum, to be sold for the payment of the debts. Thus the law ap- 
 pears to stand at present, on the involuntary alienation of land, with respect 
 to the debts due to the crown. 
 
 VI. 10. As to TESTAMENTARY ALIENATION', the influence of feudal 
 principles, on this branch of aliention, is still strongly felt. It has been observed, 
 that, by the Roman law, a will was an appointment of an heir ; and he was 
 considered, at the death of the testator, as universal successor to all the pro- 
 perty, rights, and obligations, of the deceased. Testamentary alienation, like 
 every other alienation, was prohibited by the genius and law of the feuds. By 
 what steps it prevailed here, is so happily, and so concisely explained, in a note 
 of the present Editor's most learned predecessor in this work, (note 1 to page 
 111. b.) as to render any deduction of it unnecessary in this place. To a peru- 
 sal of that note, the reader is therefore invited. It remains to observe, that, 
 after the testamentary power over land, was introduced, a devise of lands 
 was not considered to operate as an appointment of a party to be a general 
 heir of the testator, as in the Roman law ; but icas considered to operate as a 
 If gal conveyance of the lands themselves. See lord Mansfield's argument in 
 Hogan v. Jackson, Cowp. 299. In consequence of this, many of the requi- 
 sites to other legal instruments are requisites in wills. Thus, as to the 
 efficacy of a deed, for the transfer of real property, it is necessary, that the 
 grantor should have the seisin of the lands conveyed ; so, as to the efficacy of 
 a will, it is necessary, that, at the time of making his will, the devisor should 
 have the seisin of the lands devised, or at least that kind of inchoate seisin or 
 title, which is conferred by a contingent remainder. The consequence of which 
 is, that, while a Roman will operates on all the property of the deceased, with- 
 out any regard or distinction, as to property acquired by the testator, before or 
 after, the making of his will ; by the law of England, a will cannot operate 
 on any freehold lands, of which, at the time of making of the will, the party 
 has not this species of seisin. Another consequence of the notion, that, a will 
 affecting lands, is merely a species of conveyance, is, that, as by the law of 
 England, a fee simple cannot be created without words of inheritance in the 
 original donation or grant, so by the same law, icords of inheritance are equally 
 necessary to the creation of a fee by will. The only difference is, that certain 
 technical words are required by law, to the creation of an estate in fee, by 
 deed ; but in wills, they may be dispensed with, and supplied, by any words, 
 sufficiently denoting the intention of the testator. Here the subject appears to 
 draw to a conclusion. 
 
 VI. 11. The reader has been presented with some of the most striking cir- 
 cumstances in the history and principles of the feudal law, particularly so far 
 as they affect the landed property of this country. It remains only to state 
 some of the most striking circumstances, IN THE GENERAL HISTORY 
 OF ITS DECLINE. It has been shown, that the peculiar ingredient of the 
 feud was, the connection between, and the reciprocal obligations of, the lord, 
 and the tenant. Whatever interrupted or relaxed this connection and recipro- 
 city of obligation, had a direct tendency to overturn the feud. 
 
 One of the earliest circumstances of this tendency was, the general introduc- 
 tion of the practice of subinfeudation. This, however salutary, in a general 
 view, loosened the tye, which united the feudal association, by preventing the 
 chain of dependence and subordination, consequent to the practice of subinfeu- 
 dation; and which, it is evident from the general principles of the feudal law, 
 and the history of other nations, operated in the strongest manner to cement 
 and perpetuate the feud. 
 
 Another circumstance of the same tendency, was, the introduction of the 
 tenure of escuagc. This enabled the tenants by knights service to send persons 
 to serve in the king's armies in their stead, and in process of time to make a 
 
 pecuniary 

 
 L. 3. C. 4. Sect. 300. Of Tenants in Common. [191. a. 
 
 pecuniary satisfaction to the lord, in lieu of it. This substitution of money, for 
 personal attendance, was diametrically opposite to every feudal principle. Ac- 
 cordingly all writers have considered it, as a degeneracy of the tenure of knight 
 service. A further circumstance of the tendency we are speaking of, was, the 
 prevalence of the socage tenure. It is probable, that the number of these tenures 
 was not great, till a considerable time after the Norman conquest; and perhaps 
 the increase of them was not rapid, till sometime after the introduction of escu- 
 age. From a comparative view of the different natures of the military and socage 
 tenures, it is easily seen, how much stronger the feudal connection was under 
 the former, than it was under the latter. The tenure in burgage was a species 
 of socage tenure. Under this, chiefly, the commercial part of the community 
 classed themselves. Nothing could be more opposite to the nature of the feudal 
 tenure, than the wealth, the independence, and the peaceful habits of life, which 
 usually attend the pursuits of commerce. Thus, as the general tenure of socage 
 prevailed, the connection between the lord and the tenant proportionally relaxed. 
 
 But one of the most important circumstances, in the history of the decline of 
 the feud, is, the introduction of uses. By these the legal estate of the land was 
 in the feoffee. In fact, therefore, there never was a vacancy in the tenure. But 
 the ownership and beneficial property of the land being absolutely vested in the 
 cestui que use, there was no point of connection between him and the lord. Be- 
 sides, when a feoffment was made to uses, it seldom happened, that the feoff- 
 ment was made to a single person. The feoffees were numerous, and when their 
 number was reduced to that of one or two persons, a new feoffment was made 
 to other feoffees, to the subsisting uses. In the meantime, the ownership of the 
 land was transmitted and aliened, at the will of the cestui que use. It is evident 
 that, while the fief was held in this manner, there was a wide separation between 
 the lord and the tenant. It must also be observed, that, where there was a feoff- 
 ment to uses, the fruits of tenure incident to purchase, became seldom due, and 
 those incident to descent almost never accrued to the lord. Now, where a per- 
 son took by purchase, the lord was only entitled to the trifling acknowledgment 
 of relief: when he came in by descent, the lord was entitled to the grand fruits 
 of military tenure, wardship, and marriage. From these observations, it is clear, 
 how great a fraud was practised upon the lord, by the introduction of uses. A 
 fief thus circumstanced, presented an apparent tenant to the lord, but it was 
 almost barren of every fruit and advantage of tenure, and the land itself was 
 entirely subtracted from the feud. Hence, we find, that, among the mischiefs 
 recited in the preamble to the statute of uses, the loss to the lord, of the fruits 
 of tenure, is particularly insisted on. It does not fall within the nature of these 
 observations, to mention the steps which were taken to extirpate uses. One of 
 them was the statute of the 1 Richard the 2d. cap. 9. which gave an action to 
 the disseisee, both against the feoffee, and the cestui que use. It is observable, 
 that the senatus consult urn Trcbon ianum, gave the same right of action against 
 the hseresfiilei commissar! us. Unquestionably the object of the statute of the 
 27 of Henry 8. was to effect a total extirpation of uses. 
 
 But uses were preserved under the appellation of 'Trusts: — the consequence 
 has been, that more than half the landed property in the kingdom is, in some 
 form or other, charged, in the hand of the legal tenant, with a trust for the 
 benefit of some other person. A court of law, from its constitution, could not 
 take notice of such a charge : in fact, such charges originally were almost always 
 frauds on tenure; but there were reasons (perhaps rather specious thau substan- 
 tial) for contending, that, as between the legal owner and the person entitled 
 to the benefit of the trust, the legal tenant was under a moral obligation to exe- 
 cute the trust. Now, the only means of compelling the legal tenant to execute 
 the trust, which the judicial policy of the times afforded, was, by a resort to 
 the chancellor, The common law allowed him to compel the attendance of 
 any person by the writ of subpoena; and to enforce obedience to his directions
 
 191. a. ] Of Tenants in Common. L. 3. C. 4. Sect. 300. 
 
 by sequestration of the property, and imprisonment of the party. These enabled 
 him to summon the legal tenant to his court, to order him to execute the trust, 
 and, if he refused, to compel him to execute it, by sequestration and imprison- 
 ment. Too great praise cannot be given to the sound policy and discretion, 
 with which the chancellors successively exercised this nice and important juris- 
 diction. If they had considered that trusts, charged on lands, should be 
 governed by the rules of the civil law, which, when they first came under their 
 notice, seemed the natural course, the discordancy between tenure and trust 
 must have produced infinite confusion : but, by subjecting trusts, as far as the 
 nature of the case allowed, to the established rules of the feud, they preserved 
 an analogy between feuds, and trusts, in their most important bearings, as the 
 order of descent, the estates into which property may be modified, entails, and 
 the mode of barring them ; at the same time, that they preserved inviolate, the 
 relation between the lord and the tenant, the great principle of feudalism. 
 Hence, where one person held land in trust for another, though the chancellor 
 would decree the trustee to convey to the beneficial owner, still, the trustee re- 
 mained tenant to the lord. — In the same manner, where land was conveyed to 
 a person and his heirs on a particular trust, and the trust was performed, the 
 land, by the rules of the civil law, was instantaneously revested in the grantor; 
 but the chancellor considered it to continue in the trustee. Thus, in each case, 
 the feudal relationship remained till the tenant himself, by a legitimate con- 
 veyance, introduced another into the tenure. — The same principles, (allowing 
 for its different nature), were received into personal property, when the legal 
 ownership of it was vested in one person, charged with a trust in favour of an- 
 other. By this excellent arrangement, while trusts were made subservient to 
 the general wants and purposes of society, an analogy between them and legal 
 estates and interests in property was established, and, so far as real property 
 was concerned, the great principles of the common law of tenure were respected 
 and preserved. — Perhaps, the propriety of this arrangement, and the undevi- 
 ating wisdom of the great personages, by whom it was adopted and completed, 
 has not been sufficiently noticed. 
 
 It remains to observe, that the immense quantity of property of every de- 
 scription, which in consequence of these circumstances was brought under the 
 jurisdiction of the chancellor, gave rise to the great difference between the office 
 of chancellor in this country, and the office of chancellor on the continent. In 
 all countries of Europe, the chancellor is the highest dignitary of the state, the 
 guardian of the sovereign's conscience, and generally the keeper of his seal; 
 the visitor of hospitals and colleges of the king's foundation, and the general 
 superintendent of charitable foundations. — Over these, the chancellor of Eng- 
 land exercises chiefly, in consequence of the introduction of trusts, a vast and 
 extensive jurisdiction, partly as a court of common law, but principally as a 
 court of equity. On the continent, the chancellors have no such exclusive 
 court; but have the universal superintendence over all that relates to the ad- 
 ministration of justice in the kingdom, a controlling power to correct any 
 abuses, which find their way into courts of judicature, to form new regulations 
 for their proceedings, to determine questions of jurisdiction between them, to 
 settle differences among the members of them, to appoint the higher offices of 
 justice, and form the royal ordinances and edicts, which in any wise related to 
 the legal polity of the kingdom, or the administration of justice. — In most 
 countries, the administration of common law and equity is committed to the 
 same courts; in England, the courts are separate : — Lord Bacon, De Augmentis 
 Scientiarum, I. 8. c. 3. app. 46. has pronounced a decisive opinion in favour 
 of their separation. 
 
 While the relation between the lord and the tenant was great, the separation 
 of the beneficial interest from the legal tenure was a serious mischief. As the 
 relation is now exceedingly small, it is, in this respect, scarcely felt. In the 
 
 case
 
 L. 3. C. 4. Sect. 300. Of Tenants, in Common [191. a. 
 
 case of Burgess v. Wheate, 1 Blackst. Rep. 123. lord Mansfield endeavoured 
 to establish the right of the crown to the benefit of a trust, which failed for 
 want of an heir, by attempting to fix on trusts, the feudal incident of an escheat. 
 In the discussion of tbe question the analogy appeared unnatural, and the case 
 was decided against the crown. A better ground in favour of the claim of the 
 crown, might, perhaps, have been found, by resorting to its acknowledged 
 prerogative, of being entitled to the bona vacantia, or every species^ of pro- 
 perty of which no owner is discoverable. At length it became evident to 
 general observation, that, the principle of military tenure was gone ; and that 
 its incidents were more burthensome than advantageous, either to the lord, or 
 the tenant, so that all ranks of men seem to have desired its abolition. The 
 legislature of England proceeded in it with the circumspection, which the 
 magnitude of the object required. It was brought regularly before parliament, 
 in the 18th year of kind James the first, at his majesty's recommendation. In 
 the 4th Inst. 203, lord Coke mentions this circumstance, and particularizes the 
 outlines of the plan then in agitation. It bears a striking similitude to that, 
 which was afterwards adopted. At length the 12 Cha. 2. c. 24. was passed; 
 which enacts " That the court of wards and liveries, and all wardships, liveries, 
 " primer seisin, and ousterlemains, values, and forfeitures of marriages, by 
 " reason of any tenure of the king or others, should be totally taken away ; 
 " and that all fines for alienation, tenures by homage, knights service, and 
 " escuage, and also aids for marrying the daughter, of knighting the son, and 
 " tenures of the king in capite, should be likewise taken away j and that 
 " all sorts of tenures held of the king or others, should be turned into common 
 " socage; save only tenures in frankalmoign, copyholds, and the honorary 
 " services (without the slavish part) of grand serjeanty." 
 
 It remains to make some mention of the writers, of whose assistance, the 
 author, in framing this note, has principally availed himself. Some of these, 
 he has noticed in the course of the annotation ; and to sir Henry Spelman, he 
 must here repeat his acknowledgments, With respect to the other writers, to 
 whom he is under obligations ; — at the head of these, he must notice the feudal 
 writers of his own country, particularly, sir William Blackstone, lord Kaims, 
 sir John Dalrymple, sir Martin Wright, Doctor Robertson, and Doctor Gilbert 
 Stuart— After these, he must acknowledge a general obligation to three foreign 
 works, which in every part of the annotation, have been highly useful to him, 
 the Thesaurus Feuda/is of Jenichen, in the three quarto volumes, published at 
 Frankfort on the Main, in 1750 : the Ilistorica Juris of Struvius, in one quarto 
 volume, published at Jena in 1728 ; and Voet's Digressio de Feudis, subjoined 
 to his Commentary on the 38th book of the Pandects.— Under the first division 
 of the annotation, he has been greatly assisted by Koch's Tableau des Revolu- 
 tions de V Europe dans le Moyen Age, 4 vols, octave, Strasburgh, and Pari* 
 1814; 
 Droit 
 
 manner, 
 
 Romain, 1 vol. quarto, Paris, 1771.— Under the 2d division, he is principally 
 indebted to lord Stair's Institutions of the law of Scotland, lib. 2. til, 3.aud tu 
 a dissertation of Lynkerus de Feudo Pecuniario, published in Jenichen's Col- 
 lection, 3d vol. sect. 38th.— Under every part of the 3d division, he has par- 
 ticular obligations to the Sclecta Fcudalia of Thomasius, octavo, published at 
 Halle in 1728. In his account of the German codes, he has received great 
 assistance from Brunquellus's Historia Juris Romano- Germanici, octavo, 
 Amsterdam, 1728, part 4 ; and Heinneccius's Historia Juris, lib. 2. His account 
 of the capitularies is taken from these works, and from Baluzius's preface to his 
 edition of the capitularies. His account of the customary law is taken from 
 Fleury's Ilistoire du Droit Francois, and the article, Coutume, sent by Mons. 
 Henrion, to the French Encyclopedia. Mr. Gibbon, (3d vol. page 583. 
 Vol. II.— 8 note
 
 191. a.] Of Tenants in Common L. 3. C. 4. Sect. 301. 
 
 Sect. 301. 
 
 A LSO if a man let lands to two men for terme of their lives, $• the 
 
 one grants all his estate of that which belongeth to him to another, 
 
 then the other tenant for terme of life, and he to whom the grant is made 
 
 (et f celuy a que le graunt est fait,) are tenants in common during the 
 
 time that both the lessees be alive. 
 
 And memorandum, that in all other such like cases (que en touts % 
 auters tiels cases,) although it be not here expressly moved or specified, if 
 they be in like reason, they are in the like law (sont en || semblable ley.) 
 
 AND 
 + Mesme added in L. and M. but J les added in L. and M. butnot 
 
 not in Roll. in Roll. 
 
 || senible L. M. and Roh. 
 
 note 1.) has, with his usual energy, thus mentioned and characterized four 
 writers, the three last of whom, the editor has frequently had occasion to 
 consult, under the 4th division; " In the space of thirty years, (1738 — 1765) 
 " this interesting subject, (the history of the invasion of Gaul,) has been 
 " agitated by the free spirit of the count de Boulainvillers (Mcmoire historique 
 11 sur V Etat de la France, particularly torn. 1. page 15. 40.); the learned 
 " ingenuity of l'abbe Dubos (Histoire critique de V Etablissement de la Monar- 
 " chic Francaise dans les Gaulcs, 2 vols. 4to.) ; the comprehensive genius of the 
 " president de Montesquieu (Esprit des Loix, particularly 1. 28. 30, 31); and 
 " the good sense and diligence of the abbe de Mably (Observations sur 
 u V Hi stair e de France, 2 vols. 12mo.)." The last work, being considered as 
 unfavourable to monarchy, was opposed, by a work entitled Principcs de 
 Morale, de Politique et de Droit Public, puises dans I' Histoire de notre 
 Monarchic, ou Discours sur V Histoire de France, dedies au Roi,par M. Moreau, 
 Historiographe de France. A Paris, de V imprimerie royale, 1777, 24 vols. 8vo. — 
 Under this head, he has also received great assistance on the subject of the 
 history of France, from the president Henault, and from the Theorie des Ma- 
 tier esFeod ales et Censuelles, par Monsr. Herve", 5 vols. 8vo. Paris, 1785 ; — For 
 what he has said, respecting the feudal history of Germany, he is chiefly in- 
 debted to Mr. Dornford's excellent translation of Professor Putter's Historical 
 Development of the present Constitution of the Germanic Empire, and Struvius's 
 Elementa Juris Feudalis, Jena, 8vo. 1745. — In his account of the substitutions 
 of the civil law, he found, what is said on these subjects, in the Pra'lectiones 
 of Huberus, 3 vols. 8vo. Trajecti ad Rhenum, particularly useful. — The little 
 he has said on the Spanish fiefs, he has taken from Molina de Hispaniorum 
 Primogeniis, fol. Colonice, 1001 : and Zoesius's Juris Feudalis analytica Expo- 
 sitio, 8vo. Lovanii, 1603. He might perhaps have said something more satis- 
 factory on this head, had he been able to procure Girardus Ernestus de 
 Frankinau's Sacra; Themidis Hispania' Arcana, Hanover, 1703-4. In the pre- 
 sent edition of this Work, the writer has availed himself of a work of great 
 merit, De V Origine et des Progres de la Legislation Francaise, ou, Histoire du 
 Droitpublic etprive dela France, depuis la Foundation d c la Monarchic, jusques 
 et comprisla Revolution ; par M. Bernardi, 1 vol. 8vo. 1816. In a few instances, 
 he has taken, what he hopes will be thought, a pardonable liberty, of inserting, 
 in the present anuotation, some passages, from this notes to the subsequent 
 part of the work. These, however, will be found preserved in their original 
 situation. — [Note 77-]
 
 L. 3. C. 4. Sect. 301. Of Tenants in Common. [191. a. 
 
 AND so it is if lands be letten to two for terme of their lives, (2 Roll. Abr. 
 et eorum alterius diutiiis viventi{Y) i and one of theui grant- 89, 90. 1 Rep. 
 eth his part to a stranger, whereby the joynture is severed, and 84, '' 
 dyeth, here shall be no survivour, but the lessor shall enter into 30 Ass. 18. 
 the moity, and the survivour shall have no advantage of these (4 Rep. 72. b. 
 words, et eorum alterius diutim viventi, for two causes. First, 2 Cro. 378. 417. 
 for that the joynture is severed. Secondly, for that those words 
 are no more than the Common Law would have implyed without (Post. 205, a. 
 them, and expressio eorum quae tacite insunt nihil operator. Hob. 170. 208.) 
 
 Hereby 
 
 (1) Here lord Coke speaks only of a jointenancy for life; in which case, the 
 words and the survivor of them are merely words of surplusage; as, without 
 them, the lands, upon the death of one jointenant, go to the survivor. But, in 
 the creation of a jointenancy in fee, particular care must be taken not to insert 
 these words. For the grant of an estate to two and the survivor of them, and 
 the heirs of the survivor, does not make them jointenants in fee; but gives 
 them an estate of freehold, during their joint lives, with a contingent remainder 
 in fee to the survivor. — Whether, during their joint lives, the fee continues in 
 the grantor, or is in abeyance; and whether the grantees can convey their 
 estate; and what is the proper mode of conveyance to be used for this purpose; 
 are points which have been much agitated, and which, perhaps, are not yet 
 quite settled. They were all mentioned in the case of Vick v. Edwards, 3 P. 
 Will: 372. In that case lands were devised to B. and C. and the survivor of 
 them, and the heirs of such survivor, in trust to sell; lord chancellor Talbot 
 held, that the fee was in abeyance; that the trustees, joining in a fine of the 
 premises, might make a title to a purchaser, by way of estoppel; and, that the 
 heirs joining" might be of use, as it would supply the want of proving the will; 
 but that, in every other respect, it would be void. Five years before this case 
 was heard, the duchess of Marlborough, having contracted to purchase an estate 
 from the devisees in trust of sir John Wittewronge's will, where the devise 
 was worded in a manner similar to that upon which the case of Vick v. Ed- 
 wards arose, application was made to parliament for an act to enable the trus- 
 tees to convey the estate to her. In the preamble of the act it is mentioned, 
 "That the devise of the premises by the will of sir John Wittewronge was not 
 "effectual in the law to vest the absolute fee simple thereof in the trustees 
 "therein named, there being, by the words of the will, no fee vested, but upon 
 "a contingency of survivorship, and which could not vest or take effect till 
 "after the death of two of the trustees." But notwithstanding the case of 
 Vick and Edwards, it seems now to be the prevailing opinion, that, in these 
 cases, the fee is not in abeyance, but remains, pending and subject to the con- 
 tingency, in the grantor and his heirs, particularly, if the estate of the trustees 
 is created by a deed deriving its effect from the statute of uses, and that if it 
 be created by will, it descends, at the decease of the testator, upon his heir at 
 l aw . — In support of which it is said, that the whole fee must besupposed to 
 be in the grantor at the time of the conveyance; that so much of k as he does 
 not part with continues in him; that, in this case, the inheritance is undisposed 
 of, till, by the death of one of the parties, the remainder vests, and is executed 
 in the survivor; that, therefore, the inheritance continues in the grantor, as 
 part of his old reversion ; that the law never supposes the fee to be in abeyance, 
 unless where it is necessary to recur to that construction, for preserving some 
 estate or right; and that, in the present case, no such necessity exists. The 
 cases of Carter and Barnardiston, 1 F. W. 505. Furefoy v. Rogers, 2 Saund. 
 380. and many other cases of authority, strongly favour this latter opinion.— 
 The same reasoning goes to prove, that, where there is a devise to the effect in 
 question, the reversion in fee, during the suspense of the contingency, descends 
 on the heir at law. — As to the question, Whether the contingent remainder, in 
 
 this
 
 191. a.] Of Tenants in Common. L. 3. C. 4. Sect, 301. 
 
 Hereby it appeareth that in ease of leases for life it is more bene- 
 ficiall for the lessor to have the joynture severed than to have it 
 continue. 
 
 Vid. Sect. 1. " If ^ ic y oe w» like reason, they are in the like law." Here 
 
 Littleton citeth one of the Maximes of the Common Law. That 
 wheresoever there is the like reason, there is the like law. Ubi 
 eadem ratio, ibi idem jus ; or ubi eadcm ratio, ibi idem jus esse 
 debet; for ratio est anima legis. And therefore ratio -potest alle- 
 gari dejicientc lege. But it must be ratio vera et legalis et non 
 apparens. And here it appeareth that argumenhim d simili is 
 
 good 
 
 this case, can be conveyed? it may be observed, that, supposing the reversion 
 remains in the donor, if he and the donees join together in a common convey- 
 ance, by lease and release, or bargain and sale, the estate for life of the donees 
 will merge in the reversion, the contingent remainder be destroyed, and the 
 fee effectually conveyed to the purchaser. — It will be the same, in the case of 
 a devise to this effect, if the heir at law and the devisees in trust join in the 
 conveyance. — But, supposing the fee to be in abeyance; — or, admitting it to 
 remain in the donor; or, in case of a will, to descend on the heir, and supposing 
 him not to join; — lord Talbot, by what he is reported to have said in the case 
 of Vick v. Edwards, seems to have thought, that the trustees joining in a fine 
 might still pass a good title to a purchaser. But this doctrine is open to objec- 
 tion. See Mr. Fearne's Essay on Contingent Remainders, 6th edit. 357. Per- 
 haps, the liberality of succeeding times may think a common conveyance, by 
 lease and release, or bargain and sale, sufficient in these cases to pass the fee, 
 without either a fine or recovery. 
 
 In the case of Goodtitle v. Layman, in K. B. Trinity Term, 12 Geo. 3, there 
 was a devise to three persons as jointenants and the survivors and survivor of 
 them, and the heirs and assigns of such survivor for ever, the court of king's 
 bench held it to be a jointenancy in fee. — See Mr. Fearne's Cont. Rem. 6th 
 edit. 358. — In the matter of Harrison an infant, 3 Ans. 836, a mortgagee de- 
 vised all his property to three trustees, and the survivor and survivors of them, 
 and the heirs, executors, and administrators of such survivor, upon certain 
 trusts, the court was of opinion, that the fee descended on the heir, until, by 
 the death of two of the trustees, it should vest in the survivor. But it is ob- 
 served by the reporter, that there was no trust to sell, nor any trust, which, 
 by necessary implication, carried a fee to the trustees. 
 
 A material objection to taking the conveyance by fine from the trustees, lies 
 in those cases, where the heir at law is not a party. — For, if the trustees are 
 supposed to be jointenants for life, with a contingent remainder in fee to the 
 survivor, their fine may be supposed to be a forfeiture of their own estate, to 
 be a destruction of the contingent remainder to the survivor, and to give the 
 heir an immediate right of entry. — To prevent this, it has been advised, that 
 the trustee should demise the estate to the purchaser, or to a trustee for him, 
 for a long term of years; and that each trustee should covenant, that, if he 
 should be the survivor, he will convey the fee; — and to have that agreement 
 established, by a decree of the court of chancery. — If there are outstanding 
 terms, they should be assigned to a trustee for the purchaser. 
 
 It may be added, that, whatever doubts were formerly entertained, it now 
 appears to be the settled opinion of the profession, that a devise to two and 
 the survivor of them, and the heirs and assigns of the survivor, enables the 
 trustees to vest the fee in the purchaser; and that titles, under such a devise, 
 are accepted, with a conveyance from the trustees, and without the concur- 
 rence of the heir. — [Note 78.]
 
 L.3.C.4.S.302. Of Tenants in Common. [191. a. 191. b. 
 
 good in law. Sed similitudo legalis est camum diversorum inter 
 se collatorum similis ratio, quod in uno simUium valet, valebit in 
 altero dissimilium dissimilis est ratio. 
 
 f 1 ® 1 -] air Sect. 302. 
 
 A LSO if there be two joyntenants in fee (Item* si deux joyntenants 
 en fee sont), and the one letteth that to him belong eth to another for 
 terme of his life, the tenant for term of life during his life, and the other 
 jointenant which did not let, are tenants in common. And upon this case 
 a question mag arise ; as in such case (f si come en tiel case) admit thai 
 the lessor hath issue and die, living the other joy ntenant his companion, and 
 living the tenant for life, the question may be this, WJiether the reversion 
 of the moiety % which the lessor hath shall descend to the issue of the lessor, 
 or that the other jointenant shall have this reversion by the survivor (ou 
 que Tauter joyntenant avera || eel reversion per le survivor)? Some 
 have said in this case, that the other jointenant shall have this reversion 
 by the survivor ; and their reason is this, scil. That when the jointenant* 
 were jointly seised in fee simple (que quant les joyntenants fueront joynt- 
 ment seises § en fee simple,) cfc. although that the one of them make an 
 estate of that to him belong eth for term of ^ his life, and although that 
 he hath severed the freehold of this which to him belongs by the lease, yet 
 he hath not severed the fee simple, but the fee simple remaines to them 
 jointly as it was before. And so it seemeth to them, that the other joyn- 
 tenant ivhich surviveth 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 join-tenants leaseth that to him belongeth, to another for terme 
 of his life by such lease the freehold is severed from the joynture. And 
 by the same reason the reversion ivhich is depending upon the same free- 
 hold is severed from the joynture. Also if the lessor had reserved to him 
 an annual rent upon the lease, the lessor onely should have had the rent, 
 Sj-c. the which is a proof e, that the reversion is onely in him, and that the 
 other hath nothing in the reversion, $c. Also if the tenant for terme of life 
 were impleaded, $ maketh default after default, the lessor shall be only 
 received for this, to defend his right, and his companion in this case in no 
 manner shall be received, the which proveth the reversion of the moitie to 
 be only in the lessor (le quel prove ** le reversion del moity d'estre tant- 
 solement en le lessor) : and so by consequent, if the lessour dieth living 
 the lessee for terme of life, the reversion shall descend to the heir of the 
 lessour, and shall not come to the other jointenant by the survivor. Ideo 
 quaere. But in this case if that joint tenant ivhich hath the freehold hath 
 issue, § dies living the lessor and the lessee, then it seemeth that the same 
 issue shall have this moity in demesne, and in fee by descent, for that a 
 
 freehold 
 
 * si deux not in Roll, but in L. || eel reversion, ceo in L. and M 
 
 and M. and Roh. 
 
 f si not in L. and M. or Roh. § en — de in L. and, M. and Roh. 
 
 | &c. added in L. and M. and ^ his not in L. and M. or Roh. 
 Roh. ** que added in L. and M. and Roh.
 
 191. b. 192. a.] Of Tenants in Common. L. 3.C. 4. S. 302. 
 
 freehold cannot by nature of joynture be annexed to a reversion (pur ceo 
 que *un franktenement ne poet per nature de joynture estre annexe a 
 un reversion), Sfc. And it is certaine, that he which leased was seised of 
 the moitie in his demesne as of fee, and none shall have any joynture in 
 his freehold, therefore this shall descend to his issue, fyc. Sedqusere. 
 
 " TF there be tiro joyntenants in fee, &c." 
 This needeth no explanation. 
 
 " And upon this case a question may arise, &c." 
 Vid. 33 H. 6. Here Littleton maketh a question, and sheweth the reasons on 
 
 4 - b - both sides, and concludes with a Quaere. When Littleton maketh 
 
 a question, and sheweth the reason on both sides, the latter is ever 
 [a] Vide Sect, his own [a], and the better. But time hath made this question 
 340. 375. 439. -without question : for now all agree that the joynture is severed 
 464 482' 483' ^ or tne ti me ; according to the latter opinion here set down in 
 648. 72o!729. Littleton, whose reasons are unanswerable; for many times the 
 Vid. Sect. 170. change of the freehold makes an alteration, or change of the re- 
 version. As if tenant in taile, or the husband seised in the right 
 of his wife, or tenant for life, make a lease for life of the lessee, 
 in everie of these cases the lessor doth gaine a new reversion by 
 Vid. Sect. 8. wrong, as shall be said more at large in the chapter of Discon- 
 * H - 5 - . tinuance ; and if the elder brother grant the reversion (expect- 
 ant upon a freehold) for life, it shall cause possessio fratris, as 
 hath been sayd. 
 
 " By the same reason the reversion which is depending iipon the 
 same freehold is severed from the joynture, &c." 
 
 7 H. 7. 9. If two joyntenants in fee be, and they both joyn in a lease to 
 
 an abbot and a secular man for term of their lives, here the rever- 
 
 (Ant. 189. b.) s ion that is dependent upon severall freeholds is severed. And so 
 it is if they joine in a lease to two secular men to have 
 and to hold the one moiety to the J&g 00 one for life, and ri92.~| 
 the other moiety to the other for life, for both these | a. 
 cases are warranted by the authority of Littleton. 
 
 (Post. Sect. 319. If two joyntenants be of a lease for twenty-one years, and the 
 
 199, a- ) one of them letteth his part for certaine yeares, part of the terme, 
 
 the joynture is severed, and survivor holdeth not place, for a 
 terme for a small number of yeares is as high an interest as for 
 many more yeares; and so was it resolved Hil. 18 El. Regince, 
 
 t Hil. 18 Eliz. i n Communi Bancof, which I myselfe heard. 
 
 If two coparceners be in fee, and the one make a lease for life, 
 this is no severance of the coparcenary, for notwithstanding the 
 lord shall make one avowrie upon them both. 
 
 (Ant. 167. a.) But if two joyntenants be, and one maketh a lease for life, 
 
 this is a severance of the joynture, as Littleton here taketh it, 
 and several avowries shall be made upon them (1). 
 
 "Also 
 
 * un not in L. and M. or Roh. 
 
 (1) Upon the death of either of the lessees, one moiety of the estate goes 
 to the surviving lessee or his assignee, and the reversioner may enter upon the 
 other moiety. See Dy. 67. sir W. Jones 55. 2 P. Will. 740. But this is to 
 be understood where the jointenants are for life; for if the jointenants are in 
 fee, and the joynture is severed, the right of survivorship is wholly taken 
 
 away,
 
 L. 3. C. 4. S. 302. Of Tenants in Common. [192. a. 192. b. 
 
 "Also if the lessor had reserved an annual rent, the lessor only 5 E. 4. 4. 2. 
 should have had the rent, &c." But if two joyntenants make a f^\\\ & ' 2# 
 lease for life, reserving a rent to one of them, the rent shall enure J4 j^' 3 ' 
 to them hoth, because the reversion remains in jointure, unless Br. 282. 
 the reservation be by deed indented, and then he onely to whom (£ nt - 47 ■• a -) 
 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, bnt the rent is 
 newly created. 
 
 And so it is if such a lessee for life should surrender to one of 5 E. 4. 4. 
 them, it shall enure to them both, for that they have a joynt re- p^ 6 ^ 6 ^ n 
 version. But if the lessee grant his estate to one of them, no 
 part of it shall enure to his companion, because for 
 
 [192.1 the moiety belonging to his companion, it is in (2 Cro. 611. 
 b. I esse SGsf in him to whom the grant is made, the re- Perk. 31.) 
 version to the other in fee. 
 If two joyntenants make a lease for life, the remainder to 38 n. 6. 24. b. 
 his companion in fee, this is a good remainder of his moietie to 2 R. 3. tit. Ex- 
 
 his commnirm tinguishment, 3. 
 
 nis companion. ^ Leo 187 ^ 
 
 " The lessor shall be only received for this, &c." 
 
 " Received." Receit, Receptio, is in many cases where a person, (Post. 352. b.) 
 partie to a writ, or an estranger thereunto, to whom a reversion 
 or remainder appertaineth, shall in default of another person be 
 received to defend his or her freehold or inheritance, the law 
 saith, Admittatur, &c. And this admission or receipt is given 
 by sundry statutes [/] (and this is that which the civilians call, ryj -y^ 2. cap. 3. 
 Admissio tertiai persona? pro interesse). Et in casibus predict is 20 E. 1. Statute 
 duo: con cur runt actiones : una inter pretmtem & tenentem, & alia 
 inter tenentem jus suum ostendentcm & petentem. capTid. 
 
 " For that a freehold cannot by nature of joynture be annexed 
 to a reversion." And this is the principall reason, and of this 
 sufficient hath been said in the chapter of Joyntenants, Sect. 
 291. 
 
 " &c." This &c. in the end of this section, implieth any other 
 heir lineal or collaterall. 
 
 Sect. 
 
 away, and their shares go to their respective heirs. So, if there be joyntenants 
 of a term of years, and the joiutenaney is severed, their shares go to their 
 respective personal representatives. See 1 Salk. 158. It should also be ob- 
 served that the case put by Littleton supposes the jointenant to let his estate 
 for his own life only : for if he let it for a longer Term than for his own life, 
 or if he let it for the life of any other person, it is a forfeiture. See 4th Leon. 
 236.— [Note 79.] 
 
 de defensione 
 Juris. 13 R. 2.
 
 193. a.] Of Tenants in Common. L. 3. C. 4. S. 303-4. 
 
 w&- Sect. 303. 
 
 [T] 
 
 TZUT if it be so that the law in this case be such, that if the lessor die 
 living the lessee, and living the other joyntenant which hath the free- 
 hold of the other moity, that the reversion shall descend to the issue of the 
 lessor, then is the joynture and title which any of them, may have by the 
 survivor and the right of the joynture taken away, and altogether defeated 
 for ever. In the same manner it is, if that joyntenant which hath the 
 freehold dye living the lessor and the lessee, if the law be so as his 
 freehold and fee which he hath in the moity shall descend to his issue, 
 then the joynture shall be defeated for ever. 
 
 11 rpjJEN is the joynture and title, &c. and the right of the 
 joynture taken away, &c. 
 
 And the reason of this is, for if the joynture be severed at the 
 
 time of the death of him that first deceased, the benefit of the 
 
 [*] Vide Sect, survivor is utterly destroyed for ever, as hath been said [*] afore 
 
 2 p L t in the Chapter of Joyntenants. But in the case aforesaid, if 
 
 tenant for life dyeth in the life of both the joyntenants, they arc 
 
 joyntenauts again as they were before. 
 
 If two joyntenants be in fee, and the one letteth his part to 
 another for the life of the lessor, and the lessor dieth, some say 
 that his part shall survive to his companion, for by his death the 
 lease was determined. And otbers hold the contrary ; and their 
 reason is, first, for that at the time of his death the joynture was 
 severed, for so long as he lived the lease continued. And se- 
 condly, that notwithstanding the act of any one of the joyn- 
 tenants, there must be equall benefit of survivor as to the free- 
 hold. But here if the other joyntenant had first died, there had 
 been no benefit of survivor to the lessor without question. 
 
 Sect. 304. 
 
 A ND, if three joyntenants be, and the one release by his deed to one 
 of his companions all the right which he hath in the land (1), 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 
 joynture (et il son companion teigneront les auters deux parts * en 
 joynture). And as to the third part, which he hath by force of the release, 
 he holdeth that third part with himself e and his companion in common. 
 
 * en jointure — jointment, in L. and 31. and Roh. 
 
 (1) In this case the release passes a fee without the word heirs, because it 
 refers to the whole fee which they jointly took and are possessed of by force of 
 the first conveyance. Tenants in common cannot release to each other; for 
 a release supposes the party to have the thing in demand; but tenants in com- 
 mon have several distinct freeholds, which they cannot transfer otherwise 
 than as persons solely seized. — [Note 80.] 

 
 L. 3. C. 4 S. 305. Of Tenants in Common. [193. a. 193. 1). 
 
 UPON this case these two things are to be observed. First, (Post. 318. a. 
 
 that in this case this release doth enure by way of mitter 6 Rep. 78. b. 
 
 Vestate, and not [*] by way of extinguishment, for then the release r S " " 9 E1 j z 
 
 should enure to his companion also, as he is in the per by him Dyer, 263. 
 
 that maketh the release, [a] But if he had released to 19 H. 6. 17. 
 
 [193."] the other two, then it had wrought no degree (A) J8@~ ^3 B. 3 . tit 
 
 a. I but in supposition of law, for many purposes they to (j a rr. 
 
 whom the release is made (as hath been said) shall be 35 E. 3. Release, 
 
 supposed in from the first feoffor, as they shall deraigne the first j"j" E 2 3 2 4 ' 
 
 warrantie for the whole. \b~] The second thing to be observed Briefe,28. 
 
 is, that he to whom the release is made hath a fee simple without 19 H. 6. 17. 
 
 this word (heires), as hath been touched in the first chapter of ^ H. 6. 5. 
 
 the first booke, for that he to whom the release is, is seised per 37 H ; 8 ' 
 
 my et per tout, of the fee and inheritance, as hath been said in the Alienation, 33. 
 
 Chapter of Joyntenants. And note, the like law is between co- ^H. ^ ^ 
 
 parceners; and further, if there be two coparceners, and the one (Pos i 335 a ) 
 
 hath issue twenty daughters and dieth, the other may release [b] 9 Eli*. 
 
 to any one of the daughters, her whole part, albeit she to whom *>yw, 263. 
 
 the release is, hath not an equall part : but for the privitie and ^ Ant ^ j ^ 
 the individed estate, the release is good. 
 
 But if two joyntenants be of twenty acres, and the one maketh 
 a feoffment of his part in eighteene acres, the other cannot re- 
 lease his entire part, but only two acres, for that the joynture is 
 severed for the residue. 
 
 Sect, 305. 
 
 A ND it is to be observed, that sometimes a deed of release shall take 
 effect (que ascun foits f un releas prendra effect), and enure to put 
 the estate of him ivhieh makes the release to him to whom the release is 
 made, as in the case aforesaid, and also, as if a joynt estate be made to 
 the husband and wife, and of (B) a third person, and the third person 
 release all his right which he hath to the husband (sicome joynt estate 
 soit fait a le baron et sa feme, et la tierce personj, et la tierce person 
 relessa tout son droit que il ad || a le baron), then hath the husband the 
 moitie which the third had, and the wife hath nothing of this. And if 
 in such case the third release § to the wife not naming the husband in the 
 release, then hath the wife the moitie ivhieh the third had, $e. and the 
 husband hath nothing of this but in right of his ivife, because that in this 
 case the release shall enure to make an estate to whom the release is made, 
 of all that ivhieh belong eth to him which maketh the release, $c. 
 
 THIS 
 
 (A) There is a semicolon after the word "degree" in the twelfth edit ion, as the sense of 
 the passage seems to require. In the name edition there is a comma after the words " for 
 many purposes" as, it appears, there should be. 
 
 (B) "of" seems to le here inserted for to. See Mr. Kitso's Intr. p. 111. 
 
 f un fait et, added in L. and M. \\ &c. added in L. and M. and 
 
 and Roh. Roh. 
 
 \ que added in L. and M. § i£v. added in L. and M. and Boh.
 
 193. b. 194. a.] Of Tenants in Common. L. 3. C. 4. S. 306. 
 
 THIS is evident upon that which hath been said before, 
 [c] And it is to be understood, that a release may enure 
 Bendloes, f our manne r of waves. First, by way of mitter V estate, as here 
 
 Dier' Z 263 i fc appeareth. Secondly, by way of mitter le droit. Thirdly, by 
 
 (2 Roll. Abr. way of extinguishment. Fourthly, by way of creation or inlarge- 
 403 -) . ment of an estate, as hereafter in this Chapter shall appeare. 
 
 indie^h °pter 1S -^ n ^ ** * s to ^ e 0Dserve d> that upon a release that creates or 
 ofReleases. iulargeth an estate, or enures by way of mitter V estate, a rent 
 (Post. 273. b.) ma y be reserved, but not upon a release that enureth by way of 
 °1 H 6 8 b 'mitter le droit, or which enures by way of extinguishment. 
 (Ant,'l44. a.)" The (&c.) in the end of this Section implieth a diver- 
 
 sitie O^T" between a release which enures by way of ["19-4. ~1 
 mitter Testate (whereof Littleton here speaketh, and a |_ 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 be said. 
 
 Sect. 306. 
 
 A ND in some case a release shall enure to put all the right which he 
 who makeih the release hath to him to whom the release is made. As 
 if a man seised of certaine tenements is disseised by two disseisors, 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 every occupation of this. And 
 the reason is, for that the two disseisors were in against the law (pur ceo 
 queles deux disseisors fueront eins* encounter la ley), and when one of 
 them happeth the release of him which hath right of entry, Jfc. this right 
 in such case shall vest in him to whom the release is made (cest droit en 
 tiel cas f vestera en celuy a que le releas est fait), and he is in like plite, 
 as (A) he which hath the right had entered and enfeoffed him (et est en tiel 
 plyte, sicome J il que avoit droit || avoit enter, et luy enfeoffa), $c. 
 And the reason is, for that he which before had an estate by wrong, scilicet, 
 by disseisin, Sj-c. hath now by the release a rightful estate §. 
 
 HERE Littleton pursueth the second part of his division, viz. 
 where a release shall enure by way of mitter le droit. 
 
 409. 414. J J 
 
 " Dissessed hy two disseisors, &c." The like law is, where there 
 be two joyDt abators or intruders, which come in meerely by 
 wrong. But if two men do usurpe by a wrongfull presentation 
 to a church, and their clarke is admitted, instituted and inducted, 
 and the rightfull patron releaseth to one of them, this shall enure 
 to them both, for that the usurpers come not in merely by 
 wrong, but their clarke is in by admission, and institution, which 
 
 are 
 
 (A) The word if seems to be here requisite to the sense of the passage. 
 
 * ses tenements per tort, per eux % il — sil in L. and M. and Roh. 
 
 fait added in L. and M. and Roh. || &c. added: avoit enter, et not in 
 
 f vestera — vest in L. and M. and L. and M. nor Roll. 
 
 Jloh. § <£' c - added in L. and M. and Roh.
 
 L. 3. C.4. S.307. Of Tenants in Common. [194. a. 194. b. 
 
 are judiciall acts [d]. And therefore an usurpation shall worke [f] Fit*. N. B. 
 a remitter to one that hath a former right. Q uare i rap .'i44 
 
 (1 Roll. Abr. 
 " Then he to whom the release is made, shall have and hold all 661, 662. 
 the tenements, &c." Here by operation of law presently upon the Post. 368. a. 
 deliverie of the release the whole freehold and inheritance is ^g"''^ 8 ) ' 15 ' 
 vested in him to whom the release is made, and all the state that 
 the other disseisor had, wholly devested : for right and wrong can- 
 not consist together, but the wrongfull estate giveth place to the 
 rightfull. And the reason hereof is for that, as hath 
 
 t!94;."| been said, the disseisor to whom the release J8@°* was 
 b. | made was seised per my et per tout, whereunto when 
 
 the right commeth it excludeth the wrong [el : for [e] Brit fol. 116. 
 right which is lawfull, and wrong that is contrary to law, cau- :^ {j g p 2 " 9< 
 not stand together. 21 II. 6. 41. 
 
 22 H. 6. 22. 
 "In likeplite as if he which hath the right had entered and en- * *J.4. 25 - 
 feoffedhim,&c." This (<£c.) doth implie that this is true. secundum n h.7. 12. 
 quid (1), but not simpliciter (2) ; for as to the holding out of the 20 H. 7. 5. 
 joynt disseisor, it amounts to as much as if he had entered and 21 H. 7. 18. 
 infeoffed him to whom the release is made, but it doth not amount rTiscontin. i. 
 to an entrie and feoffment simpliciter to all purposes, as shall be 9 II. 6. 37. 
 said hereafter in his proper place in the Chapter of Releases. 21 H - 6 - 52- 
 
 Sect. 307. 
 
 A m> 
 
 in some case a release shall inure by way of extinguishment, 
 and in such case such release shall aide the jointenant, to whom the 
 release was not made, as well as him to whom the release ivas made (et en 
 tiel case tiel releas aydera le joyntenant a que le release ne fuit fait, 
 auxybien come "fluy a que le release fuit fait). As if a man he disseised 
 (sicome J un home soit disseisie), 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 (donques ^[ eel release urera a 
 ambideux les feoffees), for that the feoffees have an estate by the law, 
 scilicet, by feoffment, and not by wrong done to any, $c. (3). 
 
 HERE Littleton speaketh of the third kind of releases. And 
 the reason of this diversitie (implied in the (<£c.) in the end 
 
 of 
 
 f luy — a celui in L. and M. and § if not in L. and M. or Roh. 
 
 Roh. IJ and added in L. and M. and Roh. 
 
 J si added in L. and M. but not in \ eel tiel in L. and M. and Roh. 
 Roh. 
 
 (1) i. e. in some respects; — as to some persons. 
 
 (2) i. e. absolutely. 
 
 (3) The 42d and 44th chapters of Britton contain much curious learning 
 on the estate of a disseisor, and on the difference of his situation before and 
 after he acquires an established possession, and before and after he acquires a 
 title to his estate, and on the consequential differences of the situation and 
 remedies of the disseisee in these respects. — These chapters throw some light 
 upon Sir Edward Coke's Commentary on this Section. — [Note 81.]
 
 194.b. 195. a.] Of Tenants in Common. L. 3. C. 4. S. 308-9. 
 
 of this Section) between the disseisors and their feoffees, is for 
 
 that the feoffees comming in by title and purchase are intended 
 
 in law to have a warrantie (which is much esteemed in law ; and 
 
 therefore lest the warrantie should be avoided, the release shall 
 
 enure to both the feoffees in favour of purchasers, and so the right 
 
 [/] 2 H. 3. and benefit of every one saved. [/] And in antient time if the 
 
 Ass. 432. l Ass. disseissor had made a feoffment in fee, or a gift in taile, or a lease 
 
 oi' a S oo i ' for life, and the feoffee, donee, or lessee had continued in seisin 
 
 ZL ASS. Zo. .' ' l_ • J» 1 I* • it l 
 
 27 Ass. 68. 32. quietly a yeare and a day, the entne or the disseisee, had not been 
 
 29 Ass. 54. lawfull upon him; and the reason was, for the benefit and safe- 
 
 40 E 3 24 guard of the warranty (which was intended b} T law) should have 
 
 50 e! 3! 2L beene destroyed by the entrie. But hereof also more shall be 
 
 3 R. 2. Entry sa id in his proper place in the Chapter of Releases. 
 
 cong. 38. 
 
 13 E. 3. tit. Ass. 9. 12 Ass. 20. 
 
 [ 19 a 5 -] 
 
 ffif- Abr - Sect. 308. 
 
 TN the same manner it is, if the disseisor maketh a lease to a 
 man for terme of his life, the jO a ' remainder over to another 
 in fee, if the disseisee release to the tenant for terme of life all 
 his right, §c. this release shall inure as well to him in the re- 
 mainder, as to the tenant for terme of life. And the reason is, for that 
 the tenant for life commeth 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 which releaseth, §c. And by this release the tenant for life 
 hath no ampler nor greater estate than he had before the release made him, 
 and the right of him which releaseth is altogether extinct. And inasmuch 
 as this release cannot enlarge the estate of the tenant for life, it is reason 
 that this release shall enure to him in the remainder, $c. 
 More shall be said of releases in the Chapter of Releases. 
 
 " rp HIS release shall inure as well to him in the remainder as to 
 the tenant for terme of life, &c." Of this and the rest of 
 this Section, for avoyding of repetition, more shall be said in his 
 proper place in the Chapter of Releases. 
 
 " All his right, &c." Here by this (&c.) is implied, title 
 demand, and other words which may transfer the right, &c. 
 Also here is implyed of in or to the land. 
 
 Sect. 309. 
 
 A LSO, if two parceners be, and the one alieneth that to her belong eth 
 to another, then the other parcener and the alienee are tenants in 
 common. 
 
 This is evident and needeth no explication. 
 
 Sect.
 
 L. 3. C. 4. S. 310. Of Tenants in Common. [195. a. 195. b. 
 
 Sect, 310. < Ant - 1U - a -> 
 
 ALSO, * note, that tenants in common may be by f title of pre- 
 scription, as if the one and his ancestors^ or they whose 
 estate he hath in one moitie have holden in common the 
 
 k * same moitie with the other tenant which hath the other moity, 
 and with his ancestors, orivith those whose state he hath undi- 
 vided %, time out of minde of man. And divers other manners may 
 make and cause men to be tenants in common, which are not here ex- 
 
 prest, || £c. (1) 
 
 OF 
 
 * note that not in L. and M. or Roh. % &c. added in Roh. 
 f title of not in Roh. || &c. not in Roh. 
 
 (1) When lands are given, in undivided shares, to two or more, for particu- 
 lar estates, so as that, upon the determination of the particular estates, in any 
 of those shares, they remain over to the other grantees, and the reversioner or 
 remainder-man is not let in till the determination of all the particular estates, 
 the grantees take their original shares as tenants in common, and the remain- 
 ders limited among them on the failure of the particular estates, are known by 
 the appellation of cross remainders. — These remainders may be raised both by 
 deed and will : in deeds, when the limitations are legal, they can only be cre- 
 ated by express words, but in wills, they may be raised by implication. — In 
 the case of Gilbert v. Witty, Cro. Jac. 655. it was said by justice Dodderidge, 
 that cross remainders should never be raised, even in wills, by implication, 
 between more than two persons. This doctrine received some countenance 
 from what was said by the courts in the cases of Cole v. Levingstone,. 1 Ven- 
 tris, 224. Holmes v. Meynell, sir Thomas Raymond, 452. and some other 
 cases. But it seems entirely exploded by the cases of Burden v. Burville, B. 
 R. East. Term, 13 Geo. 3. Duke of Richmond v. Earl of Cadogan, determined 
 in the court of chancery in May 1773. Wright v. Holford, and others, B. R. 
 Easter Term 1774, Cowp. 31. and some other subsequent cases. It seems 
 however to be admitted in these cases, that, to raise cross remainders between 
 more than two, stronger implication is required, than to raise them between 
 two only. — This general outline of the doctrine of the raising cross remain- 
 ders by implication, is supported by the late cases of Atherton v. Pye, 4 
 Burn. & East, 710. Doe v. Cooper, 1 East, 229. Watson v. Foxon, 2 East, 
 36. — And see Mr. serj. Williams's note, 1 Saund. 185. c* But where the ex- 
 pressions, supposed to import cross remainders, arise on limitations of equitable 
 estates, particularly if they arise in directions for a settlement, or in any other 
 trusts of an executory nature, cross remainders may be raised by implication 
 in deeds, in the same manner as in wills. Green v. Stephens, 17 Ves. jun. 
 64. and the case of the Duke of Richmond v. Earl of Cadogan, there cited. 
 In the limitations of cross remainders, two circumstances particularly should 
 be attended to ; one, that the clauses by which they are created, should not be 
 so expressed, as to make it necessary, that the party taking under them sbould 
 be alive at the time of the decease and failure of issue of the other. — The case 
 of Watts v. Wainwright, 5 Durn. and East, 427. is important upon this head. 
 — In that case there was a limitation by deed "to such child or children, that 
 " Mary Abcll should thereafter have, as tenants in common, if more than 
 " one, in tail general : and, in case anv such child or children should die with- 
 
 "out
 
 195. b. J Of Tenants in Common. L. 3. C. 4. Sect. 311. 
 
 212. 13 E. 3. \J there is for all his other cases throughout his three bookes; 
 
 11 E. 3. Trans. l~YF this, besides Littleton, there is as good authoritie in law, as 
 
 8 II 6' 16 b ^ut j°yQ tenants cannot be by prescription, because there is sur- 
 Lib. intrat. 23. vivor between them, but not between tenants in common. 
 The two (i£c.) in this Section are evident. 
 
 Sect. 311. 
 
 A LSO, in some case tenants in common ought to have of their pos- 
 session several actions, and in some cases they shall joyne in one 
 action (2). For if two tenants in common be, and they be disseised, they 
 must have J two assises, and not one assise ; for each of them ought to 
 have one assise of his moity, $-c. And the reason is, for that the tenayits 
 in common were seised, $c. by several! titles. But otherwise it is of 
 jointenants ; for if twenty jointenants be, and they be disseised, they 
 shall have in all their names but one assise, because they have not (A) 
 but one joynt title (pur ceo que ils n'ont forsque un joynt title.) 
 
 IN 
 
 (A) The word " not" should be left out, as this mode of expression, though good in French, 
 does n>t suit the idiom of the English language. See Mr. Jiitso's Intr. p. 111. 
 
 | against the disseisor added in Roh. 
 
 " out issue of his, her, or their body or bodies issuing, then the part or parts 
 11 of him, her, or them so dying without issue, should go and remain to the 
 " use of the surviving child or children of the said Mary Abell, and the heirs 
 K of his, her, or their respective bodies issuing: And so, toties quoties, as any 
 " of the said children should die without issue, till there should be only one 
 " child left : And in case all the said children should die without issue, or, 
 " if the said Mary Abell should have no issue of her body, then, to the use of 
 " Robert Abell, his heirs and assigns for ever." Mary Abell married Mr. 
 John Wainwright, and died leaving three children, John, Mary and Robert. 
 Mary married Mr. Watts, and died leaving issue, an eldest son, and two other 
 children. John married, and afterwards died without issue. The question 
 was, Whether, as Mary died in her brother's life-time, and consequently did 
 not at his decease sustain the description of a surviving child, her eldest son 
 became entitled to a share of John's third part? — The court thought the word 
 " surviving" was referrible, not only to the children, but to the whole line of 
 the heirs of their bodies; and, upon that ground, held the eldest son entitled. 
 In Foquett v. Worsley, 1 East, 416, the general doctrine, that, in deeds, cross 
 remainders can only be raised by proper words of limitation, was confirmed. 
 Another circumstance to be attended to in these limitations, is, that they 
 should be so expressed, as to pass, not only the original share of the party, but 
 the shares surviving or accruing to him, or his issue, on the decease, and failure 
 of issue of any other of them. For the surviving or accruing share may be 
 considered as a distinct limitation, and may consecpuently be thought not to 
 remain over, unless this is signified. The same observations apply to the 
 trusts of personal estate. On the last head, see Perkins v. Micklethwaite. 1 
 Peere Williams, 274. and the cases there collected by Mr. Cox. — [Note 82.] 
 
 (2) The reader will find what Littleton and his commentator say on this sub- 
 ject confirmed and exemplified by the cases cited in Viner and Bacon's 
 Abridgments, aud Comyn's Digest, under the proper Titles.
 
 L.3.C.4. S.312,13. Of Tenants in Common. [195.b.l96.a. 
 
 1 N this Section we learne two things : first, that in reall actions ^^jj^gj 
 -1- and in actions also that are mist with the personalty, tenants N °^ ^ p ' st 
 in common shall sever in action, because they have several free- Liu. Sect. 314.) 
 holds, and claime in by severall titles ; and therefore as they 
 shall be severally by others impleadcn, so shall they severally 
 implead others in all reall and inixt actions, unlesse it be in 
 case of necessity for a thing entire, as hereafter in this Chapter 
 shall appeare. And Littleton here putteth the case of the assise 
 which is mixt with the personaltie, and therefore he needeth 
 not put any case of any praecipe quod reddat ; for if it be so 4 E. 4. 18. b. 
 in case of assise, d fortiori in writs of higher nature which ( Ante 1S0 - b -) 
 is necessarily imply ed in the (&c.) Now of suits that sound 
 in the realty, and of personal actions, Littleton speaketh here- 
 after in this Chapter. The second thing here to be learned, 
 is the diversitie between tenants in common and joyntenants, 
 which both of it selfe, and upon that which hath been said, is 
 apparent. 
 
 [ 19 a 6 -] m- Sect. 312. SS' I3Ante 
 
 ALSO, if three joyntenants be, and one release to one of his felloives 
 all the right which he hath, £c: and after the * other two be disseised 
 of the whole, £c. in this case the two others shall have f several assise, £c 
 in this manner, viz. they shall have in both their names an assise of the 
 two parts, $c. because the two 'parts they held jointly at the time of the 
 disseisin. And as to the third part, he to whom the release was made, 
 ought to have of that an assise in his own name, for that he (as to the 
 same third part) is thereof tenant in common (pur ceo que % il (quant a 
 meme le tierce part) est de ceo tenant in common), $c. because he 
 commeth to this \\ third part by force of the release, and not only by force 
 of the joynture. 
 
 This is put for an example, (which ever doth illustrate the 
 rule) and is evident of itselfe, and the (dr.) in this Section 
 needeth no further explication. 
 
 Soot ^1 3 < Ant - 1M - a) 
 
 ALSO, to the suing of actions which touch the realty (quant a suer 
 
 des actions que touchant § le realty), there be diversities between 
 
 parceners which are in by divers descents, and tenants in common. For if 
 
 a man seised of certain land in fee hath issue two daughters anddyeth, 
 
 and the daughters enter, $c. and each of them hath issue a son, and die 
 
 without 
 
 * other not in Rob. || third not in Roh. 
 
 f &c. added in Roh. § en added in Roh. 
 
 f il not in Roh.
 
 196. a. 196. b.j Of Tenants in Common. L. 3. C. 4. S. 314. 
 
 without partition made between them [car si ^[ home seisie de certaine 
 terre en fee ad issue deux ** files ft et morust, et les files entront, &c. et 
 chescun de eux ad issue un fits, et devieront sauns partition fait enter 
 eux), by ivhieh the one moiety descends to the son of the one 
 parcener, and the other moity descends to the J^g^ son of the ["196. "j 
 other parcener, and they enter and occupie in common and be v. b. J 
 disseised, in this case they shall have in their two names one 
 assise, and not two assises. And the cause is, for that albeit they come in 
 by divers descents, $-c. yet they are parceners, and a ivrit of partition 
 lieth between them. And they are not parceners, having regard or respect 
 only to the seisin and p>ossession of their mothers (eyant regarde ou re- 
 spect tantsolement a * le seisin et possession de lour meres), but they 
 are parceners rather, having respect to the estate which descended from 
 their grandfather to their mothers, for they cannot be parceners if their 
 mothers ivere not parceners before, f §c. And so in this respect and con- 
 sideration, viz. as to the first descent which ivas to their mothers, they 
 have a title in parcenarie, the which makes them parceners. And also 
 they are but as one heire to their common ancestor, viz. to their grand- 
 father, from ivhom the land descended to their mothers. And for these 
 causes, before partition between them, $c. they shall have an (B) assise, 
 although they come in by several descents J. 
 
 (Ante 164. a.) This, upon that which hath been said in the Chaptor of Par- 
 
 Vide Sect. 241. cenerg ^ j s evident: where you may reade excellent points of 
 
 learning, and diversities concerning this matter; all which are 
 
 here either expressed or implyed, as the studious and diligent 
 
 reader will observe. 
 
 Sect. 314. 
 
 A LSO, if there be two tenants in common of certaine land in fee, and 
 they give this land to a man in taile, or let it to one for terme of life, 
 rendering to themyearely a certaine rent, and a pound of pepper, and a 
 hawke or a horse, and they be seised of this service, and afterivards the 
 whole rent is behind, and they distraine for this, and the tenant maheih 
 rescouse. In this case as to the rent and pound of pepper they shall have two 
 assizes, and as to the hawke or the horse but one assise. And the reason 
 why they shall have two assises as to the rent and pound of pepper is this, 
 insomuch as they tvere tenants in common iri severall titles, and when they 
 made a gift in taile or lease for life, saving to them the reversion, and 
 rendering to them a certaine rent, fie. such reservation is incident to their 
 reversion ; and for that their reversion is in common, and by severall titles, 
 
 as 
 
 (B) an seems to here inserted for one. See Mr. Ritso's Intr. p. 111. 
 
 ^[ home — deux parceners in Roh. * le — lour in Rob. 
 
 ** files — fites in Roh. t &c. not in Roh. 
 
 tj et morust, et les files entront, &c. j &c. added in Roh. 
 ct chescum de eux ad issue un fits, not 
 in Roh. 

 
 L.3.C.4.S.314. Of Tenants in Common. [196.b.l97.a.&b. 
 
 as their possession was before the rent and other things which may be 
 severed, and were reserved unto them upon the gift, or upon the lease, 
 which are incidents by the law to their reversion, such things so reserved 
 were of the nature of the reversion. And in as much as the reversion is 
 to them in common by several! titles, it behoveth that the rent and the 
 pound of pepper, which may be severed, be to them in common, and by 
 severall titles- And of this they shall have two assises, and each of 
 them in his assise shall maize his plaint of the moitie of the rent, and 
 of the moitie of the pound of pepper. But of the hawke or of the horse, 
 tohich cannot be severed, they shall have but one assise, for a man can- 
 not make a plaint in an assise of the moitie of a hawke, nor of the 
 moitie of a horse, $c. In the same manner it is of other rents and of 
 other services which tenants in common have in grosse by divers titles, $c. 
 
 u TNthis case as to the rent and pound of pepper, they shall have 
 
 two assises, and as to the hawke or the horse but one assise." 
 
 But for the better understanding hereof it is to be 
 
 [197. ~| known, that if two fi@° tenants in common be, and (Ante 147. b.) 
 a. | they grant a rent of 20 shillings per annum out of P1 - Com - Hil1 
 
 their land, the grantee shall have two rents of 20 shil- Range's case, 
 lings, for that every man's grant shall be taken most strongly vide Sect. 219. 
 against himselfe, and therefore they be several grants in law. ( 5 Re P- 7. b. 
 
 But if they two make a gift in taile, a lease for life, &c. reserv- plowd - 289 - "•) 
 ing twenty shillings rent to them and their heires, they shall (5 Rep. 111. 
 have but one 20 shillings, for they shall have no more than them- Ante 148 - b -) 
 selves reserved : and the donee or lessee shall pay but 20 shillings 
 according to their own expresse reservation : and albeit the re- 
 servation of rents severable be in joynt words, yet in respect of 
 the several reversions the law make thereof a severance. Now 
 for the rent, as namely 20 shillings or a pound of pepper may 
 be severed, the one tenant in common may have an assise for the 
 moity of 20 shillings, and the moitie of a pound of pepper, de 
 medietate unius libr' piperis, but he cannot have an assise of ten 
 shillings, or de dimidio librae piperis. But for the hawke or vide 16 Ass. 
 horse, albeit they be tenants in common, they shall joyne in an pi- 1. 
 assise, for otherwise they should be without remedie, for one of * 6 E " 3 " 
 them cannot make his plaint in assise of the moitie of a hawke, action 27. 
 
 or of a horse, for the law will never suffer any man to 
 
 [197. ~| demand any thing against the order of (f^T nature or 
 b. J reason, as before it appeareth by Littleton, Section 
 
 129. Lex enimspectatnaturseordinem. Also the law Regula. 
 will never enforce a man to demand that which he cannot recover, Vide Sect. 129. 
 and a man cannot recover [/] the moytie of a hawke, horse, or of [l] Lib. 5. fo. 21. 
 any other entire thing: Lexneminemcoqitadvana.seuinutilia. Regula. 
 But in that case they shall joyne in an assise, and the reason is, Ante j 3 i * 
 Ne curia Domini Regis deficerit injustitia exhibendd, or Lex non Hob. 43. 267.) 
 debet deflcere conquerentibus in justitid exhibendd. And if they [*] 3 E. 3 - 19. a. 
 
 /I Pol) AK 
 
 should not joyne, they should have damnum et injur iam, and yet ^ - ° 
 should have no remedie [*] by law, which should be inconvenient, Noy, 184. 
 but the law will, that in every case where a man is wronged and Ante 137. 
 endaramaged, that he shall have remedie. Aliquid conceditur L R w P 'o 6 o'i 
 
 . . .° . . . ■> 7 • \ i Ao hi. 6. CO. 
 
 ne injuria remanent impunita quod alias non conceaeretur. Regula. 
 
 [mj And tenants in common shall joyne in a quare impedit, [„,] 5 h. 7. 8. 
 because the presentation to the advowson is entire. 13 E. 2. 
 
 Quare imp. 170- 
 33 H. 6. 11. 6 E. 4. 10. 15 E. 3. Darr. presentment, 10. 
 
 Vol. II.— 9 Also
 
 197. b. 198. a.] Of Tenants in Common. L. 3. C. 4. S. 315. 
 
 [n] 6 H. 4. 6. 7. [»] Also tenants in common of a seigniory shall joyne in a 
 45 E. 3. 10. wr it of right of ward, and ravishment of ward for the bodie, be- 
 Ass 39 cause it is entire. 
 
 18 E. 3! 56. If two tenants in common be of the wardship of the bodie, 
 
 (Moor, 184. and one doth ravish the ward, and the one tenant in common 
 1 Roll. Rep. releases to the ravisher, this shall go in benefit of the other 
 tenant in common, and he shall recover the whole, and this re- 
 lease shall not be any bar to him. And so it is if two tenants 
 in common be of an advowson, and they bring a quare impedit, 
 and the one doth release, yet the other shall sue forth, and re- 
 cover the whole presentment. 
 
 Two tenants in common shall joyne in a detinue of charters, 
 and if the one be nonsuit, the other shall recover, 
 is E. 3. 56. It is said that tenants in common shall joyne in a Warrantia 
 
 Charted, but sever in voucher. 
 
 " Moitie of a horse, &c." Here is implyed or any other 
 entire rent or service. 
 
 11 By divers titles, &c." That is by severall titles, and not 
 by one joynt title, as hath beene said. 
 
 Sect. 315. 
 
 ALSO, as to actions personals tenants in common may have such 
 actions personals joyntly in all their names, as of trespasse 
 (*sicome de trespas), or f of offences which concerne their tenements in 
 common, as for breaking their houses, breaking their closes, feeding, 
 wasting, and defowling their grasse, cutting their tvoods, for fishing in 
 their pischary (sicome de bruser), % l° ur measons, || de enfreinder de 
 lour closes, de pasture, degaster, et de fouler § des herbes, de couper 
 lour bois, ** de pischer en lour pischarie), and such like. In this case 
 (ft Et en cest cas) tenants in common shall have one action joyntly, 
 and shall recover joyntly their damages, because the action is in the 
 personalty, and not in the realtie,%%3fc. 
 
 29 E. 3. 51. " IX/JAY have such actions personals joyntly in all 
 
 43 E. 3. 24. ^ r± their names, &c." By this Jgfg^it appeareth that ["198.1 
 
 H 4 3 tenants in common shall have pcrsonall actions joyntly. [ a - J 
 
 14 II. 4. 31. And it is to be observed, that where damages are to 
 
 3 H. 6. 57. be recovered for a wrong done to tenants in common, or parce- 
 
 22 H 6 14 ners * n a P ersona ^ action, and one of them die, the survivor of 
 
 18 E. 4. 3o! them shall have the action; for albeit the property or estate be 
 
 2 R. 3. 16. severall between them, yet (as it appeareth here by Littleton) 
 
 li u 7 22' * ne P ersona l action is joynt. 
 
 37 H. 6. 35. 21 E. 4. 12. (1 Sid. 157. Cro. Jac. 231. 1 Sid. 49. 2 Roll. Abr. 91. 
 10 Rep. 134. a.) 
 
 "And 
 
 * sicome — cest assavoir in Roh. § des — de lour in Roh. 
 
 f o/not in Roh. ^* et added in Roh. 
 
 j de added in Roh. ff Et not in Roh. 
 
 | de not in Roh. || &c. not in Roh.
 
 L. 3. C.4. S. 316. Of Tenants in Common. [198. a. 198. b. 
 
 " And such like." Hereby is implied a diversity between a Vide Sect. 319. 
 chattel in possession, and a personall chose in action belonging 320, 321. 
 unto them. As if two tenants in common be of land, and one 
 doth a trespasse therein, of this action they are jointenants, and 
 the survivor shall hold place. So it is if two tenants in common (2 Cro. 19.) 
 be of a manor, and they make a bailife thereof, and one of them 22 H. 6. 12. 
 dieth, the survivor shall have the action of account, for the 13 j{ £ 
 action given unto them for the arrerages upon the account was Account, 126. 
 joint. So it is if two tenants in common sow their land, and 45 E. 3. 1^3, u. 
 one doth eate the same with his cattle, though they have the*^ Noy, 135. 
 corne in common, yet the action given to them for trespasse in 2 Roll. Abr. 90. 
 the same is joynt, and shall survive. For the trespasse and M ° or > 40 - 71 - 
 damage done to them was joynt, all which here is implyed by -) 
 Littleton, who saith, that they shall have an action joyntly, and 
 the same law is of coparceners. 
 
 But if two tenants in common be of goods, as of an horse or (Post. 200. a. 
 of anv other goods personall, there if one dye, his executors 7 Re P- Hall's 
 shall be tenant in common with the survivor. 10 ^ m ' 
 
 Ante 185.) 38 E. 3. 5. 17 E. 3. 11. 3 H. 5. Quare Imp. 71. 14 H. 4. 12. 9 H. 6. 30. 
 22 H. 4. 14. 37 H. 6. 9.b. 10 Eliz. Dyer, 279. F. N. B. 35. 9 E. 3. 36, 37. PI. Com. 
 Seignior Barcley's case. 
 
 " And not in the realtie, &c." If two tenants in common be 
 of an advowson, and a stranger usurpe, so as the right is turned 
 to an action, and they bring a writ of Quare impedit which 
 concernes the realtie, the sixe months passe, and the one dyeth, 
 the writ shall not abate, but the survivor shall recover, other- 
 wise there should be no remedie to redresse this wrong. And 
 so it is of coparceners, and this is one exception out of our 
 author's rule. 
 
 [a] But if three coparceners recover land and damages in an[ a ] 14 E. 3. 
 assise of Mordancester, albeit the judgement be joynt, that they Execution, 75. 
 shall recover the land and damages, yet the damages being ^ ^? - ^ " 
 accessory, though they be personall, do in judgement of law 2 Roll. Abr. 86. 
 depend upon the freehold being the principal, which is severall. 3 Rep. 14. b. 
 And though the words of the judgement be joint, yet shall it De f Ron^Abr' 
 taken for distributive. And therefore if two of them dye, the ggs.) 
 entire damages do not survive, but the third shall have execu- 
 tion according to her portion ; and this is another exception out 
 of our author's rule. But if all three had sued execution by force 
 of an Elegit, and two of them had dyed, the third should have 
 had the whole by survivor, till the whole damages be paid. 
 
 If the aunt and niece join in an action of waste, for waste done 45 e. 3. 3. b. 
 in the life of the other sister, the aunt shall recover the damages 48 E. 3. 14. 
 only, because the same belongs not by law to the niece. And H JJ- *• ' 6 - j>- 
 some hold the damages in that case to be the principall. n E ! 2. 
 
 Wast. 115. 2 Cro. 19. Ante 53. b. 
 
 Sect. 31G. ^L% m - 
 
 A LSO, if two tenants in common make a lease of their 
 
 tl98."| JS®^ tenements to another for terme cf yeares, rendring to 
 
 b. ] them a certaine rent yearely during the terme, if the rent be 
 behind, §c. the tenants in common shall have an (A) action of 
 
 debt 
 
 (A) an seem3 to bo hero inserted for one. See Mr. Ritso's Intr. p. 111.
 
 198.b.l99.a.] Of Tenants in Common. L.3.C.4.S.317,8,9. 
 
 debt against the lessee, and not divers actions, for that the action is in 
 the personalty (pur ceo que Taction est en * la personalty). 
 
 This upon that which hath been said is evident. 
 
 Sect, f 317. 
 
 J) TIT in an avowry for the said rent they ought to sever, for this is 
 in the realty, as the assise is above. 
 
 Vid. 9. 3. 36,37. This being an addition to Littleton, albeit it be consonant to 
 Pi. Com. Seig- l aw yet I omit it. 
 
 ntor Barkley's 
 
 case. 
 
 (Stat. 32 H. 8. O j. oi O 
 
 Ante 167. a. OeCt. olo. 
 
 187. a.) 
 
 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 (coment que ils J ne serront compelles de faire partition per la 
 ley); but if they make partition between themselves by their agreement 
 and consent, such partition is good enough, as is adjudged in the book 
 of assises ||. 
 
 * Vid. Sect. 259. Of this sufficient hath been said in * the Chapter of Parceners 
 290 247. 264. an d Joyntenants. 
 
 1 •} Ass. p. 1. 
 •>0 Ass D 8 
 
 47 E. 3. 22. u I n the book of assises." This booke is of greate authoritie 
 
 in law, and is so called because it principally containeth the 
 proceedings upon writs of assise of novel disseisin, which in 
 those dayes vt&sfestinum et frequens remedium. 
 
 Sect, 319. 
 
 J^LSO, as there be tenants in common of lands and tenements, §c, as 
 aforesaid, in the same manner there be of chattels reals and per- 
 sonals (sicome y sont tenants en common de terres et tenements, &c. 
 come est avantdit, en mesme le manner y sont § de chattels reals et 
 personals). As if a lease be made (sicome ** lease soit fait) of certaine 
 lands to two men for terme of 20 yeares, and when they be of . _. QQ _. 
 this possessed, the g^-one of the lessees grant that which to ' 
 
 him belongeth to another during the terme, then he to whom 
 the grant is made and the other shall hold and occupie in common. 
 
 u 
 
 GRANT 
 
 * la not in L. and M. or Roh. \\ &c. added in L. and M. and Roh. 
 
 f No part of this Section in L. and § possessions et proprietors added 
 M. or Roh. in L. and M. and Roh. 
 
 % ne not in Roh. hut in L. and M. ** si added in L. and M. and Roh.
 
 L.3.C.4. S.320-21. Of Tenants in Common. [199.a.l99.b. 
 
 u f^ RANT that which to him belongcth." The same law it is Vide Sect. 315. 
 
 if the one lessee in this case make a lease for part of the ^^ 19 ^" a \' 
 terme, the second lessee and the other are tenants in common, as 
 hath been said in the Chapter of Joyntenants (B). The (<fcc.) in 
 this Section, implyeth other hereditaments whereof men may be 
 tenants in common, whereof sufficient hath been said before. 
 
 (B) The same case is also mentUned ante 192. a. 
 
 Sect. 320. 
 
 A LSO, if two * have f joyntly the wardship of the body and land of 
 an infant within age, and the one of them grant to another that 
 which to himself e belong eth of the same ward, then the grantee, and the 
 other which did not grant, shall have and hold this in common, $c. 
 
 HEREBY it appeareth, that there may be tenants in common 16 e. 3. tit. Aid. 
 as well of chattels reall entire, as wardship of the body, 
 &c. as of chattels personal, as a hawke or a horse. If two ten- 
 ants in common be of a seigniory, and a ward fall, they are ten- 
 ants in common of the wardship aswel of the body as land. 
 And so it is if the land it selfe escheat to them, they shall be 
 tenants in common thereof, and so it is of parceners. 
 
 11 In common, &c." Here ((fee.) implyeth any other entire Vide devant, 
 chattell. Sect. 315. 
 
 Sect. 321. 
 
 TNthe same manner it is of chattels personals. As if tivo have X joyntly 
 by gift or by buying a horse or an oxe, $c. and the one grant that to 
 him belongs || of the same horse or oxe to another, the grantee, and the 
 other which did not grant, shall have and possess such chattels personals 
 in common §. And in such cases, where divers persons have chattels 
 real or personall in common If, and by divers titles, if the one of them 
 dieth, the others which survive shall not have this as survivor, 
 
 tl99. "I but the ffiiff*' executors of him which dieth shall hold and occu- 
 b- J pie this ivith them tvhich survive, as their testator did or ought 
 to have done in his life time, §c. because that their titles and 
 rights in this ivere severall, fyc. 
 
 This is evident enough, and hereof sufficient hath been said Vide devant, 
 
 , c ° ' Sect. 315. 
 
 before. 
 
 Sect. 
 
 * joyntenants added in L. and M. || of the same horse or oxe not in 
 
 and Roh. L. and M. or Rob. 
 
 f joyntly not in L. and M. or Roh. § &c. added in L. and M. and Roh. 
 
 I jointly — a joynt estate, in L. and "ft &c. added in L. and M. and Roh. 
 M. and Roh.
 
 199. b.] Of Tenants in Common. L. 3. C. 4. S. 322, 323. 
 
 Sect. 322. 
 
 A LSO, in the ease aforesaid, as if two have an estate in common for 
 terme of yeares, fyc. the one occupy all, and put the other out of 
 possession and occupation, he which is put out of occupation shall have 
 against the other a writ of ejectione firmse of the moietie, §c. 
 
 Sect. 323. 
 
 TN the same manner it is where two hold the wardship of lands or 
 tenements during the nonage of an enfant, if the one oust the other of 
 his possession, he which is ousted shall have a writ of ejectment de gard 
 of the moitie, gc. because that these things are chattels reals, and may be 
 apportioned and severed, S?c. but no * action of trespasse (videlicet) Quare 
 clausum suum fregit, et herbaria suam, &c. conculcavit, et consump- 
 sit, &c. et hujusmodi actiones, &c. the one cannot have against the other, 
 for that each of them may enter and occupie in common, Src. per my et 
 per tout, the lands and tenements § which they hold in common. But if 
 two be possessed of chattells personalis in common by divers titles, as of a 
 horse, an oxe, or a cowe, §c. if the one take the whole to himself e out of 
 the possession of the other, the other hat \ no other remedie but to take 
 this from him who hath done to him the wrong to occupie in common, $c. 
 when he can see his time (quant f il poet veier son temps,) $ c. In the same 
 manner it is of chattels realls, which cannot be severed, as in the case 
 aforesaid, where two be possessed of the wardship of the bodie of an infant 
 within age, if the one taketh the infant out of the possession of the other, 
 the other hath no remedie by an action by the law, but to take the infant 
 out of the possession of the other when he sees his time J. 
 
 (Sid. 49.) " Tp OR terme of yeares, &c." For one yeare, halfe a yeare, 
 
 ± &c. 
 
 (Hob. 120. u The one occupy all, and put the other otit of possession." 
 
 Plo. 247. These are words materially added, for albeit one tenant in com- 
 
 Qj j no J t 
 
 Mo' 123 375 ) mon ta ^ e tne w h°l e P r o nts > the other hath no remedie by law 
 against him, for the taking of the whole profits is no ejectment (1) : 
 But if he drive out of the land any of the cattell of the other 
 
 tenant 
 
 * such added in L. and M. and Roh. J &c. added in L. and M. but not 
 § &c. added in L. and M. and Roh. in Roh. 
 j" il not in L. and M. or Roh. 
 
 (1) But now, by the stat. of the 4th of Ann. chap. 16. sect. 27. actions of 
 account may be maintained by one jointenant and tenant in common, his 
 executors and administrators, against the other, as bailiff, for receiving more 
 than comes to his share and proportion, and against the executors and adminis- 
 trators of such jointenant or tenant in common; and the auditors appointed by 
 
 the
 
 L.3.C.4.Sect.323. Tenants in Common. [199.b.2G0.a.&b. 
 
 tenant in common, or not suffer him to enter or occupy the land, 
 this is an ejectment or expulsion, whereupon he may have ejec- i\^ \ AhT \ A ^ 
 tione Jirmce, for the one moietie, and recover damages for the , Cr ^ Ja< £ W1 { 
 entrie, but not for the meanc profits. 
 
 " Ejectione Jirmce of the moietie, &c." Here by this and the (2 Rep. 68. 
 other (&c.) in these two Sections, are to be understood divers F. N. B. 197.) 
 diversities betweene actions which concerne right and interest, (as 
 of ejectione firmse, ejectment de yard, quare ejecit infra terminum 
 of a chattel real upon an expulsion or ejectment) and actions 
 concerning the bare taking of the profits rising off the land or 
 doing of trespasse upon the land, as here by the examples 21 E. 4. 11. 22. 
 do appeare, for the right is severall, and the taking of the 43 E. 3. 24. 
 
 profits in common. The second diversity is between ^ ^ g' 50' 58 
 
 t200.~| B^chattels reals that are apportionable or severable, as 8 H. 6. 17. 
 a. J leases for yeares, wardship of lands, interest of tenements 19 H. 6. 57. 
 by elegit, statute merchant, staple, &c. of lands and ^ V^ 6 ^ 6 ' 
 t enements and chattels reals entire, as wardship of the body, a 14 e. 4. 8*. 
 villeine for yeares, &c. for if one tenant in common take away the 18 E. 4. 30. 
 warde, or the villeine, &c. the other hath no remedie by action, ^ e 3 l^' 
 but he may take them again. Another diversitie is between 12 Ass/28.' 
 cbattells realls and chattells personalis, for if one tenant in com- 47 E. 3. 22. b. 
 mon- take all the chattells personals, the other hath no remedy by 1° **■ £ 16 - 
 action, but he may take them again ; and herein the like law is ^ e! 2." 
 concerning chattells realls entire, and chattells personall for this Account, 122. 
 purpose. But of chattels entire, as of a sheep, horse, or any (^ n *- 191 - a -) 
 other entire chattell, reall or personall, no survivor shall be be- T res p as '. 178. 
 tween them that hold them in common ; and tenants in common 11 H. 4. 3. 
 shall not joyne in an ejectione firmse, nor in a writ of ejectment (Sir Tho. Ray. 
 de yard, or a quare ejecit infra terminum, &c. for that these ac- 2 i e. 4. 11 12. 
 tions concerne the right of lands which are severall. (Ant. Sec. 311. 
 
 & fol. 197. b.) 
 
 If two tenants in common be of a manor, to the which waife 13 E - 3 - 
 and stray doth belong, a stray doth happen, they are tenants in ^RoU Abr 
 common of the same, and if the one doth take the stray, the other 566.) 
 hath no remedy by action, but to take him againe. But if by 
 prescription the one is to have the first beast happening as a 
 stray, and the other the second, there an action lieth if the one 
 take that which pertains to the other. 
 
 If two tenants in common be of a dove-house, and the one 47 E. 3. 22. b. 
 destroy the old doves, whereby the flight is wholly lost, the other 
 tenant in common shall have an action of trespasse, quare vi et 
 armis columbare lepV f regit et ducentas columbus prrt ijAO. s. in- 
 terfecet,per quod volatum columbaris sui totaliter, amisit : for the 
 whole flight is destroyed, and therefore he cannot in 
 
 t300.~j B&~ bar plead tenancie incommmon. And so it is if 4 e. 3. Trespas. 
 b. J two tenants in common be of a parke, and one 233. 
 destroyeth all the deer, an action of trespasse lieth. 
 [c] If two tenants in common be of land, and of mete stones, r c ] 1 h. 5. 1. 
 pro metis et bundis, and the one take them up and carrie them 2 H. 5. 3. 
 away, the other shall have an action of trespasse quare vi et armis 
 
 against 
 
 the court, where such action shall be depending, are empowered to administer 
 an oath, and examine the parties touching the matters in question, &c. See 
 also 1 Leo. 219.— [Note 83.]
 
 200. b.] Of Tenants in Common. L. 3. C. 4. Sect. 323. 
 
 [d] 13 E. 3. 
 Trespas, 212. 
 19 R. 2 Br. 927 
 11 E. 3. 
 Trespas, 212. 
 Vid. 18 H. 6. 5." 
 
 [e] 13 H. 7.26. 
 [/] F. N. B. 127 
 Reg. 163. 
 (Ant. 54. b.) 
 
 17 E. 2. tit. 
 Account, 22. 
 8 E. 2, 
 Account, 115. 
 30 E. 1. 
 Account, 127. 
 45 E. 3. 10. 
 47 E. 3. 22. b. 
 
 38 E. 3. 9. 
 22 E. 3. 60. 
 3 E. 3. 27. 
 
 39 E. 3. 7. 82. 
 F.N. B.11S. I. 
 10 H. 7. 16. 
 
 2 E. 4. 25. 
 (Ant. 172. a. 
 F. N. B. 118. 
 
 1 Roll. Abr. 118 
 
 2 Inst. 379.) 
 W. 3. ca. 23. 
 
 |>] 27 H. 8. 13 
 21 E. 3. 29. 
 29 E. 3. 39. 
 3 E. 2. Wast. 35 
 F. N. B. 59. D. 
 F. N. B. 49. I. 
 
 *47 E. 3. 22. 
 50 E.3. 3. 
 
 10 E. 4.3. b. 
 22 H. 6. 42. 
 21 E. 3. 47. 
 
 17 E. 3. 47. 
 
 18 E. 4. 27. 
 28 E. 3. 4. 
 (2 Inst. 403. 
 
 11 Rep. 49. 
 Ant. 53. b. 
 
 F. N. B. 59. D 
 2 Roll. Abr. 86. 
 
 ap-ainst him, in like manner as he shall have for the destruction 
 of doves. 
 
 [a] If to tenants in common he of a folding, and the one 
 of them disturbe the other to erect hurdles, he shall have an 
 action of trespasse quare qi et armis for this disturbance. 
 
 [e] 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. 
 
 [/] If two tenants in common, or jointenants,be of an house 
 or mill, and it fall in decay, and the one is willing to repaire the 
 same, and the other will not, he that is willing shall have a writ 
 de reparatione faciendd ; and the writ saith, ad reparationem et 
 sustentationem ejus dem domvs teneantur ; whereby it appeareth, 
 that owners are in that case bound pro bono pablico to maintain 
 houses and mills which are for habitation and use of men. 
 
 If one joyntenant or tenant in common of land maketh his com- 
 panion his baylife of his part, he shall have an action of account 
 against him, as hath been said. But although one tenant in com- 
 mon or jointenant without being made baylife take the whole 
 profits, no action of account lieth against him ; for in an action 
 of account he must charge him either as a guardian, baylife, or 
 receiver, as hath been said before, which he cannot do in this 
 case, unless his companion constitute him his bailife. And 
 therefore all those bookes which affirm that an action of account 
 lieth by one tenant in common, or jointenant, against another, 
 must be intended when the one maketh the other his bailife, for 
 otherwise never his bailife to render an account is a good plea. 
 
 If there be two tenants in common of a wood, turbarie, pis- 
 charie, or the like, and one of them doth wast against the will of 
 his companion, his companion shall have an action of wast, and 
 he that did the wast before judgment, hath election either to 
 take his part in certaintie by the sherife and the oath of men, &c. 
 or that he grant, that from thenceforth he shall not do wast but 
 according to his portion, &c. and if he make choice of a certain 
 place, then the place wasted shall be assigned to him. [r/] But 
 this extends not to coparceners, because they were compellable 
 to make partition by the common law : and this, as it is said, doth 
 ' extend as well to tenants in common and joyntenants for life, as 
 to an estate of inheritance. But if one tenant in common, or 
 joyntenant of a dove-house destroy the whole flight of doves, no 
 action of wast doth lie in that case upon the said statute, *as 
 some do hold. 
 
 If lands be ^ivon to two, and to the heires of one of them, and 
 tne tenant for life doth wast, he that hath the inheritance shall 
 have no action of waste by the statute of Gloucester, but upon the 
 statute of W. 2. he shall have an action of wast. And it is to be 
 known, that one tenant in common may infeoffe his companion, 
 but not release, because the freehold is severall. Joyntenants 
 may release, but not infeoffe; because the freehold is joynt; 
 but coparceners may both infeoffe and release, because their 
 seisin to some intents is joynt, and to some severall (1). 
 403. Ant. 186. b. Post. 355. a.) Sect 
 
 (1) M. 26 <fc 27 Eliz. per cur. If one coparcener in tail levies a fine to 
 another sur conusans de droit, &c. it docs not enure by way of release, but by 
 way of grant, and it toill be a discontinuance and alteration of the estate without 
 
 execution,
 
 L. 3. C. 4. S. 324. Of Tenants in Common. [200. b. 201. a. 
 
 Sect. 324. 
 
 A LSO, when a man * will shew a feoffment made to him, or a gift in 
 
 taile, or a lease for life of any lands or tenements, there he shall 
 
 say, by force of which feoffment, gift, or lease, he was seised, $-c. but 
 
 where one will plead a lease or grant made to him of a chattell real or 
 
 personal, then he shall say, by force of which he was possessed, fyc. 
 
 More shall be said of tenants in common in the Chapters of Releases 
 f and Tenant by Elegit. 
 
 " TTE ivas seised, &c." Seisin is a word of art, and in plead- 
 
 ing is only applied to a freehold at least, as possessed for 
 
 distinction sake is to a chattell reall or personall. 
 
 tQOl.l B@°* As if B- plead a feoffment in fee, he concludeth, 
 a. J virtute cujus prcedict.' B. fuit seisitus, &c. But if (Plowd. Com. 
 he plead a lease for yeares, he pleadeth, virtute cujus ^° 3 - a - 
 prcedictis B. intravit, et fuit inde possess ionatus ; and so of pi ^<j. 149. b. 
 chattells personalis, virtute cujus fuit inde possess ionatus. Post. 310. b. 
 
 And this holdeth not only in case of lands or tenements No 7» 26 -) 
 which lie in liverie, but also of rents, advowsons, commons, &c. 
 and other things that lie in grant, whereof a man hath an estate 
 for life or inheritance. 
 
 Also when a man pleads a lease for life, or any higher estate 
 which passeth by liverie, he is not to plead any entrie, for he is 
 in actuall seisin by the liverie it selfe. Otherwise it is of a 
 lease for years, because there he is not actually possessed untill 
 an entrie. 
 
 Chap. 
 
 * in pleading added in L. and M. f and Confirmations added in L. and 
 and Boh. M. and Boh. 
 
 execution, because one parcener may enfeoff another, and this is a feoffment 0/ 
 record. But one may release to another, and it enures per mitter le droit. — 
 Ld. Nottingh. MSS— [Note 83|.]
 
 201. a.] Of Estates L. 3. C. 5. Sect. 325. 
 
 Chap. 5. Of Estates upon Condition. Sect. (1) 325. 
 
 TjJSTA TES which men have in lands or tenements * upon condition 
 are of two sorts (sont f de deux maners), viz. either they have estate 
 upon condition in deed {scilicet, % ou ils ont estate sur condition en fait), 
 or upon condition in law, \\ Src. Upon condition in deed is, as if a man 
 by deed indented enfeoff es another in fee § simple, reserving to him and 
 his heires yearely a certain e rent payable at one feast or divers feasts 
 per annum, on condition that if the rent be behind, frc. that it shall be 
 lawful for the feoffor and his heires into the same lands or tenements to 
 enter, §c. And if it happen the rent to be behind by a week after any 
 day of payment of it, or by a month after any day of payment of it, or 
 by half a year, cj-c. that then it shall be lawfull to the feoffor and his 
 heires to enter, £c. (Sur condition en fait est, sicome un home per fait 
 endent enfeoffa un a uter en fee simple, reservant a luy et a ses heires 
 annualment certaine rent payable a un feast ou a divers feasts per an, 
 sur condition que si le rent soit aderere, &c. que bien list al feoffor et 
 
 a ses 
 
 * upon condition not in L. and M. J ou not in L. and M. or Roh. 
 or Roh. ' || &c. not in L. and M. or Roh. ^ 
 
 f de — en in L. and M. and Roh. § simple not in L. and M. or Roh. 
 
 (1) The doctrine of conditions is derived to us from the feudal law. The 
 rents and services of the feudatory are mentioned by feudal writers as condi- 
 tions annexed to his fief. If he neglected to pay his rent, or perform his ser- 
 vice, the lord might resume the fief. But the payment of rent and the perform- 
 ance of feudal service were, for a long period of time, the only conditions that 
 could be annexed to a fief; and, the latter, whether expressed or not, was 
 always presumed by the law; — being incident to, and inseparable from, the 
 estate of the feudatory. — In this sense they are called conditions in law, or im- 
 plied conditions. — Afterwards, when other conditions were introduced, the 
 estates to which they were annexed were ranked among improper fiefs. — See Sir 
 Thomas Craig, De Jure Feudali, lib. 2. dieg. 4, sect. 1, 2, 3. Conditions of 
 this last sort were called express, or conventionary conditions. By an applica- 
 tion, in some respects very much forced, of the original principle of conditions, 
 that, on the non-performance of them, the lord might resume his fief, condi- 
 tional fees at common law, and some other modifications of landed property, 
 were introduced as estates upon condition. These are often of such a nature, 
 as to make it more natural that a stranger should have the estate on the non- 
 performance of the condition, than the donor: — and, that the lord, instead of 
 being confined to his right of resumption, should have it in his power to compel 
 the performance of the condition, or recover from the donee a compensation, or 
 satisfaction, for the breach of it. But, as all these estates were introduced as 
 estates upon conditions, the law, where it still considers them as conditions, and 
 except where it has been altered by act of parliament, confines the donor's 
 remedy to the resumption of the estate, and gives that remedy only to the 
 donor and his heirs. — Considered in this sense, the word Condition has, in our 
 law, a much more contracted meaning than it has in the civil law; where it 
 signifies, generally, all those pactions, or agreements, which regulate that which 
 the contractors have a mind should be done, if a case, which they foresee, 
 should come to pass. This is the definition of Domat, lib. 1. tit. 1. sect. 4. — 
 [Note 84.]
 
 L. 3. C. 5. Sect. 325. upon Condition. [201. a. 201 . b. 
 
 a ses heires en mesmes les terres ou tenements de entrer, &c. Ou si 
 terre soit alien a un home en fee rendant a luy certaine rent, &c. (A) et 
 s'il happa que le rent soit aderere per un semaigne apres ascun jour de 
 payment de ceo, ou per un mois apres ascun jour de payment de ceo, 
 ou per ** un demy, &c. que adonques bien lirroit a le feoffor et a les 
 heires d'entrer, &c.) Jt In these cases if the rent be not paid at such 
 time, or before such time limited and specified within the condition com- 
 prised in the indenture, then may the feoff or or his heires enter into such 
 lands or tenements, and them in his former estate to have and hold, and 
 the feoffee quite to ouste thereof And it is called an estate upon con- 
 dition' because that the state of the feoffee is defeasible, if the condition 
 be not performed, cfc. 
 
 " TJ PON condition." Littleton having before spoken of estates Glanvill. lib. 10. 
 absolute, now beginneth to entreate of estates upon condi- \^\ cap! °5° 6', 
 tion. And a condition annexed to the realitie, whereof Littleton 7, & c . 
 here speaketh in the legall understanding, est modus, a qualitie Kb. 4. foL 213. 
 annexed by him that hath estate, interest, or right, to the same, f " 89*99. 114. 
 whereby an estate, &c. may either be defeated, or enlarged, or 130. 205, 206, 
 created upon an incertaine event. Conditio dicitur cum quid in 207. 249. 
 casum incertum qui potest tenderead esse autnon esse confer tur. ® a ^ l & \^ 5 
 
 ca. 5. Mirr. 
 '" Upon condition in deed," quo3 est facti, that is upon a con- cap. 2. sect. 15. 
 dition expressed by the partie in legall termes of law. rpiJw 23 a 
 
 1 Roll'. Abr. 
 " Or upon condition in laic, &c." qum est juris, that is, tacite 420. 2 Rep. 
 created by law without any words used by the partie. Again, 79 -) 
 Littleton subdividcth conditions in deed (though not in expresse 
 words) into conditions precedent (of which it is said, Conditio 
 adimpleri debet priusquam sequatur ejfectus) and conditions sub- 
 sequent. Again, of conditions in deed some be affirmative, 
 and some in the negative; and some in the affirmative, which 
 imply a negative ; some make the estate, whereunto 
 
 t£J01."l they are annexed, voydable by entrie or clayme, and 
 b. I some make the JB^P" estate void ipso facto, without 
 entrie or claime. 
 Also of conditions in deed, some be annexed to the rent re- 
 served out of the land, and some to collaterall acts, &c. some be 
 single, some in the conjunctive, some in the disjunctive, as shall Mir. cap. 2. 
 evidently appear in this Chapter, where the examples of these sect 15 * 17- 
 divisions shall be explained in their proper place. 
 
 " In law, &c." Of conditions in law more shall be said here- 
 after in this Chapter. 
 
 " Upon condition in deed is, as if a man by deed indented, &c. 
 Here Littleton putteth one example of six severall kinds of con- 
 ditions. That is, first, of a single condition in deed. Secondly, 
 of a condition subsequent to the estate. Thirdly, a condition 
 
 annexed 
 
 ** un — demy not in L. and M. or JJ And added in L. and M. and 
 Roh. Rob. 
 
 (A) Part of the original French is here inserted, because the words rendant a luy cer- 
 taine rent, &c." are not noticed in the translation of the section, though the same icurds 
 are commented upon by lord (Joke, post 201. b.
 
 201. b. 202. a.] 
 
 Of Estates L. 3. C. 5. Sect. 325. 
 
 annexed to the rent, &c. Fourthly, a condition that defeateth 
 the estate. Fifthly, a condition that defeateth not the estate 
 before an entrie. And lastly, a condition in the affirmative, 
 which implyeth a negative, (as behind or unpaid implieth a 
 negative) viz. not paid. All which do appeare by the expresse 
 words of Littleton. 
 
 " Rend' a luy certaine rent, &c. (B)" Here by this (d&c.) is 
 implyed for life, in taile, or in fee. 
 
 11 In these cases if the rent be not paid at such time, &c. then 
 may the feoffor or his heires enter, &c." By this Section, and by 
 the (&c.) therein contained, six things are to be understood. 
 
 First, Where our author saith, if the rent be behind, that though 
 the rent be behind and not paid [b], yet if the feoffor doth not 
 demand the same, &c. he shall never re-enter (1), because the 
 land is the principal debtor ; for the rent issueth out of the land, 
 and in an assise for the rent the land shall be put in view j and 
 if the land be evicted by a title paramount, the rent is avoyded, 
 and after such eviction the person of the feoffee shall not be 
 charged therewith, for the person of the feoffee was only charged 
 with the rent in respect of the grant out of the land. 
 
 Secondly the demand must be made upon the land, because 
 the land is the debtor, and that is the place of demand appoint- 
 ed by law (2). 
 
 If the king maketh a lease for yeares, rendering a rent payable 
 at his receipt at Westminster, and after the king granteth the re- 
 version to another and his heires, the grantee shall demand the 
 rent upon the land and not at the king's receipt at Westminster ; 
 for as the law without expresse words doth appoint 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 (3). 
 
 If there be a house upon the same, he must demand the rent 
 at the house. And he cannot demand it at the back door of the 
 house but at the fore door, because the demand must ever be 
 made at the most notorious place. And it is not material whe- 
 ther any person be there or no. 
 
 Albeit the feoffee be in the hall or other part of the house, yet 
 the feoffor need not [c] but come to the fore door, for that is the 
 place appointed by law albeit the door be open. 
 
 [d] 00" If the feoffment were madeof a wood only, [~ 0,0 0.1 
 the demand must be made at the gate of the wood or | a. 
 at some high way leading through the wood, or other 
 most notorious place. And if one place be as notorious as an- 
 other, the feoffor hath election to demand it at which he will, and 
 
 albeit 
 
 (B) See ante note A on Sect. 325. 
 
 (1) By special consent of the parties, a re-entry may be for default of pay- 
 ment of rent without demand of it. 5 Rep. 40. b. — [Note 85]. 
 
 (2) For the place of performing the condition see Litt. Sect. 340, and the 
 Commentary on that Section. 
 
 (3) The prior of St. John Jerusalem made a lease for years, reserving rent, 
 with a condition of re-entry and afterwards surrendered the priory and all its 
 possessions to the king. The judges were of opinion, that the king, by reason 
 of his prerogative, might take advantage of the condition without demand, 
 though the prior himself could not. 5 Kep. 56. a. b. — [Note 86]. 
 
 [i] 40 Ass. 11. 
 20 H. 6. 30, 31. 
 6 H. 7. 7. 
 
 19 H. 6. 76. 
 
 20 H. 6. 32. 
 22 H. 6. 46. 
 PI. Com. Kid- 
 wely's case, fo. 
 70. & Hill and 
 Grange's case, 
 fol. 73. 
 
 (Noy, 23. 1 Roll. 
 Abr. 459. 460. 
 Perk. sect. 827. 
 Noy, 23.) 
 
 Lib. 4. fo. 72. 73. 
 Boroughe's case. 
 
 49 Ass. 5. 
 
 15 Eliz. Di. 329. 
 
 [c] Bendloes 
 en Tresp. 4 & 
 5 Ph. & Mar. 
 
 [d] 15 Eliz. 
 Dyer, 329. 
 
 (Ante, 145. a.)
 
 L. 3. C. 5. Sect. 325. upon Condition. [202. a. 
 
 albeit the feoffee be in some other part of the wood redie to pay 
 the rent, yet that shall not availe him. Et sic de similibus. 
 
 Thirdly, And if the feoffor demand it on the ground at a place 
 which is not most notorious, as at the back door of a house, &c. 
 and in pleading the feoffor alledge a demand of the rent gene- 
 rally at the house, the feoffee may traverse the demand, and 
 upon the evidence it shall be found for him, that it was a void 
 demand. 
 
 Fourthly, If the rent be reserved to be paid at any place from Lib. 4. Bo- 
 the land, yet it is in law a rent, and the feoffor must demand it at £ ou ^ e ' s case 
 the place appointed by the parties, observing that which hath been pi # " Co * mi 7q_ 
 said before concerning the most notorious place. 
 
 Fifthly, And all this is to be understood when the feoffee is 
 absent ; for if the feoffee commeth to the feoffor at any place upon 
 any part of the ground at the day of payment, and offer his rent, 
 albeit they be not at the most notorious place, nor at the last in- 
 stant, the feoffor is bound to receive it, or else he shall not take (Post. 211. a.) 
 any advantage of the demand of the rent for that day (1). 
 
 Sixthly, Therefore the place of demand being now known, it (7 Rep. 28.) 
 is further to be known what time the law hath appointed for the 
 same. This partly appeareth by that which hath been last said. 
 For albeit 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 numbred 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 refuseth, the 
 condition is saved for that time, for by the expresse reservation (5 Rep. 114. b.) 
 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 (2) that then both parties should meet toge- (2 Cro. 423. 
 ther, the one to demand and receive, and the other to pay it, so 500.) 
 as the one should not prevent the other. But if the parties meet 
 upon any part of the land whatsoever on the same day, the ten- 
 der shall save the condition for ever for that time. 
 
 And if the reservation of the rent be (as here Littleton putteth Lib. 5. fol. 114. 
 the case) at certaine feasts, with condition that if it happen the p^com^Hiil 
 rent to be behind by the space of a wecke after any day of pay- a Grange's case. 
 ment, &c. in this case the feoffor needeth not demand it on the 167. 172. 
 feast day, but the uttermost time for the demand is a convenient fi° H I1- 7 % 
 time (as hath been said) before the last day of the week, unlesse 
 before that the feoffee meet the feoffor upon the land and tender 
 the rent as is aforesaid (3). 
 
 If 
 
 (1) For the difference of the demand to be made in case of a re-entry to 
 avoid an estate, or the forfeiture of a sum nomine pceiuv, and of the demand to 
 be made in case of an entry to distrain, see before 144. a. 
 
 (2) Yet the rent is not due till the last minute of the natural day ; for if 
 the lessor dies after sun-set and before midnight, the rent shall go to the heir 
 and not to the executors. 1 Saund. 287. Salk. 578. (Note to the twelfth 
 edition.) — [Note 87.] 
 
 (3) For there is a material difference between a reservation of a rent payable 
 on a particular day, or within a certain time after, and a reservation of a rent 
 payable at a certain day, with a condition that if it be behind by the space 
 of any given time, the lessor shall enter. In both cases, a tender on the first, 
 or last day of payment, or on any of the intermediate days, to the lessor him- 
 self, either upon, or out of the land, is good. But, in the former case, it is 
 
 sufficient
 
 202. a. J Of Estates L. 3. C. 5. Sect. 325. 
 
 Mich. 40 & If a rent be granted payable at a certaine day, and if it be 
 
 41 Eliz. inter behind and demanded that the grantee shall distreine for it, in 
 ^|* nly * ^ ad - this case the grantee need not demand it at the day ; but if he 
 Maunde's case, demand it at any time after he shall distreyne for it, for the 
 
 grantee hath election in this case to demand it when he will te 
 
 inable him to distreine. 
 
 8 H. 7. 7. b. " And them in his former estate to have, &c." Regularly it is 
 
 true that he that cntreth for a 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 fayleth in many cases. 
 
 4 H. 6. 2. lib. 8. 1- In respect of impossibility. As if a man seised of lands in 
 
 fo. 43, 44. the right of his wife maketh a feoffment in fee by deed indented, 
 
 Whittingham's U p 0n condition that the feoffee should demise the land to the 
 
 Til' 7 6 a feoffor for his life, &c. the husband dieth, the condition is broken, 
 
 (Post. 297. b.) in this case the heire 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 the right of his wife, which by the (A) coverture 
 
 was dissolved. And therefore when the heire hath entred for the 
 
 condition broken and defeated the feoffment, his estate doth 
 
 vanish, and presently the state is vested in the wife. 
 
 2. In 
 
 (A) The text should be read, it seems, as if lord Coke had said, which by the determination 
 of the coverture. __^ 
 
 sufficient if the lessee attend on the first day of payment, at the proper place ; 
 and, if the lessor do not attend there to receive the rent, the condition is 
 saved. In the latter case, to save the lease, it is not sufficient that the lessee 
 attends on the first day of payment, for he must equally attend on the last 
 day. 10 Rep. 129. a. Plow. 70. a. b. and Cropp v. Hambleton, Cro. Eliz. 48. 
 — It is to be observed, that it was once doubted, whether proof of actual entry 
 and ouster was necessary in ejectment, brought on breach of a condition of 
 re-entry. — It was afterwards settled, that it was not, but that, notwithstanding 
 the confession of the re-entry, the demand of the rent must be proved. Anon. 
 1 Vent. 248.— Little v. Heaton, 2d Lord Raym. 750. and 1st Salk. 259. and 
 see 3 Burr. 1896, 1897. But now, by the 4 Geo. 2. c. 28. sect. 2. landlords or 
 lessors, having a right by law to re-enter, for non-payment of rent, may, without 
 any formal demand, or re-entry, serve a declaration in ejectment for the re- 
 covery of the demised premises; and shall recover judgment and execution, 
 in the same manner as if the rent in arrear had been lawfully demanded, and 
 re-entry made. And if the lessee or tenant permits execution to be executed 
 on such judgment, without paying the rent and arrears, and full costs, and 
 without filing any bill or bills for relief in equity, within six calendar months 
 after such execution executed, he shall be barred and foreclosed from all relief 
 in law or equity, except by writ of error for reversal of such judgment. By the 
 same statute, sect. 4th, if the tenant, at any time before the trial in ejectment, 
 pays or tenders to the lessor or landlord the whole rent in arrear, with the 
 costs, or pays such arrears and costs into court, the proceedings in ejectment 
 shall cease, and the tenant shall be relieved in equity, and hold the lands 
 demised according to the old lease, without any new lease. In Archer v. Snapp, 
 Andr. 341. lord chief justice Lee observes, that both the courts of law and 
 the courts of equity had, previous to this statute, exercised a discretionary 
 power of staying the lessor from proceeding at law, in cases of forfeiture for 
 non-payment of rent, by compelling him to take the money really due to him. 
 The same observation is made in Bull. Ni. Pri. 97. See 2 Salk. 597. 8 Mod. 345. 
 10 Mod. 383, and 2 Vera. 103. 1 Wilson, 75. 2 Stra. 900. So, in a- cessavit, 
 the defendant, by tendering the arrears, and giving security, might free himself. 
 See Pigot on Com. Rec. 62.— [Note 88.]
 
 L. 3. C. 5. Sect. 325. upon Condition. [202. a, 202. b. 
 
 2. In respect of necessity. If Cestui/ que use after the statute of 
 R. 3, and before the statute of 27 H. 8, had made a feoffment in 
 fee upon condition, and after had entred for the condition broken ; 
 in this case he had but an use when the feoffment was made, but 
 now he shall be seised in the whole state of the land. So that as 
 in the former case, the ancestor had somewhat at the making of 
 the condition, and the heire shall have nothing when he hath 
 entred 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 entrie for the condition broken he 
 shall be seised of the whole state in the land, and that also for 
 necessitie, for by the feoffment in fee of Cestui/ que use, the whole 
 estate and right was devested out of the feoffees. And therefore 
 of necessitie the feoffor must gain the whole estate by his entrie 
 for the condition broken. 
 
 Tenant in speciall taile hath issue, and his wife dieth, tenant in 
 
 taile maketh a feoffment in fee upon condition, the issue dieth, 
 
 the condition is broken, the feoffor re-enters, he shall 
 
 t202.~j f&s^" have but an estate for life, as tenant in taile apres 
 b. I possibility of issue extinct by the re-entry, and yet he (8 Rep. 43. 44.) 
 had an estate taile at the time of the feoffment, and 
 that also for necessity. 
 
 3. In some cases the feoffor by his re-entry shall be in his (Ante 103. a.) 
 former estate, but not in respect of some collaterall qualities. As 
 
 if tenant bj homage ancestrell maketh a feoffment in fee upon 
 condition, and entreth upon the condition broken, it shall never 
 beholden by homage ancestrell again. And so it is if a copihold 
 escheate, and the lord make a feoffment in fee upon condition, 
 and entreth for the condition broken. And the reason in both 
 these cases is, for that the custome or prescription for the time 
 is interrupted. 
 
 (1) Lord and tenant by fealty and rent, the lord is in seisin 15 Ass. 12. 
 of his rent, the lord granteth his seignory to another and to his ( 4 Rep. 9. b.) 
 heires upon condition, the tenant attorneth and payeth his rent 
 to the grantee, the condition is broken, the lord distreineth for 
 his rent, and rescous is made, he shall be in his former estate, 
 and yet the former seisin shall not enable him to have an assise 
 without a new seisin. 
 
 If tenant in taile make a feoffment in fee upon condition, and s II. 7. 7. 
 dieth, the issue in taile within age doth enter for the condition 
 broken, he shall be first in as tenautin fee simple as heire to his 
 father, and consequently and instantly he shall be remitted. But 
 if the heire be of full age, he shall not be remitted, because he 
 might have had his formedon against the feoffee, and the entrie for /p oet ?50 b ) 
 
 the K 
 
 (1) This is seemingly contradicted by the authorities cited in the margin. 
 In that taken from lord Coke's Reports, it is said, that " If the lord grants his 
 "seignory on condition, and the tenant pays the rent to the grantee, and 
 <: afterwards the condition is broken, and the lord distrains for the services, 
 "upon rescous made he shall have assise, for the seisin before is sufficient." — 
 The case reported in the margin from the Book of Assises is to the same effect. 
 But it is to be observed, that, when the lord distrains, his distress amounts to 
 anew entry. This may serve to reconcile the apparent contradiction, in this 
 instance, between the Commentary and the authorities cited in the margin. 
 —[Note 89.]
 
 202. b.] Of Estates L. 3. C. 5. Sect. 325. 
 
 the condition is his own act; but more shall be said hereof in 
 
 his proper place in the Chapter of Remitter. 
 2 H . 6 4. If a man make a feoffment in fee of Blaclce Acre and White 
 
 (1 Roll Abr. Acre upon condition, &c. and for breach thereof that he shall 
 412 -) enter into Blacke Acre, this is good. 
 
 If the tenant for life make a feoffment in fee upon condition 
 13 e 8 4. 4 Z' and entreth for the condition broken, he shall be tenant for life 
 
 2 H.5. V.b. again, but subject to a forfeiture, for the state is reduced, but 
 39 Ass. 15 t h e forfeiture is not purged (2). 
 
 16 Ass. 47. (1 Roll. Abr. 856. Post. 252. a.) 
 
 Sect. 
 
 (2) It may be further observed, 1st. That as the entry of the feoffor on the 
 feoffee for a condition broken defeats the estate to which the condition was 
 annexed, so it defeats all rights and incidents annexed to that estate, as dower, 
 &c. and all the mesne incumbrances of the feoffee. See 1 Roll. Abr. 474. 
 2dly, That every condition must defeat the entire estate, and that a condition 
 cannot be so framed as to make one and the same estate in any lands cease 
 as to one person, and remain as to another, or cease for one time, and revive 
 afterwards. 6 Rep. 40. b. 41. a. 3dly, That a condition annexed to land, 
 cannot be apportioned by any of the parties themselves, so as to become void 
 as to one part of the land, and to remain good as to the other. Thus, in the 
 case cited by Lord Coke, 4 Rep. 120. a. b. a lease was made for twenty-one 
 years, of three manors, rendering rent for manor A. 61 for manor B. bl. and 
 tor manor C. 10 J. to be paid on a place out of the land, with a condition of 
 re-entry into all the three manors, for default of payment of the rents. The 
 lessor granted the reversion of part of manor A. to one and his heirs ; and 
 afterwards granted the reversion of ano ther part to another and his heirs : it 
 was adjudged that the second grantee should not enter for the condition 
 broken^ because the condition was entire, and by the severance of part of 
 the reversion, was destroyed in all. But a condition may be apportioned by 
 act in law. See the instance put by lord Coke, post. 215. a. 4thly, That 
 part of a condition may be good, and another part of it may be void in law; 
 as, if a person makes a gift in tail to the donor's eldest son, remainder to his 
 youngest son in tail, with a condition that, if the eldest son alien in fee, his 
 estate shall cease, and the lands should remain to the second son in tail; that 
 part of the condition which prohibits the alienation made by tenant in tail, 
 is good in law, but that part of it, which says that, upon such alienation, the 
 lands shall remain over is void, and the donor may re-enter. See Litt. Sections 
 720, 721, 722, 723, and the Commentary page 379 b. And see post. 223 b. 
 note 1. 379. b. note 1. 5thly, That, if A. be tenant for life, remainder in con- 
 tingency, remainder to B. in tail, and A. before the contingency happens, 
 surrender his estate to B. his surrender bars the contingent remainder. But, 
 if he surrenders on condition, and before the contingency happens, the con- 
 dition is broken, and A. enters on the estate, the contingent remainder is re- 
 revived. See Thompson v. Leach, 1 Lord Raym. 313. — [Note 90.]
 
 L. 3. C. 5, Sect. 326, 327. upon Condition. [202. b. 
 
 Sect, 326. 
 
 TNthe same manner it is if lands be given in taile, or let for terme of 
 life or * of geares, upon condition (sur f condition), £c. 
 
 " Upon condition, &c" This implyeth the severall kinds of 
 conditions in deed before specified. 
 
 Sect. 327. 
 
 J) UT ivhere a feoffment is made of certain lands reserving a certaine 
 rent, J <*■<?. upon such condition, that if the rent be behind, that it 
 shall be lawfidlfor the feoff or and his heires (que § bien lirroit al feoffor 
 et || ses heires) to enter ** and to hold the land untill he be satisfied or 
 paged the rent behind, $c. in this case if the rent be behind, and the 
 feoff er or his heires enter, the feoffee is not altogether excluded from this 
 (le feoffee n'est pas exclude de ceo tout \. net), but the feoffor shall 
 have and hold the land, and thereof take the profits, until he be satisfied 
 (tanque \\. il soit satisfie) of the rent behind ; and when he is satisfied, 
 then mag the feoff ee re-enter (donque poitle feoffee) || re-entrer) into the 
 same land, and hold it as he held it before (et ceo tener || || come il tenoit 
 a devant). For in this case the feoffor shall have the land (le feoffor 
 avera §§ la terre) but in manner as for a distresse, until he be satisfied 
 tanque *!* il soit satisfie) of the rent, $c though (coment ft que) he 
 take the profits in the meane time XX to his own use, §e. 
 
 11 A ND to hold the land until he be satisfied or payed the rent JJi e |^J-|^ 
 ■^behinde, &c." By this it is implyed, that if such a feoffment 280 _- jg 1 ^ "' 
 be made, reserving [6] (for example) 8 markes rent at the feast Done rent, 10. 
 of Easter, with such a condition as is afore said, the feoffor at the g. Com. 524 
 feast day demands the rent, the feoffee paieth unto him 6 markes [J ve nant,' V 1 
 parcell of the rent, the feoffer entreth into the lands and taketh 
 the profits towards satisfaction. Afterwards the feoffee doth 
 
 tender 
 
 arre 
 
 * for terme added in L. and M. and Jf re-entrer — entre in L. and M. 
 
 Roh. and Roll. 
 
 | tiel added in L. and M. and Roll. \\ \\ come — coment in L. and M. and 
 
 X &c. not in L. and M. Roh. 
 
 § il added in L. and M. §§ avera la terre— ceo aver in L. 
 
 || a added in L. and M. and M. and Roh. 
 
 ** into the land held of them in L. *!* que added in L. and M. and 
 
 and M. Roh. 
 
 | de added in L. and M. and Roh. ft ^ not in -£■ and ^ or ^ oJl - 
 
 _|4 que added in L. and M. and %% to his own use not in L. and M. 
 
 Roh. or Roh. 
 
 Vol. II.— 10
 
 202. b. 203. a.J Of Estates L. 3. C. 5. Sect. 327. 
 
 tender the two markes residue of the rent to the feoffor 
 upon the land, who refusethit. It Q^T hath been ad- T2031 
 judged that the feoffee upon the refusal may enter into [ a. 
 the land (1) ; for when the feoffor is satisfied either by 
 perception of the profits or by payment or tender and refusall, 
 or partly by the one and partly by the other, the foeffee may re- 
 (Autrement in enter into the land. And 1 his is within the words of Littleton, 
 case de obhga- ^ (until he be satisfied.) And albeit the feoffor had accepted 
 contract. Doc P art 0I " h* 8 rent, yet he may enter for the condition broken, and 
 Pla. 109. ) retain the land untill he be satisfied of the whole. All which is 
 
 worthy of observation. 
 
 " For in this case the feoffor shall have the land hut in manner as 
 (Sid. 223. 262. for a distresse, until he be satisfied of the rent, &c." By this it ap- 
 344. Plow. o24. p eare th that the feoffor by his re-entry gaineth no estate of free- 
 hold (2), but an interest by the agreement of the parties to take 
 the profits in nature of a distresse. And therefore if a man 
 maketh a lease for life with a reservation of a rent, and such a con- 
 dition, if he enter [upon] the condition broken, and take the 
 profits of the land quosnue, &c. he shall not have an action of 
 debt for the rent art-re, fur that the freehold of the lessee doth 
 Tel 2 E 3 fo 7 continue, and therefore the booke [r] that seenieth to the contrary 
 is false printed, and the true case was of a lease for yeares, as it 
 appeareth afterwards iu the same page of the leafe. 
 
 But herein also a diversity worthy the observation is implyed, 
 viz. If a man make a lease for yeares, reserving a rent with a con- 
 dition, that if the rent be behind, that the lessor shall re-enter and 
 take the profits untill thereof he be satisfied, there the profits 
 shall be accounted as parcell of the satisfaction, and during the 
 SO E. 3. 7. ^ me tliat he so taketh the profits he shall not have an action of 
 
 Vid. Semblable. debt for the rent for the satisfaction whereof he taketh the profits. 
 Vov'»'fi But if the condition be that he shall take the profits untill the 
 
 31 Ass. pi. 26. feoffor (A) be satisfied or paid of the rent, without saying 
 Vid le Statute (thereof) or to the like effect, there the profits shall be accounted 
 de Merton, ca. no p art f the satisfaction but to hasten the [lessor] (B) to pay 
 the"" words™ 6 **» an ^ as Littleton here saith, that untill he be satisfied he shall 
 quod inde p er- take the profits in the mean time to his own use (3). 
 cipere possint duplicem valorem, <tc. Et. c. 7, without this word (inde.) See ant. 82. b.) 
 
 (A) The word feoffor, seems to be here inserted for lessor. See Mr. Ritso's Fntr. p, 119, 
 
 (B) Instead of, lessor, it should be, lessee, as it seem*. See Mr. Ritso's Intr. p. 119, 
 
 Sect. 
 
 (1) But there must be a previous actual demand, in the same manner as 
 where the condition is general. Hob. 82. 133. Hobart was of opinion, that 
 the feoffor, to entitle himself to enter by way of penalty, should demand the 
 rent not only on the day when it became due, but on the day after. Hob. 208. 
 —[Note 91.] 
 
 (2) This is so, though the condition be, that the feoffer, his heirs and as- 
 signs, may enter ; and his interest goes to his executor. But he may maintain 
 an ejectment. 1 Saund. 112. 1 Sid. 344, 345. T. Raym. 135. 158.— [Note 92.] 
 
 (3) Care must be taken, with respect to conditions, or powers of entry, 
 to distinguish between a general condition that the lessor shall re-enter ; a 
 special condition that he may enter and hold until payment or satisfaction ; 
 and a power of entry, limited by way of use. I. A general condition 
 
 lessor
 
 L. 3. C. 5. Sect. 328. upon Condition. [203. a. 
 
 Sect. 328. 
 
 ALSO, divers words (amongst others [enter || || auters]) there be, which 
 
 by vertue of themselves make estates upon condition; one is the word 
 
 (sub condic.) fun est le parol §§ sub conditione): as if A., infeoffe B. of 
 
 certaine land, to have and to hold to the said B. and his heires, upon 
 
 condition (sub * conditione), that the said B. and his heires do pay or 
 
 cause to be paid to the aforesaid A. and his heires yearely such a rent, 
 
 $-c. In this case without any more saying the feoffee hath an estate 
 
 upon condition. 
 
 HERE 
 
 |1 |1 les added in L. and 31. and Roh. * ista added in L. and 31. and 
 
 § § sub conditione — de condition in Roh. 
 L. and M. and Roh. 
 
 lessor shall re-enter is the subject of the foregoing Section. II. A special con- 
 dition that he may enter, is the subject of the present Section. The distinction 
 when the profits taken by the lessor after entry are, and when they are not, to 
 be in satisfaction of the rent, is not admitted in equity, for the courts of equity 
 will always make the lessor account to the lessee for the profits of the estate, 
 during the time of his being in possession of it, and decree him, after he is 
 satisfied the rent in arrear, and the costs, charges and expenses attending his 
 entry and detention of the lands, to give up the possession to the lessee, and 
 deliver and pay him the surplus of the profits of the estate and the money 
 arising thereby. III. A power of entry limited by icay of use. This takes its 
 effect from the Statute of Uses ; as, if A. by feoffment, lease and release, fine, 
 or common recovery, conveys an estate to C. and his heirs, to the use, intent, 
 and purpose, that B. may receive out of the lands so conveyed a certain annual 
 sum ; and to this further use, intent, and purpose, that if such annual sum, or 
 any part of it, be unpaid by a certain time, it shall be lawful for B. and his 
 assigns to enter upon, and hold possession of the land, and receive the rents 
 and profits of it, until the arrears are satisfied : here, as soon as the rent is in 
 arrear, an use, which is served out of the original seisin of the feoffee, releasee, 
 conusee or recoveror, springs up and vests in the person to whom the power is 
 given. This use is immediately transferred into possession by the statute. He 
 has consequently a right to take and keep that possession till the purpose for 
 which it is executed is satisfied, and then the use determines. By virtue of 
 this estate he may make a lease for years to try his title in ejectment, either, 
 to obtain the possession of the lands, if it be withheld from him, or, to restore 
 it, if it be disturbed or divested; and if he assigns the annual sum, this right 
 of entry, and perception of the rents and profits of the lands charged with the 
 payment of it, passes with it to the assignee. But a distinction must be made 
 between this case and that of a grant of a rent to be issuing out of certain 
 lands, with a proviso, declaration or covenant, that if the rent be in arrear, the 
 grantee may enter, &c. Here there is no seisin in any person, out of which 
 an use can arise to the grantee on non-payment of the rent; and therefore 
 possession is not in him till he makes an actual entry. But an interest vests 
 in him when the rent becomes in arrear, and he may reduce it into possession 
 by ejectment. See Ilavcrgill v. Hare, Cro. Jac. 510. 2 Roll. Rep. 12. Poph. 
 126. 147. 3 Bulstr. 250. Jemmot v. Cowley, Sid. 223. 262. 344. Ra;ym. 
 135. 158. Saund. 112.— [Note 93.]
 
 203. a. 203. b.J Of Estates L. 3. C. 5. Sect. 329. 
 
 /r> iQQ u\ Tl ERE in this and the next two SectioDS Littleton doth put 
 
 (Dyer, loo. b.) I— I ,. . . , , * , 
 
 Sub conditione. A J four examples ot words that make conditions m deed: and 
 
 Marie, first sub conditione. This is the most expresse and proper cou- 
 
 P/t^o 3 !^ dition in deed, and therefore our author beginneth with it. 
 
 13 II. 4. Enter Cong. 57. 29 Ass. 7. 33 Ass. 11. 40 Ass. 13. Bracton, ubi supra. 
 Fleta, lib. 4. ca. 9. Brit. cap. 36. & ubi supra. 
 
 Vide Sect 325. " Such rent, &c." 5®"° This (<£r.) implieth any other ["203. ~J 
 rent or sum in grosse, or any collaterall condition what- 1_ b. j 
 soever, either to be performed by the feoffee (whereof 
 our author here putteth his case,) or by the feoffor, and extend- 
 eth to all kinds of conditions in deed, before specified. 
 
 Sect, 329. 
 
 A LSO, if the words were such (si les t parols fueront tielx), Provided 
 alwaies, (Proviso semper), that the aforesaid B. do pay or cause to be 
 paid to the aforesaid A. such a rent, $c. or these, So that (Ita quod) the 
 said B. do pay or cause to be paid to the said A. such a rent, frc. in these 
 cases without more saying, the feoffee hath but an estate upon condition 
 (le feoffee || n'ad estate forsque sur condition); so as if he doth not per- 
 forate the condition, the feoffor and his heires may enter, §c. 
 
 « . ,r. , " ~PROVIDED ahcaies, (Proviso semper), that the aforesaid 
 Proviso. Vid. JL t> 7 f >) 
 
 Sect. 220. Dier. B. do P a 2/> &c > 
 
 28 H. 8. fol. 13. Our author putteth his case where a proviso commeth alone. 
 27 H. 8. fol. 14, ^nd so it is if a man by indenture letteth lands for yeares, pro- 
 Eiitre ConV57. vided alwaies, and it is covenanted and agreed between the said 
 Seignior Crom- parties, that the lessee should not alien, and it was adjudged 
 -well's case, t h at fafa was a condition by force of the proviso, and a covenant 
 
 aUarg°e. 35H 2 8. h J force of the other words i 1 )' 
 
 tit. Condition. Br. lib. 8. 89, Frances's case. (2 Rep. 70. b.) 
 
 This 
 f parols — condicions in L. and M. \\ n'ad — ad in L. and 31. 
 and Roh. 
 
 (1) Ace. 1 Roll. Abr. 410. L. 30. though it stands indifferent whether it be 
 the speaking of the grantor or grantee; for in that case it shall be referred to 
 the grantor, as no condition can be reserved or made, but on the part of the 
 donor, lessor, or feoffor. Dyer, 6. And it is immaterial in what part of the 
 deed the word proviso stands, and though there be covenants before or after. 
 2 Rep. 70, 71. 1 Roll. Abr. 407. Dyer, 311. But when it does not intro- 
 duce a new clause, and only serves to qualify or restrain the generality of a 
 former clause, it is not a condition. Moore, 307. 707. 
 
 We should carefully distinguish between, I. A condition, II. A remainder, 
 III. And a conditional limitation. IV. It may also be proper to notice, hi 
 this place, the effect of a condition, defeating the estate of a tenant to the praecipe 
 in a recovery. 
 
 I. We have seen that a condition defeats the whole estate; that none but the 
 donor or the heir can take advantage of, or enter for, the breach of it; and 
 that, when he enters, he is in as of his old estate. Such is the case put by 
 Littleton of a feoffment in fee, reserving a yearly rent, with a condition that, 
 if the rent be behind, it shall be lawful for the feoffor and his heirs to enter. 
 
 II. A remainder is defined by lord Coke, ant. 143. to be "a remnant of an 
 
 " estate
 
 L. 3. C. 5. Sect, 329. upon Condition. [203. h. 
 
 This word proviso shall be also taken as a limitation or quali- 
 fication, as hereafter in his proper place shall be said. And 
 sometime it shall amount to a covenant. All which do appear 
 by the authorities in the margent *. [*] 27 H. 8. 15, 
 
 For &c - 
 
 " estate in lands or tenements, expectant on a particular estate, created 
 " together with the same, at the same time;" so that it waits for, and only 
 takes effect in possession on, the natural expiration or determination of the 
 first estate; as, if a man limits an estate to A. for life, and after his decease to 
 B. in fee, this is a remainder : it does not defeat, but it expects the natural end 
 and expiration of the first estate limited to A. for his life ; and, when that event 
 happens, not the heir, but a stranger has the advantage of it. 
 
 III. A conditional limitation partakes of the nature both of a condition and 
 a remainder. It is to be observed, that at the common law, whenever either 
 the whole fee, or a particular estate, as an estate for life, or in tail, was first 
 limited, no condition or other quality could be annexed to this prior estate, 
 which would have the double effect of defeating the estate, and passing the 
 land to a stranger: for, as a remainder, it was void, being an abridgment or 
 defeasance of the estate first limited ; and, as a condition, it was void, as no 
 one but the donor or the heirs could take advantage of a condition broken, 
 and the entry of the donor or his heirs unavoidably defeated the livery, upon 
 which the remainder depended. On these principles, it was impossible, by 
 the old law, to limit by deed, if not by will, an estate to a stranger, upon any 
 event which went to abridge or determine an estate previously limited. But 
 the expediency and utility of such limitations, assisted by the revolution 
 effected in our law by the statute of uses, at length forced them into use, in 
 spite of the maxim of law, that a stranger cannot take advantage of a con- 
 dition. These limitations are now become frequent, and their mixed nature 
 has given them the appellation of conditional limitations : they so far partake 
 of the nature of conditions, as they abridge or defeat the estates previously 
 limited; and they are so far limitations, as, upon the contingency taking place, 
 the estate passes to a stranger. Such is the limitation to A. for life, in tail, 
 or in fee, provided that when C. returns from Rome, it shall from thenceforth 
 remain to the use of B. in fee. See Mr. Fearne's Essay on Contingent Re- 
 mainders, 6th ed. p. 9. Of late, however, it has been frequently argued, that 
 the difference between a remainder, and what is generally understood by a con- 
 ditional limitation, is merely verbal. See 10 Mod. Rep. 423. Mr. Douglas's 
 note to page 727, of his Reports, and Mr. Fearne's reply in the last edition of 
 his Essay, 6th ed. p. 15. 
 
 IV. In addition to what has been mentioned in the concluding note on 
 202. b. respecting the principle, that when a feoffor enters for a condition 
 broken, he is in as of his former estate, — it maybe observed, that, when a tenant 
 for life joins with a remainder-man in suffering a common recovery, it is some- 
 times practised, as a precaution against letting in the incumbrances of the 
 remainder-man, to annex a condition to the estate of the, bargainee or releasee, 
 who is made tenant to the praecipe, on the non-performance of ichich his estate is 
 to become void. For, if A. be tenant for life, with remainder in tail to B. and 
 B. executes leases, confesses judgments, or otherwise encumbers his estates; 
 and afterwards A. and B. join in suffering a common recovery, all the encum- 
 brances of B. are immediately let in upon the fee gained by the recovery ; and 
 that fee, and every estate derived out of it, are subject to them. To avoid 
 which, A the tenant for life, by lease and release, or by bargain and sale en- 
 rolled, conveys the estate to the intended tenant to the praecipe, to hold to 
 him and his assigns during the joint lives of him and the grantor or bargainor; 
 with a declaration, that such grant and release, or bargain and sale is made, 
 to enable the grantee or bargainee to be tenant of the freehold in the proposed 
 
 recovery ;
 
 203. b. | Of Estates L. 3. C. 5. Sect. 329. 
 
 Ita quod. j? or the (&c.) in this Section explanation is made in the Section 
 
 ubi supra. Britton, ubi supra. 
 
 (Dyer, 13. b.) " Or these, So that (Ita quod)." This is the third condition 
 
 in deed whereof our author ruaketh mention. 
 
 Sect. 
 
 recovery ; and a declaration of the uses, to which it is intended that the re- 
 covery shall enure. Then a proviso is inserted, that, if the bargainee or 
 releasee do not, within six months, pay the tenant for life 100,000 /. or some 
 other very large sum of money, the bargain and sale, or grant and release, 
 shall be void; and that it shall be lawful for the bargainor or grantor to enter, 
 as in his former estate. The money is not paid at the day appointed; and 
 thereupon the bargain and sale, or grant and release, is void, and the bargainor 
 or grantor becomes seised of his ancient life estate. But, though the bargain 
 and sale becomes void, yet, as, at the time of suing the original writ and the 
 praecipe, the bargainee or releasee was tenant of the freehold, the subsequent 
 cesser or determination of his estate does not impeach the recovery. For, 
 if the person against whom the praecipe is brought, be, at the time when the 
 praecipe is sued, or at any time before judgment, actual tenant of the freehold, 
 it is immaterial what becomes of it afterwards. This doctrine has been carried 
 so far, that where a tenant to the freehold was made by a fine, and the fine 
 has been reversed, yet the recovery was held good. (See Lloyd v. Evelyn, 
 1 Salk. 568; and see 1 Shower's Rep. 347. Hob. 262. Noy, 126. 1 Mod. 218.) 
 The recovery therefore, in this case, is good; the freehold upon which it was 
 suffered is determined ; and the bargainor or grantor comes in of his original 
 estate, and of course avoids all the leases, judgments, and other encumbrances 
 of the tenant in tail. The reason why the conveyance is made to the bargainee 
 or releasee during the joint lives of him and the grantor or bargainor, is, to 
 preserve, as far as the case admits, his powers, by leaving the reversion in him. 
 — For, supposing A. to be tenant for life, with the usual powers of leasing, 
 jointuring, and charging; remainder to trustees to preserve contingent re- 
 mainders; remainder to A.'s first and other sons in tail male; remainder to his 
 daughters as tenants in common in tail, with cross remainders in tail between 
 them, if more than one, with remainders over; A. and his daughters may suffer 
 a common recovery; and it will be good against A. and his daughters, and 
 their issues in tail, and the remainders over. But the estates tail of the sons, 
 being prior to the estates of the daughters, and being supported by the estate 
 of the trustees for preserving contingent remainders, are not, whether vested 
 or contingent, at the time of the recovery, affected by it. — But if A. granted 
 his whole life estate to the tenant to the praecipe, it might be apprehended, that 
 the powers relating to his estate, whether appendant or in gross, would be 
 extinguished thereby, (See Edwards v. Slater, Hardres, 410. and King v. 
 Melling, 1 Yent. 225.) and a limitation or grant of new powers would be void 
 against the sons and the heirs male of their bodies. To prevent this question 
 being made, A. the tenant for life, conveys an estate to the intended tenant to 
 the praecipe, only during the joint lives of the tenant and grantor or bargainor. 
 This continues the old reversion in the grantor or bargainor, and preserves the 
 powers relating to his original estate, to which he is restored on the breach of 
 the condition. It is customary in these cases to declare, that the recovery 
 shall enure in the first place, for corroborating, strengthening, and confirming 
 the estate for life of the grantor or bargainor, and all other estates precedent 
 to the estate in tail meant to be destroyed, and all powers and privileges 
 annexed to such estate for life, and other precedent estates. — The mode of 
 suffering recoveries on a conditional estate of freehold was in use s6 early as 
 the end of the last century. — [Note 94.]
 
 L. 3. C. 5. Sect. 330. upon Condition. [203. b. 204. a. 
 
 Sect. 330. 
 
 A LSO, there be other toords in a deede which cause the tenements to 
 be conditionall. As if upon such feoffment a rent be reserved to 
 the feoffor, $c. and afterward this word is put into the deed (et puis 
 soit raitte en le fait * cest parol), That if it happen (Quod si contingat) 
 the aforesaid rent to be behind in part or in all, f that then it shall be 
 lawful for the feoffor and his heires to enter, §c. this is a deed upon 
 condition. 
 
 " rp HAT if it happen (Quod si contingat), &c." (Ante 146. b.) 
 
 This is the fourth condition in deed set down by our 6E. 2. Entrie 
 . Cong. 65. 
 
 author. 8 E. 2. Ass. 320. 
 
 adjudged. Quod si contingat. Pasch. 37 Eliz. Hot. 254. inter. Sayer et Hares in 
 Com. Banco. 
 
 r304."| " To enter, &c." Hereby it is evident, that ©gp-soine 
 a, J words of themselves do make a condition, and some 
 other (whereof our author here and in the next Sec- 
 tion * putteth an example) do not of themselves make a condition * Vid. Sec. 331. 
 without a conclusion and clause of re-cntrie : and manie times 3 h. 6. 7. Si 
 (si) makes a condition, and sometimes a limitation, as hereafter Fleta, li. 4. ca. 9. 
 
 i ii i -j • j.i • riu i. Bracton, lib. 4. 
 
 shall be said in this Chapter. fo _ 2 i3. b. 
 
 (5* Rep! 9.) 
 
 Inesse potest donationi modus, conditio, sive causa. * Scito *4Mar. 
 quod (ut) modus est (si) conditio (quia) causa. J) ^ er > 138- "• 
 
 Conditio is explained before. Modus is at this day properly Bracton, ubi 
 taken for a modification, limitation, or qualification, for the supra. 
 which also the law hath appointed apt words; and because Lit- 
 tleton speaketh of this also in this end of the Chapter, I will 
 reserve this matter to his proper place, where the reader shall 
 perceive excellent matter of learning touching this point. 
 
 Causa, the cause of consideration of the grant. And herein 
 there is a diversitie betweene a gift of lands, and a gift of an 
 annuitie or such like. For example, if a man grant an annuitie 
 pro una acrd terrse, in this case this word pro sheweth the cause Pro. 
 of the grant, and therefore amounteth to a condition; for if the ^E. S^ 3 ^ 
 acre of land be evicted by an elder title, the annuitie shall cease, 10 R g p- \ 2 . ' 
 for cessante causa cessat cffectus. Plowd. 141. a. 
 
 And so if an annuitie be granted pro decimis, &c. if the gran- ^ R || - ^ b ' 
 tee (A) be unjustly disturbed of the tithes the annuitie ccaseth. An * te i 44 ' ^ 
 And so it is if an annuitie be granted pro cousilio, and the 9 Rep. 50. a. 
 grantee refuse to give counsell, the annuitie ccaseth. So if an P^ 2 ^ a -) 
 
 32 E. 3. Annu. 30. 14 E. 4. 4. 15 E. 4. 2. b. 8 H. 6. 23. 5 E. 2. tit. Ann. 44. 
 41 E. 3. 19. 32 E. 1. Avowric, 242. 21 E. 4. 49. 22 E. 4. 28. 35 H. 6. 2. 
 10 E. 3. 44. 5 E. 2. 9 E. 4. 20. 15 E. 4. 3. 
 
 annuitie 
 
 * cest parol not in L. and M. or in f dr. added in L. and M. and in 
 Roh. Rob. 
 
 (A) Instead o/ grantee, it should le grantor, as it seems. See Mr. Eitso's Intvo. p. 119.
 
 204. a.J Of Estates L. 3. C. 5. Sect. 330. 
 
 annuitie be granted qudd praestaret consilium, this makes the 
 grant conditionall. 
 
 But if A. pro consilio impenso, &c. make a feoffement, or a 
 lease for life, of an acre, or pro una acrd terras, &c. albeit he 
 denieth counsell, or that the acre be evicted, yet A. shall not 
 re-enter, for in this case there ought to be legall words of con- 
 dition or qualification, for the cause or consideration shall not 
 avoyd the state of the feoffee; and the reason of this diversitie 
 is, for that the state of the laud is executed, and the annuitie 
 executorie. 
 Fleta lib. 5. And yet sometime in case of lands or tenements (causa) shall 
 
 cap. 34. make a condition. As if a woman give lands to a man and his 
 
 40 a S ii heires, causa matrimonii prselocuti, in this case if she either 
 
 marrie the man, or the man refuse to marrie her, she shall have 
 [e] 5 E. 2. Cui the land again to her and to her heires. [e] But of the other 
 i? V1 ^'. 3i " ™ t- side, if a man give land to a woman and to her heires, causa 
 
 Condition, Br. / . .. f M . ,, , , , . . . , ,■ 
 
 5 H. 4. 1. matrimonii prselocuti, though he (A) marrie her, or the woman 
 
 refuse, he shall not have the lands again, for it stands not with 
 the modestie of women in this kind, to aske advice of learned 
 *12 E. 1. 1. counsell, as the man may and ought; * and the rather, for that 
 Feoffements in the case of the woman she may averre the cause, (for the 
 F iTb' 205 L reason aforesaid) although it be not coutained in the deed, yea 
 Vide'se'ct. 365. ' though the feoffement be made without deed. 
 Ad faciend' ea If a man maketh a feoffement in fee, ad faciendum, or faci- 
 lntentione, &e. en d 0f or €a intentione, or ad effectum, or ad propositum, that 
 7 H. 4. 22. the feoffee shall do or not do such an act, none of these words 
 
 31 H. 8. tit. Con- make the state in the land conditionall, for in judgment of law 
 dition, 19. Br. ^gy are no won ] s f condition; and so it was resolved, Hil. 18. 
 38 H. 6. 33. ' Eliz. in Com. Banco, in the case of a common person; but in 
 36, 37. the case of the king the said or the like words do create a con- 
 ?u e o & St o1' dition, and so it is in the case of a will of a common person, 
 27 H.' 8. 18. a. which case I myselfe heard and observed. 
 
 32 E.' 3." Brev. 291. (1 Roll. Abr. 407, 408, 409, 410. Moore, 57. 2 Leo. 33. 
 
 3 Rep. 64. a. 10 Rep. 42. a.) 
 
 But for the avoyding of a lease for yeares, such precise words 
 of condition are not so strictly required as in case of freehold 
 ["/] 7 E. 6. and inheritance [/]. For if a man by deed make a lease of a 
 
 Dier, 79. manor for veares, in which there is a clause (and the said lessee 
 
 Dier 27 a shall continually dwell upon the capitall messuage of the said 
 
 Subpoena foris- manor, upon paine of forfeiture of the said terme) these words 
 factura. amount to a condition. 
 
 Quod non lice- And so it is if such a clause be in such a lease. Quod non 
 bit 3 E. 6. licebit, to the lessee, dare, vendere, vel concedere statum, et sub 
 
 4 Mar 138 ' poena forisfacturse, this amounts to make the lease for yeares 
 
 defeasible and so it was adjudged in the court of common 
 [7] Hill. 40 Eliz. pleas [</] in queen Elizabeth's time; and the reason of the court 
 Rot. 1610. W as, that a lease for yeares was but a contract, which may begin 
 
 and r A^e°r WDe ^ WOrd > and b J WOrd ma y be ^solved. 
 Vid. PL Com. 142. Br. and Bestone's case. 
 
 (A) Here, it seems, the text should he read as if the words, though he do not marrie her, 
 had been wed bij lord Coke. 
 
 Sect.
 
 L. 3. C. 5. Sect. 331. upon condition. [204. b. 205. a. 
 
 [ 9< b 4 '] HSrSect. 331. 
 
 TfUT there is a diversitie between this words si contingat, &c. and the 
 words next aforesaid, <f<?. For these words, si contingat, &c. are 
 nought worth to such a conditio?}, unless it hath these words following, 
 That it shall be lawful for the feoffor and his heires to enter, $c. But in 
 the cases aforesaid, it is not necessarie by the law to put such a clause, 
 scilicet, that the feoffor and his heires may enter, §c. because they way do 
 this by force of the words aforesaid, for that they containe in themselves a 
 condition, (pur ceo que ils impreignont * a eux mesmes en ley un con- 
 dition), scilicet, that the feoffor and his heires may enter, $c. Yet it is 
 commonly used in all such cases aforesaid to put the clauses in the deeds 
 (de mitter f les clauses en les faits), scilicet if the rent be behind, $c. 
 that it shall be lawful to the feoffor and his heires to enter, §c. And this 
 is well done, for this intent, to declare and expresse to the common people 
 who are not learned in the law, of the manner and condition of the feoff e- 
 ment (pur declarer et expresser a les leys gents, que ne sont apprises % 
 en la ley, || de le manner et le condition de le feoffment,) $e. As if a 
 man seised of land letteth the same land ( sicome home seisie de terre § 
 lessa mesme la terre) to another by deed indented for term of yeares, 
 rendering to him a certaine rent, it is used to be put into the deed, that if 
 the rent be behind at the day of payment, or by the space of a wecke or a 
 month, $c. that then it shall be lawful to the lessor to distreine, §c. ** yet 
 the lessor may distreyne of common right for the rent behind, $c. though 
 such words were not put into the deed, $-e. 
 
 [ onr OCT " It is not necessarie by the law to put such clause, 
 ^ I &c." Qua? dubitationis causa tollenda: inseruntur, 
 
 J communem legem non laxlunt. Et expressio eorum 
 qua; tacite insunt, nihil opcratur. 
 
 " 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 distraine, yet he may distraine 
 within the week or month, because a distresse is incident 
 of common right to every rent service. And the words be in 
 the affirmative, and therefore cannot restruine that which is 
 incident of common right. 
 
 The other (&c.) in this Section upon that which hath been 
 said are evident. 
 
 Sect. 
 
 * a — en L. and M. and Roll. || de la manner — le matere in L. 
 
 -j- les — tiels in L. and M. and and M. and Roh. 
 
 Roh. § come de frauktenement added in 
 
 | en la — de in L. M. de la in L. and M. and Roh. 
 
 Roh. ** And added in L. and M. and Roh.
 
 205,a.] Of Estates L. 3. C. 5. Sect. 332. 
 
 Sect. 332. 
 
 TTEM, if a feoffment be made upon such condition (si * feoffment soit 
 
 faitfsur tiel condition), that if the feoffor pay to the feoffee at a 
 
 certaine day, ^-cAO pounds of money, that then the feoffor may re-enter, $c. 
 
 in this ease the feoffee is called tenant in morgage, which is as much to 
 
 say in French as mortgage, and in Latine mortuum vadium (1). Audit 
 
 seemeth 
 
 * ascun added in Roll, but not in L. fa ascun home added in Roh. but 
 and M. not in L. and M. 
 
 (1) Few parts of the law lead to the discussion of more extensive or useful 
 learning than the law of mortgages. The nature of these notes neither 
 requires nor admits of more than some few general observations: — 1st, Upon 
 the origin of mortgages : — 2dly, On what constitutes a mortgage : — 3dly, On 
 the different estates of the mortgagor and mortgagee ; — 4thly, On the nature 
 of an equity of redemption : — and 5thly, On general devises by mortgagees 
 in fee of their real estates. 
 
 1st. As to the origin of mortgages; — from what is said of them in this 
 Chapter, it appears that they were introduced less upon the model of the 
 Roman pignus, or hypotheca, than upon the common-law doctrine of condi- 
 tions. — This circumstance has had a very important influence on the English 
 law respecting conveyances by mortgage. In the civil law, when a mortgage 
 is executed, the debt intended to be secured by it, is considered to be 
 the principal, and the securities are considered as adjuncts, depending, for 
 their existence, on the existence of the debt. The consequence is, that, when 
 the debt is discharged, the securities, and all the estates, interests, liens, and 
 charges created by them, are extinguished; or, to use the language of the 
 civil law, are confounded; and, from that time, have no legal existence. In 
 this light, speaking generally, when the rights of third persons do not inter- 
 fere, the debt and security are viewed by courts of equity. But, in courts of 
 law, the land alone is considered, and the mortgagor is treated as a grantor, 
 and the mortgagee, as a grantee of an estate on condition. Immediately, on 
 the execution of the mortgage, the land vests in the mortgagee. — If the money 
 is paid on the very day appointed for the payment of it, the condition is said 
 to be performed, and the mortgagor, as in any other case, where the grantee 
 of land on condition performs the condition, may enter on the land and hold 
 it, as of his former estate. If the money be not paid at the time, then, at law, 
 the land is discharged of the condition; it becomes absolutely vested in the 
 mortgagee ; the mortgagor has no legal right to re-possess himself of it by 
 payment of the money; and the estates, for all legal purposes, remains in the 
 mortgagee, and can only be re-vested in a mortgagor by a re-conveyance 
 from the mortgagee. — But, in the view of a court of equity, the land, imme- 
 diately on the payment of the mortgage-debt, becomes the absolute property 
 of the mortgagor; and a court of equity will decree the mortgagee to re-convey 
 it to him, and account to him for the intermediate profits. — In a case, on which 
 the present annotator was consulted, a mortgagor in fee died without an heir, 
 and the intestate as to his real estate; a commission of escheat was issued and an 
 inquisition held. The three commissioners, who were gentlemen of the highest 
 consideration in the profession, were of opinion that the crown was not entitled 
 to the equity of redemption. The jury found, and the sheriff returned accord- 
 ingly; and Mr. Perceval, the attorney-general, who was fully apprized of the 
 circumstances of the case, declined traversing the inquisition. 
 
 2dly,
 
 L. 3. C. 5. Sect. 332. upon Condition. [205. a. 
 
 seemetli that the cause why it is called mortgage is, for that it is doubtful 
 
 whether 
 
 2dly. As to what constitutes a mortgage; — no particular words or form of 
 conveyance are necessary for this purpose. It may be laid down as a general 
 rule, and subject to very few exceptions, that, wherever a conveyance or assign- 
 ment of an estate is originally intended as a security for money, whether this 
 intention appears from the deed itself, or by auy other instrument, it is always 
 considered in equity as a mortgage, and redeemable ; even though there is an 
 express agreement of the parties, that it shall not be redeemable, or that the 
 right of redemption shall be confined to a particular time, or to a particular des- 
 cription of persons. See Newcomb v. Bonham, 1 Vern. 7. 214. 2 Ca. in Chan. 
 58. 159. Howard v. Harris, 1 Vern. 33. 190. 2 Ca. in Chan. 147. Talbot v. 
 Braddyl, 1 Vern. 183. 394. Barrel v. Sabine, 1 Vern. 268. Manlove v. Ball & 
 Bruton, 2 Vern. 84. Jennings v. Ward, ibid. 520. Price v. Perrie,2 Freeman, 258. 
 Francklyn v. Fern, Barnard. Cha. 30. Clench y.Witherly,Cas. temp. Finch, 376. 
 Cooke v. Cooke, 2 Atk. 07. Mellor v. Lees, 2 Atk. 494. Cotterell v. Purchase, 
 Cas. temp. Talbot, 61. Endsworth v. Griffiths, 1 Bro. Par Ca. 149. Floyer v. 
 Lavington, 1 P. W. 268. In many of these cases the courts have found it 
 necessary, not only to apply their general principles, but to determine the fact, 
 whether the conveyance was intended as an absolute sale or as a security for 
 the money. If the money paid by the grantee was not a fair price for the ab- 
 solute purchase of the estate conveyed to him ; if he was not let into the im- 
 mediate possession of the estate ; if, instead of receiving the rents for his own 
 benefit, he accounted for them to the grantor, and only retained the amount of 
 the interest; or if the expense of preparing the deed of conveyance was borne 
 by the grantor ; each of these circumstances has been considered by the courts 
 as tending to prove that the conveyance was intended to be merely pignoriti- 
 tious. — It seems, however, to be settled, 1st, that a bond fide purchaser of an 
 estate or interest will not be considered as a mortgagee, on account of a right 
 to re-purchase being given to the vendor, though at an advanced price. Ver- 
 ner v. Winstanley 2 Sch. &Lefroy, 393. And 2dly, That where the mortgagee, 
 or trustee for him, is authorized to sell if the money be not paid at a particular 
 time he may make a good title to a purchaser, though the mortgagor do not 
 join in the conveyance. Clay v. Sharpe, Cha. M. Term, 1802, reported by 
 Mr. Sugden in his Law of Vendors, 4th ed. App. No. XIII. 
 
 3dly. As to the nature of the estates of the mortgagor and mortgagee ; — it 
 was not, till lately, accurately settled. It was formerly contended, that the 
 mortgagor, after forfeiture of the condition, had but a mere right to reduce 
 the estate back to his own possession, by payment of the money. It is now 
 established, that the mortgagor has an actual estate in equity, which may be 
 devised, granted, and entailed ; that the entails of it may be barred by fine and 
 recovery ; but, that he only holds possession of the land, and receives the 
 rents of it, by the will or permission of the mortgagee, who may by ejectment, 
 without giving any notice, recover against him or his tenant. In this respect 
 the estate of a mortgagor is inferior to that of a tenant at will. In equity, the 
 mortgagee is considered as holding the lands only as a pledge or security for 
 payment of his money. Hence a mortgage in fee is considered only as per- 
 sonal estate in equity though the legal estate vests in the heir, in point of law, 
 Hence also, a mortgagee, though in possession, will, in case of a living vacant, 
 be compelled in equity to present the nominee of the mortgagor to it, — even 
 though nothing but the advowson is mortgaged to him. On the same prin- 
 ciple there is a possessio fratrls; and tenancy by the curtesy, of an equity 
 of redemption. Casborne v. Scarfe, 1 Atk. 603. Keech v. Hall, Doug. 21. 
 Moss v. Gallimore, ibid. 266. Amherst v. Dawliug, 2 Vern. 401. Gaily v. 
 Selby, 1 Stran. 403. Gardiner v. Griffith, 2 P. Will. 404. Mackenzie v. 
 Robinson, 3 Atk. 559. — In this light the legislature has viewed the different 
 
 estates
 
 205. a.] Of Estates L. 3. C. 5. Sect. 332. 
 
 whether the feoffor will pay (si le feoffor J voyt payer) at the day limited 
 such sum or not : and if he doth not pay, then the land which is put in 
 pledge upon condition for the payment of the money, is taken from him 
 for ever, and so dead \\ to him upon condition, §c. And if he doth pay 
 the money, then the pledge is dead as to the tenant, $c. 
 
 [c] Glanvil. lib. « Mortgage 1 is derived [c] of two French words, viz. mort, 
 
 10. cap. 68. & t j iat j g mor tuum, and gage, that is vadium or pignus. And it is 
 
 . c. tap. , j^jjg^ j n I^atmewioriMUTw w«c?'tw-7w. or wiorjgrcr^'fcMW*. Nowit is called 
 
 here mortgage or mortuum vadium, both for the reason here ex- 
 pressed by Littleton, as also to distinguish it from that which is 
 called vivum vadium. Vicum autem dicitur vadium quia nunquam 
 
 m oritur 
 
 X voyt — poet in L. and M. and lie doth pay the money, then the pledge 
 Roh. is dead, not in L. and M. or Roh. 
 
 || to him upon condition, &c. and if 
 
 estates of mortgagor and mortgagee in the statutes of the 4th & 5th of Will, 
 and M. c. 16, and 7 Ann. c. 19. 
 
 4thly. As to the nature of an equity of redemption ; — originally there was no 
 right of redemption in the mortgagor. Lord Hale, in the case of Roscarrick 
 v. Barton, 1 Chan. Ca. 219. says, that in the 14th year of Richard II. the 
 parliament would not admit of redemption. See the printed Rolls, vol. 3. p. 
 259. It was, however admitted not long after. Rut, after its admission, if 
 the money was not paid at the time appointed, the estate became liable, in the 
 hands of the mortgagee, to his legal charges, to the dower of his wife, and to 
 escheat ; and it was an opinion, that there was no redemption against those 
 who came in by the post. This introduced mortgages for long terms of years. 
 These are attended with this particular advantage, that, on the death of the 
 mortgagee, the terme and the right in equity to receive the mortgage debt 
 vest in the same person : whereas, in cases of mortgages in fee, the estate, on 
 the death of the mortgagee, goes to his heir, or devisee, and the money is pay- 
 able to his executor or administrator. This produces a separation of rights, 
 that is often attended with great inconvenience, both to the mortgagor and 
 mortgagee. On the other hand, in case of mortgages for yeares, there is this 
 defect, that if the estate is foreclosed, the mortgagee will be only entitled for 
 his term. — The difference between a trust and an equity of redemption, is 
 observed by lord Hale, in the case of Pawlett and the Attorney-general, 
 Hard. 465. — In respect to the right of the widow of a mortgagee in fee to her 
 dower, she is certainly entitled to it at law ; but it is so clear, that, if she 
 should attempt to recover it by a writ of dower, a court of equity would stay 
 the proceeding, that, in accepting titles, it is never attended to. The same 
 observation applies to the husband's estate by the curtesy, after his wife's 
 decease. 
 
 5thly. It now appears to be settled, that estates in mortgage and trust estates 
 will pass by a devise in general terms, unless an intention to the contrary can be 
 inferred, either from expressions in the will, or from the objects of the devise. 
 Marlow v. Smith, 2 Peere Williams, 198. Att. Gen. v. Philips, heard in Cha. 
 on the 16th Nov. 1767. Duke of Leeds v. Munday, 3 Ves. 348. 5 Ves. 341. 
 Ex parte Sergison, 4 Ves. 147. Att. Gen. v. Bowyer, 5 Ves. 300. Att. Gen. 
 v. Ruller, 5 Ves. 399. Braybrooke v. Inskip, 8 Ves. 437. Att, Gen. v. Vigors 
 8 Ves. 283. Ex parte Morgan, 10 Ves. 101. Broome v. Monk, 10 Ves. 605. 
 Roe on the demise of Read v. Read, 8 Durn. and East, 118. — To prevent any 
 question of this kind from arising, it is advisable, that in wills there should 
 be an express devise of the estates held by the testator in trust or mortgage. — 
 [Note 96.]
 
 L. 3. C. 5. Sect. 333-34:. upon Condition. [205. a. 205. b. 
 
 moritur ex aliqud parte quod ex suis proventubus acquirafur. As 
 
 if a man borrow a hundred pounds of another, and maketh an 
 
 estate of lands unto him, untill he hath received the said sum 
 
 of the issues and the profits of the land, so as in this case 
 
 neither money nor land dieth, or is lost, whereof Littleton hath 
 
 spoken [d] before in this Chapter) and therefore it is called [<q vid. Sect. 
 
 vivum vadium. 32 ?. 
 
 po5.j m* Sect. 333. 
 
 ALSO, as a man may maize a feoffment in fee in morgage *so a man 
 
 may make a gift in tayle in morgage, and a lease for terme of life, 
 
 or for terme of yeares in morgage. f And all such tenants are called 
 
 tenants in morgage, according to the estates which they have in the 
 
 land, Sfc. 
 
 This Section upon that which hath been said needeth no 
 further explication. 
 
 Sect. 334. 
 
 A LSO, if a feoffment be made in morgage upon condition, that the 
 feoffor shall pay such a sum at such a day, §c. as is betiveen them by 
 their deed indented, agreed and limited (come est | enter eux per lour 
 fait endent accorde et limit), although the feoffor dyeth before the day 
 of payment, $c. yet if the heire of the feoffor (uncore si le heire || le 
 feoffor) fay the same sum of money (mesme le summe § de money) at 
 the same day to the feoffee, or tender to him the money, and the feoffee 
 refuse to receive it, then may the heir enter into the land ; and yet the 
 condition is, that if the feoffor shall p> ay such a sum at such a day, fyc. 
 not making mention in the condition of any payment to be made by his 
 heir, but for that the heir hath interest of right in the condition, $e. and 
 the intent was that the money should be payd at the day assessed, $c. 
 and the feoffee hath no more losse, if it be paid by the heir, than if it 
 were paid by the father, $c. therefore if the heir pay the money, or ten- 
 der the money at the day limited, Sj-c. and the other refuse it, he may 
 enter, $c. But if a stranger of his own head, who hath not any interest, 
 §c. will tender the aforesaid money to the feoffee (voile tender les ** 
 avantdits deniers al feoffee) at the day appointed, the feoffee is not bound 
 to receive it (le feoffee n'est ff pas tenus de ceo receiver.) 
 
 " THAT 
 
 * so a man may make a gift in tayle § de money not in L. and M. or 
 
 in mortgage not in L. and M. or Iloh. Roll. 
 
 " And not in L. and M. or lloh. ** avantdits not in L. and M. but 
 
 \\ enter — perenter, L. and M. and in Roll. 
 
 Roh. -j-f pas not in L. and M. but in 
 
 || de added in L. and M. and Roll. Roh.
 
 205. b. 206. a. J Of Estates L. 3. C. 5. Sect. 331. 
 
 27 II. 8. 19. b. " m HAT the feoffor shall pay at such a day, &c." Albeit cnn- 
 Lib. 8. fol. 91. J- <}itions b e no t favoured, yet they are not alwayes taken 
 
 x 1 ranees s ease, . * * * 
 
 (1 Roll. 426.) ' literally, but in this case, the law enableth the heir that was not 
 named to perform the condition for four causes (1) "j". 
 
 (Post. 219. b.) First, because there is a day limited, so as the heir commeth 
 
 within the time limited by the condition, for otherwise he coulc 
 not do it, as shall be said hereafter in this Chapter. 
 
 Secondly, For that the condition descends unto the heir, and 
 therefore the law that giveth him an interest in the condition, 
 giveth him an abilitie to perform it. 
 
 Thirdly, For that the feoffee doth receive no damage or pre 
 judice thereby (all these reasons are expressly to be collected out 
 of the words of Littleton). And these things being observed, 
 Fourthly, The intent and true meaning of the condition shall 
 be performed. And where it is here said, that the heir may 
 tender at the day limited, &c. herein is implyed, that 
 Bf§f the executors or administrators of the morgagor f Q, 06.1 
 or in default of them the ordinary may also tender, as [ a. 
 
 [/"] Vid. Sect, shall be said [/] hereafter in this Chapter. But what 
 
 337. if the condition had been, if the morgagor or his heirs did 
 
 pay, &c. and he died before the day without heir, so as the 
 condition became impossible, here it is to be observed, that 
 where the condition becometh impossible to be performed by the 
 act of God, as by death, &c. the state of the feoffee shall not 
 be avoyded, as shall be said hereafter in this Chapter. And 
 therefore the law here inableth the heir (of whom no mention 
 was made in the condition) to performe the condition, lest the 
 inheritance should be lost, wherein divers diversities are worthy 
 of observation (1). 
 
 First, 
 
 (1) "j" V. T. 15 Jac. After covenant to stand, seised to the useof B. and his 
 heirs, with proviso of revocation on payment to B. and hit assigns ; B. dies ; he 
 may tender to the heir, and revoke. Allen's case, Ley, 55. b. Hal. Mass. — 
 [Note 97.] 
 
 (1) Lord Coke here considers the effect of impossible conditions. 1st. 
 Where they are possible at the time of their creation, but afterwards become 
 impossible ; and he distinguishes that impossibility which is produced by the act 
 of God, and that which is produced by the act of the party. 2dly. When they 
 are impossible at the time of their creation. 3dly. When they are against law, 
 either as mala prohibita, or mala inse. 4thly. When they are repugnant to the 
 grant by which they are created, or to the estate to which they are annexed. 
 It should be observed, that a condition is then only considered in the eye of the 
 law as impossible at the time of the creation, if it cannot by any means take 
 effect. Such is the case put by lord Coke, that the obligee shall go from the 
 church of St. Peter at Westminster to the church of St. Peter at Rome, within 
 three hours. But, if it only be in an high degree improbable, and such as is 
 beyond the power of the obligee to effect, it is not then considered as impos- 
 sible. See the cases of this nature in 1 Roll. Abr. 419, 420. — It is said, that 
 if the condition of a bond be to pay a certain sum, or to do any other act out 
 of his majesty's dominions, the condition is void, and the bond is single, be- 
 cause the performance of it cannot be tried. See 21 Edw. 4. 10. — It was upon 
 a similar principle, that if a man professed himself a monk in a religious house 
 beyond seas, it was no disability, because the fact could not be tried. For 
 the only method which the law had to know if a man was professed, was to 
 issue a writ in the king's name to the bishop of the diocese, commanding him 
 to certify, if such a monk was professed, in such a house, in such a place, 
 
 within
 
 L. 3. C. 5. Sect. 3te. upon Condition. [206. a. 206. b. 
 
 First, between a condition annexed to a state in lands or 
 tenements upon a feoffment, gift in taile, &c. and a condition of 
 an obligation, recognizance or such like, [g] For if a condition y] pi. com. 
 annexed to lands be possible at the making of the condition, and 456. Wrothe's 
 become impossible by the act of God, yet the state of the feoffee, ™ S jj 7 g 
 &c. shall not be avoyded. As if a man maketh a feoffment in 15 h. 7. 1. 
 fee upon condition, that the feoffor shall within one year go to 14 E. 4. 3. 
 the citie of Paris about the affaires of the feoffee, and presently 38 H - 6 - 2 - 3 - 
 after the feoffor dyeth, so as it is impossible by the act of God 
 that the condition should be performed, yet the estate of the 
 feoffee is become absolute ; for though the condition be subse- 
 quent to the state, yet there is a precedency before the re-entry, 
 viz. the performance of the condition. And if the land should 
 by construction of law be taken from the feoffee, this should work 
 a damage to the feoffee, for that the condition is not performed 
 which was made for his benefit. And it appcareth by Littleton, 
 that it must not be to the damage of the feoffee ; and so it is if 
 the feoffor shall appeare in such a court the next term, and 
 before the day the feoffor dyeth, the estate of the feoffee is abso- 
 lute, [/t] But if a man be bound by recognizance or bond with [j,] 15 H. 7. 18. 
 condition that he shall appear the next term in such a court, 31 H. 6. 
 and before the day the conusee (A) or obligor dyeth, the recog- ^^'4 {7 
 nizance or obligation is saved ; and the reason of the diversitie is, 9 Eliz. 202. 
 because the state of the land is executed and settled in the feoffee, Dyer, lib. 5. 22. 
 and cannot be redeemed back again but by matter subsequent, 3g a jj ^ ei ' 2 scase - 
 viz. the performance of the condition. But the bond or recogni- 
 zance is a thing in action, and executory, whereof no advantage 
 can be taken until there be a default in the obligor; and there- Fletn.lib. 4. cap. 
 fore in all cases where a condition of a bond, recognizance, &c. 9. & Bmcton 
 is possible at the time of the making of the condition, and before * Br 11 * 011 ' ubl 
 the same can be performed, the condition becomes impossible by 
 the act of God, or of the law, or of the obligee, &c. there the 
 obligation, &c. is saved. But if the condition of a bond, &c. be 
 impossible at the time of the making of the condition, the obli- 
 gation, &c. is single. And so it is in case of a feoffment in fee 
 with a condition subsequent that is impossible, the state of the 
 feoffee is absolute : but if the condition precedent be 
 
 [206.T impossible, no B®" state or interest shall grow there- 
 b. J upon. And to illustrate these by examples you shall (1 Leon. 229. 
 understand. If a man be bound in an obligation, &c. ] 9 ^ uI1 ' r Abr ' F1 
 with condition that if the obligor do go from the church of 291.' 864.) 
 
 14 H. 8. 28. 10 H. 7. 22. 4 II. 7. 4. 8 E. 4. 1. 28 H. 8. 25. lib. 5. fo. 22. 
 Laughter's case, & 75. 39 H.3. 5. 17 II. C. Obllgat. 18. 5 El. Dier, 222. 
 
 St. Peter 
 
 (A) Instead of conusee it should be conusor, as it seems. See Mr. Ritso's Tntr. p. 119. 
 
 within his diocese. But this method could not be used with respect to foreign 
 professions, as the bishop was not bound to obey the king's writ, and might 
 certify either true or false, without subjecting himself to punishment. For 
 this reason, no notice was taken in our law of foreign profession. Thus 
 L. Rolle, 2 Abr. 4o. says, "If an Englishman goes into France, and there 
 " becomes a monk, he is, notwithstanding, capable of a grant in England; 
 " for that such profession is not triable ; and also, for that all profession is 
 "taken away by the statute; and, by our religion, now received, such vows 
 "and profession are held void. I have heard," continues he, "that this was 
 " in 44 Eliz. in one Ley's case, resolved accordingly by all the justices in Chan- 
 " eery-lane."— [Note 98.]
 
 206. b.] 
 
 Of Estates 
 
 L. 3. C. 5. Sect. 334. 
 
 St. Peter in Westminster to the church of St. Peter in Rome 
 within three hours, then that the obligation shall be voyd. The 
 condition is voyde and impossible, and the obligation standeth 
 good. 
 
 And so it is if a feoffment be made upon condition that the 
 feoffee shall go as is aforesaid, the state of the feoffee is abso- 
 lute, and the condition impossible and voyde. 
 
 *If a man make a lease for life upon condition that if the lessee 
 go to Rome, as is aforesaid, that then he shall have a fee, the 
 condition precedent is impossible and voyde, and therefore no fee 
 simple can grow to the lessee. 
 
 If a man make a feoffment in fee upon condition that the feoffee 
 shall re-enfeoffe him before such a day, and before the day the 
 feoffor disseise the feoffee, and hold him out by force untill the 
 day be past, the state of the feoffee is absolute, for "the feoffor 
 is the cause wherefore the condition cannot be performed, and 
 therefore shall never take advantage for non-performance 
 thereof [i]." And so it is if A. be bound to B. that I. S. shall 
 marry Jane G. before such a day, and before the day B. marry 
 with Jane, he shall never take advantage of the bond, for that he 
 himself is the mean that the condition could not be performed. 
 And this is regularly true in all cases. 
 
 But it is commonly holden [k] that if the condition of a bond, 
 &c. be against law, that the bond itself is voyd. 
 
 But herein the law distinguisheth between a condition against 
 law for the doing of any act that is malum in se, and a condition 
 against law, (that concerneth not any thing that is malum in se) 
 but therefore is against law, because it is either repugnant to the 
 state, or against some maxime or rule 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 distinguisheth. As if a man be bound upon condition that 
 he shall kill 1. S. the bond is voyd. 
 
 But if a man make a feoffment upon condition that the feoffee 
 shall kill /. S. the estate is absolute, and the condition voyd. 
 
 If a man make a feoffment in fee upon condition that he shall 
 not alien, this condition is repugnant and against law, and the 
 state of the feoffee is absolute (whereof more shall be said in his 
 proper place). But if the feoffee be bound in a bond, that the 
 feoffee or his heires shall not alien, this is good, for he may 
 notwithstanding alien if he will forfeit his bond that he himself 
 hath 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 aud against law, and the state 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 enfeoffe 
 his wife, the condition is void and against law, because it is 
 against the maxime in law, and yet the bond is good; but if he 
 be bound to pay his wife money, that is good. Et sic tie similibus, 
 whereof there be plentifull authorities in our bookes(l). 
 
 " Tender 
 
 (1) It is observed in 1 P. \V. 189, that " all instances of conditions against 
 " law, in a legal sense, are reducible under one of these three heads ; either, to 
 
 "do 
 
 * PI. Cora. Ful- 
 ler's case, 272. 
 (1 Roll. Abr. 
 418. Post. 217. 
 b. 218.) 
 35 H. 6. tit. 
 Barre, 262. 
 37 H. 6. Barre, 
 60. 2E. 3. 9. 
 
 9 El. Dyer, 262. 
 28 H. 8. 30. 
 (8th Rep. 83. a. 
 92. a. Hob. 24.) 
 [i] 4 H. 7. 4. 
 30H.8.Dver,42. 
 11 H. 4. 57. 
 in protection. 
 
 10 H. 7.18. 
 (Doc. Pla. 230.) 
 [A] Vid. Bract. 
 Britton, Fleta, 
 ubi supra. 
 Brae ton, lib. 3. 
 fol. 100. 
 2 H. 4. 9. 
 8 E. 4. 12. b. 
 2 E. 4. 2. & 3. 
 4H. 7.4. b. 
 10 H. 7. 22. 
 14 H. 8. 28. 
 42 E. 3. 6. 23. 
 (1 Roll. Abr. 
 418. Plo. 64. b.) 
 2 H. 4. 9. 
 (2Ven. 109.) 
 
 (PI. Com. 
 Browning's 
 case, 133.) 
 (Post. Sect. 360. 
 10 Rep. 38. 
 Hob. 170. 
 1 Roll. Abr. 
 419.) 
 
 7 II. 6. 43. b. 
 21 H. 6. 33. 
 21 H. 7. 11. 
 
 21 H. 7. 30. 
 20 E. 4. 8. 
 (Moore, 810. 
 Post. 225.) 
 PI. Com. in 
 Browning's 
 case, 133. a. 
 27 II. 8.
 
 L. 3. C. 5. S. 334. upon Condition. [206. b. 
 
 " Tender the money at the day limited, &c." Note, hereby is Vide Sect. 325. 
 iniplyed, that albeit a convenient time before sun set be the last (5 Rep. 114.) 
 time given to the feoffor to tender, yet if he tender it to the per- 
 son of the mortgagee at any time of the day of payment, and he 
 refuseth it, the condition is saved for that time. 
 
 " lie may enter, &c." And so may his heir after his death. 
 
 "But if a stranger of his own head, who hath not any interest, 
 &c. will tender the aforesaid money to the feoff ee at the day ap- 
 pointed, the feoffee is not bound to receive it." Nota, by this Vide Sect. 401. 
 period and the {&c.) it is iniplyed, that if the morgagor dye, his Hill. 28 Eliz. 
 heir within age of 14 yeares (the land being holden in socage), ! n . Ba ?y° j^ 18 ' 
 the next of kin to whom the land cannot descend being his gar- & Astwiek, pro 
 dian in socage may tender in the name of the heir, because he terris in Com. 
 hath an interest as gardian in socage. Also if the heir be within Dey ° n : 45 B " ?■ 
 age of 21 yeares, and the land is holden by knights service, the 32 e. 1. tit.' 
 lord of whom the land is holden may make the tender of his in- Annuity, 51. 
 terest which he shall have when the condition is performed, for j 53 **• % 13 ' 
 these in respect of their interest are not accounted estrangers. Moore 222. 
 
 But if the heir be an idiot, of what age soever, any man may Post. 225. b. 
 make the tender for him in respect of his absolute disability, 225 - a> ) 
 and the law in this case is grounded upon charity, and so in like 
 eases. 
 
 " The feoffee is not bound to receive it." And note that 36H 6 tit 
 
 Barre, 166. 33 E. 1. tit. Annuitie, 51. 33 E. 3. Judgement, 254. 
 (Ant. 180. b. Post. 245. a. 25S. a.) 
 
 Littleton 
 
 "do malum inse, or malum prohibitum ; 2dly, to omit the doing of something 
 " that is a duty; 3dly, to encourage such crimes and omissions. And such 
 "conditions as these, the law will always, and without any regard to circum- 
 " stances, defeat." It is not within the plan of these notes to enumerate, or 
 discuss, the various instances in which the conditions of bonds have been held 
 unlawful at law, or in equity. Those which chiefly deserve consideration are 
 such as relate to, 1st, Bonds given for procuring marriages, or what is usually 
 called marriage brokage. See Hall v. Potter, 3 Levinz, 411. Shower's Par. 
 Cas. 76. 1 Brown's Par. Cas. 60. Scribblehill v. Brett, 1 Brown's Pari. 
 Cases, 57. Keat v. Allen, 2 Vern. 588. Cole v. Gibson, 1 Vez. 503. 2dly, 
 Bonds restraining the obligor from a free exercise of a trade. Here, if the re- 
 straint be qualified, so as only to take in a particular place, and the breach of 
 the condition tends apparently to the detriment of the obligee, and a considera- 
 tion is given by the obligee to the obligor for executing the bond, the condition 
 will not be impeached either at law or in equity. See 1 P. W. 190, 191. 10 
 Mod. 133. 3dly, Bonds of resignation. The validity of these bonds, and the 
 propriety of their being supported, considered as a matter of policy, was most 
 elaborately and ably discussed in the great cause of the bishop of London and 
 Fytche, heard on appeal in the house of lords in May 1783. A state of this 
 case, and of the arguments and speeches of the lords, prelates, and judges who 
 spoke, when it was heard before the lords, is to be found in Mr. Cunningham's 
 Law of Simony. — It seems to be settled, that if a bond is given with a condi- 
 tion to do several things, and only some of them are against law, the bond 
 shall be good as to the doing the things agreeable to law, and only void as to 
 those which are against law. Norton v. Simmes, Hob. 12. Mosdell v. Mid- 
 dleton, 1 Vent, 237. Pearson v. Humes, Carter, 229. Chesman v. Nainby, 
 2 Lord Raymond, 1456.— [Note 99.1 
 Vol II.— 11
 
 206. b. 207. a.] Of Estates L. 3. C. 5. Sect. 335. 
 
 Littleton saith, that he is not bound to receive it at a 
 stranger's band. But if any stranger in the name f 2 07.1 
 
 ■of the morgagor or his heir (without his consent 
 or privity) tender the money, and the morgagee ac- 
 cepteth it, this is a good satisfaction, and the morgagor or his 
 heir agreeing thereunto may re-enter into the land; omnis rati- 
 habitio retro trahitur et mandati sequiparatur. But the morgagor 
 or his heir may disagree thereunto if ha will. 
 
 Sect. 335. 
 
 A YD be it remembered that in such case, where such tender of the 
 money is made, fyc. and the feoffee refuse to receive it, by which 
 the feoffor or his heires enter, $-c. then the feoffee hath no remedy by 
 the common law to have this money, because it shall be accounted his 
 own folly that he refused the money, ivhen a lawful tender of it ivas 
 made unto him (1). 
 
 " rpENDER of the money is made, dx." Here is implyed at 
 the due time and place according to the condition. 
 
 11 Enter, &c" viz. into the lands or tenements. 
 
 " Then the feoffee hath no remedy by the common law to have 
 8 E. 2. tit. Ass. this money, &c." And the reason is, because the money is col- 
 389. 31 Ass. 32. laterall to the land, and the feoffee hath no remedy therefore. 
 
 If an obligation of an hundred pound be made with condition 
 
 for the payment of fifty pound at a day, and at the day the obli- 
 
 (2 Roll. Abr. gor tender the money, and the obligee refuseth the same, yet in 
 
 523, 524.) Sid. action of debt upon the obligation, if the defendant plead the 
 
 22 H 6 39 tender and refusall, he must also plead that he is yet ready to 
 
 21 E. 4. 25! pay the money, and tender the same in court. But if the plain- 
 
 22 E. 3. 5. tife will not then receive it, but take issue upon the tender, and 
 Lib. 9. fo.^ 79. t k e same b e f 0U nd against him, he hath lost the money forever. 
 (2 Roil. Abr. H a man be bound in 200 quarters of wheat for dcliverie of a 
 523. 100 quarters, if the obligor tender at the day a 100 quarters, &c. 
 Dyer, 24. b. j^ shall not plead uncore prist, because albeit it be parcell of the 
 
 condition, yet they be bona peritura, and it is a charge for the 
 obligor to keep them. And the reason wherefore in the case of 
 8 E. 2. tit. Ass. the obligation the sum mentioned in the condition is not lost 
 : by the tender and refusall, is not only for that it is a duty and 
 
 parcel of the obligation, and therefore is not lost by the tender 
 and refusall, but also for that the obligee hath remedy by law 
 
 for 
 
 (1) Here the performance of the condition is excused by the default of the 
 feoffee or obligee, viz. by tender and refusal. It is also excused, 1. By his 
 absence in those cases where his presence is necessary for the performance of 
 the condition. 2. By his obstructing or preventing the performance. And 
 3. By his neglecting to do the first act, if it is incumbent on him to perform 
 it. See the cases in 1 Roll. Abr. 457, 458. It is also excused, in some cases, 
 by his not giving notice to the feoffee or obligee. See 1 Roll. Abr. 463. 467, 
 46?.— [Note 100.
 
 L. 3. C. 5. Sect. 335. upon Condition. [207. a. 
 
 for the same. And in this case, liberata pecunia non liberat 
 offerentum. 
 
 But if a man make a single bond, or knowledge a statute or (2 Saund. 48.) 
 recognizance, and afterwards make a defeasance for the pay- 7 H. 4. 18. 
 ment of a lesser sum at a day, if the obligor or conusor tender Die^i'so 
 the lesser sum at the day, and the obligee or conusee refuseth 21 e'. 4. 25. 
 it, he shall never have any remedy by law to recover it, because 22 E. 3. 5. 
 
 ■ 'X.I. TT R 9 Vi 
 
 it is no parcell of the sum contained in the obligation, statute, zt ^ ," 2 ' 
 or recognizance, being contained in the defeasance made at the 20 E. 4. 1. b.' 
 time or after the obligation, statute, o r recognizance. And in 9 H. 6. 16. 
 this case in pleading of the tender and refusall the partie shall y° "• ?■ ' 
 not be driven to plead, that he is yet ready to pay the same or 16 h. 7. 13. 
 to tender it in court : neither hath the obligee or conusee any 18 E. 3. 53. 
 remedy by law to recover the sum contained in the defeasance. ;. j AJ 
 [0] Aud so it is if a man make an obligation of 100 pound with 27 h. 8*. La. 
 condition for the deliverie of corne, or timber, &c. or for the 22 H. 6. 39. tit. 
 performance of an arbitrement, or the doing of any act, &c. f^ 6 ^ 6 ?*' 11- 
 This is collaterall to the obligation, that is to say, is not par- 19 H ' 6 '_ { 2 . 
 cell of it, and therefore a tender and refusall is a perpetual [o] Henry Pay- 
 bar (2). toe ' s case » u ^i- 
 
 But if a man be bound to make a feoffment in fee to the 3" ^ss. 25. 
 obligee, and he make a lease and release to him and his heires, 11 H. 4. 33. 
 albeit this be a collateral condition, yet it is well performed, J *J. 6. 8. 
 because this amounts in law to a feoffment (3). 7 E ' 4 * 3 ' 
 
 PI. Com. Fogasse's case, fo. 6. (Moore, 36, 37. Post. 236. b.) 
 
 " Money, 
 
 (2) In the 10th, 11th, and 12th editions, there is, in the margin, a reference 
 to 3 Cro. 755 ; but there is no such page in that volume of Croke. Most pro- 
 bably it is misprinted, for 1 Cro. 755. Cotton v. Clifton, where it was held, 
 " that, where an obligation is made, and afterwards a defeasance is made 
 " therefore, if he pays a less sum, there, if he pleads the defeasance and the 
 " tender of the lesser sum, he need not to say, tout temps prinst; for, by the 
 " tender, he was discharged of all; but otherwise it is of an obligation, with 
 " a condition to pay a lesser sum." — [Note 101.] 
 
 (3) No authority is cited for this position. In Plowd. 156. it is laid down, 
 that a lease and release may be pleaded as a feoffment; and in 1 Finch, 48. and 
 2 Finch. 68. it is said, that a lease and release amounts to a feoffment. But. 
 this must be understood with some qualifications, as the operation of a feoff- 
 ment is, in some instances, much more forcible, and of course may be much 
 more beneficial to the person entitled to the benefit of the condition, than 
 the operation of a lease and release. The nature of a feoffment will be 
 considered in one of the notes to the chapter of Release. — With respect to 
 the difference adverted to above, between the operation of a lease and release, 
 and the operation of a feoffment; it is immaterial whether, by the lease, is 
 understood a bargain and sale for years under the statute, or a lease at com- 
 mon law, with an actual entry by the lessee. In either case, though the lessor 
 had the possession, yet, unless he was seised of the freehold, when he executed 
 the lease, his release would not vest an estate of freehold in the releasee. But 
 his feoffment, if he had but a mere possession, would vest the freehold in the 
 feoffee. In the same manner, if tenant for life enfeoffs in fee, it divests the 
 whole inheritance, and is a forfeiture of his estate. But nothing of this is 
 produced by a release grounded on a previous lease, either at common law or 
 by the statute.— [Note 102.]
 
 207. a. 207. b.] Of Estates L. 3. C. 5. Sect 336. 
 
 Lib. 5. fol. 114, " Money, moneta, legalis moneta Anglia," lawful money of 
 115 - t England, either in gold or silver, is of two sorts, viz. 
 
 Ub a 9?'foi a 78 tne % n 9 lisfl money coyned by the king's fi@~ authorite, Y 2 O 7. "I 
 ( 5 Rep. 114.' or forraine coyue by proclamation made current within L °. J 
 Wade's case, therealme. Coyne, cunadicitur d cud end o, of coyning 
 
 S t J'3) 742 °^ mone y- I n French coine signifieth a corner, because in 
 
 ancient time money was square with corners, as it is in some 
 
 countries at this day. Some say that coine dicitur a xotvoj, id est 
 
 communis, quod sit omnibus rebus communis. Moneta dicitur a 
 
 monendo, not only because he that hath it, is to be warned 
 
 Aristotle, lib. 5. providently to use it, but also because nota ilia de authore et 
 
 Tc' O sq valore admonet. Pecunia dicitur a pecu, beasts, omnes enim 
 
 Trover arid Con- veterum divitice in animalibus consistebant ; and it appeareth that 
 
 version lies for in Homer's time there was no money but exchange of cattel, 
 
 (*) 2 H. 5. Nummus etvb th v6y.n, quia lege fit non natura. Vide (*) the 
 
 stat. 2. cap. 7. statute of 9 //. 5, of the noble, halfe noble, and farthing of 
 (Cro. El. 841.) goj^ w hich is the fourth part of a noble, and that is twenty 
 pence. 
 
 Sect. 336. 
 
 J^LSO, if a feoffment be made on this condition, that if the feoffee pay 
 to the feoffor at such a day between them limited twenty pounds, then 
 the f coffee shall have the land ( si feoffment soit fait sur tiel condition, 
 que si le feoffee paya al feoffor a tiel jour inter eux limit xxl.* adonques 
 le feoffee avera la terre) to him and to his heires ; and if lie faileto pay 
 the money at the day f appointed, that then (X que adonque) it shall be 
 laufullfor the feoffor or his heires to enter, frc. and afterwards, before the 
 day appointed the feoffee sell the land to another, and of this maketh 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 refuseth the 
 same, $c. then the second feoffee hath an estate in the land clearly without 
 condition. And the reason is, for that the second feoffee hath an interest in 
 the condition for the safeguard of his tenancy (pur salvation de || son 
 tenancie.) And in this case it seems that if the first feoffee after such 
 
 sale 
 
 * que added in L. and M. and | que added in Roh. but not in L. 
 Roh. and M. 
 
 f appointed — &c. L. and M. | son — le L. and M. and Roh. 
 
 (1) See the account given in Bla. Com. vol. i. ch. 7. of his majesty's preroga- 
 tive respecting the coin of the kingdom; and see 5 Mod. 7. 2 Salk. 446. For 
 the etymology of the word Sterling, see Du Cange and Spelman's Glossaries, 
 under the word Esterlingus) and Mr. Leake's Historical Account of English 
 Money, page 20. Guineas took their name from the gold brought from Guinea 
 by the African company, who, as an encouragement to bring over gold to be 
 coined, were permitted, by their charter, to have their stamp of the elephant 
 upon the coin made of the African gold. By a proclamation of the 22d of 
 December, 1717, the guinea, which till then had been current for 21 shillings 
 and sixpence, was reduced to 21 shillings, and half-guineas, double guineas, 
 and five pound pieces in proportion. — [Note 103.]
 
 L. 3. C. 5. Sect. 336. upon Condition. [207. b. 208. a. 
 
 sale of the land, will tender the money at the day appointed, §c. to the 
 feoffor, this shall be good enough for the safeguard of the estate of the 
 second feoffee, because the first feoffee was privie to the condition, and so 
 the tender of either of them two is good enough, §c- 
 
 u A ND ifhefaile to pay the money, dec.*' 12 E -. 3 - 
 
 If a man make a feoffment of lands, to have and to hold {g^ 1 ^' 
 to him and his heires, upon condition, that if the feoffee pay to ibid. 10. 
 the feoffor, at such a day twenty pounds, that then the feoffee 12 Ass. 5. 
 shall have the lands to him and his heires, if the condition had plowd - 481, 
 not proceeded further, it had been void, for that the feoffee had (5 Rep. 117.) 
 a fee simple by the first words, and therefore the words sub- Li. 5. fo. 96, 97. 
 sequent (2) are materially added (and if he faile to pay the Goodale's case, 
 money, &c.) 
 
 " The second feoffee will tender the sum of money, &c." 
 Albeit the second feoffee be not named in the condition, yet 
 shall he tender the sum because he is privie in estate, and in 
 judgment of law hath an estate and interest in the condition, 
 (as Littleton here saith) for the salvation of his tenancy. Vid. (8 Rep. 42. b.) 
 Sect. 334. And note, he that hath interest in the condition on ( 2 C f0 - 9 - 245.) 
 the one side, or in the land on the other, may tender, wade's case ' 
 
 [208.~j And it is to be B@°" observed also, that the feoffee 
 a. I may tender any money that is currant within the realme, 
 albeit it be forrein coin, so as it be currant by act of 
 parliament, or by the king's proclamation (3), as hath been said. 
 
 " Tender the sum." The feoffee may tender the money in 
 purses or bags, without shewing or telling the same, for he doth 
 that which he ought, viz. to bring the money in purses or bags, 
 which is the usuall manner to carry money jn, and then it 
 is the part of the party that is to receive it to put it out and 
 tell it. 
 
 " If the first feoffee." Here it appeareth, that the first feoffee 
 may, notwithstanding his feoffment, pay the money to the feoffor, 
 because he is partie and privie to the condition, and by his ten- 
 der may save the estate of his feoffee, which in all good dealing 
 he ought to do (1). 
 
 Sect. 
 
 (2) See note 1. fol. 216. 
 
 (3) And if, at the time of the feoffment, a purer or more weighty money 
 were current, and, before the day of payment, coin of a baser alloy is estab- 
 lished by proclamation, a tender of the sum in that coin is good. ])av. Rep. 18. 
 Note to 'the llth edition. — [Note 104.] 
 
 (1) In the same manner, equity permits all persons to redeem, ivho have any 
 estate or interest in the equity of redemption of the mortgagor ; as tenant for life, 
 remainder-man or reversioner, jointress, tenant by the curtesy, by elegit, statute 
 merchant or staple, <fcc. All these may redeem ; and volunteers are equally 
 admitted to redeem, as purchasers for a valuable consideration. Howard v. 
 Harris, 1 Vera. 190. 2 Bq. Cas. Abr. 594. The tenant for life and jointress 
 contribute towards the redemption of the mortgage debt. In 1 P. Wins. G50, 
 the reporter states, that he mentioned to the court, that the life estate, (espe- 
 cially in the case where the tenant for life had the remainder in fee,) might be 
 valued at two fifths, which had been done in some cases ; yet the court said, 
 
 how
 
 208. a.] Of Estates L. 3. C. 5. Sect. 336- 
 
 how equitable soever that might be, it was not the practice, for which reason it 
 would be dangerous, and create uncertainty to go out of the rule; and the 
 register said, he had never known a life valued at more than one third. And 
 see Brend v. Brend, 1 Vein. 218. Ballets. Sprainger, Pre. Cha. 62. James 
 v. Hailes, ib. 44. — But the remainder-man or owner of the inheritance must 
 come in to redeem in the life of the tenant for life, or jointress; for he cannot, 
 after their decease, compel a contribution from their assets. Cornish v. Mew, 
 1 Cha. Ca. 271. Howell v. Price, Pre. Cha. 423. Hungerford v. Hungerford, 
 Gilb. Eq. Rep. G7. — In what cases the dower ess will be permitted to redeem, 
 is a question which involves in it many points of great nicety. The law 
 requires a legal seisin in the husband ; and it is a settled point, that the wife, 
 cannot be endowed of a trust estate. Upon this principle, it was generally 
 understood, that the wife was not entitled to her dower out of an estate, which, 
 at the time of her marriage, was subject to a mortgage in fee. But this, per- 
 haps, was never formally determined, till the case of Dixson v. Saville, 1 Bro. 
 Cha. Ca. 326. But the case is different with respect to mortgages for terms 
 of years. It may be observed here, 1st. That, at common law, if a lease be made 
 for a term of years, rendering rent, the wife is entitled to her dower of a third 
 part of the reversion by metes and bounds, and to a third part of the rent; and 
 execution will not cease during the term. 2dly. If the husband makes a gift 
 in tail, rendering rent, as the rent is payable out of, or in respect of, an estate 
 of inheritance, the wi% will be endowed of a third part of the rent. 3dly. If 
 the husband makes a lease for life, rendering rent, the wife is not entitled to 
 her dower of the rent, because it is not payable, in this case, out of, or in 
 respect of, an estate of inheritance. 4thly. If the husband makes a lease for 
 years, l'eserving no rent, then judgment will be given for the wife, with a eesset 
 executio during the term. This, if the term be of long duration, deprives her, 
 virtually, of her dower. 5thly. If a person purchases an estate of inheritance 
 which is in mortgage for a term of years, the wife of the vendor will not be 
 entitled to her dower in equity, if the term was created before the marriage 
 of the vendor, and actually assigned to a trustee for the purchaser, to attend 
 the inheritance. 6thly. If a person dies seised in fee, subject to a term of years, 
 if the term be a term in gross, for securing the payment of a sum of money, 
 the widow, by discharging the money secured by it, or paying one third of the 
 interest, will be entitled to dower. 7thly. If the term be an outstanding satis- 
 fied term, she will also be entitled to her dower against the heir. Ante 32. a. 
 Bro. Abr. Dower, 44. 60. 89. 1 Roll. Abr. 67*. Bodmin and Vandebendy, 
 Shower's Cases in Parliament, 69. Brown v. Gribbs, Precedents in Chancery, 
 97. Wray v. Williams, ibid. 151. Dudley v. Dudley, ibid. 241. Banks v. 
 Sutton, 2 P. Wms. 700. Hill v. Adams, 2 Atkyns, 208. Amb. 6. under the 
 name of Swannock v. Lyford. — The last of these cases applies particularly 
 to the position contained under the 5th division, — that iu the case of a pur- 
 chaser, the wife will not be relieved in equity against a term of years so out- 
 standing. — As this circumstance frequently occurs in practice, and the general 
 doctrine of terms of years, as they affect dower, is very important, we present 
 the reader with a manuscript note of lord Hardwicke's argument, on making 
 his decree in the case last mentioned, where he enters very largely, and with 
 his usual ability, both on the general doctrine, and its application to the point 
 in question. 
 
 " Lord Chancellor. — Plaintiff's husband, being seised of a freehold estate, 
 subject to a term of one thousand years standing out in a mortgage, by virtue 
 of a mortgage made by his father, conveys the inheritance to defendant for a 
 valuable consideration; and, at the time of this conveyance, defendant takes an 
 assignment of the term in mortgage, in the names of trustees, to wait and attend 
 upon such inheritance : and now the plaintiff brings her bill against defendant 
 the purchaser, for dower, praying to be admitted to redeem this mortgage term, 
 and to have it out of the way; and, upon payment of her proportion of the mort- 
 gage
 
 L. 3. C. 5. Sect. 336. upon Condition. [208. a. 
 
 <mge money, to be let into her dower immediately, that she might not wait till 
 the determination of the term. — Question is, Whether the court ought to de- 
 cree this, under the present circumstances of the case ? I cannot say but, that 
 the decree already made at the rolls for plaintiff the widow, is absolutely con- 
 sistent with the mere reason of the thing, if it was not to be considered originally, 
 and settled; but, as this must depend, not only upon the precedents of the court, 
 but the practice of conveying titles to estates, upon which the precedents 
 themselves were settled, I do not wonder that a decree of this kind should be 
 made by a judge, who was not absolutely conversant in such precedents of the 
 court, and the distinctions taken therein. But, upon consideration of them, and 
 the great authority relied upon, of lady Radnor and Vandebendy, Show P. C 
 I am of opinion, that the decree ought to be reversed. And, if it should not, 
 would it not be going directly contrary to that great authority, and the reasons 
 upon which it is founded, and make such uncertainty in this court in regard to 
 purchases, that the subject would not know what to rely upon? — The wife here 
 claims her dower, subject to a term originally standing out in a mortgage. The 
 consecpience of that is, that, in law, though she might have brought her writ of 
 dower, and recovered judgment, yet she could not have had the benefit of it, till 
 after the determination of the term; for the judgment would be, with a cessd 
 executio till that time. This was the wife's legal remedy; and, that being so, 
 she comes into this court upon the foundation of her general right of dower, to 
 be delivered from that restriction which the law imposes upon her, from having 
 the benefit of it, till such determination of the term,- and to be admitted to 
 redeem this term, which is now not in the hands of the mortgagee, but of the 
 purchaser, as being assigned to attend upon the inheritance, and for the other 
 purposes before mentioned : and, though the assignment is not in the words 
 "to protect the inheritance from dower, or mesne incumbrances," yet it is 
 always so understood : otherwise there would be no use in taking the term in the 
 name of a trustee. — It is admitted by the defendant, in case things had stood as 
 they were at the time of the marriage, viz. that the term had been in the mort- 
 gagee, and the inheritance in the husband, as heir, or purchased from him by 
 the purchaser without an assignment of the term, as here, the wife, as entitled to 
 dower, might then have come here to redeem the mortgage, to have the benefit 
 of coming at her dower immediately, by paying off the mortgage money, or keep- 
 ing down the interest for the benefit of the heir or purchaser. And even this 
 was, (when originally settled) going a good way in favour of a dowress, though 
 it was consistent with the reason of the thing; for, as she was entitled to dower, 
 and as a mortgage is only a redeemable interest, it is fit the equity of redemption 
 should follow the nature of the interest in the estate ; and she to be endowed, 
 and the heir at law to be entitled to the inheritance subject to such dower, was 
 giving the wife a real benefit arising from her dower, and not a mere nominal 
 one, as it would be at law, where there is an outstanding term; for, when the 
 law says, she shall have judgment for dower, but with a cesset executio till the 
 determination of the term, that is in fact to say, she shall have no dower, and 
 therefore this court, as against the heir, but not the purchaser of the term and 
 inheritance, gives her the benefit of her dower, by removing the term. And, if 
 all the cases of tenancy in dower and curtesy likewise were now originally to 
 be considered, it might as well be left upon the strength of the law, for it is 
 undoubtedly a mere legal title that the one has, as well as the other; and there 
 is no contract of the party's intervening. Therefore, if a woman marries, and 
 the husband is in possession of an estate, or, if a man marries, and the woman 
 is in possession of an estate, each party knows that, at the time of the marriage, 
 their estates are liable and subject, on the one side, to a tenancy by the curtesy, 
 and, on the other, to dower, and to all mesne incumbrances and terms; and 
 there is no harm to say, that both shall take their chance. The commiseration, 
 in respect to dower, has arisen from the determinations in favour of tenancy 
 by the curtesy; and indeed, the distinction made between dower and tenancy by 
 
 curtesy
 
 208. a.] Of Estates L. 3. C. 5. Sect. 336. 
 
 curtesy is founded upon very slight reasons ; but, however, it has been so esta- 
 blished. The great point, in this case, depends upon the determination in the case 
 of lady Radnor and Vandebendy, in Show. P. C. and Preced. Chan, and that was 
 thus: (I mention it from lord Somers's own notes) — It was sent to the master, 
 in order to state the case, who stated it : — That, Charles earl of Warwick, upon 
 the marriage of his son, settled his estate, as to part, in jointure to his lady, and 
 part, upon the son in tail, and part, upon himself in tail ; and, upon failure of 
 issue male, then to trustees for 99 years, to be disposed of by the said earl, either 
 by deed or will, and, for want of such appointment, the term was declared to be 
 for the next in remainder, and to be attendant upon the inheritance; and, as to 
 a third part of a moiety of the estate, it was limited to lord Bodmyn in tail. 
 The son died without issue ; and then the earl, according to his power of 
 appointment, charges the estate with some annuities, some of which were deter- 
 mined at the time of the purchase in question, and some were continuing ; and 
 then the trust term, which was merely such, was to be attendant upon the inhe- 
 ritance. Vandebendy purchases of lord Bodmyn, plaintiff's husband, that part 
 of the estate limited to him ; and took, not only a conveyance, but a recogni- 
 zance in two statutes, in very considerable sums, to indemnify the estate from 
 incumbrances, and against the wife's dower, and for suffering a recovery, and 
 took an assignment of the term. Vandebendy afterwards conveys to Sir John 
 Rotheram, which occasioned it to be called in Preced. Chanc. 65. by the name 
 of lady Radnor v. Rotheram. — Lady Radnor brought a bill to have the benefit 
 of dower against Vandebendy, (who purchased of lord Bodmyn her husband,) 
 and to set this term out of the way; and, by the decree before made, lord Jefferys 
 inclined to give relief, and did set the term out of the way, and direct she should 
 bring dower at law; but lord Somers reversed that decree; and, upon appeal to 
 the house of lords the reversal was affirmed. There was great doubt in this 
 court, and so in the house of lords; and there was a great inclination in the 
 house to reverse that decree of lord Somers ; but, when the counsel came to the 
 bar, the lords asked, Whether it was usual for conveyancers to convey terms for 
 years to attend the inheritance, to prevent dower? and the counsel, with great 
 candor, saying it was, the lords affirmed lord Somers's decree. The point that 
 weighed in the judgment was, that this was the case of a purchase for a valuable 
 consideration; that, in making conveyances, purchasers relied upon that method 
 of taking a conveyance of the inheritance to themselves, and an assignment of 
 the term°standing out to a trustee, to attend it ; that the outstanding term was 
 prior to the title of dower in the wife, and, therefore, purchasers have relied 
 upon that, as a bar to such dower; so that this court and house of lords were 
 of opinion, that, if they were not to permit that to be so, it would be to over- 
 turn the general rule, which had been established and practised by many titles 
 to estates, and tend to make such titles precarious for the future. And, as to 
 what was said in the case of Brown and Gibbs, Preced. Chanc. 97. viz. that, 
 though there was a purchaser, in the case of lord Radnor and Vandebendy, 
 yet, that the court did not go upon that reasdn. — I do not know who reported 
 that to be the saying of the court ; but this I know, that that was the only reason 
 for the determination there; and that is plain, for Vandebendy, the purchaser, 
 having purchased for a valuable consideration, lord Somers did rely upon that 
 greatly; for he said, it has been always looked upon, that a term, purchased in 
 by such a person to protect the inheritance against dower, &c. has been suffi- 
 cient for that purpose ; and therefore, it would not only be a new thing to 
 determine it should not, but of very great consequence, and greater than what 
 appears at first view, besides what has been already mentioned, and especially, 
 since practitioners have all along advised this method, whereby many persons 
 have been purchasers in that way; and there cannot be a stronger argument 
 against altering this method by any determination, than to say, it was never 
 done : but the argument by the counsel was of another nature ; for they said, 
 that judgment had been given for dower in all ages, and, in the case of a term, 
 
 as
 
 L. 3. C. 5. Sect. 336. upon Condition. [208. a. 
 
 as in the present case, she might come into this court, to have the benefit of her 
 dower, notwithstanding such term. Ever since this case, it has always been 
 said that the court is bound by it; and, on the other hand, I have heard it often 
 said by the court, that they will go no farther. And therefore, to have the 
 benefit of a determination, every person's case must be exactly and strictly the 
 same with that. I am of the same opinion too, and will not go any farther than 
 that case does. So that, then the question comes to be this, Whether there is 
 any distinction between this case and that ? It is said, that, there the purchaser 
 was allowed to protect himself, by taking in the term attendant upon the inhe- 
 ritance, because that was a satisfied term, which, in the consideration of this 
 court, was become part of the fee; that he purchased the whole estate of the 
 husband, and, therefore, an old term, such as that was, has been allowed to be 
 so assigned, to protect the inheritance ; but that, in this case, the husband had 
 nothing in the term, because he was owner of the inheritance subject to it, and 
 of the equity of redemption of it; and, for that, at the time of the purchase, 
 the term was in mortgage, and standing out, and the money advanced still due 
 upon it, that it was a security separate from the husband's inheritance, and the 
 purchaser took it from the mortgagee only and not from the husband. But, I 
 think, that makes no difference here from that of Vandebendy. If there is any 
 difference, it is against the plaintiff, and makes the case much stronger in favour 
 of the present purchaser. It is difficult to say, upon the state of the case, that 
 the term there was a satisfied term at the time of the purchase. I rather think it 
 was'not; for lord Somers states it, that the earl of Warwick, who had the power 
 of appointing the trust term, did appoint it, by charging it with some annuities, 
 which were to commence a year after, and that some of them were continuing, 
 and some of them determined, and, I think, after the purchase made ; and, if 
 that was so, this was not a satisfied term, but still subsisting to pay those annui- 
 ties, which were incumbrances continuing upon the terms; so that Vandebendy, 
 who took the assignment of the term, took it subject to the trust so continuing 
 on it, in like manner as the purchaser here took the term, subject to the mort- 
 gage, and the money due thereon. Therefore, the distinction endeavoured to 
 be made between the case there being a satisfied term, and this being a mort- 
 gage term, not satisfied, fails. But, supposing that term had been satisfied, how 
 would that make any difference? It is true, that would then have been a trust 
 for the husband, and his heirs, and he would have it as part of his ownership and 
 dominion over the estate; and, consequently, it would be subject to dower, as 
 against the husband. For, if the husband dies, and there is a satisfied term con- 
 tinuing, the wife would be entitled to come into this court, against the heir, to set 
 that term out of the way, in order to have the benefit of her dower; and that is 
 expressly so said in the case of Banks and Sutton, 2 Wins. 700. by the master 
 of the rolls, and he cites a case to that purpose : and undoubtedly she would, 
 without paying any thing. And if, in the present case, the husband had made no 
 conveyance to the purchaser, and the mortgage had continued in the mortgagee, 
 or his assignee, and the equity of redemption had descended on the heir, she 
 would have been entitled likewise to dower against him, by redeeming the term, 
 and paying her proportion of the mortgage money, or by keeping down the 
 interest. But, if a term for years is in mortgage, and a person purchases the 
 inheritance of the husband, and takes an assignment of the term from the mort- 
 gagee, by paying off the money, not only to have the trust of the term as a se- 
 curity, but to protect the inheritance so purchased, would it not be hard to take 
 away the benefit of it from him ? Shall it be said, that he shall have a less 
 inheritance by taking in a mortgage term in that manner, by actually paying off 
 the mortgage money, than if he had taken an old satisfied term, for which he 
 never paid any thing? Therefore, if the term, in lady Radnor's case, had been 
 a satisfied one, that would have been so far from distinguishing that case from 
 this in favour of the plaintiff, that it would have been rather stronger in favour 
 of the purchaser ; for here, he paid a consideration for the outstanding term, 
 
 and
 
 208. a.] Of Estates L. 3. C. 5. Sect. 336. 
 
 and there, nothing would have been paid for such said satisfied term. But, it is 
 said that this purchase of the mortgage was from the mortgagee, and not from 
 the husband. If that was so, I do not know that this would make any difference, 
 because the husband here joined in the assignment of the mortgage. But, what 
 results from this case is, that, it was part of the agreement of all the parties, 
 (the husband joining) that the term should be purchased in, by the purchaser 
 of the estate, to attend his inheritance ; and that is the very trust declared by 
 the deed. It has been admitted here, that, if the husband had paid off the 
 mortgage himself, after the coverture, and taken an assignment of the term in 
 mortgage, in trust for him and his heirs, to attend the inheritance, (in which 
 case it would have then become a satisfied term;) and, after this, a purchaser 
 had purchased from him, and paid him the whole money, and taken a convey- 
 ance of the inheritance from him, and an assignment of the term from the 
 trustees, that would have been very well, and within the case directly of lady 
 Radnor. What is the difference, then, in the reason of the thing, whether the 
 husband pays off the mortgage himself, and takes an assignment of the term, in 
 trust for himself and his heirs, and then sells to a purchaser the inheritance, 
 who takes the term from the trustee; or, whether the purchaser comes, and pur- 
 chases the inheritance from the husband, and pays off the mortgage, and takes 
 an assignment of the term himself? Is the case the less strong for that? It is 
 rather stronger. — It is admitted that, if this had been an old satisfied term, stand- 
 ing out attendant upon the inheritance, and a purchaser had purchased from the 
 husband, and had taken in this term, that would have protected the inheritance. 
 That, if a man, before marriage, conveys his estate privately, without the know- 
 ledge of his wife, to trustees, in trust for himself and his heirs in fee, that will 
 prevent dower. So, if a man purchases an estate after coverture, and takes a 
 conveyance to trustees, in trust for himself and his heirs, that will put an end 
 to dower: so, if he takes an estate in jointenancy, or a conveyance to himself, 
 for a long term of years. But, it is objected, that the act done here by the 
 purchaser, at the time of his purchase, he having notice of the marriage, will 
 put the wife in a worse condition than she would have been in originally, if the 
 purchaser had not intervened ; since then, there would have been a redeemable 
 mortgage, (the equity of redemption being in the husband,) and the husband 
 dying, she would be entitled to redeem such mortgage, and then, to have had 
 dower; and therefore, by the purchaser's knowing of the title of dower, by 
 reason of the marriage, he would have put her in a worse condition, which in 
 equity he ought not to have done ; and this ought not to alter her right. But 
 this does not differ from the common case. For, in this case, suppose the hus- 
 band had, before the purchase, redeemed the mortgage, and taken an assignment 
 of the mortgage term, in trust for himself and his heirs, to attend the inheri- 
 tance, and, after that, the purchaser had purchased from him, and taken an 
 assignment of such attendant term, in trust for him and his heirs, would not that 
 have altered the wife's right to dower, though without that intervention of the 
 purchaser? She would be entitled to her dower, as against the heir; so like- 
 wise, in the case of an old term attending upon the inheritance in trust; but 
 this purchase prevents the descent of the estate to the heir, and therefore it is 
 not to be said, that the purchasers have put the wife in a worse condition, by 
 the intervention of their purchase : but, because conveyancers did rely upon 
 the assignment of the term to trustees to protect the inheritance, as sufficient 
 for that purpose, it was determined as has been mentioned; and I do not see 
 how the present case can differ from that of an old term to attend the inheri- 
 tance. But the present point is, that here the term was in the mortgagee, 
 and the inheritance in the husband. The term will stand in the way of dower 
 at law, and the purchaser comes in upon that foot, pays his money, and relies 
 upon that term to protect his purchase; and therefore, I think, this is strictly 
 within the reason of the case of lady Radnor and Vandebendy, and all the 
 other cases grounded upon it. Another distinction made is, that here is an 
 
 express
 
 L. 3. C. 5. Sect. 336. upon Condition. [208. a. 
 
 express covenant taken from the husband against the dower of his wife ; for 
 the covenant is, that the purchaser should enjoy the estate free from incum- 
 brances, &c. and from all dowers, &c. and particularly the dower of the plain- 
 tiff; and then there is a covenant for further assurance : and, that this shows, 
 that the purchaser relied upon this covenant as his security to indemnify him 
 against dower; and, that it is plain, without question, this is notice of the 
 dower. A man may reasonably take a covenant against such right of dower, 
 and yet rely upon the security of the trust term besides, and may take such 
 covenant against any damages, in respect to any suits by the wife for dower. 
 The purchaser did not purchase here subject to his wife's dower, for he paid 
 a price for the estate exclusive of it. If the estate in his hands had been subject 
 to the dower, then the covenant against it of the husband's would not have 
 signified. But, however, be that as it will, it is similar to that of Vandebendy; 
 for there, the purchaser took two statutes, (with defeasance,) to indemnify the 
 estate from incumbrances, and the wife's dower, and to suffer a recover)' ; and 
 it was insisted upon there, by the counsel, as is here ; but lord Somers said, 
 though a man does take such security, which he does to prevent any damages 
 that may arise, yet that does not preclude him from any favour he is entitled 
 to. Another consideration in this case is, length of time ; for the purchase 
 was made in 1711. The husband died in 1719, and the plaintiff, the widow, 
 never brought dower, or the present bill, till 1737 ; and it appears, that de- 
 fendant, the purchaser, has since made great improvement upon the estate, 
 and therefore it would be very hard, especially after the several cases deter- 
 mined in favour of purchasers, even if there was a hair's breadth of a distinc- 
 tion between this case and that of lady Radnor and Vandebendy, to suffer the 
 plaintiff now to come here for dower. It is said, about 10 years ago plaintiff 
 did claim her dower of the present defendant, which amounted to notice to 
 him of such dower, (which he did not want.) But, however, the making a 
 claim, and then not proceeding directly upon it, shows, that plaintiff was 
 conusant of her right, but would not proceed ; and the purchaser must think, 
 by her delaying so to do, that she would not, and that might bean inducement 
 for him to make such improvements as he has done. Therefore, upon the 
 whole, I think the decree ought to be reversed, and the bill to be dismissed ; 
 but I will not give costs." 
 
 In the above case, Chute, Clarke, and Weldon, for plaintiff, cited Attorney- 
 general and Scot, lord Talbot's time. See Lady Radnor and Vandebendy, 
 Show. P. C. 69. Preced. Chanc. 65. 97. 133. 2 Wms. 632. 
 
 Attorney-general, Brown, Gapper, and Murray, contra, cited the above ca- 
 ses, and Mitchell and Reynolds, at the Rolls, 1730. "Bill was brought for 
 dower, and case was, the husband in 1710, had made a mortgage for bOOL, 
 for the term of 1,000 years, which was assigned to J. S. after the marriage of 
 plaintiff, to secure a further sum. The husband mortgages another estate in 
 fee, and both these mortgages were assigned to defendant ; and, in 1725, de- 
 fendant came to an account with the husband, and likewise came to an agree- 
 ment with him for the purchase of the estate, for the mortgage sum only. 
 Accordingly, the husband conveyed the equity of redemption. One question 
 arose, relating to the estate mortgaged in fee ; and another, in respect to the 
 mortgage for years. And as to the mortgage for years, the master of the rolls 
 said, the doweress should have dower out a term for years, where the inhe- 
 ritance was in the husband, as against the heir of the husband, or against a 
 volunteer ; but it is settled that she shall not as against a purchaser for a 
 valuable consideraiion : and cited the case of lady Radnor and Vandebendy. 
 And he said likewise what was mentioned before, in the principal case, relating 
 to the method of conveyances; but that he could not look upon defendant here 
 as a purchaser, because he could not look upon the method here taken between 
 him and the husband as a purchase, the agreement for the purchase being for the 
 
 mortgage
 
 208. a. J Of Estates L. 3. C. 5. Sect, 337. 
 
 Sect. 337. 
 
 ALSO, if a feoffment be made upon condition, that if the feoff er pay 
 a certaine sum of money to the feoffee, then it shall be lawfull to 
 the feoffor and his heires to enter*; in this case if the feoffor die before 
 the payment made, and the heir will tender to the feoffee the money, such 
 tender is void, because the time within which this ought to be done is past. 
 For when the condition is, that if the feoffor pay the money to the feoffee 
 §c. this is as much to say, as if the feoffor during his life pay the money 
 to the feoffee, £c. and when the feoffor dyeth, then the time of the tender 
 is past. But otherwise it is where a day of payment is limited, and the 
 feoffor die before the day, then may the heir tender the money as is afore- 
 said, for that the time of the tender was not past by the death of the 
 feoffor. Also it seemeth, that in such case (J que en tiel case) where the 
 feoffor dieth 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 heires of the feoffor may enter {fit si le 
 feoffee ceo refuse, f les heires de feoffor poient entrer), frc. And the 
 reason is, for that the executors represent the person of their testator, 
 $c. (1). 
 
 THIS 
 
 * dec. added in L. and M. and Ron. f donques added in L. and M. and 
 J que not in L. and M. or Boh. Roll. 
 
 mortgage money only; therefore relieved the widow. But said, that he would 
 not relieve her as against a purchaser." 
 
 In the late case of Maundrell v. Maundrell, 7 Ves. jun. 567. and 10 Ves. 
 jun. 246. the doctrine, which is the subject of this note, received a full inves- 
 tigation. — [Note 105.] 
 
 (1) The following succinct observations, — 1st. On the right of the executor 
 to receive the mortgage debt ; 2dly. On the application of his personal estate 
 in discharge of mortgage debts : 3rdly. On limiting the right of redemption 
 to persons not entitled to the ownership of the laud, when the mortgage is 
 executed : and 4thly. On the length of possession by a mortgagee, which bars 
 the mortgagor's right of redemption, — may, perhaps, without impropriety, be 
 inserted in this place. 
 
 1st. It has been long settled in equity, that mortgage money is to be paid, not 
 to the heir, hut to the executor : and this holds, though the mortgage be in fee ; 
 though the condition be for payment to the mortgagee, his heirs or executors ; 
 though there be no want of assets ; though there be no bond given, or covenant 
 entered into by the mortgagor, for payment of the money; and, whether the 
 mortgage be forfeited or not, at the death of the mortgagee : for equity considers 
 a mortgage as part of the mortgagee's personalty. See the argument of lord 
 keepertmch in Thornbrough v. Baker, 1 Cha. Ca. 285. and see 2 Cha. Ca.50, 
 51. 187. 224. 2 Vent. 348. 351.— This follows from the principle, which has 
 been already noticed, that, in equity, the lands are only considered as a pledge 
 or security for the money lent, and the money is the principal, if not the sole 
 object. In adopting this rule, courts of equity appear to have been guided by 
 the same reasoning, which in former times made courts of law consider the 
 estates of tenant by statute merchant and tenaut by statue staple merely as 
 
 chattel
 
 L. 3. C. 5. Sect. 337. upon Condition. [208. a. 
 
 chattel interests. These, from their uncertain nature, ought to have been con- 
 sidered as freehold; but being, as Mr. justice Blackstone observes, a security 
 and remedy provided for personal debts, to which debts the executor is entitled, 
 the law has therefore thus directed their succession; as judging it reasonable, 
 from a principle of natural equity, that the security and remedy should be 
 vested in them, to whom the debts, if recovered, would belong. 2 Bl. Com. ch. 
 10. sect. 5. Still however the mortgage is considered as forfeited in law, and 
 the mortgagor can only recover the mortgaged lands back, by the aid .of equity. 
 
 2dly. It also follows, from the circumstance of the mortgaged lands being 
 considered, in equity, as a security or pledge for the mortgage debt, that, after 
 the legal forfeiture, it continues as much a debt as before: Hence, in general, 
 the personal estate of the mortgagor is, upon his decease, to be applied in dis- 
 charge of the mortgage: and this holds equally in favour of the heir; of a gene- 
 ral devisee, or hseres f actus ; and of a devisee of particular lands; and whether 
 there is, or is not, a bond or covenant for payment of the money. Cope v. Cope, 
 1 Salk. 450. Howell v. Price, Prec. in Cha. 423. Pockley v. Pockley, 1 Vern. 
 36. Lord Winchelsea v. Norcliff, 1 Vern. 403. Bartholomew v. May, 1 Atk. 
 487. Galton v. Hancock, 2 Atk. 424. 427. 430. This doctrine has been fre- 
 quently extended to the case of a devise of lands in trust, to pay oif debts; 
 where (particularly if the personalty is bequeathed to the executor) the courts, 
 notwithstanding an express devise of a real estate for the payment of debts, 
 have directed the personalty to be first applied in payment of them. See Gower 
 v. Mead, Prec. in Cha. 2. Dolman v. Smith, ibid. 456. 2 Vern. 740. Hall v. 
 Brooker, Gilb. Rep. 72. See also Bahifield v. Wyndham, Prec. in Cha. 101. 
 Wainwright v. Bendloe, Gilb. Rep. 125. Stapleton v. Colville, Ca. temp. 
 Talbot, 202. — In some cases, however, the courts have considered the land as the 
 primary f una 1 , and the personalty merely as auxiliary. The personal estate 
 is then only a surety for the laud, and will have the same equity as the land is 
 entitled to, when it is pledged as a surety for a personal debt. This doctrine is 
 most pointedly and happily stated, explained, and exemplified by Mr. Cox in 
 his note under page 664 of the second volume of his edition of Peere Williams. 
 — The cases chiefly occur, where a person purchases an estate, subject to a sum 
 of money, which he does not discharge, or leaves part of the purchase money 
 secured on the estate. Speaking generall}-, in these cases, as between the real 
 and personal representatives of the purchaser, the land is the primary fund for 
 the payment of such money : but the purchaser may arrange this at his plea- 
 sure. To prevent doubt on the subject, it is advisable to insert a clause in the 
 purchase deed, expressing the purchaser's intention in this respect. 
 
 odly. It sometimes happens, that by the language of the proviso for redemp- 
 tion, the right to redeem is limited to a person, who had either no interest, or 
 a partial interest only, in the land, at the time of the mortgage; and that, from 
 the circumstance, it becomes doubtful, whether the person, to whom the equity 
 of redemption is thus limited, does not acquire, under the limitation, the bene- 
 ficial ownership of the. equity of redemption ; or, at least, a greater interest in 
 it than he had in the laud before the mortgage. Speaking generally, a strong 
 indication of intention is necessary, to transfer the beneficial ownership of the 
 equity of redemption, from the person entitled to the beneficial ownership of the 
 estate at the time of the mortgage, or to vary his rights; when this is intended, 
 a full recital of the intention should be inserted. — In the same manner, when 
 money is raised by mortgage for the benefit of a person, having a partial in- 
 terest in the land, as where the husband and wife join in a mortgage of her 
 estate, and the money is paid to him, or where the tenant for life and the re- 
 versioner join in a mortgage, and the money is paid to the tenant for life, it 
 should be stated^ whether it be the intention of the parties, that, as between 
 the estate and the person receiving the money, the estate or the person receiv- 
 ing the money is to be debtor for it, and indemnify the other. — But this is 
 
 unnecessary,
 
 208. a. 208. b.J Of Estates L. 3. C. 5. Sect. 337. 
 
 [a] 14 H. 7. 31. r pHIS diversitie is plain and evident, and agreeth with [a] 
 
 15 H. 7. 1. J. our books, and yet somewhat shall be observed hereupon : 
 
 Pt *>n ^ or nere ** a PP earetn 5 that seeing no time is limited, the law 
 
 2 Cro. 244.)' doth appoint the time, and that is during the life of the feoffor. 
 
 (2 Co. 70.) Wherein divers diversities are worthy the observation : 
 
 First, between this case that Littleton here putteth of the 1 
 
 condition of a feoffment in fee, for the paj'ment of money where 
 
 44 E. 3. 9. no time is limited, and the condition of a bond for the pay- 
 
 33 H. 6. 45. ment of a sum of money where no time is limited : for in such 
 
 *g 8 4 b ', g a condition of a bond the money is to be payd presently, that 
 
 9 e! 4! 22*. is, in convenient time, [b] And yet in case of a condition of 
 15 E. 4. 30. a bond there is a diversitie between a condition of an obliga- 2 
 l\f 7* Mb' ^ 0n ' wn ' cu concernes the doing of a transitorie act without 
 
 10 H. 7. 15. ' limitation of any time, as payment of money, delivery of char- 
 14 H. 8. 21. a. ters, or the like, for there the condition is to be performed 
 mil' 6 presently, that is, in convenient time; and when by the con- 
 fol. 30 31. dition of the obligation the act that is to be JSig^done 
 Boothia's case, to the obligee is of his own nature locall, for there ["208."] 
 3 ? ?',?' f!' 4S " the obligor (no time being limited) hath time during I b. 
 
 (1 Roll. Abr. , . ,.» o >■ „ ., e , / , ff v 
 
 43 6 \ his lite to perioral it, as to make a teortmeut, &c. 
 
 (6 Rep. 31. if the obligee doth not hasten the same by request. In case 
 
 Boothie'a case. w here the condition of the obligation is locall, there is also a 3 
 (2°Roii. ^ bl / diversitie, when the concurrence of the obligor and the obligee 
 436, 437.) is requisite, (as in the said case of the feoffment) and when 
 
 [*] Boothie's t he obligor may perforate it in the absence of the obligee, as 
 moc. U pia! n S.' t0 knowledge satisfaction in the court of king's bench, [*] 
 457.)' although the knowledge of satisfaction is locall, yet because 
 
 he may do it in the absence of the obligee, he must do it in 
 convenient time, and hath not time during his life. 
 
 Another diversity is, where the condition concerneth a tran- : 
 sitory or locall act, and is to be performed to the feoffee (A) 
 or obligee, and where it is to be performed to a stranger: as 
 if A. be bound to B. to pay ten pounds to C. A. tenders to 
 G. and he refuseth, the bond is forfeited, as in this Section 
 shall be said more at large. 
 (Vide ant. Another diversitie is between a condition of an obligation, ! 
 
 Sect. 324.) an d a condition upon a feoffment, where the act that is locall 
 
 ^e^'ll^L^ 1S t0 k e ^ one to a stranger, and where to the obligee or feoffor 
 fo. 79. b. ' himself. As if one make a feoffment in fee, upon condition 
 
 Seignior Crom- that the feoffee shall infeoffe a stranger, and no time limited, 
 
 liE* 2*9°" tbe fe °fi" ee sna ^ not Qave time durin g his life to make the 
 
 21 E. 4. 41. feoffment, for then he should take the profits in the mean 
 
 2 F 4 3 4 
 
 19 H. 6. '67. 73. 76. 4 E. 4. 4. b. 26 H. 8. 9. b. (2 Rep. 59. 219. b.) 
 
 time 
 
 (A) Should it not be feoffor? 
 
 unnecessary, if the mortgage is made, by an exercise of a special power; as in 
 that case, the property, as between the persons entitled to it, and the mortga- 
 gor, is always the debtor. 
 
 4thly. It does not appear, that the courts of equity have fixed any determi- 
 nate period of time to be such a length of possession as to bar the mortgagor's 
 right of redemption: but as, in the courts of law, twenty years is a bar to an 
 entry or ejectment, the courts of equity, (consistently with their general sys- 
 tem, that the rules and practice of their courts should bear an analogy to the 
 rules and practice of the courts of law) have inclined to allow the same per ,'o>/ 
 of twenty years to be a bar to a redemption. — See Cook v. Arnham, 3 P. W. 
 283. and the note of the editor at the end of that case. — [Note 106.]
 
 L. 3. C. 5. Sect. 337. upon Condition. [208. b. 209. a. 
 
 time to his own use, which the estranger ought to have, and 
 therefore he ought to make the feoffment as soon as conve- 
 niently he may; and so it is of the condition of an obligation. 
 But if the condition be, that the feoffee shall re-infeoffe the 
 feoffor, there the feoffee hath time during his life, for the 
 privitie of the condition between them, unless he be hastened 
 by request, as shall be said hereafter. 
 
 6 Another diversitie is, when the obligor or feoffor (A) is to 
 enfeoffe a stranger, as hath been said, and when a stranger is 
 to enfeoffe the feoffee or obligee; as if A. enfeoffe, B. of Black 
 
 Acre, upon condition that if G. enfeoffe B. of White Acre, A. ^ d ° JJ 8 ^*' 
 shall re-enter, C. hath time during his life, if B. doth not ' 
 hasten it by request, and so of an obligation. 
 
 7 But in some cases albeit the conditions be collaterall, and is 
 to be performed to the obligee, and no time limited, yet in 
 respect of the nature of the thing the obligor shall not have 
 
 time during his life to perform it. As if the condition of an H E. 3. Dot. 
 obligation be, to grant an annuitie or yearly rent to the Hfgn5"or"(from?" 
 obligee during his life, payable yearly at the feast of Easter, we u' s case . 
 this annuitie 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 similibtts ; and so was it resolved by the judges 
 [*] of the common pleas in the argument of Andrew's case, [*] Vid. Dyer, 
 which I my selfe heard. J* |*- f 1L 
 
 8 Lastly, When the obligor, feoffor, or feoffee is to Boothie's case.) 
 
 [209."] do a sole act or labour, as to go to JS&iP" Rome, Jeru- 
 a. I salem, &c. in such and the like cases, the obligor, 
 feoffor, or feoffee, hath time during his life, and 
 cannot be hastened by request. And so it is if a stranger to 
 the obligation or feoffment were to do such an act he hath 
 time to do it at any time during his life. 
 
 " If 'the executors of the feoffor tender, &c." So as now it ap- (Ant. 206. a.) 
 
 peareth that either the heir of the feoffor, or his executors may g» b * r 5 " f ? 1- , 9 . 6 ' 
 
 (when a day is limited) pay the money and so also may the ad- ca g e- 
 
 ministrator of the feoffor do, if the feoffor dye intestate [/] ; and [/] Vid. Sect. 
 
 this mav the ordinarie do if there be neither executor or admin- ^ 4 - TT , , 
 . ' , , , . , (See Hensloe's 
 
 istrator as hath been said. eai 9 R ep- 35. b. 
 
 " And if the feoffee refuse it, the heirs of the feoffor may enter, 
 &c." Nbta, a tender by the executors or administrators, and a 
 refusall, doth give the heir of the feoffor a title of entrie. And 
 here by this (&c.) is a diversitie implyed when a tender and 
 refusall shall give a third person title of entrie. 
 
 If a man be bound to A. in an obligation with condition to 33 II. 6. 16. 17. 
 
 enfeoffe B. (who is a meer stranger) before a day, the obligor 'i^JP'.W 
 
 doth offer to enfeeoffe B. and he refuscth, the obligation is forfeit, 15 ^ ^ ' 5 ' 6 
 
 for the obligor has taken upon him to infeoff him, and his refusall 22 E. 4. 13. 
 
 cannot satisfie the condition because no feoffment is made; but 32 E - 3 - 
 
 if the feoffment had been by the condition to be made to the 7 ^ r 3 29 ' 
 
 obligee, or to any other for his benefit or behoof, a tender and 9 H. 7. 17. 
 
 refusall shall save the bond, because he himselfe upon the matter 10 n - 7. 14. b. 
 
 35 H. 8. 
 Dier, 56. lib. 5. fol. 23. Lambo's case. (5 Rep. 23. 1 Roll. Abr. 452. 
 Post. 211. a. Ant. 206. a.) 
 
 is 
 
 (A) Instead of feoffor, the icord feoffee is used in the 1th edition, as the sense appears 
 to require.
 
 209. a.] 
 
 Of Estates 
 
 L. 3. C. 5. Sect, 337. 
 
 [/,,] 8 E. 4. 14. 
 2 E. 4. ubi 
 supra. 
 
 19 H. 6. 34. 
 
 (2 Rep. 59. 
 
 1 Roll. Abr. 452. 
 
 1 Rep. 133. b.) 
 
 2 E. 4. Entrie 
 conge, 25. 
 
 (Post. 209. b.) 
 
 (2 Saun. 136.) 
 
 is the cause wherefore the condition could not be performed, and 
 therefore shall not give himself cause of action. But if A. be 
 bound to B. with condition that C. shall enfeoffe D. in this case 
 if C. tender, and D. refuse, the obligation is saved, for the obligor 
 himselfe undertaketh to do no act, but that a stranger shall 
 enfeoffe a stranger. And it is holden in bookes \1i\ that in this 
 case it shall be intended, that the feoffment should be made for 
 the benefit of the obligee. Some to reconcile the bookes seem 
 to make a difference between an express refusall of the stranger, 
 and a readinesse of the obligor at the day and place to make per- 
 formance and the absence of the stranger ; but that can make no 
 difference. I take it rather to be the error of the reporter, and 
 the records themselves are necessary to be seen ; for the law 
 herein is, as it hath been before declared. 
 
 If I. enfeoffe one in fee upon condition to enfeoffe 1. S. and 
 his heires, the feoffee tenders the feoffment to I. S. and he re- 
 fuseth it, the feoffor may re-enter, for by the expresse intent of 
 the condition, the feoffee should not have and retain any benefit 
 or estate in the land, but is as it were an instrument to convey 
 over the land. 
 
 But in that case if the condition were to make a gift in tayle 
 to I. S. and he refuseth it and a tender and refusall is made, 
 there the feoffor shall not re-enter, for that it was intended that 
 the feoffee should have an estate in the land. And so it is if a 
 feoffment be made upon condition that the feoffee shall grant a 
 rent charge to a stranger, if the feoffee tender the grant and he 
 refuseth the feoffor shall not re-enter, because the feoffee was to 
 retain the land ; which points are worthy of due observation. 
 
 Here in the case of Littleton, when the executors make the ten- 
 der, and the feoffee refuseth, albeit the heir be a third person, 
 yet is he no stranger, but he and the executors also are privies 
 in law. 
 
 " The person of the testator, &c." This is to be understood 
 concerning goods and chattels either in possession or in action, 
 and the executor doth more actually represent the person of the 
 testator, than the heir doth the person of the ancestor. For if 
 a man bindeth himself, his executors are bound though they be 
 not named, but so it is not of the heir ; furthermore here the 
 administrator and the ordinary also are implyed, as before hath 
 been said (1). 
 
 Sect, 
 
 (1) But by the 33 H. 8. c. 39. if any person be indebted to the king by 
 recognizance, obligation or other specialty, and die, his heir shall be charged 
 therein, though the word " heir" be not comprised in such recognizance, &c. 
 In the case of Sir Gerard Fleetwood, 8 Rep. 171. lord Coke observes, that the 
 freehold and inheritance of the king's debtor are bound from the time of the 
 debt accrued. If the observation be just, it must by the common law have 
 been immaterial with respect to the king, whether the heir was named in the 
 specialty or not. 
 
 Perhaps the following succinct view of the Prerogative Remedies op 
 THE CROWN, for the Recovery of Debts, — I. At the Common Law : — II. Under 
 the statute of Henry 8 : — III. Under the statutes of Queen Elizabeth ; and 
 under the act passed, for this purpose in the reign of his late Majesty: 
 
 —IV. And
 
 L. 3. C. 5. Sect. 338. upon Condition. [209. a. 
 
 Sect. 338. 
 
 A ND note, that in all cases of condition for payment of a certaine 
 summe in grosse touching lands or tenements, if lawfal tender be 
 once refused, he which ought to tender the money is of this quit, and 
 fully discharged for ever afterwards. 
 
 THIS 
 
 — IV. And of the general effect of these remedies, may not be unacceptable 
 to the reader. 
 
 I. By the Common Lena, execution may be issued, not only against the 
 goods and chattels, but against the lands of the king's debtor : and, for rent 
 reserved on a lease, the king may distrain, not only on the lands comprised in 
 the lease, but on any other lands of his debtor. 
 
 II. By the 33 Hen. 8. c. 39. all bonds executed to the king, are to have the 
 same force, and to be attended with the same remedies, as statutes staple. 
 
 III. By the 13 of Queen Elizabeth, c. 4, the lands of treasurers, receivers, 
 and other accountants to the crown, therein particularly or generally mention- 
 ed, are made liable to execution for debts to the crown, in the same manner, as 
 if the party had acknowledged a recognizance under the statute of Henry 8. 
 A doubt arose upon this statute, whether a sale might be made under it, after 
 the death of the accountant or debtor. To obviate this doubt, the explanatory 
 statute of the. 21th of Elizabeth, c. 3. was passed, by which a power of sale, 
 after the death of the debtor, was expressly given. Afterwards, by an act 
 made in the 39th year of Queen Elizabeth, the explanatory act was repealed, 
 and a new exposition was made of the statute of the 13th Elizabeth, with va- 
 rious new provisions. But the act of the 29th Elizabeth being only tempo- 
 rary, and having expired early in the reign of James I. the explanatory act of 
 the 27th Elizabeth was revived. 
 
 IV. However it fell into disuse, and, in the late reign, when it came to be 
 examined, on occasion of the exertions, made, during lord North's administra- 
 tion, for the recovery of the crown debts, it was found defective. This gave 
 rise to the act of the 25th of his late Majesty, c. 35. by which, the court of 
 exchequer is authorized, on the application of his majesty's attorney general, 
 in a summary way, by motion, to order the estates of crown debtors, which 
 should be extended by any writ of extent, or diem clausit extrcmum, to be 
 sold for payment of the debts. 
 
 V. i. The residt appears to be, that all the freehold lands, which are account- 
 ant to the crown, under the acts, which have been mentioned, has, at the time 
 when he enters into his office, are chargeable with his debts to the crown on 
 account of that office. The case is not altered by his selling them before he 
 becomes indebted, though it be a sale to a bond fide purchaser, for a valuable 
 consideration, and without notice. Sir Christopher Hatton's case, 10 Co. Rep. 
 55. b. The same doctrine holds in respect to the debts of a person, who has 
 executed a bond to the crown. This is the case of all receivers of the laud- 
 tax, as they execute a bond to the crown to account for the money coming to 
 their hands as receivers. It follows, that all their lands are chargeable to the 
 crown from the execution of the bond, and consequently, though they sell them 
 
 Vul. II.3-I2 to
 
 209. a. 209. b.] Of Estates L. 3. C. 5. Sect. 339. 
 
 Vide Sect. m H I S is to be understood, that he that ought to tender the 
 
 sequent. ± money is of this discharged for ever to make any other 
 
 tender; but if it were a dutie before, though the feoffor enter by 
 force of the condition, yet the debt or dutie remayneth. 
 (9 Rep. 79. a.) As if A. borroweth a B^hundred pound of B. and ["209. ~| 
 after mortgageth land to B. upon condition for pay- [ b. 
 ment thereof: if A. tender the money to B. and he 
 refuseth it, A. may enter into the land, and the land is freed 
 for ever of the condition, but yet the debt remaineth, and may 
 be recovered by action of debt. But if A. without any loane. 
 debt, or dutie preceding infeoffee B. of land upon condition for 
 the payment of a hundred pounds to B. in nature of a gratuitie 
 or gift ; in that case if he tender the hundred pound to him 
 according to the condition, and he refuseth it, B. hath no renie- 
 die therefore ; and so is our author in this and his other cases of 
 like nature to be understood. 
 
 Sect. 339. 
 
 ALSO, if the feoffee in morgage before the day of payment ivhich 
 
 should be made to him, makes his executors and die, and his heir 
 
 entreth into the land as he ought, Sj-c. it seemeth 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 trenched 
 
 to 
 
 to a purchaser, at a time when they are not indebted, and have no money be- 
 longing to the crown in their lands ; still, the lands are liable to the crown for 
 their future debts. 
 
 As between the crown and the debtor, the lands in the hands of his trustees 
 are chargeable with the crown debts; and, in the late case of the King v. Smith, 
 it was held that an outstanding legal estate will not protect, even a bond f<l 
 purchaser, for a valuable consideration, without notice, against crown debts. 
 See Mr. Sugden's Law of Vendors, 4th edition, Appendix, No. 15. 
 
 In the case of the King v. Smith, Wightwick's Reports in the Exchequer, 
 p. 39, the question was, whether a simple contract debt to the crown was such 
 a charge or lien on the freehold estate of the debtor, as should bind the land 
 in the "hands of a purchaser from him, without notice and without fraud, if 
 the debts were not recorded at all, or not recorded till after the conveyance. 
 The barons were unanimously of opinion that it was not ; but seem to have 
 considered that the land of such a debtor would be chargeable in the hands of 
 the purchaser, if, at the time of the purchase, the debtor filled a situation 
 notoriously accountable to the crown. 
 
 V. 2. With respect to copyhold lands. — The king cannot extend the copy- 
 hold land of his debtor; Kitchen, 123; Rex v. Budd, sir Thomas Parker, 190. 
 8 Ves. jun. 394, 395. 
 
 V. 3. Leaseholds for years may be taken in execution at the suit of the 
 crown debt; but though on record, the debt of the crown is not a charge or 
 lien on leaseholds for years, until the writ of execution is taken out upon them 
 and delivered to the sheriff. 
 
 Generally speaking, what has been said in this annotation applies equally to 
 the sureties for the debtor to the crown, as to the debtor himself :— and, for 
 many legal consequences, a pergon accountable to the king's debtor is account- 
 able to the king himsolf. — [Note 107.]
 
 L. 1. C. 5. Sect. 339. upon Condition. [209. b. 210. a, 
 
 to the feoffee in manner as a dutie, and shall be intended that the estate 
 was made by reason of the lending of the money by the feoffee, or for 
 some other dutie; and therefore the payment shall not be made to the 
 heir, * as it seemeth, but the words of the condition may be such, as 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, 
 Sfc. there after the death of the feoffee, if he dieth before the day limited, 
 the payment ought to be made to the heir (f le payment doit estre fait 
 al heir) at the day appointed, fyc. 
 
 " p AT such a sum at such a day, &c." Here is implyed, 18 E. 4. fol. 18. 
 
 that this payment ought to be reall, and not in shew or v ^>- 5 - fo1 - 98. 
 appearance. For if it be agreed between the feoffor and the exe- ^h^'s-T 86 ' 
 cutors of the feoffee that the feoffor shall pay to the executors 20 E. 3.' 
 but part of the money, and that yet in appearance the whole sum Account, PI. 70. 
 shall be paid, and that the residue shall be repaid, and accord- ( 5 p< 117- ) 
 ingly at the day and place the whole sum is paid, and after the 
 residue is repaid, this is no performance of the condition, for the 
 state shall not be divested out of the heir, which is a third per- 
 son, without a true and effectual payment, and not by a shadow (5 R ep . 96.) 
 or colour of payment, and the agreement precedent doth guide 
 the payment subsequent. 
 
 And by this Section also it appeareth, that the executors do , Ant 2 op, a 
 more represent the person of the testator, than the heir doth the 9 R e 'p. 39.) ' 
 ancestor; for though the executor be not named, yet 
 
 tQlO.l the Jggg^law appoints him to receive the money, but 
 a. I so doth not the law appoint the heir to receive the 
 money unless he be named. 
 
 " Ought to be made to the heir at the day appointed, &c." And 
 here it also appeareth, that if the condition upon the morgage be 
 to pay to the morgagee or his heires the money, &c. and before 
 the day of payment the morgagee dieth, the feoffor cannot pay 
 the money to the executors of the morgagee : for Littleton saith 
 that in this case the payment ought to be made to the heir. Et vid. li. 5. fo. 96. 
 in hoc casu designatio unius personee est exclusio alterius, et ex- Goodale's case. 
 pressum facit cessare taciturn; and the law shall never seek out P}%' \ E | 1Z - 18 • 
 a person, when the parties themselves have appointed one. But t\ nt \ 47. a.)" 
 if the condition be to pay the money to the feoffee his heirs or 
 executors, then the feoffor hath election to pay it either [m] to r„,i 12 e. 3. 
 the heir or executors. Condition, 8 
 
 If a man make a feoffment in fee upon condition that the * 10 - 
 feoffee shall pay to the feoffor his heirs or assigns 20 pound at ^ ep " 
 such a day, and before the day the feoffor make his executors 
 and dieth, 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 make a feoffment in fee upon condition that if the 
 feoffor pay to the feoffee his heirs or assigns 20 pound before 
 such a feast, and before the feast the feoffee maketh his execu- 
 tors and dyeth, 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 diversitie is this, for that 
 
 in 
 
 * as it seemeth, but the words of the and M. or Boh. 
 condition may be such, as the payment f donqucs added in L. and M. and 
 shall be made to the fair, not in L. Boh.
 
 210. a.] Of Estates L. 3. C. 5. Sect. 339. 
 
 in the first case the law must of necessitie find out assigns, be- 
 (1 Roll. Abr. cause there cannot be any assigns in deed, for the feoffor hath 
 421.) but a bare condition and no estate in the land which he can as- 
 
 sise over. But in the other case the feoffee hath an estate in 
 (Hob. 9.) the land which he may assigne over; and where there may be 
 
 assigns in deed, the law shall never seek out or appoint any as- 
 27 H. 8. 2. si^ns in law. And albeit the feoffee made no assignment of the 
 
 3 & 4 Ph. & estate, yet the executors cannot be assigns, because assigns were 
 Mar. 140. a. Qn j intended by the condition to be assigns of the estate; and 
 (*)Mie. 23 & so was it resolved (*) Mich. 23 & 24 Eliz. by the two chief jus- 
 24 Eliz. in curia tices in the court of wards between Randall and Browne, which 
 p^lalT inter I observed. 
 
 Browne. Vid. But if the condition be to pay the money to the feoffee his 
 
 2 Eliz. Dier, 181. ;h e i rs or assigns, and the feoffee make a feoffment over, it is in 
 PL Com. Chap- tlie e i ec tion of the feoffor to pay the money to the first feoffee or 
 55! VTgoS- to the second feoffee; and so if the first feoffee dyeth, the feoffor 
 ale's case, lib. 5. may either pay the money to the heir of the first feoffee, or to 
 fo. 96, 97. t j ie sec0 nd feoffee, for the law will not enforce the feoffor to take 
 
 OoodSrteaM, knowledge of the second feoffment, nor of the validity thereof, 
 ubi supra. whether the same be effectuall or not, but at his pleasure, and 
 
 (Mo. 243. the nrst feoffee and his heirs are expressly named in the condi- 
 
 Ante 208. a.) .. ..... 
 
 tion(l). 
 
 Sect. 
 
 (1) Hob. 9. Pease and Styleman. — A man was bound to pay 20?. to such a 
 person as he (the obligee) should by his mil appoint. The obligee made J. S. 
 his executor, but made no other appointment. It icas resolved upon demurrer, 
 that the execidor should not have the 20?. for he is only an assignee in law, tcho 
 tahes to the use ofihe testator: but here the condition is in favour of an actual 
 assignee, who takes to his own use. The conusee of a fine leases to the conusor 
 for 99 years, with condition, if the lessee pays to the lessor, his heirs and as- 
 signs, that the uses limited to the conusee and his heirs, by an indenture, should 
 cease: the lessor dies. Lord Nottingham was of opinion, that the uses should 
 not cease by payment to the administrator of the lessor, because he may be an 
 assignee in deed, as here. 11 May, 1659," Sir Andrew Young.— -Lord Nott. 
 MS. notes.— Howe v. Whitebanck. Upon a fine, the use of land was limited 
 to A. for 80 yeas, with a power to A. and his assigns to make leases for three 
 lives, to commence after the determination of that term. A. assigned over to 
 B., B. died, having made his will, and appointed O. his executor. C. assigned 
 over to D. : D. in pursuance of the power, made a lease for life. The question 
 was, whether D. was such an assignee of A. as to have a power to make this 
 lease; or whether i-t should extend only to the immediate assigns of A.? The 
 doubt in this case was the greater, as there had been a devolution upon an 
 executor. The case of Pease and Styleman was cited, where it was said, that 
 an executor or administrator should not in some cases be said to be a special 
 assignee. But all the court seemed to incline to the contrary, and that D. 
 should be called an assignee, well enough for the purpose of making the leases 
 in question, and that so should any person that came to the estate under the 
 first lessee, though there should be twenty mesne assignments. And after- 
 wards, in the Michaelmas term following, judgment was given accordingly — 
 1 Freem. 476.— [Note 108.]
 
 L. 3. C. 5. Sect. 340. upon Condition. [210. a. 
 
 Sect. 340. 
 
 ALSO, upon such case (f sur tiel case) of feoffment in mortgage, a 
 question hath been demanded in what place the feoffor is bound to 
 tender (est tonus % de tender) the money to the feoffee at the day 
 appointed, $c. And some have said, upon the land so holden in mortgage 
 (que sur la terre issint § tenus en 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 (Et ont dit || que si le feoffor soit 
 ^[sur le terre la prest a paier le money) to the feoffee at the day set, and 
 the feoffee be not then there, then (^adonque) the feoffor is quit and 
 excused of the payment of the money, for that no default is in him. But 
 it seemeth to some that the law is contrary, and that default is in him ; for 
 he is bound to seek the feoffee if he be then in any other place (s'il soit 
 adonque en ** ascun auter lieu) within the realm of England. As if a 
 man be bound in an obligation of 20 pound upon condition endorsed upon 
 the same obligation, that if he pay to him to ivhom the obligation is made 
 at such a day 10 pound, then (ffadonque) the obligation of 20 pound 
 shall lose his force, and be holden for nothing ; in this case it behooveth 
 him that made the obligation to seek him to whom the obligation is made 
 if he be in England, and at the day set to tender unto him the said 
 10 pound, otherwise he shall forfeit the sum of 20 pound comprised within 
 the obligation, |||| §c. And so it seemeth in the other case, <fc. And albeit 
 that some have said that the condition is depending upon the land, yet this 
 proves not that the making of the condition to be performed, ought to be 
 made upon the land, $c. no more than if the condition were that the feoffor 
 ai such a day shall do some speciall corporall service to the feoffee, not 
 naming the place ivhcre such corporall service shall be done. In this case 
 the feoffor ought to do such corporall service at the day limited to the feoff- 
 fee, in what place soever of England that the feoffee be, if he will have 
 advantage of the condition, $c. So it seemeth in the other case. Audit 
 seems to them, that it shall be more properly said, that the estate of the 
 land is depending upon the condition, * than to say (que a f* dire) that 
 the condition is depending upon the land, 8fc. Sed qiuere, &c. 
 
 " A LSO, vpon such case of feoffment in mortgage, a question 
 hath been demanded, &c." Here and in other places, that 
 I may say once for all, where Littleton maketh a doubt, and 
 setteth down severall opinions and the reasons, he ever setteth 
 down (*) the better opinion and his own last, and so he doth (•) Vid. Sect. 
 
 here. 170.302.375.' 
 
 -j- sur — en L. and M. and Roh. ** ascun— un, L. and M. and Roh, 
 
 % de — a, L. and M. and Roh. ff que added in L. and M. and 
 
 § tenus not in L. and M. Roh. 
 
 || que not in L. and M. but in Roh. \\ &c. not in L. and M. but in Roh. 
 
 ^[ sur le terre la not in L. and M. * &c. added in L. and M. and Roh. 
 
 or Roh. f* est a taut, added in L. and M. 
 
 ^ que added in L. and M. and Roh. and Roh.
 
 210. b. 211. a. J Of Estates L. 3. C. 5. Sect. 340. 
 
 here, [n] For at this day this doubt is settled, having 
 
 been oftentimes resolved, that seeing the Jg® 03 money is |~210.~J 
 
 [»i] 8 E. 4. 4. & 
 14. 11 H. 4. 62. 
 17 Ass. p. 2. 
 17 E. 3.2. 
 21 II. 7. 
 Keylway. 74 
 
 b. 
 
 in Borough's 
 case. 21 E. 4. 6. 
 (5 Rep. 95. 
 
 2 Cro. 423. 
 
 3 Cro. 688.) 
 
 18 E. 4. 2, 
 
 19 R. 2. 
 Det. 178. 
 (Ant. 206. b. 
 207. a.) 
 
 (1 Roll. 453.) 
 (Ant. 208.) 
 [b] 2 E. 4. 3. 
 
 21 E. 3. 10. 
 
 20 H. 6. 31. 
 27 E. 3. 34. 
 
 21 Ass. 13. 
 7 E. 4. 4. 
 21 E. 4. 17. 
 
 20 E. Avowrie, 
 113. 45 E. 3. ! 
 
 m 
 
 a sum in grosse, and collaterall to the title of the land, |_ 
 that the feoffor must tender the money to the person 
 of the feoffee according to the later opinion, and it is not 
 16EL B-ier. 3. 7. su ffi c i en t for him to tender it upon the land; otherwise it is of 
 a rent that issueth out of the land. But if the condition of a 
 bond or feoffment be to deliver twenty quarters of wheat, or 
 twenty load of timber, or such like, the obligor or feoffor is not 
 bound to carry the same about and seek the feoffee, but the 
 obligor or feoffor before the day must go to the feoffee, and 
 know where he will appoint to receive it, and there it must be 
 delivered. And so note a diversitie between money and things 
 ponderous, or of great weight. If the condition of a bond or 
 feoffment be to make a feoffment, there it is sufficient [6] for him 
 to tender it upon the land, because the state must pass by liverie. 
 
 " Within the realme of England (1) §." For if he be out of the 
 realm of England he is not bound to seek him, or to go out of 
 the realme 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. 
 
 " Some speciall corporall service to the feoffee." This is a 
 diversity between a rent issuing out of land, and a corporall 
 service issuing out of land, for it sufficeth (as hath been 
 O^T" said) that the rent be tendered upon the land (1) 
 (A), out of which it issueth. But homage or any other 
 special corporal service must be done to the person of 
 the lord, and the tenant ought by the law of conveniency to 
 seek him to whom the service is to be done in any place within 
 England. 
 
 46 E. 3. Barre, 216. Mich. 22 & 23 Eliz. in Banke le Roy, 
 which I myself heard anil observed. 19 Eliz. Dier, 354. Lib. 8. fol. 92. in 
 France's case. (Cro. Jac. 9.) 
 
 If a man be bound to pay twenty pound at any time during his 
 life at a place certain, the obligor cannot tender the money at 
 
 the 
 
 (A) The preceding reference to lord Nottingham's note bcloic seems misvlaced, as the note 
 is here irrelevant. It appears to relate to the commentary on Sect. 341. 
 
 (1) § If A. recites by his deed, that whereas he is indebted to B in 100?. 
 and he covenants with B. that the 100?. shall be paid and delivered to B. or 
 his assigns at Rotterdam, in Holland, by C. without any suit at law, upon the 
 first requisition which shall be made of it ; in this case, the demand may be in 
 any other place besides Rotterdam : for though payment is to be made at 
 Rotterdam, yet the demand may be made in any place ; and if the demand be 
 made in England, or at Dort, which is 10 miles from Rotterdam, it is good, 
 for he ought to have reasonable time to pay it after the demand, having respect 
 to the distance of the place. But if the demand should be limited to Rotter- 
 dam, perhaps he would never come there, and so the covenant would be of no 
 effect. — Mich. 1650, between Halsted and Vanleyden, adjudged upon a special 
 verdict. 1 Roll. Abr. 443. — In Brownlow, 46, it is laid down, that, if money 
 be appointed by will to be paid, and no place limited for the payment, there 
 must be a request to pay the meney, and the executor is not bound to seek 
 him to whom it is to be paid. — [Note 109.] 
 
 (1) Otherwise when the lease is void ; for there no acceptance of rent after- 
 wards can make it have continuance. Post. 215. a. Lord Not. MS. — [Note 110.]
 
 L. 3. C. 5. Sect. 341. upon Condition. [211. a. 211 . b. 
 
 the place when he will, for then the obligee should be bound to 
 
 perpetual attendance, and therefore the obligor in respect of 
 
 the incertainty of the time must give the obligee notice that on 
 
 such a day at the place limited, he will pay the money, and then (i Roll. Abr. 
 
 the obligee must attend there to receive it : for if the obligor 453. Ant - 206 - 
 
 then and there tender the money, he shall save the penaltie of '' 
 
 the bond for ever. 
 
 The same law it is if a man make a feoffment in fee upon con- 18 Eliz. 
 dition, if the feoffor at any time during his life pay to the feoffee Dyer ' 354, 
 twenty pound at such a place certaiue, that then, &c. In this ( 2 Re P- 59 - 
 case the feoffor must give notice to the feoffee when he will pay ° Rep- 64 ^ 
 it, for without such notice as is aforesaid, the tender will not 
 be sufficient. But in both these cases if at any time the obli- (8 Rep. 92. 
 gor or feoffor meet the obligee or feoffee at the place, he may o^ro^un 3 ' 
 tender the money. ' ' 
 
 If A. be bound to B. with condition that C. shall enfeoffe D. (Hob. 51. 
 on such a day, 0. must give notice to D. thereof, and request * ? o11 " A br " 463, 
 him to be on the land at the day to receive the feoffment, and 
 in that case he is bound to seek D. and to give him notice. 
 
 " To tender (de tender)." or tendre, is a word common both (2 E. 4. 3 & 4.) 
 to the English and French, in Latine off 'err e ; and in that sense, 
 and with that Lati/nv/ord it is alwayes used iu the common law, 
 Vide Sect. 514, the tender of the halfe marke. And before, 
 Sect. 333, 334. 337. 
 
 rail. j ^ Sect. 341. 
 
 1RUT if a feoffment in fee be made, reserving to the feoffor a yearely 
 rent, and for default of "payment a re-entrie, $c. in this case the 
 tenant needeth not (en cest case il ne besoigne * le tenant) to tender the 
 rent, when it is behind, but upon the land, because this is a rent issuing 
 out of the land, which is a rent seek (que f est rent secke). For if the 
 feoffor be seised once of this rent, and after he commeth upon the land, 
 cjre. and the rent is denied him, he may have an assise of Novel Dissei- 
 sin. For albeit he may enter by reason of the condition broken, $c. yet 
 he may choose either to relinquish his entrie, or to have an assise, fyc. 
 And so there is a diversitie, as to the tender of a rent ivhich is issuing 
 out of the land, and of the tender of another sum in g?'osse, which is 
 not issuing out of any land. 
 
 HERE the diversitie appeareth between a sum in gross, 
 and a rent issuing out of the land, as hath been touched 
 before. 
 
 " Yet he may choose, either to relinquish his entrie, or to have 
 
 an assise." 
 
 Here it appeareth, that if the condition be broken for non- (Ant. 145. n.) 
 
 payment of the rent, yet if the feoffor bringeth an assise for the 14 E. 3. Entro 
 
 congeable, 45. 
 (14 Ass. 11. 45 Ass. 5. G II. 7. 3. 17 E. 3. 73, PI. Com. 133. 22 H. 6. 57. 
 (3 Rep. 64, G5.) (1 Roll. Abr. 475. Post. 373. a. Noy, 7.) 
 
 rent 
 * a added in L. and M. and Roh. f ceo added in L. and M. and Roh.
 
 211. b. 212. a. j Of Estates L. 3. C. 5. Sect. 342. 
 
 rent clue at that time, lie shall never enter for the condition 
 broken, because he affirmeth the rent to have a continuance, 
 and thereby wayveth the condition. And so it is if the rent had 
 had a clause of distresse annexed unto it, if the feoffor had 
 destrained for the rent, for non-payment whereof the condition 
 was broken, he should never enter for the condition broken, 
 but he may receive that rent and acquite 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 affirmeth the lease to have a continuance (1). 
 
 (1 Roll. Abr 445, 446.) g^ 3^. 
 
 (2 Cro. 13, 14.) 
 
 A ND therefore it will be a good and sure thing for him that he will make 
 such feoffment in mortgage, to appoint an especial place (2) where the 
 money shall be paid, and the more speciall that it be put, the 
 jfgg^* better it is for the feoffor. As if A. infeoffe B. to have to TQlQ.l 
 him and to his heires, vpon such condition, that if A. pay to B. |_ a. J 
 en the Feast of Saint Michael the Arch- Ang ell next comming, 
 in the cathedrall church of St. Paul's in London, within four hours next 
 before the hour of noon of the same Feast, at the Hood loft of the Mood 
 of the North door (a le Rood loft de * le Rood de le North doore) 
 within the same church, or at the tomb of Saint Frkenwald, or at the 
 door of such a chappell, or at such a pillar, within the same church, that 
 then it shall be lawful to the aforesaid A. and his heires to enter, §c. in 
 this case he needeth not to seek the feoffee in any other place, nor to 
 be in any other place, but in the place comprised in the indenture, nor 
 to be there longer than the time specified in the same indenture, to ten- 
 der or pay the money to the feoffee, ^c. 
 
 HERE is good counsell and advice given, to set down in 
 conveyances every thing in certaintie and particularitie, for 
 certaintie is the mother of quietness and repose, and incertaintie 
 the cause of variance and contentions ; and for obtaining of the 
 one, and avoiding of the other, the best meane is, in all assur- 
 ances, to take counsell of learned and well experienced men, and 
 not to trust only without advice to a precedent. For as the rule 
 is concerning the state of a man's bodie, Nulhim medieamentum 
 
 est 
 * le Rood de le not in L. and M. or Roll. 
 
 (1) Though he received part of the rent, he may re-enter for the residue 
 that is unpaid. 10 H. 7. 24. a.— [Note 111.] 
 
 (2) Upon the marriage of lord Anglesea with a daughter of lady Dorchester, 
 a term of years was limited in his lordship's Irish estates, for raising 12,000/. 
 for the portions of the daughters. There was but one daughter of the mar- 
 riage. It was made a question whether the portion was to be paid in England, 
 without any deduction or allowance for the exchange from Ireland to England ? 
 It was determined in Chancery, that the portion ought to be paid in England, 
 where the contract was made and the parties resided, and not in Ireland ; 
 because it was a sum in gross, and not a rent issuing out of land. Vin. Abr. 
 vol. 5. 209.— [Note 112.]
 
 L. 3. C. 5. Sect. 343-44. upon Condition. [212. a. 212. b. 
 
 est idem omnibus, so in the state and assurance of a man's land, 
 Nullum exemplum est idem omnibus. 
 
 " At the tomb of Saint Erkenwald, &c." This Erkenwald 
 was a younger son of Anna, king of the East Saxons, and was 
 first abbot of Chersey in Surrey which he had founded, and after 
 bishop of London, a holy and devout man, and lieth buried in 
 the south isle, above the quire in Saint JPavl's church, where the 
 tomb yet remaineth, that Littleton speaketh of in this place : he 
 flourished about the yeare of our Lord 680. 
 
 The residue of this Section and the (&c.) are evident. 
 
 Sect. 343. 
 
 ALSO, in such case, where the -place f of payment is limited, the 
 
 feoffee is not bound (le feoffee n'est J oblige) to receive the payment 
 
 in any other place but in the place so limited. But yet if lie do receive 
 
 the payment in another place, this is good enough and as strong for the 
 
 feoffor as if the receipt had been in the same place so limited, fyc. 
 
 HEREBY it appeareth that the place is but a circumstance ; (6 Rep. 46. b. 
 and therefore if the obligee receiveth it at any other place, 47, Pio. 69. b. 
 it is sufficient, though he be not bound to receive it at 5 Rep- ' 
 
 t 313.1 any other place. f^T And so it is if the money be to 
 b. J be paid on such a feast, yet if the money be tendred 
 and received at any time before the day, it is suffi- 
 cient (1). 
 
 Sect. 344. 
 
 ALSO, in the case of feoffment in mortgage, if the feoffor pay eth to 
 
 the feoffee a horse, or a cup of silver, or a ring of gold, or any such 
 
 other tiling in full satisfaction of the money, and the other receiveth it, 
 
 this is good enough, and as strong as if he had received the sum of 
 
 money, 
 
 f of payment not in L. and M. % pas added in L. and 31. and 
 or lloh. Roh. 
 
 (1) It hath been formerly doubted, Whether the defendant, in such a case, 
 ought not to plead specially? See 1 Cro. 142. S. C. 1 Ander. 198. S. C 
 Mo. 267. S. C. Ow. 45. Savil. 96. 1 Leon. 311. But now this point is 
 settled; for per 4 Annce, cap. 16. sect. 12. if the obligor, his heirs, executors, 
 and administrators, have, before the action brought, paid to the obligee, his 
 executors or administrators, the principal and interest due by the condition of 
 the bond, though such payment was not strictly made according to the con- 
 dition, yet it may be pleaded in bar of such action, and shall be as effectual 
 a bar thereof as if the money had been paid at the day and place, according 
 to the condition, and had been so pleaded. Note to the 11th edition. — 
 [Note 113.]
 
 212. b. 213. a.] Of Estates L. 3. C. 5. Sect. 344. 
 
 money, though the horse or the other thing were not of the twentieth part 
 of the value of the sum of money, because that the other hath accepted 
 it in full satisfaction*. 
 
 19 E. 
 47 E. 
 22 E. 
 37 H. 
 Li. 9. 
 
 24. 
 24. 
 
 26. 
 78. 
 
 (Dyer, 1.) 
 
 3 H. 7. 4. b. 
 9 H. 7. 16. 
 
 11 H. 7. 20, 21. 
 4. 1. b. 
 3. 
 4. 
 6. 
 fo. 
 
 Peytoo's case. 
 (1 Roll. Rep. 
 296.) 
 
 12 H. 4. 23. 
 
 * Peytoe's case 
 ubi supra. 
 
 (Ant. 207.) 
 
 4 II. 7. 4. Dy. 
 35 H. 8. 56. 
 27 H. 8. 1. 
 
 (Ant. 208. b.) 
 
 Lib. 5. fo. 117. 
 Pinnel's case. 
 
 26 H. 6. tit. 
 Barre, 37. 
 (Sid. 44. Post. 
 373. a. Mo. 47.) 
 
 30 E. 3. 23. 
 (Hob. 68, 69.) 
 
 11 R. 2. tit. 
 Barre, 3. 43. 
 (I Roll. Abr. 
 470. 604.) 
 (Noy, 110. 
 
 5 Rep. 117.) 
 37 H. 6. 26. 
 46 E. 3. 33. 
 34 H. 6. 17. 
 
 12 H. 8. 1. b. 
 
 HEREUPON are many diversities worthy of observation. 
 First, there is a diversitie, when the condition is for pay- 
 ment of money; and when for the deliverie of a horse, a robe, 
 a ring, or the like : for where it is for payment of money, there 
 if the feoffee or obligee accept an horse, &c. in satisfaction, this 
 is good : but if the condition were for the deliverie of a horse, 
 or robe, there, albeit the obligee or feoffee accept money or any 
 other thing for the horse, &c. it is no performance of the con- 
 dition. The like law is, if the condition be to acknowledge a 
 recognizance of twentie pounds, &c. 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 collaterall condi- 
 tions, though the obligee or feoffee himself accept it. 
 
 Secondly, in case when the condition is for payment of money, 
 there is a diversitie when the money is to be payd to the partie, 
 and when to an estranger; for when it is to be payd to an 
 estranger, there if the stranger accept an horse or any collaterall 
 thing in satisfaction of the money, it is no performance of the 
 condition, because the condition in that case is strictly to be 
 performed. But if the condition be, that a stranger shall pay 
 to the obligee or feoffee a sum of money, there the obligee or 
 feoffee may receive a horse, &c. in satisfaction. 
 
 Thirdly, where the condition is for payment of twentie 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, by reason the deed amounteth to an 
 acquittance of the whole. If the obligor or lessor pay a lesser 
 sum, either before the day or at another place than is limited by 
 the condition, and the obligee or feoffee receiveth it, this is a 
 good satisfaction. 
 
 Fourthly, not only things in possession may be given in satis- 
 faction (whereof Littleton putteth 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. 
 
 If the obligor or feoffor be bound by condition to pay 
 an hundred markes at a certaine J^ST" day, and at the T213 
 day the parties do account together, and for that the |_ a. 
 feoffee or obligee did owe twentie pound to the obligor 
 or feoffor, that the sum is allowed, and the residue of the hun- 
 dred markes paid, this is a good satisfaction, and yet the twenty 
 pound was a chose in action, and no payment was made thereof, 
 but by way of retainer or discharge (1). 
 
 "In 
 * &c. added in L. and M. and Boh. 
 
 ] 
 
 (1) In Boll. Bep. 296. it is said, that the reason why a collateral thing cannot 
 be satisfied with money, or other collateral thing, is, because the collateral 
 
 thing
 
 L. 3. C. 5. Sect. 345. upon Condition. [213. a. 
 
 " In full satisfaction." JSFota, in satisfaction and in full satis- 
 faction is all one. 
 
 Sect. 345. 
 
 ALSO, if a man infcoffe an other * upon condition, that he and his 
 heirs shall render to a stranger and to his heirs a yearly rent of 20 
 shillings, §c. and if he or his heirs fail of payment thereof, that then it 
 shall be laivfull to the feoffor and his heirs to enter, this is a good con- 
 dition: and yet in this case, albeit such annuall payment be called in 
 the indenture a yearly rent, this is not properly a rent. For if it should 
 be a rent, it must be rent service, rent charge, or a rent secke, and it is 
 not any of these (et f il n'est ascun de eux). For if a stranger were 
 seised of this, and after it were denied him, he shall never have an as- 
 sise of this, because that it is not issuing out of any tenements (pur ceo 
 que il n'est J pas issuant || hors d'ascun tenements); and so the stranger 
 hath not any remedy, if such yearly rent be behind in this case, but 
 that 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 aivay for 
 ever. And so such a rent is but as a paine (et issint tiel rent § n'est 
 forsque un peine) set upon the tenant and his heirs, that if they will 
 not pay this according to the form of the indenture, they shall lose their 
 land by the entrie of the feoffor or his heirs for default of payment. 
 And in this case it seemeth that the feoffee and his heirs ought to seek 
 the stranger and his heirs if they be within England, _j. because there is 
 no place limited where the payment shall be made, and for that such 
 rent is not issuing out of any land (et pur ceo que tiel rent n'est pas 
 issuant J| hors d'ascun terre), Sfc. 
 
 11 QIIALL render to a stranger a yearly rent, &c." (Dr. and Stud. 
 
 This reservation is merely void [a] for the reasons hereafter ° a ?* T ?N 8 
 in this section alledged by Littleton, and also for that no estate f"_ 70 ' yi. 
 moveth from the stranger, and that he is not partie to the deed. (Ho. 243. sera 
 And albeit it be a voyd reservation, and can be no rent, and ^ onin , cas ';i e 
 the words of the condition be, that if the feoffee or his heirs fail c^'cm. 288.^ 
 of payment of it, (that is of the annuall rent) that then, &c. yet Ant. 148. b.) 
 it appeareth that the condition is good, and annuall rent shall 
 be taken for an annuall sum of money in grosse, and not in the 
 proper signification thereof, viz. to be a rent issuing out of land, 
 which is to be observed, that words in a condition shall be taken 
 
 out 
 
 * m /ee added in L. and M. and Rob. f because there is no place limited 
 
 f que added in L. and M. and Roh. where the payment shall be made, and 
 
 J pas not in L. and M. not in L. and M. or Roh. 
 
 j| hors not in L. and M. JJ hors not in L. and M. or Roh. 
 § n'est — L. and M. and Roh. 
 
 thing is not due, and so no contract can be made of it till the day of payment ; 
 and that the reason why money may be satisfied by a collateral thing is, be- 
 cause it is of certain value. — [Note 114.]
 
 213. a. 213. b.] 
 
 Of Estates L. 3. C. 5. Sect. 346. 
 
 out of their proper sense, ut res magis valeat quam pereat, and 
 [6] 6 E. 2. Entr. so in like cases it is holden [h] in our books. 
 
 cong. 55. reci- 
 
 pere. 8 Ass. 34. Revertere. 
 
 (1 Rep. 76. 
 Godbolt, 443.) 
 
 (Ant. 14S. a. 
 S*ct. 221.) 
 
 [c] 18 E. 2. 
 Ass. 3S1. 
 26 H. 8. 2. 
 
 13 E. 2. Feoff- 
 ments & Faits, 
 103. 
 31 Ass. pi. 31. 
 
 [d] Vide Sect. 
 384. 
 
 [T] 
 
 But if A. be seised of certain lands and A. and B. joyn in a 
 feoffment in fee, reserving a rent to them botb and their heirs, 
 and the feoffee grant that it shall be lawfull for them 
 and their heirs to distrein for JSSiP'the rent, this is a 
 good grant of a rent to them both, because he is partie 
 to the deed, and the clause of distress is a grant of 
 the rent to A. and B. as it appeareth before in the chapter of 
 rents. But if B. had been a stranger to the deed, then B. had 
 taken nothing. And upon this diversitie are all the books [c], 
 which prima facie seem to vary, reconciled. 
 
 " For if it should be a rent, it must be rent service, rent 
 charge, or a rent secke, and it is not any of these." This is a 
 good logicall argument & divisione, & argumcntum a divisione 
 est fortissimum in lege, [d] Littleton useth this argument else- 
 where, where see more of this matter. 
 
 "For default of payment?' Note here, seeing it is but a 
 sum in grosse, there need no demand of the rent; for Littleton 
 here saith, that the feoffee ought to seek the person of the 
 stranger to pay him the sum of money, because it is a sum in 
 grosse and not issuing out of the land. 
 
 Sect. 346. 
 
 A ND here note tivo things: one is, that no rent (which is properly 
 said a rent) may 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 it may be reserved (& en nul || maner § il poit estre 
 reserve) to any strange person. But if tivo jointenants make a lease 
 by deed indented, reserving to one of them a certain yearly rent, this is 
 good enough to him to whom the rent is reserved, for that he is privie 
 to the lease, and not a stranger to the lease, $c. 
 
 (Hob. 130. " I 1 the feoffor, donor, &c. or to their heires." Hereby it may 
 
 2 Roll. Abr. 447. -*- seem that if a man make a feoffment, gift, or lease, that 
 8 Re ^l (omitting himself) he may reserve a rent to his heirs (1). But 
 
 Ant. 39. b.) Littleton 
 
 (omitting himself) he may reserve a rent to his heirs (1). 
 
 Li 
 
 || auter added in L. and M. and Koh. § il not in L. and M. or JRoh. 
 
 (1) Ph. 107. If a man leases, rendering rent to the heir, it is void ; for the 
 heir takes as purchaser, and is quasi a stranger. Hob. 130. Oats v. Frith. 
 Father seised in fee and son join in a lease to commence after tlie death of the 
 father, rendering rent to the son, and dies, the reservation was adjudged void; for 
 though the son proves heir by the event, that does not mend the case: but if the 
 reservation had been to the heir of the lessor, omitting the lessor, it would have 
 
 baen
 
 L. 3. C. 5. Sect. 346. upon Condition. [213. b. 214. a. 
 
 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 [e] in our books, that a man 01 5E.3. 27, 
 
 may make a feoffment in fee reserving a rent of forty .^" . 161 , 
 
 T214:. "| shillings to the feoffor for term of his life, and £€gr* after (io Rep. ioc. 
 
 a. | his decease, a pound of comyne to his heirs, that this Hob. 130.) 
 
 is good. ( Ant 47 - a -) 
 
 If a man make a fcoffemeut in fee, reserving a rent to him or 
 
 his heirs, it is good [/] to him for term of his life, and void to [/] Lib. 5. 
 
 his heir. £ L „ U *\ 
 
 i( „ Mollone s case. 
 
 been good ;for though (he rent never was in the father to demand, yet the son wo 
 take it; not as a purchaser, but as a rent inherent in the root of the reversi 
 which he has by descent from his father ; and in this sense the rent itself icas in 
 the father, viz. to release {by the word rent, but not action) though not to ask. So 
 note the difference (says Hobari) when in such a lease the rent is reserved to the 
 heir first, omitting the ancestor, which is good, and where an annuity or warranty 
 is granted against the heir, omitting the ancestor, which is not good. It appears 
 in the case of Littleton, that though the reservation to a stranger bebad to carry any 
 it ut to the stranger, yet it xcillbe good to the lessor, and that not only during his 
 life, but generally during all the term ; for when it is said, rendering to I. S. the 
 words I. S. shall be void, in the same manner as if he had said, rendering rent 
 generally : because, 1st. If a man leases, rendering rent to him and a stranger, it is 
 good to him clearly, and void to the stranger. 31 Ass. 30. Idly. When a man 
 leases, rendering rent to him and his heirs general, yet the laio will direct it to an 
 issue who is not his heir general, merely for congruity s sake. Dyer, 115. b. sir 
 Thomas Wyatt's case, and before 12. b. Difference between a lease reserving rent 
 to I. S. and a lease upon condition that I. S. shall re-enter if the rent be in arrear, 
 for there neither shall enter ; not I. S. because he cannot by law ; not the lessor, 
 because there are no words to give re-entry to any beside I. S. But in the case 
 of Doctor and Student, feoffment upon condition that he shallpay 201. to I. S. and 
 that otherwise 1. S. shall re-enter ; there, though I. S. cannot re-enter, the foe ff or 
 can, for there the condition was created by the first words : and though he intends 
 the advantage of this to I. S. it does not signify. So 28 H. 8. Dyer, 33. Devise 
 to theprior of St. B. so that he pays to the Dean and Chapter of St. Paul's, and 
 that if he does not so, the Dean and Chapter shall have it, that is a void condition 
 to make it a remainder, but it is good for the devisor to re-enter. Difference 
 between a rent upon a lease and a rent upon a feoffment : in the last case rent 
 would be void to a stranger, and yet not good to the feoff or , because the law docs 
 not create it, and it is not so reserved; but the case of a feoffment is like to a grant 
 of rent to I. S. and that if it be in arrear that I. D. shall distrain, there the dis- 
 tress is of no value, 40 Ass. 26. But here the words are sufficient to create a rent, 
 and in an entire clause, part may be void. 4 E. 4. Obligation to I. S. payable to 
 T. D. it is good to I. S. Difference where the repugnancy of words appears, as 
 here, and where it does not: as a release of all actions which I have as executor, 
 and I have none as executor ; this is void, because it does not appear. 22 H. 7. 
 Kel. 83. b. Cestuy que use leases, rendering rent to himself , and dies; theheir 
 shall have the rent. Yet in 5 H. 7. 5 b. the rent, with the reversion, goes to the 
 feoffees, though reserved to the cestuy que use ; yet in law the feoffees are donors; 
 so it is, in effect, the feoffees lease, rendering rent to the cestuy que use, it if g<»n{ 
 for themselves, xohich is stronger. Sir Geo. makes a feoffment to the use of him- 
 self for life; remainder to William Huntley his son and heir apparent and his 
 heirs : sir Geo. and William jo in in a lease for years, rendering rent to sir Geo. 
 his heirs and assigns : sir Geo. dies. Resolved, that the reservation and the rent 
 are determined; for William is not in as heir, and therefore he cannot have the 
 rent. Huntley's case, Palm. 435. Lord Nott. MSS. — [Note 115.]
 
 214. a.] Of Estates L. 3. C. 5. Sect. 347. 
 
 " But iftwojointenants make a lease by deed indented, &c." (1) 
 
 5 E. 4. 4. a. This case being by deed indented, is evident, and it hath been 
 
 2 J. H "q - 16 *-o touched before; but if that two joyntenants without a deed in- 
 
 f Post. 318. a. ' dented make a lease for life, reserving a rent to one of them, it 
 
 Ant. 47. a.) shall enure to them both in respect of the joynt reversion. And 
 
 so it is of a surrender to one of them, it shall enure to them 
 
 both. 
 
 (Ant. 192. a. If two joyntenants, the one for life, and the other in fee, joyne 
 
 C Rep. 15. in a lease for life, or a gift in tayle, reserving a rent, the rent shall 
 
 Ant - 4 2. a- 45. a. enure ^ them both; for if the particular estate determine, they 
 
 shall be joyntenants again in possession. But if tenant for life, 
 
 and he in the reversion joyn in a lease for life, or a gift in taile 
 
 by deed, reserving a rent, this shall enure to the tenant for life, 
 
 only, during his life, and after to him in the reversion, for every 
 
 Vide Sect. 58. 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, 
 
 [g] Mich. 36 and after of him in reversion, and so it was holden [</] in the 
 
 & 37 Eliz. King's Bench. 
 
 Sect. 347. 
 
 rpHE second thing * is, that no entry or reentry [which is all one) 
 may be reserved or given (que nul entrie ou reentrie (que est tout 
 un) t poit etre reserve ne done) to any person, but only to the feoffor, or 
 to the donor, or to the lessor, or to their heires: and such reentrie (& tiel 
 % reenter) cannot be given to any other person. For if a man letteih 
 
 land 
 
 * is not in Boh. but in L. and M. J reenter — rent in L. and M. and 
 
 + ne added in L. and M. and Roh. Roh. 
 
 (1) The principle which gave rise to this rule is, that rent is considered as 
 a retribution for the land, and is therefore payable to those who would other- 
 wise have had the land. — It is to be observed, that remainder-men in a settle- 
 ment, being, at first view, neither feoffors, donors, lessors, nor the heirs of 
 feoffors, donors, or lessors, there seems to have been, for some time after the 
 statute of uses, a doubt, whether the rents of leases made by virtue of powers 
 contained in settlements, could be reserved to them. In Chudleigh's case, 
 1 Rep. 139. it is positively said, that if a feoffment in fee be made to the use of 
 one for life, remainder to another in tail, with several remainders over, with a 
 power to the tenant for life to make leases, reserving the rent to the reversion- 
 ers, and the tenant for life accordingly makes leases, neither his heirs nor any 
 of the remainder-men shall have the rent. But in Harcourt v. Pole, 1 Anders. 
 273. it was adjudged, that the remainder-men might distrain in these cases. And 
 in sir Thomas Jones, 35. the dictum in Chudleigh's case is denied to be law. 
 The determination in Harcourt v. Pole will appear incontrovertibly right, if we 
 consider that both the lessees and remainder-men derive their estate out of the 
 reversion, or original inheritance of the settler : and therefore the law, to use 
 sir Edward Coke's expression in Whitlock's case, 8 Rep. 71. will distribute the 
 rent to every one to whom any limitation of the use is made. — [Note 116.]
 
 L. 3. C. 5. Sect. 347. upon Condition. [214. a. 214. b. 
 
 land (Car si home lessa || terre) to another for term of life by indenture, 
 rendring to the lessor and to his heires a certain rent, and for default of 
 payment a reentry, $c. if afterward the lessor by a deed granteth the 
 reversion of the land to another in fee, and the tenant for terme of life 
 attorne, fyc. if the rent be after behind, the grantee of a (A) reversion 
 (le grantee de le reversion) may distrein for the rent, because that the 
 rent is incident to the reversion ; but he may not enter into the land, and 
 oust the tenant, as the lessor might have done, or his heirs, if the rever- 
 sion had been contained in them, $c. And in this case the entrie is 
 taken aivay forever ; for the grantee of the reversion cannot enter, causft 
 qua supra. And the lessor nor his heires cannot enter ; for if the lessor 
 might enter, then he ought to be in his former state (donques il covient 
 que il serriot § en son primer estate) $c. and this may be, because he 
 hath aliened from him the reversion. 
 
 " rpiIAT no entry, &c." Here Littleton reciteth one of the (^ Roll. Abr. 
 
 maxims of the common law; and the reason hereof is, for ' ' 
 avoyding of maintenance, suppression of right, and stirring up 
 of suits; and therefore nothing in action, entrie, or re-entrie, 
 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 
 forbiddeth, as men to graut before they be in possession. 
 
 [•21-4.1 " For default of payment a $sg~ re- entry, &c." Here- (10 Rep. 42.) 
 b. | upon is to be collected divers diversities. First, 
 
 between a condition that requireth a re-entrie, and a l^ ;, 2 ! 2 / a \ 
 limitation that ipso facto determineth the estate without any p v s( ._ 3 79> ' a \ 
 entry. Of this first sort no stranger, as Littleton saith, shall 
 take any advantage, as hath been said. But of limitations it is 
 otherwise. As if a man make a lease quosque, that is, untill 
 /. S. come from Rome, the lessor grant the reversion over to a 
 stranger, /. S. comes from Rome, the grantee shall take advan- 
 tage of it and enter, because the estate by the express limitation 
 was determined. Register, 246, 
 
 So it is if a man make a lease to a woman quamdiu casta vixerit, P1 - Com - 27 - 
 or if a man make a lease for life to a widow, si tamdiu in pur a p on ^ e <j on< 68. 
 viduitate viveret. So it is if a man juake a lease for a 100 years f. n. B. 201. 
 if the lessee live so long, the lessor grants over the reversion, Lib. 10. fo. 36. 
 
 the lessee dies, the grantee may enter, causa qua supra. Mary ing- 
 
 .',. ° ..... ^ -.•*. * . ton s case. 
 
 2. Another diversitie is between a condition aunexed to a 
 
 freehold, and a condition annexed to a lease for years. (pi . 242. a.) 
 
 For if a man make a gift in taile or a lease for life upon con- Brooko, tit. Con- 
 dition, that if the donee or lessee goeth not to Rome before such Jj 1 ™ 11 * 11 Abr ' 
 a day the gift or lease shall cease or be void, the grantee of the i/oppinion de 
 reversion shall never take advantage of this condition, because Bromley, 
 the estate cannot cease before an entrie; but if the lease had j^ **• ™: 
 been but for yeares, there the grantee should have taken advan- pi_ c onl . 3^ 
 tao-e of the like condition, because the lease for yeares ipso facto 11 II. 7.17. 
 
 bv the breach of the condition without any entry was void ; for * 9 R - 2 - 
 
 J i >• !_••.! j j Done, 10. 
 
 a lease for years may begin without ceremony, and so may end q Roll A]3r- 
 
 without ceremony. And of a void thing an estranger may take 475. Noy, 7. 
 
 benefit, but not of a voidable estate by entry. «[ £°P- •*» b - 65 
 
 > J u m 8 Rep. 95. 
 
 10 Post. 215. b.) 
 
 || certe'ine in L. and M. and Roh. § en — a in L. M. and Roh. 
 
 (A) "a" seems to be here printed by mistake instead of the.
 
 15 E. 4. 14. a. 
 
 214. b. 215. a.] Of Estates L. 3. C. 5. Sect. 347. 
 
 " To the feoffor, or to the donor, &c. or to their heirs, &c." 
 PI. Com. .313. Here is to be observed a diversitie between a reservation of a 
 314, m Scholas- rent an( j a re _ en t r y : for, (as it hath been said) a rent cannot be 
 (Hob. 130.) reserved to the heir of the feoffor, but the heir may take advan- 
 tage of a condition, which the feoffor could never do. As if I 
 infeoffe another of an acre of ground upon condition that if mine 
 beir pay to the feoffee, &c. 20 shillings, that he and his heir 
 shall re-enter, this condition is good ; and if after my decease 
 my heir pay the 20 shillings, he shall re-enter, for he is privy in 
 blood, and enjoy the land as heir to me. 
 
 21 H - J- ^- a - " But only to the feoffor, &c. or to their heirs." Our author 
 speaketh here of naturall persons for an example, for if a bishop, 
 archdeacon, parson, prebend, or any other body politique or 
 corporate, ecclesiastical or temporal, make a lease, &c. upon con- 
 dition, 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 demise or grant 
 the same upon condition, &c. and die, his executors or adminis- 
 trators shall enter for the condition broken, for they are privie 
 in right, and represent the person of the dead. 
 [y] 27 H. 8. 1. r^yj js@*If cestui/ que use had made a lease for years, TS15. 1 
 
 &o. upon condition, the feoffees should not enter for L a - J 
 the condition broken, for they are privie in estate, but 
 not privie in blood. 
 (4 Rep. 52. Another diversitie is in case of a lease for years, where the 
 
 Ant. 211. b.) condition is that the lease shall cease, or be void, as is aforesaid, 
 SmM!' 4 ' 5 ' and where the condition is, that the lessor shall re-enter, for 
 there the grantee, as Littleton saith, shall never take benefit of 
 the condition. 
 Pl.Com. Brown- And it is to be observed, that where the estate or lease is ipso 
 ing's case, 136. f ac { w0 [^ by the condition or limitation, no acceptance of the 
 rent after can make it to have a continuance : otherwise it is of 
 an estate or lease voydable by en trie (1). 
 
 Another diversitie is between conditions in deed, whereof 
 
 sufficient hath been said before, and conditions in law. As if 
 
 a man make a lease for life, there is a condition in law annexed 
 
 unto it, that if the lessee doth make a greater estate, &c. that 
 
 then the lessor may enter. *Of this and the like conditions in 
 
 law, which do give an entrie to the lessor, the lessor himself 
 
 and his heirs shall not only take benefit of it, but also his 
 
 assignee and the lord by escheat, every one for the condition in 
 
 (1 Saun. 237, law broken in their own time. Another diversity there is 
 
 238,239, 240, between the judgment of the common law, whereof Littleton 
 
 241 'o tt <* wrote, and the law at this day by force of the statute [*] of 
 
 cap. 3 34 in Ye 32 H. 8. cap. 34. [a] For by the common law no grantee or 
 
 preamble. assignee of the reversion could (as hath been said) take advantage 
 
 (a) 26 H. 6. tit. f a r e-entrie by force of any condition. For at the common 
 
 Ent. con. 49. j jf a man had made a lease for life reserving a rent, &c. and 
 
 if 
 
 (1) Because the acceptance of rent cannot made a new lease, and the old 
 one was determined ; but the acceptance of the rent is a sufficient declaration, 
 that it is the lessor's will to continue the lease, for he is not entitled to the 
 rent but by the leas"e. Note to the l\th edition. And see Symson v. Butcher, 
 Doug. Rep. 51 ; and the cases of Wynne v. Humphreys, and Carter v. Stra- 
 than, reported in the notes of that case. — [Note 117.]
 
 L. 3. C. 5, Sect. 347. upon Condition. [215. a. 
 
 if the rent be behind a re-entrie, and the lessor grant the rever- 
 sion 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 (Plo. 175. b.) 
 demand of the rent, and non-payment, he may re-enter. By 
 which act it is provided, that as well every person which 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. • 
 
 1. That the said statute is generall, viz. [&] that the grantee r ,-. p , c 
 of the reversion of every common person, as well as of the king, Hill and 
 shall take advantage of conditions. Grange's case. 
 
 2. That the statute doth extend to grants made by the sue- H 5 ' 17 ^ 
 cessors of the king, albeit the king be only named in the act. n Eliz. 180. 
 
 3. That where the statute speaketh of lessees, that the same Diw, ibid, 
 doth not extend to gifts in tail. * 4 Eli z - 
 
 4. That where the statute speaks of grantees and assignees of Wynter's'case. 
 
 the reversion, [rZ] that an assignee of part of the state of the [d] PI. Com. 
 
 reversion may take an advantage of the condition. As if lessee j^^j 1 ^' 8 oase 
 
 for life be, &c. and the reversion is granted for life, &c. So if Mich! 14 & 6r ' 
 
 lessee for yeares, &c. be, and the reversion is granted for years, 15 Eliz. 309. 
 
 the grantee for years shall take benefit of the condition in t 1 RolL Abr - 
 
 e , n,,. J j , » . x1 . 472. Post. 385. a. 
 
 respect of this word (executors) in the act. Ante 148 a 
 
 1 Koll. Abr. 471. Mo. 93.) Vide 7 E. 3. 54. Simile adjudged in Communi Banco in 
 the Lord Dyer's time. P. 17 Eliz. Mich. 14 & 15 Eliz. Dyer, 309. adjudged, Winter's 
 case. 
 
 5. That a grantee of part of the reversion shall not [e] take [e] Lib. 5. fo. 54. 
 
 advantage of the condition : as if the lease be of three acres, w^ ht ' S case ' 
 • i • • i i •• i /» ** inter s C8.SO 
 
 reserving a rent upon condition, and the reversion is granted of u bi supra. 
 
 two acres, the rent shall be apportioned by the act of the par- Knight's case 
 
 ties, but the condition is destroyed, for that it is entire and ubl supra " 
 
 against common right. 
 
 6. That in the king's case, the condition in that case is not 
 destroyed, but remains still in the king. 
 
 7. By act in law a condition may be apportioned in the case 
 
 of a common person ; as if a lease for years be made of two Lib. 4. fo. 120. 
 acres, one of the nature of Burrough English, the other at the Dumper's case, 
 common law, and the lessor having issue two sons, dieth, each ^m'm' 2 ^ 
 of them shall enter for the condition broken, and likewise a 20k) ' 
 condition shall be apportioned by the act and wrong of the Resolved in 
 lessee, as hath been said in the chapter of Kents (A). ' P^h^sl^Bi- 
 
 8. If a lease for life be made, reserving a rent upon condition, i a Comnmni 
 &c. the lessor levies a fine of the reversion, he is grantee or Banco. Mallo- 
 assignee of the reversion ; but without atturnment he shall not rie ' s case » lib - r °. 
 take advantage of the condition, for the makers of the statute " ' 
 intended to have all necessary incidents observed, otherwise it 
 
 might be mischievious to the lessee(2). 9. There 
 
 (A) See ante 148. b. near the end. 
 
 (B) This act is styled 4 Ann. c. 16. in Ruff head's edition of the Statutes at large. 
 
 (2) Attornment being taken away per 4 & 5 (B) Ann. c. 16. the law seems 
 to be otherwise now. Note to the 11th edition. — [Note 118.] 
 Vol. II.— 13
 
 215, a. 215. b.] Of Estates L. 3. C. 5. Sect. 347- 
 
 (1 Roll. 472. 
 Hob. 313. 
 Post. 237. 265. b. 
 1 Rep. 112, 
 113.) 
 
 [6] 14 Eliz. 
 Dyer, 39. 
 
 (1 Rep. 173. b. 
 
 4 Rep. 119. b.) 
 
 (1 Roll. Abr. 
 
 122.) 
 
 (3 Rep. 62. b.) 
 
 Lib. 5. fo. 113. 
 Mallorie's case. 
 Lib. 8. fol. 92. 
 France's case. 
 (Cro. Jac. 9. 
 1 Roll. 46.) 
 
 And so was it 
 resolved inWyn- 
 tor's case, Mich. 
 14 and 15 Eliz. 
 in Cominuni 
 Banco, and of- 
 tentimes since. 
 Vide Dyer. 309. 
 ( Plo. 24*2. 
 1 Saun. 240. 
 1 Leo. 62.) 
 
 9. There is a diversity between a condition that is compul- 
 sory, and a power of revocation that is voluntary : for a man that 
 hath a power of revocation may by his own act extinguish his 
 power of 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 earle of Shrewsburie's case in the court of 
 wards, Pasch. 39 Eliz. and Mich. 40 & 41 Eliz. 
 
 10. If the lessor bargain and sell the reversion by deed 
 indented and inrolled, the bargainee is not in the per by the 
 bargainor, and yet he is an assignee within the statute. 
 Jgggr-So if the lessor grant the reversion in fee to the use rS15~| 
 of A. and his heirs, A. is a sufficient assignee within [ b. 
 the statute, because he comes in by the act and limita- 
 tion of the partite, albeit he is in the jmst, and the words of the 
 statute be, to or by, and they be assignees to him, although they 
 be not by him : but such as come in merely by act in law, as the 
 lord of the villeine, the lord by escheat, the lord that entreth or 
 claimeth for mortmaine, or the like, shall not take benefit of this 
 statute. 
 
 11. If the lessor in the case before bargain and sell the rever- 
 sion by deed indented and inrolled, or if the lessor make a feoff- 
 ment in fee, and the lessee re-enter, the grantee or feoffee shall 
 not take any advantage of any condition, without making notice 
 to the lessee. 
 
 12. Albeit the whole words of the statute be, for non-payment 
 of the rent, or for doing of wast or other forfeiture, yet the gran- 
 tees or assignees shall not take benefit of every forfeiture, by 
 force of a condition, but only of such conditions as either are in- 
 cident to the reversion, as rent, or for the benefit of the state, as 
 for not doing of wast, for keeping the houses in reparations, for 
 making of fences, scouring of ditches, for preserving of woods, 
 or such like, and not for the payment of any sum in grosse, de- 
 livery of come, wood, or the like, so as other forfeiture shall be 
 taken for other forfeitures like to those examples which were 
 there put, [videlicet) of payment of rent, and not doing of wast, 
 which are for the benefit of the reversion (1). 
 
 Sect, 
 
 (1) It has also been held upon this statute, that if a man makes a lease for 
 //ears upon condition, that if the rent should be in arrear, it should be lawful to 
 the lessor and his assigns to re-enter, and then the lessor assigns the reversion 
 over, and the lessee attorns, and the lessor dies, the grantee shall not take advan- 
 tage of the condition for want of these xcords " his heirs," in the reservation of 
 the condition ; the condition being that he and and his assigns shall enter. By 
 Brown, serj. who moved the case in C. B. ex relatione T. Hurst — It appears 
 therefore, that this reservation of condition is to be resembled to such a reserva- 
 tion of rent as is mentioned before, in page 47. a. tuhich determined by the death 
 of the lessor ; but that nevertheless the grantee shall have advantage of the con- 
 dition, during the life of thegrantor, by the 32 H. 8. Infra, 215. b. So note, 
 the grantee of part of the reversion in the whole shall take advantage of a con- 
 dition; for to this purpose the grantee of a reversion for life or years is an 
 assignee within the 32 //. 8, who may enter : which nevertheless is very different 
 in the case of a warranty ; for a lessee for life, who has but part of the estate 
 in the whole, is not assignee for voucher. Infra, 385. b. On the other hand, the 
 grantee of the whole estate in reversion in part is not an assignee within the 
 
 32 H. 8 :
 
 L. 3. C. 5. Sect. 348. upon Condition. [215. b. 
 
 Sect. 348. 
 
 ALSO, if lord and tenant be, and the tenant make a lease for term of 
 life, rendering to the lessor and Jus lieires such an annuall rent, and 
 for default of payment a re-entrie, $c. if after the lessor dyeth without 
 heir during the life of the tenant for life, whereby the reversion commeth 
 to the lord by way of escheat, and after the rent of the tenant for life is 
 behind, the lord may distrein the tenant for the rent behind ; but he 
 may not enter into the land by force of the condition, $c. because that 
 he is no heir to the * lessor, fyc 
 
 " rpO the lord by way of escheat, &c." (F. N. B. 144. b.) 
 
 Note, here it appeareth, that the lord by escheat shall 
 distreine for the rent, and yet the rent was reserved to the lessor 19 E. 3. 
 and his heires ; but both assignees in deed and assignees in law Resceit > u - 
 shall have the rent, because the rent being reserved of inherit- 
 ance to him and his heirs, is incident to the reversion and goeth 
 with the same. But if the rent were reserved to him and his 
 assigns, and the lessor assigned over the reversion, and dyeth, 
 the assignee shall not have the rent after his decease, because the 
 rent determined by his death, for that it was not reserved to (Ant. l.b.47. a.) 
 him, his heirs, and assigns. 
 
 " But Tie may not enter into the land by force of the condition, 
 &c." 
 
 Hereby it appeareth, that at the common law neither assigns 
 in deed nor assigns in law could have taken the benefit of either 
 entrie or re-entrie, by force of a condition. 
 
 " Because that he is not heir to the lessor, &c." 
 
 The gardian in chivalrie [/] or in socage shall in the right of [/] 21 H. 7. 18. 
 the heir take benefit of a condition by efitrie or re-entrie, by the ^ ^ ss - 20 - 
 common law and so it is here implyed. G ar j. {13 n4. 
 
 18 Ass. pi. 18. lib. 7. fol. 7. The earl of Bedford's case. 
 
 Sect. 
 
 * lessor — feoffor in L. and M. and Roh. 
 
 32 II. 8 : as if the reversioner in fee of 4 acres grants 2 acres in fee, (he 
 grantee cannot enter ; which also is very different in the case of icarranty, f< r 
 the feoff ee of '2 acres is an assignee, for voucher. Infra 315 a. — Lord Not. MSS. 
 If a mortgagor and mortgagee make a lease, in which the covenants for the 
 rent and repairs are only with the mortgagor and his assigns, the assignee of 
 the mortgagee cannot maintain an action for the breach of these covenants ; 
 because they are collateral to his grantor's interest in the land, and therefore 
 do not run with it. If a tenant for yeares lease for a less term, and assign hie 
 reversion, and the assignee take a conveyance of the fee, by which his former 
 reversionary interest is merged, the covenants incident to that reversionary 
 interest are thereby extinguished. Webb v. Russell, 3 Durn. and East, 393. — 
 In the former case, the mortal ijor may maintain an action on the breach of the 
 covenant. Stokes v. RusselT, Tbid. 678.— [Note 118|.]
 
 216. a.] Of Estates L. 3. C. 5. Sect. 349. 
 
 piow?48io m~ Sect. 349. a . " 
 
 (Ant. 26.) 
 
 A LSO, if land be granted to a man for term of two years (si terre 
 soit graunt a un * home pur terme de deux ans) upon such condi- 
 tion that if he shall pay to the grantor within the said tivo yeares fortie 
 marks, then (f adonques) he shall have the land to him and his heirs, 
 frc. in this case if the grantee enter by force of the grant, without any 
 liverie of seisin made unto him by the grantor, and after he payeth the 
 grantor the forty marks ivithin the two years, yet he hath nothing in 
 the land' but for term of two years, because no liverie of seisin was made 
 unto him at the beginning. For if he should have a freehold and fee in 
 this case because he hath performed the condition, then he should have a 
 freehold by force of the first grant, where no liverie of seisin was made 
 of this which would be inconvenient (que serroit % inconvenient, &c.) $c. 
 But if the grantor had made liverie 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 he observed. First, Littleton here 
 putteth an example of a condition precedent (1). Secondly, 
 that such a condition which createth an estate may be made by 
 paroll without deed. Thirdly, the liverie of seisin in this case 
 Vido Sect. 60. must be made before the lessee enter, (as Littleton here saith at 
 (Ant. 48. a.) tfie beginning) for after his entrie liverie made to him that is in 
 possession is void, as hath been said. Fourthly, that if no 
 liverie of seisin be made, that no fee simple doth pass, although 
 the money be paid. Fifthly, that it is inconvenient that the fee 
 simple should pass in this case without liverie of seisin. Sixthly, 
 that argumentum ab incovenienti, is forcible in law, as often 
 hath been and shall be observed (A). See more of this kind of 
 condition in the Section next following (2). 
 
 "And to his heirs, &c." Here (&c.) implyeth an estate in 
 taile, or a lease for life. 
 
 Sect. 
 
 * home not in L. and M. or Boh. | inconvenient, &c. — encontre rea- 
 
 "j" que added in L. and 31. and Boh. son in L. and 31. and Boh. 
 
 (A) See ante 66. a. and note 1 there. 
 
 (1) See some observations on conditions precedent, and conditions subsequent, 
 in the last note upon this chapter. 
 
 (2) The necessity which there was in the old law, that there should always 
 be some person to do the feudal duties, to fill the possession, and to answer 
 the actions which might be brought for the fief, introduced the maxim, that 
 the freehold could never be in abeyance. See 2 Wilson, Bund v.^West, 165. 
 But it was admitted, that there were some cases in which the inheritance, 
 when separated from the freehold, might be so. The question agitated in the 
 Commentary upon this and the following Section, arises from the difficulty of 
 ascertaining where the freehold, in the case mentioned by Littleton, is to be. 
 By the livery, it is taken out of the grantor ; it must therefore vest in the 
 
 feoffee.
 
 L. 3. C. 5. Sect. 350. upon Condition. [216. b. 
 
 pie.i icy Sect, 350. 
 
 J LSO, if land be granted to a man for term of five years, upon 
 
 condition, that if he pay to the grantor within the tivo first years 
 
 forty marks, that then he shall have fee, or otherwise but for term of the 
 
 five years, and livery of seisin is made to him by force of the grant, now 
 
 he- 
 
 feoffee. Yet it seems difficult to conceive how it could be in the grantee, con- 
 sistently with the term of years. The opinion adopted by Littleton and Sir 
 Edward Coke is conformable to what is said in Lord Stafford's case, 8 Rep. 73. b. 
 — It is to be observed, that though by conveyance at common law the freehold 
 necessarily passes out of the grantor; and that if there is not some person in 
 being in whom it can immediately vest, the conveyance is voyd ; that is not 
 the case with respect to wills, conveyances under the statute of uses, trusts in 
 equity, or grants of rents de novo. For, as to wills ; — there is no immediate 
 transfer of the freehold, as, upon the death of the testator, it vests in the heir 
 to answer the lord's services and the stranger's writs. As to conveyances 
 under the statute of uses ; — till there is some person in being in whom the use 
 can vest, the possession is not altered, but continues in the feoffor and his 
 heirs. See 1 Inst. 23. As to trusts, the legal estate, upon which the trust is 
 charged, immediately vests and continues in the trustee ; and as to rents de 
 novo, the tenant continues in possession of the land out of which they issue. 
 However, it is to be observed, that in cases of wills, uses, and trusts, if it be 
 ■ inconsistent with the estates expresssly declared, that the freehold should remain 
 with the party (as if he has a term of years expressly given him), the law will 
 not give him, by implication, an estate of freehold, if, consistently with the 
 rules of law, it can be considered to reside elsewhere. See Pybus v. Mitford, 
 1 Vent. 372. Adams v. Savage, 2 Salk. 679. Penhay v. Hurrel, 2 Vern. 370. 
 Davies v. Speed, 2 Salk. 675. In the same manner, if a person limits his estate 
 to such uses as he shall appoint; and in .the meantime, and until he makes an 
 appointment, to the use of himself and his heirs ; or if he limits it to the use 
 of himself for life, and after his decease, to such uses as he shall appoint, and 
 for want of appointment, to the use of his right heirs ; — in both these cases 
 the fee simple continues to reside in the settler, subject to be divested from 
 him by an exercise of his power of appointment. If the settler makes an 
 appointment, a new use springs up and vests in the appointee ; the fee origi- 
 nally limited to the settler ceases; and ifom that time, speaking generally, the 
 use appointed under the power takes effect, in the same manner as if it had 
 been inserted in the original deed, in the place of the power. But, if no 
 appointment is made, the fee, from being determinable, becomes simple and 
 absolute. It may be objected, that in the second of these cases, an estate for 
 life is expressly limited to the settler, and that the fee is therefore put in 
 abeyance. But in the case of Leonard Lovie, 10 Rep. 78. where the estate 
 was devised to Leonard Lovie expressly for his life, without impeachment of 
 waste, and afterwards to such uses as he should appoint, and after several 
 intermediate remainders to the use of his right heirs, it was resolved, that the 
 fee vested in him till the appointment was made. See also sir Edward Cleere's 
 case, 6 Rep. 18. The doctrine which is the subject of this note has received 
 a full investigation in the late case of Maundrell v. Maundrell, 7 Ves. jun. 567. 
 and 10 Ves. jun. 246. and is very ably discussed by Mr. Sugden, in his Practical 
 Treatise of Powers, page (266. 1st. ed.) 332. 2nd ed.— [Note 119.]
 
 216. b. 217. a] Of Estates L. 3. C. 5. Sect. 350. 
 
 he hath a fee simple conditionally $c. And if in this case the grantee do 
 not pay to the grantor the fortie marks within the first two years, then 
 immediately after the said tivo years past, the fee and the freehold is and 
 shall be adjudged in the grantor, because that the grantor cannot after 
 the said two years presently enter upon the grantee, for that the grantee 
 hath yet title by three yeares to have and occupy the land by force of the 
 same grant. And so because that the condition of 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 ivast, then 
 after the breach of the condition, $c. and after the two years, the grantor 
 shall have his tvrit of waste. And this is a good proof then, that the 
 reversion is in him, $c. 
 
 (5 Rep. 93.) 
 
 31 E. 1. tit. 
 Feoffements 
 <fc faits, 119. 
 
 12 E. 2. tit. 
 Voucher, 265. 
 (8 Rep. 73. 
 Plow. 481.) 
 
 [r] 7 E. 3. 10. 
 PL Com. 
 
 Saye's case, 272, 
 
 [y] 44 E. 3. tit. 
 Attaint. 22. 
 43 Ass. p. 41. 
 
 [ 31 a 7 -] 
 
 " ]\fO IF, he hath a fee simple conditional!, &c." The like is of 
 an estate in taile, 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 avouch 
 many successions of authorities that no fee simple should pass be- 
 fore the condition performed. 31 E. 1. lit. Feoffments & faits, 119. 
 A. letteth a mannor to B. for term of twenty years, and the deed 
 would, that after the term of twenty years that B. and his heirs 
 should hold the said mannor for ever by twelve pounds rent, A. 
 taketh a wife, and dyeth before the term be past, the wife of A. 
 demands dower. And there Wat/land chief justice saith, that 
 the fee and the frank-tenement doth repose in the person of the 
 lessor untill the term be past, for before that the condition is 
 not performed ; for if the lessor had aliened the land before the 
 end of the term, B. should not recover by a writ of assise, and 
 by the death of the lessor the chief lord should have 
 had the wardship j&gg^ of the heir of the lessor, and by 
 judgment the wife recovered dower, for the termor 
 could not have fee, all which be the words of that 
 book. 
 
 12 E. 2, tit. Voucher, 265. 1, letteth lands to B. for eight years, 
 and if the lessor pay not a hundred marks to the lessee at the 
 end of the term, that then he shall have fee : by the non-pay- 
 ment of the money, the fee and franktenement accrueth to him, 
 and before, the lessee cannot be impleaded in a praecipe, neither 
 shall he vouch. 
 
 [x] 7 E. 3. 10. I. letteth certain lands to N. for the term 
 of ten years, rendring a hundred shillings by the year to 
 him and his heirs, and granted by deed, that if he held the 
 lands over to him and his heirs, that he should render by the 
 year twenty pounds : the lessor during the term brought an 
 action of debt for the rent. And there Eerie chief justice 
 of the common pleas giveth the rule, that during the term 
 the lessee had but for years, and therefore the action of debt 
 maintenable. 
 
 [y~\ 44 E. 3. tit. Attaint. 22, and 43 Ass. p. 41. D. and A. in- 
 feoff the two plaintiffs in the assise, they let those lands to S. 
 for term of nine yeares, upon condition, that if the plaintif in 
 the assise pay a hundred shillings to S. during the term, that S. 
 shall have it but for nine years, and if they pay it not, that S. 
 shall have fee. S. continueth his estate by one year, and after 
 
 granteth
 
 L.3. C. 5. Sect. 350. upon Condition. [217. a. 
 
 granteth his estate to one H. which H. continueth his estate 
 by two years, and granteth the residue of the term to R. and 
 within the term of nine years the plaintiffs in the assise pay the 
 hundred shillings to S. R. continueth his possession after the 
 term, and infeoffeth D. which infeoffeth the lord Furnivall 
 against whom and others, without any claim or entry made by 
 the plaiutifs after the nine years ended, he brought his assise, 
 and after adjournment recovered. 
 
 f>] 10 E. 3. 39 and 40. R. doth let certain lands to I. for H 10 E. 3. 39, 
 term of twelve yeares, and in suretie of his term he inaketh a ^' ™ ™?' 15 " 
 charter of the fee upon condition, that if he be disturbed within pi' com. 
 the term, that he cannot hold the lands untill the end of the Browning's case, 
 term, that then he shall hold the lands to him and his heirs for 135 - 
 ever, and seisin was delivered upon the one charter and the 
 other. R. within the term plowed and sowed the land, and 
 took the profits against the will of /. and I. upon this disturb- 
 ance had fee and recovered in assise. 
 
 6 R. 2 tit. Quid juris clamat. 20. If a lease be made for a 6 R. 2. tit. Quid 
 term upon condition, if the lessee pay a certain sum within the J uris clamat. 20. 
 term, that then he shall have fee, if he pay the money he shall 
 have the fee, but if before the day of payment the lessor levieth 
 a fine to another, the lessee ought to attorn by protestation, 
 and if he pay the money, the conusee shall have it, and the 
 conusee shall have the rent reserved until the day of payment ; 
 and if land be letten for term of years upon condition, that 
 if the lessee be ousted within the term by the lessor, that he 
 shall have fee, if he be ousted, he shall have fee by the condi- 
 tion, and notwithstanding he shall not have any assise, but he 
 must have possession after the ouster, and of this he shall have 
 an assise. 
 
 And generally the books (*) are cited that make a diversitie (*) 15 H. 7. 1. a. 
 between a condition precedent and a condition subsequent. ^h^'r 8 /^' 2 ° 
 
 And lastly, they cite Dier, [a] 10 Eliz. 281. and in Say and r j iw e rj 
 Fuller's case, PL Com. 272. the opinions of Dyer and Browne. 10 Eliz. 281. 
 
 Notwithstanding all this there are those that defend the opin- P1> Com - 272 - 
 ion of Littleton, both by reason and authority. By reason, for 
 that by the rule of law a liverie of seisin must pass a present 
 freehold to some person, and cannot give a freehold in futuro, as Vide Litt. in 
 it must do in this case, if after liverie of seisin made the free- tne chapter of 
 hold and inheritance should not pass presently, but expect untill y^gg 8 /^ 
 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 liverie of seisin before Michaelmas, the 
 liverie is void, because if it should workc at all it must take 
 effect presently, and cannot expect. 
 
 Secondly, they say that when the lessor makes liverie to the (i Rep. 130. 
 lessee, it cannot stand with any reason that against his own 2 Rep. 67. a. 
 liverie of seisin a freehold should remain in the lessor, seeing " 0&t - 3 ' 3 - a -) 
 there is a person able to take it. But if a man by deed make 
 a lease for years, the remainder to the right heirs of I. S. and 
 the lessor make liverie to the lessee secundum forman charted, 
 this liverie is voyd, because during the life of I. S. his right heir 
 cannot take (for nemo est hceres 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 liverie of seisin cannot expect. 
 
 (A) See ante Sect. 59. 
 
 And
 
 217. b.J 
 
 (2 Rep. 55.) 
 
 Of Estates 
 
 L. 3. C. 5. Sect. 350. 
 
 [i>] Hill & 
 
 Grange, 
 
 PI. Com. 171. 
 
 [c] 10 E. 3. 
 
 Seignior Staf- 
 ford's case, 
 lib. 8.fol.74. PI. 
 Com Nichol's 
 case, 487. 
 
 Seignior Staf- 
 ford's case ubi 
 mpra. 
 
 figg" And they say further, that seeing all the books rQ17.~| 
 aforesaid prove that such a condition is good, and that L b. J 
 the liverie made to the lessee is effectuall, by conse- 
 quence the freehold and inheritance must pass presently or not 
 at all. 
 
 And it is not rare, say they, in our boohs that words shall be 
 transposed and marshalled so as the feoffment or grant may 
 take effect. [6] As if a man in the month of February make a 
 lease for yeares reserving a yearly rent payable at the feasts of 
 Saint Michael the Archangell, and the Annuntiation of our Lady, 
 during the term, the law (in this case of reservation) shall 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 so it is [c] in case of a grant of 
 an annuitie. And further they take a diversitie 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 fee, they agree that 
 the fee simple passeth not before the performance of the condi- 
 tion, for that the livery may presently work upon the freehold ; 
 but otherwise it is in the case of a lease for years. Also they 
 take a diversitie between inheritances that lie in grant and inhe- 
 ritances 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, &c. within the term, that then he shall have 
 fee, the grantee shall not have fee untill the condition be per- 
 formed. Et sic de similibus. But otherwise it is where liverie 
 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 liverie is made. 
 
 They also make severall answers to the authorities before 
 cited. For as to the case in 31 E. 1, they say that either the 
 case is mis-reported, or else the law is against the judgment. For 
 the case is but this, that a man make a lease of a mannor to B. 
 for twenty years, and that after the twentie years B. shall hold 
 the mannor to him and his heirs by 12 pound rent, and (as it 
 must be intended) maketh livery of seisin, in this case it is dear 
 (say they) that B. hath a fee simple maintenant, for there is no 
 condition precedent in the case. 
 
 As for the case in 12 E. 2, the case (as it is put in the book) 
 is, that John de Marre made a charter to John de Burford of fee 
 simple, and the same day it was covenanted between them that 
 John de Burford should hold the same tenements for eight 
 years, and if he did not pay a hundred marks at the end of the 
 term that the land shall remain to John de Burford and his 
 heirs. In which case, say they, there is direct repugnancy; for, 
 first, the charter of the fee simple was absolute, and after, the 
 same day, it was covenanted between them, &c. this covenant 
 beino- made after the charter, could neither alter the absolute 
 charter, nor upon a condition precedent give him a fee simple 
 that had a fee simple before. 
 
 To all the other books, viz. 7 E. 3. 10 E. 3. 10 Ass. 44 E. 3. 
 43 Ass. and 6 R. 2. they say, that being rightly understood they 
 are good law; for in some of these books, as namely in 10 E. 3. 
 10 Ass. &c. it appeareth that there was a charter made in surety 
 of the term, which, say they, must be intended thus, viz. a man 
 maketh a lease for years, the lessee enters, and the lessor makes 
 a charter to the lessee, and thereby doth grant unto him, that 
 
 if
 
 L. 3. C. 5. Sect. 350. upon Condition. [217. b. 218. a. 
 
 if he pay unto the lessor a hundred marks during the term, that 
 then he shall have and hold the lands to him and to his heirs. 
 
 In this case, say they, there need no livery of seisin, but doth pi. Com. in 
 enure as an executory grant by increasing of the state, and in Niohol'a case, 
 that case, without question, the fee simple passeth not before 
 the condition is performed. 
 
 And therefore Littleton warily puttetb. his case of an estate 
 made all at one time by one conveyance, and a livery made 
 thereupon. 
 
 For Littleton himself in the Section before saith, that in that 
 case without a livery nothing passeth of the freehold and in- 
 heritance. 
 
 And this diversity (say they) is proved by books; and there- 
 upon they cite [el] 10 E. 3. 54. In a writ of dower the tenant [d]lO E. 3. 54. 
 vouched to warranty ; the vouchee as to part pleaded that the 
 husband was never seised of any estate whereof she might be 
 endowed; as to the residue the tenant pleaded that he lessed to 
 the husband in gage upon condition that if the lessor paid ten 
 marks at a certain day, that he should re-enter, and if he failed 
 of payment, that the land should remain to the husband and his 
 heires, which must be intended to be done by one entire act, and 
 pleaded that he paid the money at the day, which is allowed to 
 be- a good plea : Ergo, the fee simple passed by the livery, other- 
 wise the plea had amounted that the husband was never seised, 
 &c. And say they, that it cannot be intended that the judges 
 should be of one opinion in Trinitie term, and of another opinion 
 in Michaelmas term in the same year, and therefore (they hold) 
 their severall opinions are in respect of the said diversitie of the 
 cases. 
 
 [<?] 32 E. 3. tit. Garr. 30. A tenant by the curtesie made a [ c ] 32 E. 3. 
 lease for years, and in surety of the term, &c. made a charter tit- Garr - 30 - 
 in fee simple, and made livery according to the charter (note a 
 speciall mention made of livery in this case); and 
 ['218. "I issue being taken in an assise, whether the BSgrtenant 
 a. I by the courtesie demised in fee, upon the special mat- 
 ter found, it was adjudged that a fee simple passed, 
 and that the heir might enter for a forfeiture, which, say they, 
 in case of livery is an express judgment in the point agreeing 
 with the opinion of Littleton. 
 
 [/]43 E. 3. 35. In an action of wast against one in lands [/]43 e. 3. 35. 
 which he held for term of years, Belknap pleaded thus for the 
 defendant; that the defendant was seised in fee, and infeoffed 
 the plaintif, &c. and after the plaintif demised the land back 
 again to the defendant for years upon condition, that if the de- 
 fendant paid certain money, &c. that then the defendant might 
 retain the land to him and to his heirs, and if not, the plaintif 
 might enter, &c. and pleaded that the term endured, and that 
 the day of payment was not come, and demanded judgment, if 
 the plaintif may maintain an action of waste, inasmuch as the 
 defendant had now a fee simple, and shewed forth the indenture 
 of lease with the condition (which agreeth with Littleton's case) 
 all being done at one time, and by one deed, and a livery in- 
 tended, and with Littleton's opinion also. It is true, say they, 
 that Cavendish counsel with the plaintif offered to demur, but 
 never proceeded. [#] Vide 20 Ass. pi. 20. ^ 20 Ass. 
 
 Other authorities they cite, but these (as I take it) are the pi. 20. 
 principal^ and therefore for avoyding of tediousness, having I 
 
 fear
 
 218. a.] 
 
 Of Estates 
 
 L. 3. C. 5. Sect, 350. 
 
 Lib. 8. fo. 90. 
 France's case. 
 ( Dyer, 45. 
 Plow. 7. a.) 
 
 (Plo. 481. a. 
 Ant. 206. a, 
 
 b.) 
 
 PI. Com. 
 Browning & 
 Boston's case, 
 133. b. 
 (2 Rep. 53. b.) 
 
 Vid. Littleton, 
 cap. Villein. 
 
 ( d) PI. Com. 
 Browning's case, 
 133. b. 
 
 42 E. 3. 1. 
 
 Lib. 2. fo. 50. 
 Sir Hugh 
 Cuolmley's case. 
 
 1 6 Rep. 34. a. b. 
 Plo. 242. a.) 
 
 fear been too long upon this point, the others I omit. Only this 
 they add, that Littleton had seen and considered of the said 
 books, and have set down his opinion where livery of seisin is 
 made upon a conveyance made at one time, as hath been said, 
 that he hath fee simple conditionall. 
 
 Benixjne lector, utere tuo jtidicio, nihil enim impedio. Con- 
 ditio beneficialis quae statum construit benign^ secundum verbo- 
 rum intentionem est interpretanda, odiosa autem quae statum 
 destruit stride, secundum verborum proprietatem est accipienda. 
 
 A lease is made to a man and a woman for their lives upon 
 condition, that which of them two shall first marry, that one 
 shall have fee, they entermarry, neither of them shall have fee, 
 for the incertainty. 
 
 Note, if the condition be to increase an estate (that is to say) 
 to have fee upon payment of money to the lessor or his heirs at 
 a certain day, before the day the lessor is attainted of treason or 
 felony, and also before the day is executed, now is the condition 
 become impossible by the act and offence of the lessor, and yet 
 the lessee shall not have fee, because a precedent condition to 
 encrease an estate must be performed, and if it become impossi- 
 ble, no estate shall rise. 
 
 " Because that the grantor cannot enter, &c." Regularly when 
 any man will take advantage of a condition, if he may enter he 
 must enter, 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 claym, and also the feoffor or grantor 
 may waive the condition at his pleasure. 
 
 As if a man grant an advowson to a man and to his heirs upon 
 condition, that if the grantor, &c. pay 20 pound on such a day, 
 &c. the state of the grantee shall cease or be utterly void, (1) 
 the grantor payeth the money, yet the state is not revested in 
 the grantor before a claim, and that claim must be made at the 
 church. (d) And so it is of a reversion or remainder of a rent, 
 or common, or the like, there must be a claim before the state 
 be revested in the grantor by force of the condition, and that 
 claim must be made upon the land. 
 
 A fortiori, in case of a feoffment which passeth by livery of 
 seisin, there must be a re-entry by force of the condition before 
 the state be voyd. 
 
 If a man bargaineth and selleth land by deed indented and 
 inrolled with a proviso, that if the bargainor pay, &c. that then 
 the state shall cease and be void, he payeth the money, the state 
 is not revested in the bargainor before a re-entry (2), and so it is 
 if a bargain and sale be made of a reversion, remainder, advow- 
 son, rent, common, &c. And so it is if lands be devised to a 
 
 man 
 
 (1) Ace. 2 And. 8. 
 
 (2) Ace. 1 Rep. 174. a. as to the general principle; but the particular case 
 there was, that A. covenanted to stand seised to the use of himself for life, 
 with several remainders over; with a power of revocation. — By an exercise of 
 this power, he revoked the uses; and it was held, that the ancient uses were 
 determined, without entry or claim, because he himself was tenant for life of 
 the land, and he could not enter upon himself; and no claim was necessary, as 
 an express revocation was as strong as any claim could be. — See fol. 218. b. — 
 [Not* 120.]
 
 L. 3. C. 5. Sect. 323. upon Condition. [218. a. 218. b. 
 
 man and to his heir upon condition, that if the devisee pay not 
 20 pound at such a day, that his estate shall cease and be void, 
 the money is not paid, the estate shall not be vested in the heir 
 before an entry. And so it is of the reversion or remainder, an 
 advowson, rent, common or the like (3). 
 
 But the said rule hath divers exceptions. First, in this present Vid. Lib. 1. 
 case of Littleton, for that he can make no entry, he shall not Jj°' J 74 ^^ 8 ' 
 be driven to make any claim to the reversion: for seeing by lgj { 9> 
 construction of law the freehold and inheritance passeth main- 
 tenant, out of the lessor; by the like construction, the freehold 
 and inheritance by the default of the lessee shall be revested in 
 the lessor without entrie or claim. 
 
 2. If I grant a rent charge in fee out of my land upon con- pi. Com. 
 dition, there if the condition be broken, the rent shall be extinct J™™"^ 8 
 in my land, because I (that am in possession of the land) need 2 o E.4. i9. 
 make no claim upon the land, and therefore the law shall 
 adjudge the rent void without any claim. 
 
 3. If a man make a feoffment unto me in fee upon condition 20 E. 4. 19. 
 that I shall pay unto him 20 pound at a day, &c. before the 20 H. 7.^4. b. 
 
 day I let unto him the land for years, reserving a rent, < R ^ w |j 
 
 t 218.1 and JSSsT after fail of payment, the feoffee (A) shall 
 b.""""" J retaine the land to him and to his heirs, and the rent 
 is determined and extinct, for that the feoffor could 
 not enter, nor need not claim upon the land, for that he himself 
 was in possession, and the condition being collateral is not 
 suspended by the lease, otherwise it is of rent reserved. 
 
 4. If a man by his deed in consideration of fatherly love, &c. Lib. 1.174. 
 covenant to stand seised to the use of himself for life, and after Jp'ff 8 R „t Se ' 
 his decease, to the use of his eldest son in tail, the remainder to 237. a. 265. b. 
 his second son in tail, the remainder to his third son in fee, Ante 215. a.) 
 with a, proviso of revocation, &c. the father doth make a revo- 
 cation according to the proviso, the whole estate is maintenant 
 
 revested in him without entry or claim for the cause aforesaid. 
 
 " The grantee hath yet title by three yeares." By this it 
 appeareth that albeit the lessee had pro tempore a fee simple, 
 yet after the fee simple 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. 
 
 If a man make a lease for 40 years, the lessee afterwards taketh PI. com. in. 
 a lease for 20 years upon condition that if he doth such an act, ^"j^ ? 83 
 that then the lease for 20 years shall be void, and after the ( 2 Roll. Abr. 
 lessee break the condition, by force whereof the second lease is 494, 495. 497. 
 void, notwithstanding the lease for forty years is surrendered, for 49 ^ 499 'A 
 the condition was annexed to the lease for 20 years, but the 1 RolLAbr. 
 surrender was absolute. So it is if a man make a lease for 40 412.) 
 years, and the lessor grant the reversion to the lessee upon con- 
 dition, and after the condition is broken, the term was absolutely 
 surrendered. And the diversitie is when the lessor grants the 
 
 reversion 
 
 (A) The sense appears to require that lord Coke should have used the ivord feoffor here 
 instead of feoffee. See Mr. Jiitso's lntr.jt. 119. 
 
 (3) The entry, or claim, may be made either by the party himself, or by a 
 stranger, by his order. 2 Cro. 57. — [Note 121.]
 
 218. b.] Of Estates L. 3. C. 5. Sect. 350. 
 
 14 E. 4. 6 
 45 E. 3 
 
 reversion to the lessee upon condition, and when the lessee grants 
 
 7 E^4. 29. or surrenders his estate to the lessor; for a condition annexed 
 to a surrender may revest the particular estate, because the sur- 
 render is conditionall. But when the lessor grants the reversion 
 to the lessee upon condition, there the condition is annexed to 
 
 the reversion, and the surrender absolute (1). 
 
 8 E. 2. Ass. 395. A guardian in chivalrie took a feoffment of the infant within 
 
 age, that was in his ward, and the infant brought an assise, and 
 the guardian shall be adjudged a disseisor, which proveth that 
 the feoffment as against the infant was voyd, and yet by ac- 
 ceptance thereof the interest of the guardian was surrendred. 
 50 E. 3. 27. A man maketh a lease for term of life by deed, reserving the 
 
 first seven years a rose, and if the lessee will hold the land after 
 the seven years, to pay a rent in money ; the lessee will not 
 hold over, but surrender his term : in this ease in judgement of 
 law he had but a term for seven years. And so it is if a man 
 make a lease for life, and if the lessee within one year pay not 
 20 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. 
 
 u This is a good proof then, that the reversion is in him, &c." 
 Here is implyed that no man can have an action of waste, unless 
 the reversion be in him, and by the authoritie of our author the 
 reason of a case, and well applyeth, is a good proof in law (2). 
 
 Sect. 
 
 (1) See also Dyer. 143. 2 Roll. Abr. 495. 
 
 (2) No person is entitled to an action of waste against a tenant for life, but 
 he who has the immediate estate of inheritance in remainder or reversion, 
 expectant upon the estate for life. If between the estate of the tenant for 
 life who commits waste, and the subsequent estate of inheritance, there is 
 interposed an estate of freehold, or to any person in esse, then during the 
 continuance of such interposed estate, the action of waste is suspended; 
 and if the first tenant for life dies during the continuance of such interposed 
 estate, the action is gone forever. But though, while there is an estate for 
 life interposed between the estate of the person committing waste, and that 
 of the reversion or remainder-man in fee ; the remainderman cannot bring 
 his action of waste : yet if the waste be done by cutting down trees, &c. 
 such remainderman in fee may seize them ; and if they are taken away, or 
 made use of, before he seizes them, he may bring an action of trover. For, 
 in the eye of the law, a remainder-man for life has not the property of the thing 
 wasted ; and even a tenant for life in possession has not the absolute property 
 of it, but merely a right to the enjoyment or benefit of it, as long as it is 
 annexed to the inheritance, of which it is considered a part, and therefore 
 it belongs to the owner of the fee. See ante 53. b. 5th Rep. 76. b. Pagett's 
 case; Udal v. Udal, Alleyn, 81. 3 P. Wins. 267. Bewick v. Whitefield. 
 22 Vin. Abr. 523. Rolt v. Somerville, 2 Eq. Cas. Abr. 759 j Garth v. Cotton, 
 8 Atk. 757.— [Note 122.]
 
 L. 3. C. 5. Sect. 351-52. upon Condition. [218. b. 
 
 Sect. 351. 
 
 T>UTin such cases of feoffment upon condition, where the feoffor may 
 lawfully enter for the condition broken, gc* there the feoffor hath 
 not the freehold before his entrie, $-c. (3). 
 
 This upon that which hath been said is evident, and needeth 
 no further explanation. 
 
 Sect. 352. 
 
 ALSO, if a feoffment be made upon such condition, that the feoffee 
 shall give the land to the feoffor, and to the wife of the feoffor, to 
 have and to hold to them and to the heirs of their two bodyes engendered, 
 and for default of such issue, the remainder to the right heirs of the 
 feoffor. In this case if the husband dyeth, living the wife, before any 
 estate in tail made unto them, $c then ought the feoffee by the law to male 
 an estate to the wife as near the condition, and also as near to the entcnt 
 of the condition as he may make it (donques doit le feoffee per la ley 
 faire estate a la feme cy pres le condition, et auxy cy pres l'entent de 
 le condition que il poit faire) (1), that is to say, to let the land to the 
 wife for term of life without impeachment of waste (sauns impeachment 
 de wast (2), the remainder after his (B) decease to the heirs of the body 
 of her husband on her begotten (le remainder apres son decease a les 
 heires de f corps sa baron de luy engendres) (3), and for default of 
 
 such 
 
 * &c. not in L. and M. or Boh. f les corps de son baron et de luy 
 
 engendres, in L. and M. and Roh. 
 
 (B] Here the sense requires the word her instead of hiB, as it seems. 
 
 (3) For till entry it doth not appear; the feoffor having power at his election 
 to void or continue the estate of the feoffee, which he will do. Note to the 
 11th edition. — [Note 123.] 
 
 (1) X So where a feoffment was made on condition that the feoffees re-infeoffed 
 the feoffor and his wife in tail, the remainder to the right heirs of the husband ; 
 the husband died, the wife married a second husband ; the feoffees enfeoffed 
 the second husband and his wife, for her life ; — the remainder to the right 
 heirs of the first husband; it was held that the condition was well performed. 
 Br. Abr. tit. Cond. pi. 33. And see ibid. 70. Plo. 291.— [Note 124.] 
 
 (2) § Note, if land bcgiven to the icife,and the heirs of the husband of his body 
 begotten, the wife shall have the estate for life, subject to ivaste.—Sup. 26. b. 
 therefore such conveyance is not by force. Lord Nott. MS. — [Note 125.] 
 
 (3) || It is with great pleasure we present the reader with the following obser- 
 vations on this passage. Lord chief-justice Wilmot, in his argument in giving 
 judgment in the case of Frogmorton on demise of Robinson v. Wharrey, 
 2 Blackst. 728. remarks : "When an estate is limited to a husband and wife, 
 " and the heirs of their two bodies ; the word Heirs is a word of limitation, 
 
 " because 
 
 X § || These notes arc in 219. a. in the 13th and Hth editions.
 
 218. b. 219 a. | Of Estates L. 3. C. 5. Sect. 352. 
 
 such issue, the remainder to the right heirs of the husband. And the cause 
 why the lease shall be in this case to the tvife alone ivithout impeachment of 
 ■waste is, for that the condition is, that the estate shall be made to the 
 husband and to his tvife in tail (en J taile). And if such estate had been 
 made in the life of the husband, then after the death of the husband she 
 should have had (el || ust ewe) an estate in 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, Sfc. that it should be made 
 (que il serroit § fait), $c. albeit she cannot have (comment que 1 el ne 
 poit aver) estate in tail (en 4. taile), 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 
 (sicome el ** puissoit aver si le done en le taile ust estre fuit a ft sa 
 baron et JJ a luy en le vie L| sa baron), £c. 
 
 r> 3 er r 'i4 3 Eliz " J 1 BAT the feoffee shall give, &c." Here is no time limit- 
 Dyer, 311. b. Z ec ^ therefore the feoffee by the law hath time 
 
 2 H. 4. 5. ' ESt' during his life, unless he be hastened by the re- ["219. "1 
 
 44 E. 3. 9. quest of the feoffor or the heirs of his body, as Little- \ a. 
 
 81,i?Se'iCTior ' t0Jl Saith in the next section - 
 
 Cromwel's case. (Ant. 208. b. 1 Roll. Abr. 429. 1 Roll. Abr. 614, 615. a.) (2 Rep. 59.) 
 
 (Sect. 337.) " If the husband dyeth, &c." But in this case, if the feoffee 
 
 dyeth before any feoffment made, then is the condition broken, 
 because he made not the estates, &c. within the time prescribed 
 by the law. But if the feoffment be made upon condition that 
 33 h! 6.26', 27. tne f e °ff ee before the feast of St. Michael the Archangell nest 
 9 Eliz. Dyer, 262. PL Com. 456. Lib. 2. fo. 79. Seignior Cromwell's case. (Sect. 334.) 
 
 following 
 
 | le added in L. and. M. and Roh. ± le added in L. and M. and Roh. 
 
 || ust ewe — ad ewe, in L. and M. ** el — il in L. and M. and Roh. 
 
 and Roh. -j-j- sa — son in L. and M. and Roh. 
 
 § fait not in L. and M. or Roh. J| a not in L. and M. or Roh. 
 
 % el — il in L. and 31. and Roh. _J4 sa — son in L. and M. and Roh. 
 
 15 H. 7.13. 
 
 u because an estate is given to both the persons, from whose bodies the heirs 
 " are to issue. But when i£ is given to one only, and the heirs of two, (as to 
 " the wife and the heirs of her and A. B.) there the words Heirs is a word of 
 " purchase; for no estate tail can be made to one only, and the heirs of the 
 " body of that person and another. This appears from Littleton, Sect. 852, 
 " according to the true reading collected from the original editions. The 
 " common editions make the estate cypres, therein mentioned, to be, to the 
 " widow and les heirs de corps sa baron de luy engendres ; which is not as near 
 " as might be to the original estate intended, if the husband had lived; viz. 
 " to the husband and wife, and the heirs of their two bodies. But the origi- 
 " nal edition by Lettou and Machlinia, in Littleton's life-time, and the Rohan 
 " edition, which is the next (both which my brother Blackstone has) read it 
 ' thus : les heirs de les corps de son baron et de luy engendres: which is quite 
 " consonant to the original estate; and this estate, to the widow for life, and 
 " the heirs of the body of her husband and herself begotten, Littleton, in the 
 " same section, declares not to be an estate tail. The same is held in Dyer, 
 ' 99. — in Lane and Pannel, 1 Roll. Rep. 438. and in Gossage and Taylor, 
 ' Style, 325. which, from a manuscript of lord Hale, in possession of my 
 ' brother Bathurst, appears to have been first determined in Hil. 1651; which 
 11 accounts for some expressions of lord chief-justice Rolle, in Style's case, 
 " which was in T. Pasch. 1652."— [Xote 126.] *
 
 L. 3. C. 5. Sect. 352. upon Condition. [219. a. 219. b. 
 
 following give the land to the feoffor and to his wife in tail, ut 
 
 supra, and before the day the feoffee dieth, the state 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 becometh impossible by the act of God, as hath been (1 Roll. Abr. 
 
 said before, and therefore it is necessary when a day is limited, ^' Ant - 
 
 to add to the condition, that the feoffee or his heirs do per- (2 Rep! 79. a. 
 
 form the condition ; but when no time is limited, then the feoffee 6 Rep. 30. b). 
 
 at his perill must perform the condition during his life (although 
 
 there be no request made) or else the feoffor or his heirs may 
 
 re-enter. 
 
 "Hade unto them, &c" Here the (<f?c.) implyeth according 
 to the condition with the remainder over. 
 
 " To the feoffor and to the wife, &c." Here it appeareth that 27 E. 3. 
 albeit the feme be a stranger, yet the feoffee is not bound to Denver, 135. 
 
 make it within convenient time, because the feoffor Sei g mor Crom- 
 
 [219.1 who is privy to the condition is to take O^Tjoyntly supra. °" 
 b. J with her. And so it is if the condition be to enfeoff (6 Rep. 30. b.) 
 the feoffor and an estranger, the feoffee hath time 
 during his life, unless he be hastened by request. Otherwise it (l Roll. Abr. 
 is (as hath been said) where the condition is to enfeoff a stranger 452 -J 
 or strangers only. 
 
 If a man make a feoffment in fee, upon condition that the (i r u. Abr 
 feoffee shall make a gift in tail to the feoffor, the remainder to 428.) 
 a stranger in fee, there the feoffee hath time during his life, as 
 is aforesaid, because the feoffor who is partie, and privy to the 
 condition, is to take the first estate. But if the condition were Seignior Crom- 
 to make a gift in tail to a stranger, the remainder to the feoffor well ' s case < ubi 
 in fee, there the feoffee ought to do it in convenient time, for (2 P Re' p . 79. 
 that the stranger is not privy to the condition, and he ought to Ant. 208. b.) 
 have the profits presently, as before hath been said. 
 
 " To make an estate to the wife as neer the condition, and also 
 as near to the extent of the condition as he may make it (de 
 faire estate al feme cy pres le condition, et auxy cy pres l'entent 
 del condition que il poit faire), &c." 
 
 A. infeoffs B. upon condition that B. shall make an estate in (Ant. 21. b.) 
 frankmarriage to C. with one such as is the daughter of the 
 feoffor; in this case he cannot make an estate in frankmarriage, 
 because the estate must move from the feoffee, and the daughter 
 is not of his blood, but yet he must make an estate to them for 
 their lives, for this is as near the condition as he can. And so 
 it is if the condition be, to make to A. (which is a meer layman) 
 an estate in frankalmoigne, yet must he make an estate to him 
 for life, for the reasons here yielded by Littleton. 
 
 A diversitie is to be understood between conditions that are to 
 create an estate, and conditions that are to destroy an estate : for 
 here it appeareth, that a condition that 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 «ondition, (l Roll. Abr. 
 albeit the letter and words of the condition cannot be performed : 426 - p,ow - 7. n. 
 but otherwise it is of a condition that destroycth an estate, for Dyer ' 45- a-) 
 that is to be taken strictly, unless it be in certain speciall cases : 
 and of this somewhat hath been said before in this chapter. 
 
 As if a man mortgage his land to W. upon condition, that if the 30 n. 8. tit. 
 mortgagor and I. £.pay twenty ^hillings at such aday tothemort- Condit. Br. 190. 
 gagee, then that he shall re-enur ; the mortgagor dieth before the J^'J J; J*/*- 
 
 day, '
 
 219. b. 220. a.] Of Estates L. 3. C. 5. Sect. 352. 
 
 day, I. S. paies the money to the mortgagee, this is a good per- 
 formance of the condition, and yet the letter of the condition is 
 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 /. S. alone had tendred the money, the mortgagee might 
 have refused it. But if a man make a lease to two for years, 
 with a proviso, if the lessees dye during the term, the lessor 
 shall re-enter, one lessee alien his part and dye, the other lessee 
 (A) cannot re-enter, but the assignee shall enjoy the term so 
 long as the survivor liveth, and the reason is, because the lease 
 by the proviso is not to cease till both be dead. But in the 
 former case, albeit the mortgagor be dead, yet the act of God 
 shall not disable 1. S. to pay the money, for thereby the mort- 
 gagee receives no prejudice. And so it is in that case, if 1. S. 
 had died before the day, the mortgagor might have paid it. 
 Lib. 2. fo. 79, And here is to be observed a diversity, when the feoffee 
 
 so, 81. Seignior dyeth, for then (as hath been said) the condition is broken, and 
 caso - when the feoffor dieth, for then the estate is to be made as near 
 the intent of the condition as may be. 
 
 2 H. 4. 5. 
 
 2 H. 4. 5. 
 
 " To the wife for term of life without impeachment of icaste." 
 Here it appeareth that this estate for life ought to be without 
 impeachment of waste, and yet if the wife doth accept of any 
 estate for life without this clause, without impeachment of wast, 
 it is good, because the state for life is the substance of the grant, 
 and the privilege to be without impeachment of wast is collate- 
 Seigntor'brom- ra ^> an d or ^J f° r tne benefit of the wife, and the omission of it 
 wel's case, ubi only for the benefit of the heir (1). 
 supr ?' 9R<* ^ so ^ ^e wife take husband before request made, 
 
 303 ^Oi". 442. an< ^ then they make request, and the state J8®°is TQ30.1 
 Ant. 207. a. made to the husband and wife, during the life of the L a - J 
 Cro. El. 45.) wife, this is a good performance of the condition, 
 426 R ) 011 ' ' albeit the estate be made to the husband and wife, where Little- 
 ton saith it is to be made to the wife, but it is all one in sub- 
 stance, seeing that the limitation is during the life of the wife. 
 
 (Cro. Car. 242.) " Without impeachment of waste (sauns impeachment de wast)," 
 (Cro. Jac. 216.) ^h saue impetitione vasti, (that is) without any challenge or im- 
 ports? lib 7 1 if" peachment of waste, and by force hereof the lessee may cut down 
 fo.83'.lib.9.fo.9. the trees and convert them to his own use. Otherwise it is if 
 lib. 2. 23. the words were saims impeachment per ascun action de wast, for 
 
 then the discharge extends but to the action, and not to the trees 
 themselves, and in that case the lessor shall have them (1)*. 
 
 And 
 
 (A) Jt seems that the text should be read as if the word lessor had been here inserted 
 instead of the words " otber lessee." 
 
 (1) Mr. serj. Hawkins observes here, that the omission of the privilege of 
 being without impeachment of waste shall not give the heir of the feoflbr, for 
 whose benefit it was omitted, a re-entry, which would defeat the estate of the 
 wife. P. 307. 2 Rep. 82. a.— [Note 127.] 
 
 (1) * The privilege given by the words without impeachment of waste, is an- 
 nexed to the privity of estate; — so that if the person to whom that privilege is 
 given, changes his estate, he loses the privilege. 11 Rep. 83. b. Latch. 270. 
 — It has been held that the intent of this clause is only to enable the tenant to 
 cut down timber and open new mines, and that it does not extend to allow de- 
 structive
 
 L. 3. C. 5. Sect. 353. upon Condition. [220. a. 
 
 And it is to be observed that after the decease of the husband 
 the state is not to be made to the wife and the heires of her body (4 Rep. 63. a.) 
 by her late husband ingendred, and so to have an estate of in- 
 heritance as she should have had by survivor, if the estate had 
 been made according to the condition, but only an estate for life 
 without impeachment of waste, &c. for that by the authoritie of 
 Littleton is not so near the intent of the condition, as the case 
 that Littleton putteth. But I will search no further into this 
 case, but leave it to the learned and judicious reader. 
 
 " And after her decease to the heires of the hodii of her husband (Ant. 20. b. 
 7 7 *,, „ J u J 26. b. 27. a. 
 
 on her begotten. 
 
 *" Note here, admit that there were two issues in tail, the re- 
 mainder shall presently vest only in the eldest, and yet if he 
 dieth without issue, it shall per forma doni vest in the youngest, 
 as hath been said in the chapter of Estate tail (2); and so it is 
 tacite proved here for otherwise the condition (if there were two 
 issues) could not be performed. 
 
 Sect. 353. 
 
 A LSO in this case if the husband and wife have issue, and die before 
 the gift in tail made to them, $>c. then the feoffee ought to make an 
 estate to the issue, and to the heirs of the body of his father and his mo- 
 ther begotten, and for default of such issue, §c. the remainder to the 
 right heires of the husband, $c. And the same law is in other like cases : 
 and if such a feoffee loill not take (B) such estate (et si tiel feoffee ne 
 voet faire tiel estate, $c. ivhen he is reasonably required by them zvhich 
 ought to have the state by force of the condition, cfc. then may the feoffor 
 or his heirs enter*. 
 
 " TJfJIEN he is reasonably required by them which ought to 
 have the estate by force of the condition." Note here it ap- 
 peareth, that the feoffee hath time during his life to make the (2 Rep. 78. b. 
 estate, unless he be reasonably required by them that are to take 
 the estate. This is to be intended of parties or privies, and not 
 of meer strangers, for there (as hath been said) the state must (Ant. 222. b. 
 
 i i • • • 914. h 20S b ) 
 
 be made in convenient time. ^ ' 
 
 And 
 
 * &c. added in L. and M. and Rob. 
 
 (B) This word "take" is not agreeable to the sense of the passage ; neither does it express 
 the meaning of the French word faire used by Littleton, ichich signifies make id English. 
 See Mr. Ititso's Inter, p. 112. 
 
 structive or malicious waste ; such as cutting down timber which serves for the 
 shelter or ornament of the estate. See Vane v. Lord Bernard, 2 Vern. 73S. 
 Packington v. Packington, 7 Bac. Abr. 289. 8vo. ed. Bolt v. Lord Sommer- 
 ville, 2 Abr. Eq. 759. Aston v. Aston, 1 Ves. 264. Piers v. Piers, 1 Ves. 521 . 
 —[Note 128.] 
 
 (2) See 1 Bep. 95. 3 Bep. 61. 11 Eep. SO, and the note in Mr. Douglas's 
 Reports, page (488, 1st ed.) 505. a. 4th ed. 
 
 Vol. II.— 14
 
 220. a. 220. b. Of Estates L. 3. C. 5. Sect. 354. 
 
 And concerning the request it is to be known, that when tne 
 request is made, the party or privy must request the feoffee at a 
 time certain to be upon the land, and to make the state accord- 
 ing to the condition, for seeing no time certain is prescribed for 
 (8 Rep. 89. b.) the making of the state, and it is incertain when the request shall 
 be made such request and notice must be made as hath been 
 said before in this chapter. And of this section with the (<fcc.) 
 there needeth not, upon that which hath been said, any farther 
 explication. 
 
 »e- Sect. 354. 
 
 [ 2 r] 
 
 ALSO if a feoffment be made upon condition, that if (C) the feoffee 
 shall re-enfeoff many men (que le feoffee * re-infeoffera plusors 
 homes) to have and to hold to them and to their heires for ever, and all 
 they which ought to have estate dye before any estate made to them, then 
 ought the feoffee to make estate to the heire of him which survives of 
 them to have and to hold to him and to the heirs of him which sur- 
 viveth~\ (1). 
 
 (2 Rep. 70.) « rpHA T the feoffor shall re-enfeoff many men." By the re- 
 
 feoffment it is implied to be made to the feoffors, for a 
 
 feoffment over to strangers cannot be said a re-feoffment, and if 
 
 the feoffment should be made over to strangers only, then, as 
 
 hath been often said, it must be made in convenient time. 
 
 " To the heir of him which survives, to have and to hold to Mm 
 and to the heirs of him which surviveth." 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 should 
 be inheritable to the land, which should not have inherited if the 
 
 estate 
 
 * re-infeoffera — infeoffera, L. and f &c. added in L. and M. and 
 M. and Roh. Koh. 
 
 (C) The sense as well as the original French seems to require that this passage should be read as 
 if the word "if" had been omitted. See Mr. Ritso's Inter, p. 112. 
 
 (1) See whether there is a difference between an obligation and feoffment with 
 ■ audition to re-enfeoff. Obligation on condition to give to the baron and feme a nd 
 the heires of the body of the feme before a certain day ; and before the dag the 
 feme dies. The court teas divided ichether he ought to make it cy pres, in 8 Jac. 
 B. R. Rot. 303. Roger and Scudamore, T. 37.— P. 4 E. 6. Bendl. n. 56. 
 Obligation on condition to enfeoff B. and C and their heirs before sitch a dag, 
 and before the day B. dies, the obligation is discharged. Sir Ant. Broicn's case. 
 But this case ivas denied by the whole court. T. 40 EL O. B. C. C. n. 16. 
 Obligation with condition that the obligor or his heirs shoidd enfeoff the obligee 
 •:>.d his heirs before a certain day; — before the dag the obligee dies: it was 
 ruled that he thould enfeoff the heir. T. 40 El. C. B. Home v. May, C. C. n. 
 16.— Lord Hale's MSS.— [Note 129.]
 
 L. 3. C. 5. Sect. 355. upon Condition. [220. b. 221. a. 
 
 estate had been made to the survivor and his heirs, and conse- 
 quently the condition broken. 
 
 For example, if the survivor took to wife Alice Fairefield, in (Ant. 12. a.) 
 this case if the limitation were to the son and his heirs, then if 
 the son should dye without heirs of his father, the blood of the 
 Fairefields (being the blood of his mother) should inherit. But 
 if the limitation be to the right heirs of the father, then should 
 not the blood of the Fairefields by any possibility inherit, for 
 then it is as much as if the state had been made to the survivor 
 and his heirs : and therefore these words {and to the heirs of him 
 which surviveth), which many have thought superfluous, are 
 verie materiall. Note well this kind of fee simple, for it is Vide Sect. 4. 
 worthy the observation : but sufficient hath been said to open 
 the meaning of Littleton, and therefore I will dive no deeper 
 into this point, but leave it to the further consideration of the 
 learned reader (2). 
 
 Sect. 355. 
 
 ALSO if a feoffment be made upon condition to enfeoff another, or to 
 make a gift in tail to another (si feoffment soit fait sur condition 
 d'enfeoffer un auter, ou | de doner en || taile a un auter), $c. if the 
 feoffee before the performance of the condition enfeoff a stranger, or 
 make a lease for life, then may the feoffor and his heirs enter, §c. be- 
 cause he hath disabled (1) himself to perform the condition, inasmuch 
 as he hath made an estate to another, $c. 
 
 T ITTLETON having spoken of defaults of performance, or 
 
 express breaches of conditions, speaketh now in what cases 
 
 the feoffee in judgment of law doth disable himselfe to perform 
 
 the condition ; and of disabilities some be by act of the party, 
 
 and some by act in law. 
 
 " Or to make a gift M in tail to another, &c." Here is implied 
 an estate for life or for years, &c. 
 
 t 2 21.1 JS®" " Enfeoff a stranger, or make a lease for life" 13 h. 7. 23. b. 
 a. J This is a disabilitie by the act of the partie, for herein 32 E. 3. Barre, 
 the feoffee hath disabled himself to make the feoff- jf*JJ jj^ 8, 
 ment 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, qualitie, .,, R 5 ^ 
 and freedom as the land was conveyed to him, for so the law i"r h. Abr. 
 requireth the same, as shall manifestly appear hereafter. And 447.) 
 here where our author speaketh of a feoffment, he includeth an 
 estate tail as well as the fee simple. 
 
 Sect. 
 
 £ de not in L. and M. or Roh. \\ le added in L. and M. and Roh. 
 
 (2) See the note 2, on page 12. b. 
 
 (1) Upon the doctrine of this and the three following Sections, see Vin. 
 Abr. vol. 5. p. 221. 225.
 
 221. a.J Of Estates L. 3. C. 5. Sect. 356, 357. 
 
 ft? ep -SJl Sect. 356. 
 
 (5 Rep. 9a.) 
 
 TN the same manner it is, if the feoffee, before the condition performed, 
 letteth the same land to a stranger for term of years; in this case the 
 feoffor and his heirs may enter, Sj-c. because the feoffee hath disabled him 
 to make an estate of the tenements according to that which was in the 
 tenements, ivhen the state thereof was made unto him. For if he ivill 
 make an estate * of the tenements according to the condition, $c. then 
 may the lessee for years enter and oust him to whom the estate is made, 
 $c. and occupy this during his term \. 
 
 a IF the feoffee, before the condition performed, letteth the same 
 land to a stranger for term of years, &c." Here the &c. 
 implyeth a lease to take effect in futuro as well as in prazsenti, 
 also a lease for one year or half a year, &c. 
 
 The reason of this is evidently set down before. And again, 
 of disabilities some be by act in prasenti, whereof Littleton 
 hath put two examples, and some in futuro, whereof now he 
 will speak in the next Section. 
 
 Sect. 357. 
 
 A ND many have said, that if such feoffment be made to a single man 
 upon the same condition, and before he hath 'performed the same 
 condition he taketh wife, then the feoffor and his heirs maintenant may 
 enter, because, if he hath made an estate according to the condition, and 
 after dieth, then the wife shall be endowed (Et plusors on dit, que si tiel 
 feoffment soit fait a un home sole sur meisme condition, et devant que 
 il ad performe mesme la condition il prent feme, § donques le feoffor 
 et ses heires maintenant poient entrer, pur ceo que s'il fesoit estate 
 accordant a la condition, et puis morust, donques 4- la feme serra 
 endowe), and may recover her dower by a writ of dower, £c. and so by 
 the taking of a wife, the tenements be put in another plight than they 
 were at the time of the feoffment upon condition, for that then no such 
 wife was dowable ('pur ceo que adonques nul tiel f feme fuit dowable), 
 nor should be endowed by the law, §c. 
 
 THIRST, here is an example of a disability both by act in law 
 J- and in futuro, for by marriage the wife is entitled by law to 
 dower, after the death of her husband. 
 
 Secondly, 
 
 * of the tenements not in L. and M. § donques — que in L. and M. and 
 
 or Roh. Roh. 
 
 | dr. added in L. and M. and f la — sa in L. and 31 and Roh. 
 
 Roh. X feme not in L. and M. or Roh.
 
 L. 3. C. 5. Sect. 357. upon Condition. [221. b. 222. a. 
 
 Secondly, it [a] appeareth that albeit the wife by [a] 13 H. 7. 
 
 [221.1 the marriage is but intitled to have O^T dower, and 23. b. 34 E. 3. 
 b. I the estate which she is to have in futuro, viz. after the M 2 i e. 3. 
 decease of her husband, yet it is a present cause of tit. Dower, 135. 
 entrie. As a lease for years to begin at a day to come is a ??f T ss L p i' fi 4 ' 
 present disabilitie and cause of re-en trie, for that the land is lib _ 2 ' f i.' 59. b. 
 not in that freedom and plight as it was conveyed to the feoffee, (5 Rep. 20. b. 
 and after the state made over according to the condition the 21- a.) 
 land shall be charged therewith. toirtcaseSi" 
 
 11 In mother plight" Plight is an old English word, and fol - 59 » 60 - 
 here signifieth not only the estate but the habit and qualitie of 
 the land, and extendeth to rent charges, and to a possibility of 
 dower. Vide Sect. 289. where plight is taken for an estate or (i Roll. Abr. 
 interest of and in the land itself, and extendeth not to a rent 447.) 
 charge out of the land. 
 
 " To a single man." For if the feoffee were married at the 
 time of the feoffment, then the dower can be no disabilitie, be- 
 cause the land shall remain in such plight as it was at the time 
 of the feoffment made unto him. 
 
 " Then the feoffor and his heirs maintenant may enter." Here 
 it appeareth, that seeing that for this title or possibilitie the 
 feoffor may presently enter, that albeit the wife happen to dye 
 before the husband, so as this title or possibilitie took 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 diversitie is to be observed between a disabilitie 
 for a time on the part of a feoffee, and a disability for a time 
 on the part of the feoffor. For if a man maketh a feoffment in (5 Rep. 21. a.) 
 fee, upon condition that the feoffee before such a day shall re-in- 
 feoff the feoffor, the feoffee taketh wife, and the wife dyeth before 
 the day, yet may the feoffor re-enter. 
 
 So it is if the feoffee before the day entreth into 21 E - ■*• 55. 
 
 [222.~j religion, and is professed, and before Jg@=* the day is 
 a. J deraigned, yet the feoffor may re-enter. 
 
 So it is if the feoffee before the day make a feoff- 
 ment in fee, and before the day take back an estate to him and 
 his heirs, yet the feoffor may re-enter. 
 
 Albeit in these cases a certain day is limited, yet the feoffee 
 being once disabled is ever disabled. And so it is when no time 
 is limited by the parties, but the time is appointed by the law. 
 
 But if a man make a feoffment in fee upon condition, that if 
 the feoffor or his heirs pay a certain sum of money before such 
 a day, the feoffor commit treason, is attainted and executed, now (2 R op . 79. a.) 
 is there a disabilitie on the part of the feoffor, for he hath no heir ; 
 but if the heir be restored before the day he may perform the 
 condition, as it was resolved *Trin. 18 Eliz. in Communi Banco * Trin. 18 Eliz. 
 in sir Thomas Wiat's case, which I heard and observed. Other- £ Communi 
 wise it is if such a disabilitie had grown on the part of the ThomasViat's 
 feoffee; and the reason of the diversitie is, for that, as Littleton case. 
 saith, maintenant by the disability of the feoffee, the condition 
 is broken, and the feoffor may enter, but so it is not by the (f l °- 553 - fu 
 disability of the feoffor, or his heirs; for if they perform the 2£££hSl) 
 condition within the time, it is sufficient, for that they may at 
 any time perform the condition before the day. And so it is 
 
 if
 
 222. a. J Of Estates L. 3. C. 5. Sect. 358. 
 
 if the feoffor enter into religion, and before the day is deraigned, 
 he may perform the condition for the cause aforesaid. Et sic 
 de similibus. The (&c.) in this Section are sufficiently ex- 
 plained. 
 
 Sect. 358. 
 
 TNthe 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 qua supra. For whosoever commeth to the 
 lands by the feoffment of the feoff ee, they ought to be lyable, and put in 
 execution by force of the statute merchant, or of the statute staple (Car 
 quecunque que venust a les tenements per le feoffment de le feoffee, 
 * eux covient estre liables, et estre mis en execution per force de l'esta- 
 tute merchant ou de statute del staple.) f Quaere. But when the feoffor 
 or his heirs, for the causes aforesaid, shall have entred, as it seems they 
 ought, $c. then all such things which before such entry might trouble 
 or incumber the land so given upon condition, Sj-c. as to the same land, 
 are altogether defeated. 
 
 13 H. 7. 23. b. " TIJAY enter, &c." And here it is to be understood, that 
 44 E.' 3.' 9. i>. ' *"-* the grant of the rent charge is a present disability of 
 In TT fi" 2* tne feoffee > and therefore albeit the grantee doth bring a writ 
 JuliusWynmng- of annuitie, and discharge the land of it, ab initio, yet the 
 ton's case, ubi° cause of entrie 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 or damages are recovered. 
 
 " Or be bound in a statute staple, &c." If the feoffee be dis- 
 seised, and after bind himself in a statute staple, or merchant, 
 or in a recognizance, or take wife, this is no disabilitie 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 doth enter, 
 there is no disabilitie 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 light and freedom as it was 
 conveyed unto him. 
 
 And it is to be observed, that Littleton putteth these cases as 
 examples, for there are some other disabilities implyed, that are 
 not here expressed. 
 
 The lord Clifford did hold his barony and sherifwick of 
 Westmerland of the king by grand serjanty in capite, and the 
 king gave him licence that he might infeoff thereof divers 
 chaplains in fee, so that they should give the same to the lord 
 
 Clifford 
 
 supra. 
 
 (1 Roll. Abr. 
 
 447.) 
 
 (5 Rep. 20. b) 
 
 Lib. 2. fol. 59, 
 CO. Julius Wyn- 
 nington's case. 
 (2 Rep. 79. a. 
 10 Rep. 49. b.) 
 
 18 Ass. PI. ult. 
 
 19 E. 3. 39. 
 Lib. 2. fol. 80. b. 
 Seig. Crom- 
 ■wel's case. 
 
 (4 Rep. 119.) 
 
 * eux — donques les tenements, in f Q u * re - 
 L. and M. and Eoh. Roh. 
 
 -&c. in L. and M. and
 
 L. 3. C. 5. Sect. 359. upon Condition. [222. l>. 
 
 r222.1 Clifford and the heires 00=" male of his body, the re- 
 
 b. I mainder over, &c. the lord Clifford according to the (Ant. Sect. 354. 
 licence infeoffed the chaplains, and before they made l »<>11. Abr. 
 the reconveyance the lord Clifford dyed, and it was adjudged ° ; 
 that the heir might enter for the condition broken. For in this 
 case the feoffees were bound by law to have made the gift in tail 
 to the lord Clifford himself, albeit he never made any request, 
 for otherwise they pursued not the licence, and if they should 
 make the state to the issue of the lord Clifford, then might the 
 king seise the barony, &c. for default of a licence, and that in 
 default of the feoffees. And then the same should not be in 
 the same plight and freedom as it was at the time of the feoff- 
 ment made upon condition, which is worthy of observation. 
 
 If a man grant an advowson upon condition that the grantee (2 Rep. 79. 
 shall regrant the same to the grantor in tail; in this case, if the 1 Leo. 167.) 
 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 so it was resolved, 
 (*)Pasch. 14 Eliz. in Communi Banco, between Andrewes and (*)Pasch. 
 Blunt, which I heard and observed, and which my lord Dier MBliz. 311. 
 hath omitted out of his report of that case, and therefore the 
 grantee in that case at his perill must regrant it before the 
 church become voide, or else he is disabled, otherwise he hath 
 time during his life if he be not hastened by request. 
 
 If the feoffee suffer a recovery by default upon a faigned title, 44 E. 3. 9. ' 
 before execution sued the feoffor may re-enter for this disability. 
 Et sic de similibus. 
 
 Sect. 359. 
 
 A LSO, if a man make a deed of feoffment to another, and in the deed 
 there is no condition, $e. and when the feoffor will make liverie of 
 seisin unto him by force of the same deed, he makes livery of seisin 
 unto him upon certain condition* ; in this case nothing of the tenements 
 passeth 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. 
 
 " A NB in the deed there is no condition, &c." either in deed 
 "^ or in law. 
 
 "And the feoffment is in like force as if no siich deed had (4 Rep. 25. a.) 
 been made." And the reason hereof is, for that the estate pass- IS E. 3. 19. 30. 
 eth by the livery of seisin (1). And in this case the feoffor upon g 7 H ^'g 1 '" ' 
 the deliverie of seisin must express the state to him and his 27 H. 6. 
 heirs, or to the heirs of his body, &c. 
 
 If an agreement be made between two, that the one shall en- 34 Ass. PI. 1. 
 feoff the other upon condition in surety of the paiment of cer- 
 tain money, and after the livery is made to him and his heirs 
 
 generally, 
 
 * &c. added in L. and M. and Roh. 
 (1) Vid. ant. 48.
 
 222. b. 223. a.] Of Estates L. 3. C. o. Sect. 360. 
 
 generally, the state is bolden by some to be upon condition, in- 
 asmuch as the intent of the parties was not changed at anytime, 
 but continued at the time of the livery (2). 
 13 E. 3. tit. If a man make a charter of feoffment in fee, and the feoffor 
 
 Estoppell, 177. deliver seisin for life, the feoffee shall hold it but for life; but if 
 the livery be expresly for life, and also according to the deed, 
 the whole fee simple shall pass, because it hath a reference to 
 the deed. 
 
 19 E. 3. ibid 
 184, 
 
 Sect. 360. 
 
 J^LSO, 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 infeoffed of lands or tenements (pur ceo que quant home est 
 enfeoffe * de terres ou tenements), he hath poiver to alien them to any 
 person by the laiv. For if such a condition should be good, then the 
 condition should oust him of all the power ivhich the law gives Mm, 
 ■which should be against reason, and therefore such a condition is void. 
 
 (Ant. 206. " ALSO, if a feoffment be made, &c." And fi@~the ["223/1 
 
 ^i R H P 'fi 8 s'i ^ e kw i s 0I " a devise in fee upon condition that | a. 
 
 8 H.V. lO.b. ^ ne devisee shall not alien (1), the condition is void, 
 33 Ass. 11. 24. and so it is of a grant, release, confirmation, or any other con- 
 ?o >C i94 lld Stud ' ve y ance whereby a fee simple doth pass. For it is absurd and 
 13 H. 7. 23. repugnant to reason that he, that bath no posssibility to have 
 (5 Rep. 56. a.) the land revert to him, should restrain his feoffee in fee simple 
 Argumentum f all his power to alien. And so it is if a man be possessed 
 Vide Sect.°722. °^ a ^ ease ^ or y ears > or 0I> a horse, or of any other chattell reall 
 or personall, and give or sell his whole interest or propertie 
 therein upon condition that the donee or vendee shall not alien 
 the same, the same is void, because his whole interest and pro- 
 pertie is out of him, so as he hath no possibilitie of a reverter, 
 and it is against trade and traflique, and bargaining and con- 
 tracting between man and man : and it is within the reason of 
 
 our 
 * de — en, L. and M. 
 
 (2) As to deeds, see Burglacy v. Ellington, 1 Brownlow's Rep. 191. The 
 court held, that, when a deed is perfect and delivered as his deed, then no 
 verbal agreement made after may be pleaded in destruction or alteration there- 
 of; but, when the agreement is parcel of the original contract, and may well 
 stand with the deed, and is not in terms repugnant to it, then such verbal 
 agreement may be pleaded. As, if a man for money mortgage land to B. by 
 deed being of greater yearly value than the interest money, and before the 
 sealing of the deed it was agreed by word, that the mortgagor should have and 
 receive the profits, not the mortgagee, this is good and usual in such cases, 
 and B. may plead the verbal agreement to avoid the danger of usury. But, if 
 it had been expressed within the deed, that the mortgagee should have the 
 profits, and the deed was delivered accordingly, then no agreement, covenant, 
 or assignment of the profits could keep it, but that it was an usurious contract, 
 and consequently the deed and mortgage void. — [Note 130.] 
 
 (1) A devise in fee,, on condition not to alien but to I.S. whether void? See 
 Muschamp's case, Bridg. 132.— Lord Nott, MSS— [Note 181.]
 
 L. 3. C. 5. Sect. 361. upon Condition. [223. a. 223. b. 
 
 our author that it should ouster him of all power given to him. 
 Iniquum est ingenuis liominibus non esse liberam rerum suarum 
 alienationem ; and rerum suarum quilibet est moderator, & 
 arbiter. And again, regulariter non valet pactum de re med 
 non alienandd. 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 collaterall thing, as hereafter shall appear. 
 Where our author putteth his case of a feoffment of land, that (10 Rep. 39. 
 is put but for an example : for if a man be seised of a seigniory, Sob. 170.) 
 or a rent, or an advowson, or common, or any other inheritance 
 that lyeth in grant, and by his deed granteth the same to a man 
 and to his heirs upon condition that he shall not alien, this con- 
 dition 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 that, that 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 puritie of 
 a fee simple. 
 
 A man before the statute of quia emptores ten-arum might 14 H. 4. 
 have made a feoffement in fee, and added further 1 , that if he or 13 H. 7. 23. 
 his heirs did alien without licence, that he should pay a fine, 
 then this had been good. And so it is said, that then the lord 21 H. 7. 8. 
 might have restrained the alienation of his tenant by condition, 1 l b -. 5 - 5 , 6 - 
 because the lord had a possibilitie of reverter; and so it is in the img £ 
 king's case at this day, because he may reserve a tenure to him- 
 self. 
 
 If A. be seised of Black Acre in fee, and B. infeoffeth him of 
 White Acre upon condition that A. shall not alien Black Acre, 
 the condition is good, for the condition is annexed to other land, 
 and ousteth not the feoffee of his power to alien the land whereof 
 the feoffment is made, and so no repugnancy to the state passed 
 by the feoffment; and so it is of gifts, or sale of chattels real or 
 personal. 
 
 Sect. 361. 
 
 T> UT if the condition be such, that the feoffee shall not alien to such 
 a one, naming his name, or to any of his heirs, or of the issues of 
 such a one (Mes si le condition soit tiel, que le feoffee ne alienera a un 
 tiel, nosmant son nosme, ou a ascun de * ses heires, ou de issues d'un 
 tiel), $c. or the like, which conditions do not take aivay all power of 
 alienation from the feoffee, §c. then such condition is good. 
 
 IF a feoffment in fee be made upon condition that the feoffee pi. Com. 77. a. 
 shall not enfeofle I. S. or any of his heirs or issues, &c. this 8 H. 7. 10. b. 
 is good, for he doth not restrain the feoffee of all his 
 
 [223.1 power: the reason here yielded by our JS^° author is (Dyer, 45. a. 
 b. worthy of observation. And in this case if the feoffee ll Rep. 74. a.) 
 
 cnfeoffe /. iV. of cntent and purpose that he shall in- 
 feoffe I. S. some hold that this is a breach of the condition, for 
 quando aliquid prohibeiur fieri, ex directo prohibelur d: per ob- 
 liquum. 
 
 If a feoffment bee made upon condition that the feoffee shall 10 n. 7. u. 
 not alien in mortmain, this is good, because such alienation is Doct. and 
 
 prohibited *«£}&, 
 
 \ses not in L. and M.
 
 223. b.] Of Estates L. 3. C. 5. Sect. 362. 
 
 prohibited 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 
 
 Braeton, lib. 1. most commonly a clause, quod licitum sit donatori rem datam 
 
 fol. 13. a. dare vel vendere cui voluerit, exceptis viris religiosis & Judseis. 
 
 Sect, 362. 
 
 A LSO, if lands be given in tail upon condition, that the tenant in tail 
 nor his heirs shall not alien in fee, nor in tail, nor for term of an- 
 other s life, but only for their oivn lives (si tenements soient donees en 
 le taile sur tiel condition, que le tenant en le taile ne ses heires f ne 
 alieneront en fee, % ne en le taile, ne pur terme d'auter vie, forsque pur 
 lour vies demesne), §c. such condition is good. And the reason is, for 
 that when he maketh such alienation and discontinuance of the entail, 
 he doth contrary to the intent of the donor, for ivhich the statute of W. 
 2. || cap. 1. was made, by which statute the estates in tail are ordained{l). 
 
 NOTE 
 
 j* &c. added in L. and M. \\ cap. 1. added in L. and M. 
 
 j ne — ou in L. and M. 
 
 (1) A power of suffering a common recovery, and of levying a fine within 
 the statutes of 4 Hen. 7, and 32 Hen. 8, is so inseparably inherent to the estate 
 of a tenant in tail, that any condition or proviso restraining or prohibiting it, 
 is held to be repugnant to the nature of the estate, and therefore void. But 
 it does not vitiate the grant of the estate tail to which it is annexed; because 
 (to use an expression of lord Hobart) a condition annexed to an estate given 
 is a divided clause from the grant, and therefore cannot frustrate the grant 
 preceding it, neither in any thing expressed, nor in any thing implied, which 
 is, of its nature, incident to and inseparable from the thing granted. Hob. 
 170. But this doctrine does not extend to a feoffment, a fine at common law, 
 or any other alienation which works a discontinuance, and is therefore con- 
 sidered in the law as tortious. A proviso restrictive of an alienation of this 
 nature may be annexed to an estate in tail, either as a condition to determine 
 the estate, and give the donor and his heirs a right of re-entry, or by way of 
 limitation, to make the estate of the tenant in tail cease, and the lands remain 
 over to a third person! But in these cases the estate in tail must be made to 
 cease absolutely; for a proviso to make it void only during the life of the tenant 
 in tail is void. - See Litt. Sect. 720, 721, 722, 723. Scholastics case, Plo. 
 403. Corbett's case, 1 Rep. 83. b. Jermyn v. Arscot, cited in 1 Rep. 85. 
 Mildniay's case, 6 Rep. 40. Mary Portington's case, 10 Rep. 37. b. The 
 courts however have allowed both conditions and covenants, restraining or 
 prohibiting lessees for life or years assigning their estates without the consent 
 of the lessors. Blencowe v. Bugby, 3 Wilson, 234. In Hunter v. Galliers, 
 Term Reports, vol. 2. 133. a proviso in a lease for 21 years that the landlord 
 should re-enter on the tenant's committing any act of bankruptcy whereon a 
 commission should issue, was held to be good. In Davidson v. Foley, Brown's 
 Reports in Cha. 2 vol. 203. the reader will find a curious instance of a trust 
 under which two persons are become virtually entitled to a very considerable 
 annuity, at the same time that the trust is so framed as to exclude their cre- 
 ditors from having any charge or lien upon the annuity, either at law or equity. 
 
 The
 
 L. 3. C. 5. Sect. 362. upon Condition. [223. b. 224. a. 
 
 NOTE here, the double negative in legall construction shall 33 Ass. n.24. 
 not hinder the negative, viz. sub conditione quod ipse nee hse- lib. 6. 40, 41. 
 redes sui non alienarent. And therefore the granimaticall con- ^j" 1 ^^ 8 case 
 struction is not always in judgment of law to be followed. 13 H 7 [ 23 
 
 21 H. 7. 11. Vid. Sect. 220. ace. (Cro. Car. 555. Hob. 191. Cro. Jac. 307. 
 Ant. 146. b. 10 Rep. 130. 4 Rep. 14.) 
 
 " But only for their own lives, &c." And yet if a man make 
 a gift in taiie, upon condition that he shall not make a lease for ^ a 
 
 his own life, albeit the state be lawfull, yet the condition is good, contra.) 
 because the reversion is in the donor. As if a man make a lease 21 II. 6. 33. 
 for life or years upon condition, that they shall not grant over J3 H. 7. 23, 24. 
 their estate or let the land to others, this is good, and yet the 31 H ; s [ 
 grant or lease shall be lawfull. (*) If a man make a gift in tail Dyer, 45. 
 upon condition that he shall not make a lease for three lives or jlJSr m^h 8 
 21 years according to the statute of 32 H. 8, the condition is f . 48,49'. 
 good, for the statute doth give him power to make such leases, (l'o Rep. 38, 39. 
 which may be restrained by condition, and by his own agreement; l Roll. Abr. 418.) 
 for this power is not incident to the estate, but given to him col- 
 laterally by the act, according to that rule of law, quilibet potest 
 renunciare juri pro se introducto. 
 
 " Wlien lie maketh such alienation and discontinuance of the 
 entail." And therefore if a gift in tail be made upon condition, Vid. lib. 6. 40. 
 that the donee, &c. shall not alien, this condition is good to some ^Mma^'scase 
 intents, and void to some ; for, as to all those alienations which ^ Rep 84 _ 
 amount to any discontinuance of the state tail (as Littleton here 1 Roll. Abr. 
 speaketh ;) or is against the statute of Westminster 2, the condi- 418.) 
 tion is good without question. But as to a common recoverie the 
 
 condition is voyd, because this is no discontinuance, 
 ["224.1 but a bar, and this common &CT recovery is not re- (1 Roll . Abr . 
 a. I strained by the said statute of W. 2. And therefore 412.418. 
 
 such a condition is repugnant to the estate tail ; for it 10 Re P- 35 - b -) 
 is to be observed, that to this estate tail there be 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 22 E. 3. 9. 
 feme donee after issue shall be tenant by the curtesie. Fourthly, * 7 ^l. 343. 
 that tenant in tail may suffer a common recoverie : and therefore yer * 
 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 (1) or a ^ 13 H T< 
 
 lineal 24. b. 
 
 The illusory nature of estates and trusts of this description raises a powerful 
 objection to them on the ground of policy ; nor are they, perhaps, quite recon- 
 cileable to some of the fundamental principles of our law. Serious consequences, 
 it is presumed, would ensue their coming into general, or even frequent, use. — 
 [Note 132.] 
 
 (1) But this is altered by the 4 and 5 (B) Ann. c. 1G, whereby all collateral 
 warranties by ancestors, who have no estate of inheritance in possession in the 
 lands warranted, are made void against their heirs. The restraints which at 
 different times have been laid on the free alienation of property, and the 
 methods used to set them aside, form one of the most interesting parts of the 
 history of every nation in which the feudal institutions have prevailed. So far 
 as the history of England is concerned in them, they have been discussed with 
 great accuracy by Sir William Blackstone, vol. 2. chap. 7. and Sir John Dal- 
 rymple, in the History of the Feudal Law, chap. 3, and 4. The introduction 
 
 of 
 
 (B) This act is styled 4 Ann. c. 16, in Huff head's edition of the Statutes at large.
 
 224. a.] Of Estates L. 3. C. 5. Sect. 362. 
 
 lineal with assets in respect of the recompence, is not restrained 
 by the statute of Donis conditionalibus, no more is the common 
 recovery in respect of the intended recompence. And Litteton, 
 to the intent to exclude the common recovery, saith, such alien- 
 ation and discontinuance, joyning them together. 
 
 If a man before the statute of Bonis 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 should 
 have been repugnant and void (2). Pari ratione, after the sta- 
 tute a man makes a gift in tail, the law tacite gives him power 
 to suffer a common recovery ; therefore to add a condition, that 
 he shall have no power to suffer a common recoverie, is repug- 
 nant and voyd. 
 
 If a man make a feoffment to a baron and feme in fee, upon 
 
 condition, that they shall not alien, to some intent, this is good, 
 
 10 H. 7. 11. and to some intent it is void : for to restrain an alienation by 
 
 13 n. 7. 23. feoffment, or alienation by deed, it is good, because such an aliena- 
 
 ;« as- * \\ tlon is tortious and voidable : but to restrain their alienation by 
 
 in bir Anthony n . . . . , • • i p i i • ■< ■, i J 
 
 Mildemaye's hue is repugnant and void, because it is lawful and unavoidable, 
 case, ubi supra. It is said, that if a man infeoffe an infant in fee, upon condi- 
 l R 11 At) 1 ' 221 ) ^ on ^ a * ^ e s ^ a ^ n °t alien, this is good to restrain alienations 
 during his minoritie, but not after his full age. 
 
 It is likewise said, that a man by licence may give land to a 
 octor & bishop and his successors, or to an abbot and his successors, and 
 
 otuuent, IZ±. .. . x ... ■11 in -i i p 
 
 add a condition to it, that they shall not without the consent or. 
 
 their chapter or covent ; alien, because it was intended a mort- 
 main, 
 
 of recoveries, and the circumstances which led the way to them, are accurately 
 stated and explained by Mr. Cruise, in his most excellent Essay on the Law of 
 Recoveries. The restraints on the alienation of property are much greater in 
 Scotland than they are in England. There, if a tailzie is guarded ivitli irritant 
 and resolutive clauses, the estate intailed cannot be carried off by the debt or 
 deed of any of the heirs succeeding to it, in prejudice of the substitutes. This 
 degree of tailzie differs from that of a tailzie with prohibitory clauses. The pro- 
 prietor of an estate of this nature cannot convey it gratuitously, but he may 
 dispose of it for onerous causes, and it may be attached by his creditors ; yet 
 the substitutes, as creditors by virtue of the prohibitory clause, may by a pro- 
 cess, called in the law of Scotland an Inhibition, secure themselves against 
 future debts or contracts. A third degree of tailzie used in Scotland is called 
 a simple Distination. This amounts to no more than a designation who is to 
 succeed to the estate, in case the temporary proprietors of it make no disposi- 
 tion of it : for it is defeasible, and attached by creditors. See Ersk. Inst. 288, 
 360.— [Note 133.] 
 
 (2)Britton, in his chapter on Conditional Purchases, observes, that "if any 
 " purchase to him and his wife, and to the heirs of them lawfully begotten, 
 "the donees have presently but an estate of freehold for the term of their 
 " lives, and the fee accrueth to their issue, if they had not issue before ; and if 
 " they had no issue, then the fee remains in the person of the donor until they 
 " have issue, and the purchase returns to the donor, if the purchaser has no 
 " offspring, or if they have issue and that issue fails." But lord Coke in his 
 2d Inst. 333. observes, that Britton takes the condition to be precedent, but 
 that the donees had at the common law, a fee simple conditional immediately 
 by the gift. As a proof of this, he mentions, that if a gift was made to a man 
 and the heirs of his body, and before issue, he had before the stat. de donis 
 made a feoffment in fee, the donor could not enter for the forfeiture, but that 
 the feoffment would have barred the issue had afterwards. — [Note 134.]
 
 L. 3. C. 5. Sect. 363. upon Condition. [224. a. 224. b. 
 
 main, that is, that it should for ever continue in that see or 
 house, for that they had it en auter droit, for religious and good 
 uses. 
 
 " The statute of W. 2. cap. 1." Hereby it appeareth, that 10 n. 7. 11. 
 whatsoever is prohibited by the intent of any act of parliament, Doct. & stud. 
 may be prohibited by condition, as hath been said. 124, 13H - 7 - 23 - 
 
 Sect. 363. 
 
 J? OR it is proved by the ivords comprised in the same statute, that 
 the will of the donor in such cases shall be observed, and when the 
 tenant in tail maketh such discontinuance (Car il est prove per les 
 parols comprises en mesme l'estatute, * que la volunt del donor en tiels 
 cases serroit observe, et quant le tenant en le taile fait f tiel discon- 
 tinuance), he doth contrary to that, §c. And also in estates in tail of 
 any tenements, when the reversion of the fee simple, | or the remainder 
 of the fee simple is in other persons, when such discontinuance is made, 
 then the fee simple \\ in the remainder is discontinued. And because (Et 
 pur § ceo que) tenant in tail shall do no such thing against the profit \ 
 of his issues, and good right, such condition is good, as is aforesaid, ^c. 
 
 11 ~VJU^HEN the reversion or remainder in fee is in other per- (Post. 298. 333. 
 
 sons." Put the case that a man make a gift in tail to A. 338.) 
 the remainder to him and to his heires, upon condition that he 40^472 ^74 
 shall not alien; as to the state tail the condition is good, for Cro. Eliz. 360.) 
 such alienation is prohibited, as hath been said, by the said sta- n H. 7. 6. 
 tute. But as to the fee simple, some say it is repugnant and ^ IL £ | 3 > 24- 
 voyd, for the reason that Littleton hath yielded; and therefore 3 Phil. & Ma. 
 some are of opinion, that this is a good condition, and shall 127. b. 
 defeat the alienation for the estate tail only, and leave the fee 
 simple in the alienee, for that the condition did in law extend 
 only to the state taile, and not to the remainder. 
 
 t334r."l " Against the $@f profit of his issues." Hereby it 
 b. J appeareth, that to restrain tenant in tail from aliena- 
 tion against the profit of his issues, is good, for that 
 agreeth with the will of the donor, and the intent of the statute*. *46 E. 3. 4. 
 But a gift in taile may be made upon condition, that tenant ( ] lloU - Abr - 
 in tail, &c. may alien for the profit of his issues, and that hath 418 '^ 
 been holden to be good, and not restrained by the said statute, 
 and seemeth to agree with the reason of Littleton, because in 
 that case, Voluntas donatoris observetur, &c. and it must be for 
 the profit of the issues. 
 
 Sect. 
 
 * que fuit al entent de le fesancede || in the reversion or the fee simple, 
 
 mesme l'estatute, added in L. and 31. added in L. and M. and Boh. 
 
 and Roh. § ceo — ouster in L. and M. and 
 
 f tiel — un, in L. and M. and Roh. Roh. 
 
 % or the remainder of the fee simple, ^ of 7iis issues, not in L. and M. or 
 
 not in L. and M. or Boh. Boh. 
 
 .J. dr. not in L. and M. or Boh.
 
 224. b. 225. a.] Of Estates L. 3. C. 5. Sect. 364. 
 
 Sect. 364. 
 
 4 LSO a man may give lands in tail upon such condition, that if the 
 tenant in tail or his heirs alien in fee or in tail, or for term of an- 
 other man's life, §c. and also that if all the issue comming of the tenant 
 in tail he dead ivithout issue, that then it shall he lawfullfor the donor 
 and for his heirs to enter, £c. And hy this way the right of the tail 
 (le droit || de le taile) may he saved after discontinuance (apres ^[ dis- 
 continuance), to the issue in tail, if there he any (si ascun 4. y soit) ; so 
 as hy way of entry of the donor or of his heirs, the tail shall not he de- 
 feated hy such condition: -i- Quaere hoc. And yet if the tenant in tail 
 in this case, or his heirs, make any discontinuance, he in the reversion 
 or his heirs, after that the tail is determined for default of issue, £c. 
 may enter into the land hy force of the same condition, and shall not he 
 compelled (et ne serront my § cohert) to sue a writ of formedon in the 
 reverter. 
 
 21 H. 7. 11. " A LIEN, &c. and also if all the issue be dead, &c" Note, 
 
 (1 Rep. 16. 84.) -**- Littleton purposely made parcell of the condition in the 
 
 copulative, that the tenant in tail should alien, &c. For if a 
 
 gift in tail he made to a man and to the heirs of his hody, and 
 
 if he die without heirs of his body, that then the donor and his 
 
 (Dyer, 343. b.) heirs shall re-enter, this is a voyd condition; for when the issues 
 fail, the estate determineth by the expresse limitation, and con- 
 sequently the adding of the condition to defeat that which is 
 determined by the limitation of the estate, is void(l), and in 
 that case the wife of the donee shall be endowed, &c. And 
 therefore Littleton, to make the condition good, added an aliena- 
 tion, which amounted to a wrong, and he restrained not the 
 alienation only, (for then presently upon the aliena- 
 tion the donor, &c. might re-enter, and defeat the ["925. ~| 
 estate tail) figirbut added, and die without issue, to |_ a. J 
 the end that the right of the estate in tail might be 
 preserved, and not defeated by the condition, but might be re- 
 covered again by the issue in tail in a formedon. 
 
 (Mo. 39.) And Littleton expressly saith, that the donor and his heirs 
 
 after the discontinuance, and after that the estate tail is deter- 
 mined, may re-enter, which is the intention and true meaning of 
 Littleton in this place. And where it is said in this section 
 
 (queer e 
 
 jj <je — en in L. and M. and Roll. 4- Quaere hoc, not in L. and M. or 
 
 1" tiel added in L. and M. and Roh. Roh. 
 
 4 issue added in L. and M. and § cohert — arte in L. and M. and 
 
 Roh. Roh. 
 
 (1) See Boraston's case, 3 Rep. 19. Webb v. Hearing, Cro. Ja. 416. King 
 v. Rumball, Cro. Ja. 448. Chadock v. Cowley, ibid. 695. Fortescue v. Ab- 
 bott, Poll. 479. and Sir Thomas Jones, 79; and Goodtitle v. Whitby, 1 Burr. 
 228. See also 1 P. W. 170;— and Mr. Fearne's Essay on Contingent Re- 
 mainders, p. 241. 6th ed.
 
 L. 3. C. 5. Sect. 365. upon Condition. [225. a. 
 
 (qusere hoc), this is is added by some that understood not this 
 case, and is not in the originall. 
 
 Note, that in a condition consisting of divers parts in the con- OSjd. 437. 
 junctive, as here in the case of Littleton, both parts must be ep< 
 performed according 
 ascriptse fuerunt dc 
 
 ad veritatem copidative requiritur quod utraquep&rs sit vera. iJut wimbeThe'scase 
 otherwise it is when the condition is in the disjunctive (1), for the & f i. 107. in 
 same author in that case saith, Si divisim, cuilibet vel alteri eorum Fulmerston's 
 satis est obtemperare. Et in disjunctivis sufficit alteram partem ubi e 'supra ^1CtCm, 
 esse veram. What then if the condition or limitation be both in (4 R ep . 52. b.) 
 the conjunctive and disjunctive : As if a man make a lease to So it was ad- 
 the husband and wife, for the term of one and twenty years, HeLdST" 
 if the husband and wife or any child between them so long shall Pasch . 30 Eliz. 
 live, and then the wife dyeth without issue; shall the lease de- inter Baidwyn 
 termin, or continue during the life of the husband? And the ££^£7" 
 answer is, that it shall continue, for the disjunctive referreth to Trupennie's 
 the whole, and disjoyneth not only the latter part, as to the case. 
 child, but also to the baron and feme, so as the sense is, if the ( 5 Re P- 112 -) 
 baron, fern, or any child shall so long live. 
 
 [6] And so it is if an use be limited to certain persons, untill M JJJj^*^ 
 
 A. shall come from beyond sea, and attaine unto his full age, or le seignior 
 
 dye, if he doth come from beyond sea, or attain to his full age, Mordant vers. 
 
 ' the use doth cease George Vaux, 
 
 tue use aotn cease. go ad j udged iQ 
 
 the King's Bench. 
 
 Sect. 365. 
 
 J LSO a man cannot plead in any action, that an estate was^ made in 
 fee, or in fee tayl, or for term of life, upon condition if he doth 
 not vouch a record of this, or show a writing under seal, proving the 
 same condition (home ne poit pleder en ascun action, que estate fuit fait 
 en fee, ou en fee taile, ou pur terme de vie, sur condition, f sil ne 
 voucha on record de ceo, ou monstra un escript south seale, provant 
 mesme la condition.) Tor 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 sheweth 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 chivalrie, and such like, 
 3?e. a man may plead that such leases or grants were made upon condi- 
 tion, §c. without shewing any writing of the condition. So in the same 
 manner a man may do of gifts and grants of chattels personals, and 
 of contracts personals, §c. 
 
 f que added in L. and M. and Roh. 
 
 (1) If the condition of the obligation be in the disjunctive, and give the 
 obligor liberty to do one thing or another, at his election, and one of the things 
 becomes impossible, the obligation in some cases will be saved. See the dis- 
 tinctions taken in Eaton & Monox v. Laughter, Cro. Eliz. 398. Baker v. 
 Morecomb, ibid. 864. Basket v. Basket, 2 Mod. 290.— Ant. 145.— [Note 135.]
 
 225. a. 225. b.'J Of Estates L. 3. C. 5. Sect. 365. 
 
 | 9E - 3 - 2 2 - " TN any action." Be the action real, personal, or mixt, if 
 
 9 E. 4. 2a! b! a condition be pleaded to defeat a freehold, it is regularly 
 26. a. true, that a deed must be shewed forth [a] in court (2). And 
 
 6 H. 7. 8. b. the reason why the deed shall be shewed forth to the court is, 
 
 7 H. 6. 7 ' *° r tuat to ever y deed there be two things requisite : the one, 
 14 H. 8. 22. b. that it be sufficient in law, and this is called the legall part, and 
 28 Ass. p. 1. therefore the judgment of that belongeth to the judges of the 
 [«1 Lib io fol ^ aw : tne °t Qer concernes matter of fact, as sealing and delivery, 
 92. Doctor ' and this belongs to the jurors. And because every deed ought 
 Layfield's case, to approve itself, and be proved by others too ; it must approve 
 25 i; 3 3 5 4i itself upon the shewing of it forth in court in two manners. 
 
 41 E. 3. 10. ace. (Ant. 6. a.) (10 Rep. 92.) 
 
 First, as to the composition of the words, that it be sufficient 
 in law, and that the court shall adjudge. 
 (11 Rep. 26. b. SW^ Secondly, of ancient time if the deed appeared r2£J5.~| 
 Dyer, 261. b. to be rased or interlined in places materiall, the judges [_ b. 
 Cr^°Car b 399° 8 ' adjudged upon their view, the deed to be voyd(l). 
 Doc't. Pla. 260.) But of latter time the judges have left that to the jurors to try 
 (Post. 227. whether the rasing or interlining were before the deliverie. 
 
 ?45E* ^2\ ^ n ^ tnere ^ s a difference between a rent, and a re-entry ; for 
 
 Post. 308. b.' upon a gift in tail, or a lease for life, a rent may be reserved 
 338. a. s. 214.) without deed, but a condition with a re-entrie cannot be re- 
 J J o b '. 5 ' n 1 ' 5 ?' served in those cases without deed. 
 
 53, &c. Page s 
 
 case. u Writing under seal." Which Littleton intendeth to be a 
 
 6 I R P ' 2 74 Ca ^6 4 ' deed under seal - 
 
 10 Rep. 92.) ' And well said Littleton, a deed under seal. For though the 
 
 deed be inrolled, yet he cannot plead the inrolment thereof, 
 though it be of record. And though it be exemplified under 
 
 [b] Vide 32 H. 8. the great seal, [&] yet must he shew forth the deed itself under 
 in <> i? ,t t en -| t 9 k F " sea ^» as Littleton here saith, and not the exemplification (2)f. 
 
 And so when Littleton wrote, no constat, or inspeximus, of the 
 king's letters patents were availeable to be shewed forth in court, 
 (2 Inst. 672. but the letters patents themselves under seal. For both the 
 5 Rep. 52, 53.) constat and inspeximus are but exemplifications of the inrol- 
 ment of the charters, or letters patents ; and this appeareth by 
 
 [c] 3 & 4 E. 6. the resolution of two severall [c] parliaments, one holden in 
 cap. 4. and the third and fourth year of king Edward the sixth, and the 
 13 Eliz. cap. 6. th er } n the thirteenth year of queen Elizabeth. But now by 
 
 those statutes the exemplification or constat under the great seal 
 of the inrolment of any letters patents made since the fourth day 
 of February anno 27 H. 8, or after to be made, shall be sufficient 
 to be pleaded and shewed forth in court, as well against the king, 
 as any other person, by the patentees themselves (whereof there 
 
 was 
 
 (2) See Bulst. 259. 160. 6 Mod. 237. 2 Salk. 498. 
 
 (1) ; Tis to be presumed, that an interlining, if the contrary is not proved, 
 was made at the time of making the deed. 1 Keb. 21. Note to the Wth 
 edition. On the rasure, or interlining of deeds, breaking or defacing the seak 
 of deeds, and cancelling deeds, see 1 Wood's Conv. 808, 809. Com. Big. 
 Faits, T. 1, 2 ; and Vin. Abr. Faits, T. U. U. 2 X. X. 2. It is to be observed, 
 that the cancelling of a deed does not divest the estate from the persons in 
 whom it is vested by the deed. 1 Kep. in Cha. 100. and Gilb. Rep. 236. — 
 [Note 136.] 
 
 (2) f On giving deeds of bargain and sale in evidence, see Bull. Ni. Pri. 255. 
 10 Ann. c. 18. and 8 G. 2. c. 6. s. 21.
 
 L. 3. C. 5. Sect. 365. upon Condition. [225. b. 226. a. 
 
 was some doubt [<?] conceived upon the said statute of E. 6.) and [tf] Dyer, 
 by all and every other person and persons clayming by, from, or l Eliz - 16 ?- 
 under them. Which statutes are general and beneficiall, and (Hard. 118.) 
 especially the act of 13 Eliz. for that extends not only to lands, . •" 
 
 tenements, and hereditaments, but to every other thing whatso- \ M yj_ nj{ 
 ever, and ought to be favourably construed for advancement of 
 the remedie and right of the subject (3). 
 
 The difference between a constat, inspeximus and a vidimus, 
 you may read [e] at large in Page's case. But none of them by [c] Lib. 8. fol. 8. 
 law ought to be had, but only of the inrolment of record, and in tne Prince's 
 not of a deed or any other writing that is not of record, and no p a ^e' s case 
 deed, &c. can be inrolled, unless it be duly and lawfully ac- ubi supra, 
 knowledged. 
 
 "Unless it be in some special cases, &c." Hereby is implyed, 33 E. 3. Gard. 
 that if a gardian in chivalrie in the right of the heir entreth for * 62, 20 H - ^ 
 a condition broken, he shall plead the state upon condition with- 35*^ g* 
 out shewing of any deed, because his interest is created by the tit. Monstrans 
 law. And so it is [f\ of a tenant by statute merchant or staple, £*" *■?**& 118 - 
 
 , . , 7 ., L J J J r ' [/] 20 H. 7. 5. 
 
 or tenant by elegit. _ ... (5 Rep. 75. a.) 
 
 Likewise tenant in dower shall plead a condition, &c. without (2 Cro. 217.) 
 
 shewing; of the deed. And the reason of these and the like cases, ( 10 Re P- 93 - 
 
 is, for that the law doth create these estates, and they come not 35 jj 6 tit 
 
 in by him that entred for the condition broken, so as they might Monstrans des 
 
 provide for the shewing of the deed, but they come to the land Faits, 11. b. 
 
 by authoritie of law, and therefore the law will allow them to 7 jj' 5 '5 
 
 plead the condition without shewing of it. 3 h. 6. 21. 
 
 ("236."] [/*] fl®" But the lord by escheat, albeit his estate 33 H. 6. 1. 
 
 |_ a. I be created by law, shall not plead a condition to de- rijn'q^" u « 
 
 feat a freehold without shewing of it, because the u bi supra. 
 
 deed doth belong unto him. [</] 35 H. 6. 
 
 A tenant by the curtesie shall not [g~\ plead a condition made ubl su P ra - 
 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 presumeth that he had the possession of the deeds and evi- 
 dences belonging to his wife. 
 
 f A] But lessees for years, and all others that claim by any [h] 14 H. 8. 8. 
 
 conveyance from the party, or iustifie as servant by command- ?}: „ om '}* 9 ' n 
 *. s 4. 1 *u 1 J (10 Rep. 92, 93.) 
 
 ment, &c. must shew the deed. v 
 
 [t] R. brought an ejectione firmoe against E. for ejecting him \i\ 44 E. 3. 22. 
 
 out of the mannor of D. which he held for term of yeares of the 
 
 demise of C. — E. the defendant pleaded that B. gave the said 
 
 mannor to P. and Katharine his wife in tail, who had issue E. (6 Rep. 38.) 
 
 the defendant, and after the donees infeoffed C. of the mannor, 
 
 upon condition that he should demise the mannor for yeares to R. 
 
 the plaintiff, the remainder to the husband and to the wife, &c. 
 
 C. did demise the land to R. the plaintiff for years, but kept 
 
 the reversion to himself, wherefore Katherine after the decease (Cro. Car. 442.) 
 
 of her husband entred upon the plaintiff, &c. for the condition ,See after this 
 
 broken, and died; after whose decease the land descended to E. V^ ^'j^p 
 
 the issue in tail, &c. now defendant, judgment upon action, Ughtred's case. 
 
 exception was taken against this plea, because E. the defendant 
 
 maintained his entry by force of a condition broken, and shewed 
 
 forth no deed, and the plea was ruled to be good, because the 
 
 thing 
 
 (3) See also 27 Eliz. 9. and Bull. Ni. Pri. 22(5T 
 Vol. II.— 15
 
 226. a.] 
 
 11 Ed. 3. ti*. 
 Monstrans des 
 Faits, 175. 
 45 E. 3. 8. 
 
 (Cro. Car. 372.) 
 
 45 E. 3. 
 Finch. 
 
 8. b. 
 
 10 H. 4. 9. b. 
 43 E. 3. Vide 
 10 E. 3. 41. 
 
 Simile in dower, 
 
 12 E. 1. Feoff- 
 ments & Faits, 
 114. F. N. B. 
 105. b. 13 R. 2 
 Monstrans des 
 Faits, 165. 
 4 E. 4. 35, &c. 
 11 H. 7. 22. b. 
 6 H. 7. 8. 
 9 E. 4. 25, 26. 
 
 Of Estates L. 3. C. 5. Sect. 366. 
 
 thing was executed, and therefore he need not shew forth the 
 deed. Nbta, the defendant being issue in tail was remitted to 
 the estate tail (1). 
 
 In a praecipe quod recldat against S. who pleaded that R. was 
 seised, and infeoffed him in mortgage upon condition of payment 
 of certain money at a day, and said that R. paid the money at 
 the day, and entred judgment of the writ : exception was taken 
 to this plea, for that he shewed forth no deed of the condition, 
 and it was ruled that he need not shew forth the deed for two 
 causes. 1. That he ought not to shew any deed to the demand- 
 ant, because the demandant is a stranger. 2. It might be when 
 R. paid the money, and the condition performed, that the deed 
 was rebailed to R. and thereupon the plea was adjudged good, 
 and the writ abated. 
 
 If land be mortgaged upon condition, and the mortgagee let- 
 teth the lands for years, reserving a rent, the condition is per- 
 formed, the mortgagor re-enters, in an action of debt brought 
 for the rent the lessee shall plead the condition and the re-entry 
 without shewing forth any deed. 
 
 In an assise the tenant pleads a feoffment of the ancestor of 
 the plaintiff unto him, &c. the plaintiff saith that the feoffment 
 was upon condition, &c. and that the condition was broken, and 
 pleads a re-entry, and that the tenant entred and took away the 
 chest in which the deed was, and yet detaineth 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 pradocuti, albeit she hath nothing in writing 
 to prove the same, the reason whereof see Sect. 330. 
 
 "But of chattels real, as of a lease for years, &c." This is 
 apparent. 
 
 14 H. 8. 22. b. (Doc. Pla. 51.) (See Plo. 23. a.) (1 Roll. Abr. 413.) 
 
 Sect. 366. 
 
 ALSO albeit a man cannot in any action plead a condition which 
 toucheth, $ concernes a freehold, zoithout shewing writing of this, ax 
 is aforesaid, yet a man may be aided upon such a condition by the verdict 
 of 12 men taken at large in an assise of novel disseisin, or in any other 
 action where the justices will take the verdict of 12 jurors at large (l'ou 
 les justices voilent prender * le verdict de xii. jurors a large.) As put 
 the case, a man seised of certain land in fee letteth the same land to 
 another for term of life without deed, upon condition to render to the 
 lessor a certain rent, and for default of payment a re-entrie, $c. by force 
 whereof the lessee is seised as of freehold, and after the rent is behind, by 
 
 which 
 
 * le — per in L. and M. and Roh. 
 
 (1) TJiis is the reason of this case, for noio he claims above the condition, 
 and therefore need not shew the deed. Infra, 227. b. Lord Nott. MSS. — 
 [Note 137.]
 
 L. 3. C. 5. Sect, 366. upon Condition. [226. a. 226. b. 
 
 which the lessor enter eth into the land, and after the lessee arraine an 
 assise of novel disseisin of the land against the lessor, who pleads that he 
 did no wrong nor disseisin, and upon this the assise is taken ; in this case 
 the recognitors of the assise may say and render to the justices their ver- 
 dict at large upon the whole matter, as to say, that the defendant was 
 seised of the land in his demesne as of fee, and so seised, let the same 
 land to the plaintife for terme of his life, rendring to the lessor such a 
 yearely rent payable at such a feast, §c. upon such condition, that if the 
 rent were behinde at any such feast at which it ought to bee paid (que si le 
 rent fuit aderere a ascun tiel feast f a que doit estre paie), then it 
 should bee lawfullfor the lessor to enter, §c. by force of ivhich lease the 
 plaintife was seised in his demesne as of freehold, and that afterivards 
 the rent was behinde at such a feast, §c. (et que puis apres le rent fuit 
 aderere a tiel feast, % &c.) by which the lessor entred into the land upon 
 the possession of the lessee, and prayed the discretion of the justices, if 
 this bee a disseisin done to the plaintife or not ; then for that it appear- 
 eth to the justice (||donque per ceo que appiert a les justices), that this 
 was no disseisin to the plaintife, insomuch as the entrie of the lessor was 
 congeable on him, the justices ought to give judgment that the plaintife 
 shall not take any thing by his writ of assise. And so in such case the 
 lessor shall bee aided, and yet no ivriting was ever made of the condition. 
 For as well as the jurors may have conusance of the lease, they also as 
 well may have conusance of the condition which was declared and re- 
 hearsed upon the lease (Car cibien que les jurors poient aver conusance 
 de le § lease, auxy bien ils poient aver conusance de le condition que 
 fuit declare & rehearse sur le leas. ) 
 
 " yERDICT of 12 men (2)." Veredictum quasi dictum veri- (Post. 253. b. 
 
 tatis, as judicium est quasi juris dictum. Et sicut ad ques- 261. b.) 
 tionem juris, non respondent juratores sedjudices : sic ad quaistio- Lib ' 9 * fo " 13 ' 
 nemfactinon respondent judices sed juratores. For jurors are to Lib. 11. fo. 10. 
 try the fact, and the judges ought to judge according (^ lo -^ 3 - 2 Init " 
 
 [2 2 6. "I to the law that riseth upon the fact, for J^g* ex facto Abr * 693) 6 94. 
 b. jus oritur. 698, 699,' 700. 
 
 711. 717. 725. 
 Hob. 117. 4 Rep. 65. b. Cro. El. 699. 1 Sid. 27. 191. 194. 203. 9 Rep. 67. b.) 
 
 " Taken at large." There be two kindes of verdicts; viz. one , 9 R 12 13.) 
 generall, and another at large or especiall. As in an assize of 
 novel disseisin, brought by A. against B. the plaintife makes his 
 plaint, Quod B. disscisivit eum de 20 acris terrse cum jjcrtincnt iis ; 
 the tenant pleades, Quod ipse nullam injuriam seu disseisinam 
 prvefato A. inde fecit, &c. The recognitors of the assise doe finde, 
 Quod praedict. A. injuste & sinejudicio disseisivit jn-asdict. B. 
 de praedict. 20 acris lerrce cum pertinent' , &c. This is a generall 
 
 verdict. 
 
 ■}• a not in L. and 31. or Roh. § lease, auxy bien ils poient aver 
 
 t An added in L. and M. and Roh. conusance de le, not in L. and M. or 
 | Et added in L. and M. and Roh. Roh. 
 
 (2) See Bacon's Abr. vol. 5. 281. Vin. vol. 21. 373. Com. Dig. Abate- 
 ment, (I. 34.) Amendment, (P.] Appeals, (Gr. 14.) Estoppel, (E. 10.) 
 Evidence, (A. 5.) Pleader, (C. 87. E. 38. R. 13. S. 1.) Prerogative, (D. 76.)
 
 226. b. 227. a. J Of Estates L. 3. C. 5. Sect 366. 
 
 (Plo. 93. a.) 
 (Post. 227, 228.) 
 
 17] Trin. 33 E. 1. 
 Coram Rege 
 Nott.inThesaur. 
 
 verdict. The like law it is if they finde it negatively. And 
 Littleton here putteth a case of a verdict at large, or a speciall 
 verdict ; and it is therefore called a speciall verdict, or a verdict 
 at large, because they finde the speciall matter at large, and 
 leave the judgement of law thereupon to the court, of which 
 kinde of verdict it is said, \T\ Omnis conclusio boni & verijudicii 
 sequiiur ex bonis & veris prsemissis et dictis juratorum. 
 
 And though Littleton here puts his case of a verdict at large 
 upon a generall issue (which in the case he putts, it was necessary 
 for the tenant to pleade) yet when issue is joyned upon some 
 speciall point, the jury, as shall he said hereafter in this section, 
 may finde the speciall matter if it he doubtfull in law, for as 
 much doubt may arise upon one point upon the speciall issue as 
 upon the generall issue. And as a speciall verdict may 
 be found in Common fig^ Pleas, so may it also bee ["927 
 founde in Pleas of the Crowne, or criminal causes that L a - 
 life or member. 
 
 1 
 
 concerne 
 
 43 Ass. 31. 
 Staunf. PI. Cor, 
 164, 165. 
 3 E. 3. Coron. 
 284. 286, 287. 
 
 44 E. 3. 44. 41 E. 3. Coron. 451. (Cro. Eliz. 474. lb. 471. 113, 114. 653. 
 6 Rep. 46. b.) 
 
 A verdict finding matter incertainely or ambiguously is 
 insufficient, and no judgement shall be given thereupon; as if an 
 executor plead pleinment administre, and issue is joyned there- 
 upon, and the jury finde that the defendant have goods within 
 his hands to be administred, but finde not to what value, this is 
 incertaine, and therefore insufficient. 
 
 A verdict that finds part of the issue, and finding nothing for 
 the residue, this is insufficient for the whole, because they have 
 not tried the whole issue wherewith they are charged. As if an 
 information of intrusion bee brought against one for intruding 
 into a mesuage, and 100 acres of land, upon the generall issue 
 the jury finde against the defendant for the land, but saith no- 
 thing for the house, this is insufficient for the whole, and so was 
 it twice adjudged, [m] But if the jury give a verdict of the 
 whole issue, and of more, &c. that which is more is surplusage, and 
 shall not [a] stay judgement; for Utile per inutile non vitiatur, 
 but necessary incidents required by law the jury may finde. 
 
 40 E. 3. 15. 
 20 E. 3. Amend- 
 ment, 57. 
 18 E. 3. 49. in 
 Cessavit. 
 30 E. 3. 23. 
 7 H. 4. 39. 
 (8 Rep. 65.) 
 
 17 E. 3. 47. 
 
 18 E. 3. 48. 
 22 E. 3. 1. 
 18 E. 3. 56. 
 15 E. 3. 
 
 Judgement, 58. 
 2 H. 5. 3. 
 
 7 H. 6. 5. 
 7 E. 4. 24. 
 28 H. 6. 10. 
 (Cro. Jac. 31. 
 2 Roll. Abr. 
 722. 10 Rep. 
 119. Hob. 64. 
 
 6 Rep. 47. 
 
 2 Roll. Abr. 702. 706. Dyer, 346. b. 300. b. Post. 303. a. b. Doctr. Pla. 288, 289. 
 Hob. 54. Cro. El. 174. 2 Roll. Abr. 708. Hob. 18. 9 Rep. 67. b. 112. 4 Rep. 65. 
 Ante,114. b. Cro. El. 110. 10 Rep. 97. b.) [to] Hil. 25 Eliz. in a writ of error be- 
 tweene Brace and tbe Queene. in the Exchequer Chamber, Mich. 28 & 29 Eliz. inter 
 Gomersal & Gomersal, in account in the King's bench, [a] 32 E. 3. Cessavit, 25. 
 Vide Sect. 484, 485. (Post. 282.) Vide Sect. 58. 13 E. 3. Garr. 26. 15 E. 3. Ass. 
 322. 17 E. 3. 6. 18 Ass. 2. 35 Ass. 8. 
 
 If the matter and substance of the issue bee found, it is suffi- 
 cient, as Littleton himselfe sayeth hereafter. 
 
 Estoppells which bind the interest of the land, as the taking 
 of a lease of a man's owne land by deed indented, and the like, 
 being specially found by the jurie, the court ought to judge 
 according to the speciall matter; for albeit estoppels regularly 
 must be pleaded and relied upon by an apt conclusion, and the 
 jury is sworne ad veritatem dicendam, yet when they finde veri- 
 tatem facti, they pursue well their oath, and the court ought to 
 adjudge according to law. [6] So may the jurie find a warrantie 
 being given in evidence, though it be not pleaded, because it 
 bindeth the right, unlesse it be in a writ of right, when the mise 
 is joyned upon the meere right. 
 
 & ibid. Pledol's 
 
 case. Hil. 31 Eliz. betweene Sutton and Dicons in the Common Place, the case of 
 
 the lease for yeares by deed indented. 34 E. 3. Droit, 29. (Post. 352. Ant. 47. b. After 
 
 Doc. Pla. VB4. Post. 283. Cro. El. 141.) 
 
 [b] 1 H. 4. 6. b. 
 27 H. 8. 22. b. 
 PI. Com. 515. 
 Lib. 4. fol. 53. 
 Rawlin's Case,
 
 L. 3. C. 5. Sect. 366. upon Condition. [227. b. 
 
 fQ27."l [c] ASP" After the verdict recorded the jury cannot M 7 R. 2. 
 
 b. | vary from it, but before it be recorded they may vary pi™ c e ' 10 p" 
 
 from the first offer of their verdict, and that verdict m an'a case, 211. 
 
 which is recorded shall stand : also they may vary from a privy 11 H. 4. 2. 
 
 verdict. 20 Ass. 12. 
 
 An issue found by verdict shall alwayes be intended true 22 Ass! 23.' 
 untill it be reversed by attaint, and thereupon upon the attaint 5 H. 7.22. 
 no supersedeas is grantable by law. ^t^'i? 4 H ' 8 'f 
 
 If the jurie after their evidence given unto them at the barre, j ust ic e spUmau 
 doe at their owne charges eat or drinke either before or after in the King's 
 they be agreed on their verdict, it is finable, but it shall not Bench, 
 avoid the verdict : but if before they be agreed on their verdict, 35 H * g " " 
 they eate or drinke at the charge of the plaintife, if the verdict Examin. 17. 
 be given for him, it shall avoid the verdict : but if it be given 29 H.8.37. Dier. 
 for the defendant, it shall not avoid it, & sic e converso. [d~\ But 35 H g 55 5 ^ 
 if after they be agreed on their verdict they eat or drinke at 4 et5 Eliz.218. 
 the charge of him for whom they do passe, it shall not avoid the 14 H. 7. 1. 
 
 6 E. 6. in the Common Place. 
 
 [e] If the plaintife after evidence given, and the jury departed [>] 11 H. 4. 16, 
 from the barre, or any for him, do deliver any letter from the i p 
 plaintife to any of the jury concerning the matter in issue, or any vide Dier 
 evidence, or any escrowle touching the matter in issue, which ubi supra, 
 was not given in evidence, it shall avoid the verdict, if it be found (? R o 1 !'. Abr ' 
 for the plaintife, but not if it be found for the defendant & sic e 1 lq _ j^ 
 converso. But if the jury carry away any writing unsealed, which Cro. Jac. 121. 
 was given in evidence in open court, this shall not avoid their P ld \ 22 fi 5 '2, 
 verdict, albeit they should not have carryed it with them. ubisnpra." 
 
 By the law of England a jury, after their evidence given upon (Mo. 452. 
 the issue, ought to be kept together in some convenient place, 2 Ro11 - Abr - 
 without meat or drinke, fire or candle, which some bookes ' ' 
 [_/] call an imprisonment, and without speech with any, unlesse [/"] 24 E. 3. 75. 
 it be the bailife, and with him only if they be agreed. After (l Cro - Jac - 
 
 . • 141 616 ) 
 
 they be agreed they may in causes between party and party give 
 a verdict, and if the court be risen, give a privy verdict before 
 any of the judges of the court, and then they may eat and drinke, 
 and the next morning in open court they may either affirme or 
 alter their privy verdict, and that which is given in court shall 
 stand. But in criminall cases of life or member, the jury can 
 give no privy verdict, but they must give it openly in court. 
 And hereby appeareth another division of verdicts, viz. a pub- 
 lique verdict openly given in court, and a privy verdict given 
 out of the court before any of the judges, as aforesaid. 
 
 A jury sworne and charged in case of life or member, cannot 21 E. 3. 18. 
 be discharged by the court or any other, but they ought to give (Ant. 139. b. 
 a verdict. And the king cannot be non-suit, for he is in judge- 9 Rop * 13 ^ 
 ment of law ever present in court : but a common person may 
 be nonsuit. 
 
 " In an assise of novel disseisin, or in any other action, &c." W. 2. cap. 30. 
 
 Here it is to bee observed, that a speciall verdict, or at large, * **• *• **• 
 
 may be given in any action, and upon any issue, be the issue 9 jj 7 13 [ 
 
 generall or speciall : and albeit there be some contrary opinions 23 II. 8. tit. 
 
 in our bookes, yet the law is now settled in this point. J, 6 ™ 1 . 4- If: 85 ' 
 
 ' J r 11 Ehz. Dier, 
 
 283, 2S4. 3 E. 3. Itinere North. 284. 2S6. 43 Ass. 31. 26 H. 8. 5. 44 E. 3. 44. 
 
 P. tit. Coron. 94. 44 Ass. 17. 45 E. 3. 20. PI. Com. 92. 9 H. 7. 3. Vide lib. 9. 12, 13, 
 
 Dowinan's case. And see there many other authorities. 31 Ass. pi. 21. 10 H. 4. 9. 
 
 H 
 
 By
 
 227. b. 228. a.] Of Estates L. 3. C. 5. Sect. 867. 
 
 " By which the lessor entcreth." Here it appeareth that the 
 condition is executed by re-entry, and yet the lessor after his 
 re-entry shall not, by the opinion of Littleton, plead the condition 
 without shewing the deed, because he was party and privy to the 
 condition, for the parties must shew forth the deed, unlesse it 
 be by the act and wrong of his adversary, as hath beene said ; 
 [m] but an estranger which is not privie to the condition, nor 
 claimeth under the same, as in the cases abovesaid appeareth, 
 shall not after the condition is executed in pleading be inforced 
 to shew forth the deed : and by this diversitie all the bookes and 
 authorities in law which seeme to be at variance are reconciled. 
 See also for this matter the section next following. 
 
 " The recognitors of the assise may say, &c." Here it ap- 
 peareth that the jurors may finde the fact, albeit the deed be not 
 shewed in evidence, and the rather for that the condition upon 
 the livery (as hath beene said) is good, albeit there be no deed 
 at all. 
 
 [m] See more 
 before in this 
 chapter, sect. 
 365. (Sid. 369. 
 6 Rep. 33.) 
 
 10 Ass. p. 9. 
 21 Ass. 28. 
 17 Ass 20. 
 31 Ass. 21. 
 23 Ass. 2. 
 39 E. 3. 28. 
 44 E. 3. 22. 
 
 10 II. 4. 9. 
 
 11 H. 7.22. 
 
 7 H. 5. 5. 9 E. 4. 26. 18 E. 4. 412. 
 (Ant. 225. Cro. Jac. 336.) 
 
 15 E. 4. 16, 17. 
 
 Lib. 10. fo. 4. 
 case de Sewers. 
 
 " And prayed the discretion of the justices." That is to say, 
 they (having declared the speciall matter) pray the discretion of 
 the justices; which is as much to say, as, that they would dis- 
 cerne what the law adjudgeth thereupon, whether for the de- 
 mandant, or for the tenant; for as by the authoritie of Littleton, 
 discretio est discernere per legem, quid sit just um, that is, to dis- 
 cerne by the right line of law, and not by the crooked cord of 
 private opinion, which the vulgar call discretion : Si a jure dis- 
 cedas, vagus eris, & erunt omnia omnibus incerta : and therefore 
 commissions that authorise any to proceed, secundum sanas dis- 
 cretiones vestras, is as much to say, as, secundum legem, & consue- 
 tudinem Anglios. 
 
 1 E. 3. 17. in 
 Graeye's case. 
 
 " For as well as the jurors may have conusance, &c." Hereby 
 it appeareth that they that have conusance of any thing, are 
 to have conusance also of all incidents and dependants there- 
 upon, for an incident is a thing necessarily depending upon 
 another. 
 
 O^T" If a deed be made and dated in a forraine king- r£J38.~| 
 dome, of lands within England, yet if liverie and seisin |_ a. J 
 be made, secundum formam cartce, the land shall passe, 
 for it passeth by the liverie. 
 
 Sect. 367. 
 
 TN the same manner it is of a feoffment in fee, or gift in taile, upon 
 condition although no writing were ever made of it*. And as it is 
 sayd of a verdict at large in an assise, §c. in the same manner it is of a 
 writ of entrie founded upon a disseisin ; and in all other actions where the 
 justices will take the verdict at large, there where such verdict at large is 
 made, the manner of the whole entrie is put in the issue (et en touts 
 
 auters 
 
 * &c. in L. and M. and Roh.
 
 L. 3. C. 5. Sect. 368,369. upon Condition. [228. a. 228. b. 
 
 auters actions ou les justices voylent prender le verdict a large, y "f la 
 ou tiel verdict a large est fait, la manner del entrie entire est mis en 
 
 Tissue), $c. 
 
 AND it is to be observed, that the court cannot refuse a speciall 
 verdict, if it bee pertinent to the matter put in issue. See 
 the section nest preceding. 
 
 " Verdict at large." It is called a verdict at large because it (9 R ep> 13.) 
 findeth the matter at large, and leaves it to the judgement of the See the Section 
 court; or it is called a special verdict, because it findeth the spe- ? 1 e ( f t T > followlI |f'(} 
 ciall matter, &c. So as hereby it appeareth, that a verdict (as Ante, 226.) 
 hath beene said) is two fold, viz. a verdict at large, or a speciall 
 verdict, (which is all one) whereof Littleton here speaketh ; and 
 a generall verdict that is generally found according to the issue, 
 as if the issue be not guilty, to finde the partie guiltie or not 
 guiltie generally, & sic de ceeteris. There is also a verdict given g ee t }j e next 
 in open court, and a privy verdict given out of court before any preceding 
 of the judges of the court, so called because it ought to bee kept Sectl0D - 
 secret and privie from each of the parties, before it be affirmed 
 in court. 
 
 Sect. 368. 
 
 ALSO in such case where the enquest may give their verdict at large, 
 if they will take upon them the knowledge of the law upon the mat- 
 ter, they may give their verdict generally, as is put in their charge; as 
 in the case aforesaid they may well say, that the lessor did not disseise 
 the lessee, if they will, $c. 
 
 ALTHOUGH the jurie if they will take upon them (as Lit- (8 Rep. 65.) 
 tleton here saith) the knowledge of the law, may give a 
 generall verdict, yet it is dangerous for them so to doe, for if 
 they doe mistake the law, they runne into the danger of an 
 attaint; therefore to find the speciall matter is the safest way (4 Rep. 53.) 
 where the case is doubtfull. 
 
 H 8 -] 
 
 KrSect, 369. 
 
 ALSO in the same case, if the case were such, that after that, that the 
 lessor had entred for default of payment, $c. that the lessee had en- 
 tered upon the lessor, and him disseised, in this case if the lessor arraigne 
 an assise against the lessee, the lessee may barre him of the assise; for 
 hee may pleade against him in bar, how the lessor who is pi. made a 
 lease to the defen. for term of his life, saving the reversion to the pi. 
 which is a good plea in bar, insomuch as hee acknowledges the reversion 
 to be to the pi. * In this case the plaintif hath no matter to ayd him- 
 self e (le plaintife n'ad .J. ascun matter de luy ayder), but the condition 
 
 made 
 
 f par la ou tiel verdict a large fait * And added in L. and M. and 
 la nature de matter mys en Tissue, Rob. 
 L. and M. and Roll. j. ascun not in L. and M. or Roll.
 
 228. b. 229. a.] Of Estates L. 3. C. 5. Sect. 370. 
 
 made upon the lease, $ this he cannot plead, because he hath not any 
 writing of this: and inasmuch as he cannot answere the bar, he shal be 
 barred. And so in this case you may see that a man is disseised (en 
 cest casa poyes veier que home est J disseisee), $• yet he shal not have 
 assise. And yet if the lessee be pi. and the lessor def. he shal bar the 
 lessee by verdict of the assise, $c. But in this case where the lessee is 
 def. if he will not plead the said plea in bar, but plead nul tort, nul 
 diss, then the lessor shall recover by assise, causa qua supra. 
 
 " ~DECAUSE he hath not any writing of this." Hereby it 
 also appeareth, that albeit the condition was executed by 
 re-entrie, yet the lessor cannot plead it without shewing of a 
 deed. But of this matter sufficient hath beene said before in 
 the two next preceding sections. 
 
 18 E. 4. 10. " Which is a good plea in bar." In a case where there have 
 
 12 Ass. 38. beene some varietie of opinions in our books, Littleton here 
 
 26 11% Bar 9 cleereth the doubt, and that upon a good ground. For hee hirn- 
 
 38 Ass. 26. 4. selfe reporteth in our bookes, that it was holden by all the jus- 
 
 31 Ass. 26. tices of England, that a lease for life, the reversion to the plain- 
 
 At a i q tife, was a good barre in an assise, and also that a lease for yeares, 
 
 43 Ass. 18. > .o , -,i ill- • i 
 
 44 Ass. 3. the reversion to the plamtife, might be pleaded in an assise : and 
 18 E. 3. Ass. 77. so of a feoffment in fee with warrantie. And herein the diversitie 
 18 As 3 22 1Cl ' 97 ' °f pkading is to be observed; for in the case here put by Little- 
 4 Eliz.Dy'. 207. ton of a lease for life, the tenant shall pleade it in 
 
 8 Eliz. Dy. 246. barre; but in a case of a lease for B@r yeares, or an [~ 239.1 
 (Ant. 201. a.) es t a te of tenant by statute or elegit, the defendant [_ a - 
 shall not plead in bar, as to say, assisa nan, &c. but 
 Justine by force of the lease, &c. and conclude, & assint sans 
 tort. And if the tenant of the freehold be not named, he shall 
 pleade nul tenant de franktenernent nosme en le briefe: and in 
 the case of the feoffment with warranty he must relie upon the 
 warrantie. 
 
 Sect. 370. 
 
 J\-ND for that such conditions are most commonly put and specified in 
 deeds indented, somewhat shall bee here said {to thee, my sonne) of an(l) in- 
 denture 
 
 | disseisie — seisie in L. and M. and Roh. 
 
 (1) In addition to what has been observed in note 4, to page 143. b. it 
 may be remarked, that all deeds were formerly called charters. — Before the 
 indenting of them came into use, when there were more parties than one 
 interested in them, there were as many parts of them taken as there were par- 
 ties interested, and one part was delivered to each of the parties : these multi- 
 plied parts were called Chartse pariclse, or paricolse. The Chartse pariclse, or 
 paricolse, were superseded, in a grea^ measure, by the Chartse partitse. One 
 part of the Chartse partitas was written on a piece of vellum or parchment, 
 beginning about the middle and continuing to the end of each side. This 
 prevailed as early as the times of the Saxons, as appears bv the will of uEthcl- 
 vyrd, a nobleman of Kent, dated in 958: by that of prince ^Ethelstan, 
 
 eldest
 
 L. 3. C. 5. Sect. 370. upon Condition. [229. a. 
 
 denture and of a deed pol(2) concerning conditions. And it is to bee 
 understood, that if the indenture be bipartite, or tripartite or quadri- 
 partite, all the parts of the indenture are but one deed in laio, and every 
 part of the indenture is of as great force and effect as all the parts 
 together be (3). 
 
 " TN deeds indented." Those are called by severall names, as Vide sect. 217. 
 
 scriptum indentatum, carta indentata, scriptura indentata, 
 indentura, literal indentatce. An indenture is a writing con- 
 taining a conveyance, bargaine, contract, covenants, or agree- 
 ments betweene two or more, and is indented in the top or side 
 answerable to another that likewise comprehendeth the self same (Ant. 143. b.) 
 matter, and is called an indenture, for that it is so indented, and 
 is called in Grreeke o-v^y^xcpov. 
 
 If a deed beginneth, haic indentura, &c. and in troth the parch- Lib. 5. fo. 20. 
 ment or paper is not indented, this is no indenture, because words ^^"J; 22 
 cannot make it indented. But if the deed be actually indented, 2 i nst .' 67 2.) 
 
 and 
 
 eldest son of king Ethelred the 2d; by a charter of archbishop Eadsi, made 
 about the year 1045 ; and by other Saxon documents preserved in the library 
 of Mr. Astle ; in all which the parchments are cut in straight lines. Straight 
 lines continued to be generally used till the latter end of the reign of king 
 Henry III. Afterwards the cut through the parchment was made in a waving 
 or undulating line ; and the practice of writing an intermediate sentence, or 
 drawing an intermediate figure, was gradually disused, and the word Cyro- 
 graphum adopted. In process of time it became the practice to indent this line 
 in small notches or angles. This practice began with the lawyers, as early as 
 the reign of king John ; but was not adopted by the ecclesiastics till a much 
 later period. This made the intermediate writing or drawing unnecessary ; 
 and it seems to have been abandoned about the reign of Edward II. But the 
 practice of indenting deeds in the intermediate line, remained in use till the 
 close of the 14th century ; it then seems to have declined : yet the practice of 
 cutting a waving or undulating line at the top of the parchment, on which 
 every deed that is not a deed poll is written, has ever since continued. If the 
 deed contains more than one skin of parchment, only the first skin of parch- 
 ment is indented. Foreign diplomatists contend, that when the parchment on 
 which a deed is written, is cut through the intermediate word or figure in a 
 straight line, it is properly called Chirographum ; that when it is cut through 
 the intermediate word or figure in a waving line, it is properly called Charta 
 undidatoria ; and that it is then only properly called Clvarta indenta,ov 
 indentura, when it is cut through the intermediate word or figure in a waving 
 line, and that waving line is indented or notched in the manner I have men- 
 tioned. But with us, every deed, the top of which is cut in the undulating or 
 waving manner I have mentioned, is called an indenture. See Mr. Madox's 
 Preface to his Formulare, and the Nouveau Traite du Diplomatique, vol. 1. 351. 
 —[Note 138.] 
 
 (2) This was called charta de una parte. Some deeds must be indented to 
 be valid for the purposes for which they are used, as bargains and sales by the 
 stat. 27 H. 8. c. 16. leases by persons seised in tail in right of their wives, or 
 ecclesiastical persons, by 32 H. 8. c. 28. a bargain and sale of a bankrupt's 
 estate by the 13 El. c. 7 ; and see 43 El. c. 18.— [Note 139.] 
 
 (3) When the several parts of an indenture are interchangeably executed by 
 the several parties, that part or copy which is executed by the grantor is usually 
 called the original, and the rest are called counterparts ; though of late it is 
 most frequent for all the parties to execute every part, which renders them all 
 originals. 2 Bla. Com. ch. 20. s. 1.— [Note 140.]
 
 229. a. 229. b.] Of Estates L. 3. C. 5. Sect. 371. 
 
 and there be no words of indenture in the deed, yet it is an in- 
 (1 Rep. 173. b.) denture in law ; for it may be an indenture without words, but 
 not by words without indenting. 
 
 (Ant.35.b. 36.a.) " In deeds indented." And here it is to be understood, that 
 
 4 4 K'2f Fines 79 ' Jt 0U S Dt to be in parchment or in paper. For if a writing be 
 
 116. made upon a peece of wood, or upon a peece of linen, or in the 
 
 4 E. 2. Ley, 68. barke of a tree, or on a stone, or the like, &c. and the same be 
 
 27*H \ ^ Ct ' 4 " sea ^ or delivered, yet it is no deed, for a deed must be written 
 
 F. xl B. 122. 1, either in parchment or paper, as before is said, for the writing 
 
 (2 Roll. Abr. upon these is least subject to altei-ation or corruption. 
 
 " If the indenture be bipartite, or tripartite, or quadripartite, 
 &e." Bipartite is, when there be two parts and two parties to 
 the deed. Tripartite, when there are three parts and three 
 parties; and so of quadripartite, quinquepartite, &c." 
 
 11 And of a deed poll." A deed poll is that which is plainc 
 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, 
 unlesse it be alleaged to be indented. 
 
 38 H. 6. 24, 25. "All the parts of the indenture are but one deed in law." If 
 SbH% S, u a man ^ deed indented make a gift in taile, and the donee 
 
 9 E. 3. 18.' dyeth without issue, that part of the indenture which belonged 
 
 9 E. 4. 18. to the donee doth now belong to the donor, for both parts doe 
 
 Pi. Com. 134. make but one deed in law. 
 
 "And every part of the indenture is of as <jr eat force, &c." This 
 is manifest of it selfe, and is proved by the bookes aforesaid. 
 
 It is to be observed, that if the feoffor, donor, or lessor seale 
 the part of the indenture belonging to the feoffee, &c. the in- 
 denture is good, albeit the feoffee never sealeth the counterpart, 
 belonging to the feoffor, &c. 
 
 JWSect. 371. [ 2 b 9 '] 
 
 A ND the making of an indenture is in two manners. One is to make 
 them in the third person. Another is to make them in the first per- 
 son. The making in the third person is in this forme. 
 
 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, f &c. In 
 witnesse whereof the parties aforesaidj to these present interchange- 
 ably have put their seales. Or thus : In witnesse whereof to the one 
 part of this indenture remaining with the said V. of D. the said R. of 
 P. hath put his seale, and to the other part of the same indenture 
 remaining with the said R. of P. the said V. of D. hath put his seale. 
 Dated, &c. 
 
 Such 
 
 * &c. not in L. and M. or Roh. \ to these presents, not in L. and 
 
 f &c. not in L. and M. or Roh. M. or Roh.
 
 L. 3. C. 5. Sect. 372. upon Condition. [229. b. 230. a. 
 
 Such an indenture is called an indenture made in the third person, 
 because the verbes, $c. are in the third person. And this forme of inden- 
 tures is the most sure making, because it is most commonly used, $c. 
 
 " A ND the making of an indenture is in two manners, &c." 9 E. 3. 18. 
 
 ^ L Here is another of our author's perfect divisions. _ In this Vide thetob 
 and the next section following Littleton doth illustrate his mean- 
 ing, by setting downe formes and examples which do effectually 
 teach. 
 
 In these two formes there are to be observed (amongst other) 
 three generall parts of the same, viz. the premises, the habendum, Vide 40 E. 3. 2. 
 and the in cujus rei testimonium. But hereof hath been spoken jT H. 1. 14 
 at large, Sect. 1. 4. <fc40.; for Littleton speaketh not here of u^L foL 4 & 5." 
 the deliverie, but onely of the context or words of the deed. Goddard's case. 
 
 (Ant. 6. a.) 
 
 " Because it is most commonly used." Here it appeareth that 17 Eliz. 
 which is most commonly used in conveyances is the surest way. ]^ r ' 3 342 - 
 A communi observantid non est recedendum, & minimi mutanda 14 ^ g 28> 
 sunt aim certam habuerunt interpretationem. Magister rerum Bab. 12 H. 4. 12. 
 usus. It is provided by the statute of 38 E. 3. cap. 4. 30 Ass. 31. 
 
 t 23 0.1 that all penal bonds in the third R@T person be void and 
 a. J holden for none, wherein some of our bookes [rf] seem [d] 40 E. 3. 1. 
 to differ, but they being rightly understood, there is no | H. 4. 10. 
 difference at all. For the statute is to be intended of bonds taken 
 in other courts out of the realme, and so it appeareth by the pre- 
 amble of that act. And it was principally intended of the courts 
 of Rome, and so it appeareth by justice Hanhford, in 2 H. 4. in 
 which courts bonds were taken in the third person, so as such 
 bonds made out of the realm are void ; but other bonds in the 
 third person are resolved to be good, as well as indentures in the 
 third person ; by the opinion of the whole court in 8 E. 4. (1) 
 
 Sect. 372. 
 
 THE making of an indenture in the first person is as in this forme 
 (Le feasance de indenture en le primer person est * come en tiel 
 forme). To all Christian people to whom these presents indented shall 
 come, A. of B. sends greeting in our Lord God everlasting.^ Know 
 yee mee to have given, granted, and by this my present deed indented 
 confirmed to C. of D. such land, &c. Or thus : Know all men present 
 and to come, that I A. of B. have given, granted, and by this my pre- 
 sent deed indented, confirmed to O. of D. such land, &c. To have and 
 to hold (habendum^ $■ tenendum), &c. upon condition following, &c. 
 In witnesse whereof, as well I the said A. of B. as the aforesaid C. of D. 
 to these indentures have interchangeably put our seales. Or thus: In 
 witnesse whereof I the aforesaid A. to the one part of this indenture 
 
 have 
 
 *come not in L. and M. or Roh. f et tenendum, not in L. and M. or Rob. 
 
 (1) See Mr. Reeves's accurate and learned History of the English Law, vol. 
 2. p. 67.
 
 230. a. 230. b.] Of Estates L. 3. C. 5. Sect. 373. 
 
 have put my scale {in cujus rei testimonium % ego prsefatus K. uni parti 
 liujus indenturse sigillum meum apposui), and to the other part of the 
 same indenture the said O. of D. hath put his seale, &c. 
 
 TTERE Littleton sets down three formes of deeds indented in 
 J--L the first person, brevis via per exempla, longa per prcecepta. 
 It is requisite for everie student to get presidents and approved 
 Vide Sect. 371. formes not onely of deeds according to the example of Littleton, 
 but of fines, and other conveyances, and assurances, and spe- 
 cially of good and perfect pleading, and of the right entries, and 
 formes of judgements, which will stand him in great stead, both 
 while he studies, and after when he shall give counsell. It is a 
 safe thing to follow approved presidents, for nihil simil invenium 
 est, & per/ectum. 
 
 Sect. 373. 
 
 A ND it seemeth that such indenture which is made in the first person 
 (tiel indenture || que est fait en le primer person) is as 
 good in law, as the g@°* indenture made in the third person, r"Q30.~| 
 when both parties have put to this their seales ; for if in the | b. 
 indenture made in the third person, or in the first person, 
 mention be made (car* si en l'indenture fait en le tierce person, ou en 
 le primer person, f mention soit fait) that the grantor onely hath put 
 his seale, and not the grantee, then is the indenture onely the deed of 
 the grantor. But where mention is made that the grantee hath put his 
 seale to the indenture, $c. (Mes l'our mention est fait que le grauntee 
 ad mis § son seale a l'indenture, &c.) 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 par- 
 ties in this case. 
 
 (2 Inst. 673. TTERE is to be observed, that albeit the words in this inden- 
 Ant. 52. b. J- J- ture be onely the words of the feoffor, yet if the feoffee put 
 
 2 Roll. Abr. 22.) h} g S eale to the one part of the indenture, it is the deed of 
 them both. And in this speciall case to make it the deed of the 
 feoffee, it appeareth by Littleton, that mention must be made in 
 the deed, that hee hath put to his seale, for that he is no way 
 made partie to make it, being made in the first person, but onely 
 by the clause of putting his seale thereunto. Otherwise it is of 
 a deed indented in the third person as before, it appeareth, for 
 there hee is made partie to the deed in the beginning. And Lit- 
 tleton's rule is true, that every part of an indenture is the dede 
 of both parties; for, as it hath beene said, both parts make but 
 one deed in law in that case. 
 
 \ ego prafatas A. not in L. and M. * si not in L. and M. or Roh. 
 
 or Roh. f si added in L. and M. and Roh. 
 | que est, not in L. and M. or § non seale not in L. and M. or 
 
 Roh. Roh. 
 
 Sect,
 
 L. 3. C. 5. Sect. 374. upon Condition. [230. b. 231. a. 
 
 Sect. 374. 
 
 ALSO if an estate bee made by indenture to one for terme of his life, 
 the remainderman to another in fee upon a certaine condition, Sfc. and 
 if the tenant for life have put his scale to the part of the indenture, and 
 after dieth, and he in the remainder entreih into the land by force of his 
 remainder, $c. in this case he is tied to performe all the conditions com- 
 prised 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 entred and agreed to have the 
 lands by force of the indenture, hee is bound to performe the conditions 
 within the same indenture, if he will have the land, $c. 
 
 " TJPON a certaine condition, &c." Here by this (&c.) is (1 Roll- Abr. 
 
 implied, that the condition in this case doth extend both 4 ' •' 
 
 to tn e estate for life, and to the remainderman, but by speciall limi- 
 tation 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 (io R ep. Doct. 
 parties thereunto only being the lessor and the tenant for life) Ball's case, cited 
 yet when he in the remainder entreth and agreeth to have the ca Se ° r mg ° n * 
 lands by force of the (1 ) indenture, he is bound to per- 
 
 t£J31.~| forme the conditions contained in the 0£r indenture. (2 Cro. 242. 
 a. J And here is also a diversitie to be understood, that any 399 - 622 -) 
 estranger to the indenture may take by way of re- / 2 Inst. 673. 
 mainder, but he cannot in this case take any present estate in (2 Roll. Abr. 
 possession because he is an estranger to the deed (1)*. 22> ) 
 
 If A. by deed indented between him and B. letteth lands to 50 E. 3. 22. 
 B. for his life, the remainder to C. in fee, reserving a rent, tenant |? ~- 6 - **• &• 
 for life dieth, he in the remainder entreth into the lands, he shal L R ep> ' jg)' 
 be bound to pay the rent, for the cause and reason before yeelded 38 E. 3. 8. a. 
 by Littleton. An indenture of lease is engrossed betweene A. of ^ .**• *>• 2 |; *!• 
 the one part, and D. and R. of the other part, which purporteth -q j2. 
 a demise for yeares by A. to D. and R. A. sealeth and deli- 
 vereth the indenture to D. and D. sealeth a counterpart to A. 
 but R. did not seale or deliver it. And by the same inden- 
 ture 
 
 (1) So where three were enfeoffed by deed, and there were several covenants 
 in the deed on the part of the feoffees, and only two of the feoffees sealed the 
 deed, the third entered and agreed to the estate conveyed by the deed, he was 
 bound in a writ of covenant by the sealing of his companions. 2 Roll. Rep. 63. 
 — In 38 Ed. 3. p. 9. it is said, that if land is leased to two for years, and only 
 one puts his seal, but the other agrees to the lease, and enters and takes the 
 profits with him, he shall be charged to pay the rent, though he has not put 
 his seal to the deed ; but if there is a condition comprised in the deed which 
 is not parcel of the lease, but a condition in grosse, if he does not put his seal 
 to the deed, though he is party to the lease, he is not party to the condition, 
 —[Note 141.] 
 
 (1) * In Salter v. Kidgly, Carth. 76. lord Chief justice Holt held, that a 
 party to a deed cannot covenant with one who is no party to it ; — but that 
 one who is no party to a deed may covenant with one who is a party, and 
 oblige himself by sealing of the deed. — [Note 142.]
 
 231. a. 231. 1).] Of Estates L. 3. C. 5. Sect, 375. 
 
 ture it is mentioned, that D. and 7?. did grant to be bound to the 
 plaintife in 20 pound in case that certaine conditions comprised 
 in the indenture were not performed. And for this 20 pound 
 A. brought an action against D. onely, and shewed forth the 
 indenture. The defendant pleaded, that it is proved by the 
 indenture that the demise by indenture was made to D. and R. 
 which R. is in full life, and not named in the writ, judgment 
 of the writ. The plaintife replyed, that R. did never seale and 
 deliver the indenture, and so his writ was good against D. sole. 
 And there the counsell of the plaintife took a diversitie betweene 
 a rent reserved which is parcell of the lease, and the land charged 
 therewith, and a summe in grosse, 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 20 pound that is 
 a summe in grosse, and collateral to the lease, and not annexed 
 to the land, and groweth due only by the deed, and therefore R. 
 said hee 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 chargeable by the 
 indenture for the same summe in grosse ; and for that R. was 
 not named in the writ, it was adjudged that the writ did abate. 
 
 " To have the lands, &c." Here is implyed an ancient 
 maxime of the law, viz. Qui sentit commodum sentire debet et 
 onus, et transit terra cum onere. 
 
 gssas Sect - 375 - 
 
 A LSO if a feoffment bee made by deed poll upon condition, * and 
 for that the condition is not performed the feoffor entreth and getteth 
 the possession of the deed poll, if the feoffee brings an action for this entrie 
 against the feoffor, it hath beene a question if the feoffor may plead the 
 condition by the said deed poll against the feoffee. And some 
 have said fj&§~ he cannot, inasmuch as itseemesunto them that a ["231.1 
 deed poll, and the propertie of the same deed belongeth to him to\_ °. J 
 whom the deed is made, and not to him which maketh the deed. 
 And inasmuch as such a deed doth not appertained the feoffor, itseemes 
 unto them that he cannot plead it. f And others have said the contrary, 
 and have shewed divers reasons. One is, If the case were such, that in 
 an action betweene them, if the feoffee pleade the same deed, and shew it 
 to the court (si le feoffee pleder mesme le fait, et monstre \. est % al 
 court), in this case insomuch as the deed is in court, the feoffor may shew 
 to the court how in the deed there are divers conditions to be performed of 
 the part of the feoffee, gc. and because they were not performed he entred, 
 $c. (le feoffor poit monstrer al court coment en le fait sont divers con- 
 ditions d'estre performes || de le part le feoffee, &c. et pur ceo queilsne 
 fueront performes, il enter, &c.) and to this he shall be received. By the 
 
 same 
 
 * (fee. added in L. and M. and Roh. || de le part le feoffee, &c. et pur 
 
 f &c. added in L. and M. ceo que ils ne fueront performes, not 
 
 iceo, in L. and 31. and Roh. in L. and M. or Roll. 
 est not in L. and M. or Roh.
 
 L. 3. C. 5. Sect. 376. upon Condition. [231 . b. 232. a. 
 
 same reason when the feoffor hath the deed in hand, and shew this to 
 the court, he shall well be received to pleade it (il serra § bien resceive 
 de ceo pleder), $c. and namely when the feoffor is privy to the fait, for 
 hee must be privie to the deed when he makes the deed (car ^ covient 
 estre privie al fait quant il fist le fait), $c. 
 
 HERE the latter opinion is cleerc law at this day, and is Lit- [«] Vic. sect. 
 tleton's owne opinion [a], as before hath beene observed. !?0. 302. 340. 
 
 " Have shewed divers reasons." 
 
 Felix qui potuit rerum cognoscere causas. 
 Et ratio melior semper prsevalet. 
 
 " Insomuch as the deed is in court, &c." And herewith doe 24 E. 3. 73. 
 
 agree [b] many authorities in law. [c] And if the deed remaine 45 E - 3 - Mon - 
 
 in one court, it may be pleaded in another court, without shew- 5 & rans es ai s ' 
 
 ing forth; quia lex non cogit ad impossibilia. \u\ 40 Ass. 34. 
 
 lib. 5. 75. b. 
 Wymark's case. [c] 12 H. 4. 8. 42 E. 3. 27. Wy mark's case, ubi supra. 
 
 38 H. 6. 2. 41 Ass. 29. 12 II. 4. 8. 7 H. 4. 39. 11 H. 4. 73. 45 E. 3. 11. 
 F. N. B. 243. 
 
 " Of the part of the feoff ee, &c." Here also is implyed if the 
 condition be to be performed on the part of the feoffor or by a 
 stranger; and it is to be understood that when a deed is shewed 
 forth to the court, the deed shall remaine in court all that tearm 
 in the custody of the custos brevium, but at the end of the tearme 
 (if the deed be not denied) then the law adjudgeth the deed in 
 the custody of the party to whom it belongeth, for a man's evi- 
 dences are as it were the sinewes of his land. But if the deed (5 R e p. 75, 76.) 
 be denied, then the deed in judgment of law remaineth in court 
 untill the plea be determined (1). The residue of this section 
 needeth no explication. 
 
 j-333. J **- Sect. 376. 
 
 A L&'O if two men doe a trespasse to another, who releases to one of 
 them by his deed all actions personalis, and notwithstanding sueth 
 an action of trespasse against the other, the defendant may ivel shew 
 that the the trespasse was done by him, and by another his fellow, and 
 that the plaintife by his deed (which he sheweth forth) released to his 
 fellow all actions personals (et que le plaintife per * son fait que il 
 raonstre avant relessa a son companion touts actions personals), and 
 demand the judgement, ^c. and yet such deed belongeth to his fellow 
 
 and 
 
 § de ceo added in L. and 31. * son — le, L. and M. and Roh. 
 
 *\\ il added in L. and M. and Roh. 
 
 (1) But after, though the jury find the deed not to be the deed of the party, 
 yet will not the court on motion detain the same, but will order it to be de- 
 livered to the party that brought it into court. 2 Sid. 131. Vid. Salk. 215. 
 Note to the llth edition. — [Note 143.]
 
 232. a.] Of Estates L. 3. C. 5. Sect. 376. 
 
 and not to him. But because liee may have advantage by the deed, if 
 he will shew the deed to the court, he may well plead this (mes pur ceo 
 que il poit aver advantage per le fait, si voit nionstrer le fait al court, 
 il poit | ceo bien pleder), §c. By the same reason may the feoffor in 
 the other case, ivhen he ought to have advantage by the condition com- 
 prised within the deed poll (per mesme le reason J poit le feoffor en 
 Tauter cas, quant § il doit aver advantage per le condition || compris 
 deins le fait poll^f). 
 
 27 E. 3. 83. " T-F 1 two men doe a trespasse to another, &c." Here by this 
 
 13 E. 4. 2. section it is to bee understood, that when divers doe a tres- 
 2i 5 f 4 *t' passe, the same is joynt or severall at the will of him to whom 
 22 e. 4. 7. ' the wrong is done, yet if he release to one of them, all are dis- 
 s H. 6. 15. charged, because his own deed shall be taken most strongly 
 9? h « 41 " against himselfe, but otherwise it is in case of appeale of death, 
 Arbitreinent 41. & c - As ^ two men hee joyntly and severally bounden in an 
 
 2 R. 3. 9. a. obligation, if the obligee release to one of them, both are dis- 
 
 14 H. 8. 10. charged; and seeing the trespassers are parties and privies in 
 trance al fait, 2L wron g> the one shall not plead a release to the other without 
 
 3 H. 6. 18. 26. shewing of it forth, albeit the deede appertaine to the other (1). 
 
 (11 Rep. 5. 
 
 2 Roll. Abr. 412. Hob. 66. 2 Sid. 41. Ant. 125. b.) 
 
 If 
 
 f pur added in L. and M. || compris not in L. and M. or 
 
 | poit le feoffor not in L. and M. Roh. 
 
 or Roh. ^[ &c. addded in L. and M. and Roh. 
 § le feoffor, in L. and M. and Roh 
 
 (1) 26 H. 6. T. Barre, 37. Obligeemadean acquittance to one obligor, lohich 
 was dated before the obligation, but teas delivered afterwards : tJie other obligor 
 pleads this in bar, and it was adjudged a good plea in bar. Nota, each was 
 bound, in die entirety, therefore it was joint and several. 34 H. 6. So in the 
 case of the king, if he releases to one of the obligors, the other shall take advantage. 
 5 Rep. 56, contra,. — And as a release in deed to one obligor discharges the otiier, 
 so of areleasein law, as 8 Rep. 136. Needham's case. A woman obligee marries 
 Hie obligor, that is another sort of discharge, 264. b. — But 17 Car. B. R. two 
 were bound jointly and severally. TJie plaintife sued both, and afterwards entered 
 a retraxit against one; whether that discharged the other ivas the question. 
 Berkley said it was, for it amounts to a release inlaw, as the plaintife confesses 
 thereby that he had not cause of action, and thereforehe cannot have judgment, 
 as in Hickmot's case, 9 Rep. and retraxit is a bar to an action ; and the plaintiff 
 by his oicn act has altered the deed from joint to several, and therefore the other 
 shall have advantage of it. Co. Inst, contra ; for a retraxit is only in the nature 
 of an estoppel ; and therefore the other shall not have advantage ; neither is it a 
 release, though it be in the nature of a release ; and if the obligee sues both, and 
 then covenants with one not to sue further, that is in the nature of a release, but 
 the other shall not take advantage of it; and in 21 H. 6. is said, that there 
 must be an actual release to one obligor to discharge the other. See March. 
 Rep. 165. — Pas. 18 Car. Eannon v. Roll. The obligee releases to one obligor ; 
 the other, in consideration of the forbearance, undertakes to pay, and in an action 
 upon the case the matter was found specially ; and Rolls argued, that the debt 
 was not absolutely discharged, but only sub modo, viz, if the other can have the 
 release to plead, and because the forbearance was a good consideration. But the 
 court was of opinion, that the debt was absolutely discharged, and therefore the 
 consideration was insufficient. See Hvbart, Rep. 70. Parker v. sir John Law- 
 rence.
 
 L. 3. C. 5. Sect. 377. upon Condition. [232. a. 232. b. 
 
 If an action of debt upon an obligation bee brougbt against an 13 E. 2 tit.. 
 
 heire, he may pleade in barre a release made by the obligee to the dc ° s u ^J^ s 42 . 
 
 executors. But albeit the deed belong to another, yet must he (pi . 439. b. 
 
 shew it forth, for both of them are privie to the testator. Dyer, 344. 
 
 ' 6 Rep. 7. 
 
 . ., . . .. 10 Rep. 93. b.) 
 
 " By the same reason." Ubi eadem ratio, xbx idem jus. 
 
 Sect. 377. 
 
 A LSO, if the feoffee granteth the deed to the feoffor, such grant shall 
 bee good, and then the deed and the propertie thereof belong eth to 
 the feoffor, §c. And when the feoffor hath the deed in hand, and is 
 pleaded to the court, (Et quant le feoffor ad le fait en poigne, et * est 
 plead al court), it shall be rather intended, that he commeth to the deed by 
 lawfull meanes, then by a wrongfull mean. And so it seemeth unto them, 
 that the feoffor may w el plead such deed poll which compriseth the con- 
 dition, $c. if he hath the same in hand, f Ideo semper quaere de dubiis, 
 quia per rationes pervenitur ad legitimam rationem, &c. 
 
 " rp RE propertie of the deed belongeth to the feoffor." Hereby (l Rep. 1.) 
 ' it appeareth that a man may give or grant his deed to 
 
 |" 3 3 3 . 1 another, and such a grant by paroll is good. J8®- And (A° L 214. a^ 
 b. | it is also implied, that if a man hath an obligation, 2 ^ oll< A ' b j: 4 ' 5> 
 though he cannot grant the thing in action, yet hee 46. 48. 1 Sid. 
 may give or grant the deed, viz. the parchment and waxe to 212, 213.) 
 another, who may cancell and use the same at his pleasure (1). 
 
 "It 
 
 * es t — ceo, in L. and 31. and Roll. f &c. added in L. and M. and Roh. 
 
 rence. In trespass against three, they divided on the pleading. Judgment against 
 one. Then he entered a noli prosequi against the tivo others; it was held to be 
 no discharge to him against whom judgment was had ; for as to him, the action 
 was determined by the judgment, and the others are divided from him, and not 
 subject to the damages recovered against him ; but a noli prosequi, or non-suit 
 before judgment against one, would discharge all. Lord Nott. MS. — [Note 144.] 
 
 (1) It is to be observed, that the king was always an exception to- this rule; 
 for he might always either grant or receive a chose in action by assignment. — 
 The reason why, by the strict rules of the common law, a chose in action cannot 
 be assigned or granted over, was, that it was thought to be a great encourage- 
 ment to litigiousness if a man were allowed to make over to a stranger his right 
 of going to law. But this nicety is now disregarded : though, in compliance 
 with the ancient principle, the form of assigning a chose in action is in the 
 nature of a declaration of trust, and an agreement to permit the assignee to 
 make use of the name of the assignor, in order to recover the possession. ^ And 
 therefore, when, in common acceptation, a debt or bond is said to be assigned 
 over, it must still be sued in the original creditor's name ; the person to whom 
 it is transferred being rather an attorney than an assignee : and our courts of 
 equity, considering that in a commercial country almost all personal property 
 must necessarily lie in contract, will protect the assignment of a chose in action, 
 as much as the law will that of a chose in jjossession. Dyer, 30. Br. Ab. tit. 
 Chose in Action. 3 P. W. 199. 2 Bla. Com. Ch. 30.— [Note 145.] 
 
 Vol. II.— 16
 
 232. b.] Of Estates L. 3. C. 5. Sect. 378. 
 
 ,c It shall be rather intended, that he commeth to the deed by 
 laicfull meanes, then by a wrongful! mean." Omnia presumun- 
 tur legitime facta, donee probetur in contrarium. Injuria non 
 prozsumitur. 
 
 " Quo?re de dubiis." There be three kinds of unhappie men. 
 
 1. Quiscit &non docet, Hee that hath knowledge and teacheth 
 not. 
 
 2. Qui docet & non vivit, He that teacheth, and liveth not 
 thereafter. 
 
 3. Qui nescit, & non interrogat, He that knoweth not, and 
 doth not enquire to understand. Therefore Littleton saith, 
 Quaere de dubiis. 
 
 Infelix cujus nidli sapientia prodest. 
 Infelix qui recta docet, cum vivit inique. 
 Infelix qui pauca sapit spernitque doceri. 
 
 " Quia per rationes pervenitur ad legitimam rationem." For 
 Ratio est radius diviniluminis. And by reasoning and debating 
 of grave learned men the darknesse of ignorance is expelled, and 
 by the light of legall reason the right is discerned, and thereupon 
 judgment given according to law, which is the perfection of rea- 
 son. This is of Littleton here called legitima ratio, whereunto 
 no man can attaine but by long studie, often conference, long 
 experience and continuall observation. 
 
 Certaine it is, that in matters of difficultie the more seriously 
 they are debated and argued, the more truely they are resolved, 
 and thereby new inventions justly avoided. 
 
 Inter cuncta leges, & percunctabere doctos. 
 
 Sect. 378. 
 
 JjjSTA TES which men have upon condition in law, are such estates, 
 which have a condition by the laiv to them annexed, albeit that it be 
 not specified in ivriting. As if a man grant by his deed to another the 
 office of parkership of a park, to have and occupie the same office for 
 terme of his life the estate which he hath in the office is upon condition in 
 law, to wit, that the parker shall ivell and lawfully keepe the parke, and 
 shall doe that which to such office belongeth to doe, or otherwise it shall 
 be lawful to the grantor and his heires to oust him, and to grant it to 
 another if he will, §c. And such condition as is intended by the law to 
 be annexed to any thing, is as strong as if the condition were put in 
 writing (sicome la condition fuissoit mis * en escript). 
 
 "(JONDITION in law, &c" Littleton having spoken of 
 conditions in deed, now according to his owne division 
 commeth to speake of conditions in law. 
 
 " That it be not specified in writing." A condition in law is that 
 
 which 
 * ou mustre, added in L. and M. and Roh.
 
 L. 3. C. 5, Sect. 378. upon Condition. [232. b. 233. a. 
 
 which the law intendeth or implyeth without expresse words in 
 the deed. 
 
 [Q33.~J B® 05 " That the par&er shall well and lawfully keepe (Ant. 2. a. 115. a. 
 a. | the parke, (que le parker bien et loyalmentgardera le Cro. Car. 59, 60. 
 parke), &c." Parke, this should be written parque . i ns *' "£' 
 which is a French word, and signifieth that which we vulgarly n u tt. S6, 87.) 
 call a parke, of the French word parquer, to iraparke, to inclose. 
 It is called in Domesday, Parous. In law it signifieth a great 
 quantity of ground inclosed, privileged for wild beasts of chase 
 by prescription, or by the king's grant. 
 
 The beasts of parque or chase, properly extend to the bucke, (8 Rep. 13(5.) 
 the doe, the foxe, the marten, the roe, but in a common and ("•«.!*. 164. d.) 
 legall sense, to all the beasts of the forrest. There be both beasts 
 and fowles of the warren. Beasts, as hares, conies, and roes (5 r^ 104 5 j 
 called in records \d~\ Capreoli. Fowles of two sorts, viz. Terres- [rf] Hill. 13. E. 3. 
 tres and Aquatiles. Terrestres of two sorts, Silvestres and Cam- ? or £;™ re & e 
 pestres: Campestres, as partridge, quaile, raile, &c. Silvestres, as (7 Rep. 15.) 
 phesant, woodcocke, &c. Aquatiles, as mallard, heme, &c. 
 whereof I have seen in this record [*] : Rex concessit Johanni de (*) 38 E. 3. 
 Beverly Armigero suo quod ipse cum quibuscunque canibus suis Ret. patent. 
 ad quascunque bestias /eras regis in quibuscunque for estis,parcis 
 suis quotiescunque voluerit venari possit, et quoscunque falcones 
 possit permittere volare ad quascunque aves de warrend in qui- 
 buscunque ripariis, &c. 
 
 It is resolved [e] by the justices and the king's counsell, that [ e ] Hill 13 E. 3. 
 capreoli, id est roes, non sunt bestise de foresta, eb quod fugant p ™" 11 re & e 
 alias f eras. Beasts of forrests be properly hart, hinde, bucke, 
 hare, boare, and wolfe, but legally all wild beasts of venery. 
 
 A forest and chase are not, but a parke must be inclosed. 
 The forrest and chase doe differ in offices and lawes : every forest Vide Sect. 1. 
 is a chase, but every chase is not a forest. A subject may have 
 a forest by especial! grant of the king, as the duke of Lancaster 
 and abbot of Whitbie had. 
 
 Ockam cap. quid regis foresta, saith, Foresta est tufa ferarum Vide Bract. 
 mansio non quarumlibet, sed silvestrium, non quibuslibet in loci's, fo. 231 & 316. 
 sed certis, et ad hoc idoneis ; unde foresta E. mutata in 0. quasi ln^'m,'^ 
 foresta, hoc est, ferarum statio. cap. 34, 35. 
 
 Pudzeld or Woodgeld is to be free from payment of money 
 for taking wood in any forest. But let us now return to our 
 Littleton. 
 
 In this Section Littleton putteth an example of a condition in (9 R e p. 50. 
 law, annexed to the office of the keeper of a park, but this ex- Sid. 14.) 
 ample must be understood with a distinction ; for if the parker 
 doth not attend on the parke one or two, &c. dayes, this is no 5 E. 4. 15. b. 
 forfeiture of the office of parkership ; but if in his default any pj b ' r 5 E 'o^q 26 ' 
 deere be killed, and so a damage to the lord, that is a forfeiture : 33^ 
 for (that it may be said, once for all) non-user of it selfe without 2 II. 7. 11. 
 some speciall damage is no forfeiture of private offices, but ;5 ° u - 6 - 32 > * c - 
 non-user of publique offices which concern the administra- An r j' c^iV^'e.) 
 tion of justice, or the common wealth, is of it selfe a cause 
 of forfeiture. 
 
 " To oust him if he will, &c." Littleton here speaketh of 
 an ouster by force of a condition in law, therefore it is to 
 
 be
 
 233. a. 233. b.] Of Estates L. 3. C. 5. Sect. 378. 
 
 be seen in what other cases the grantor may lawfully oust his 
 officer (1). 
 
 There is a diversitie between officers that have no other profit 
 but a collaterall certain fee, for there the grantor may discharge 
 him of his service, as to be a bayley, receiver, 
 
 ] S E. 4. 8. 
 
 31 H. 8. Grants. 
 
 Br. 134. 34 H. 8. 
 
 ibid. 93. 
 
 11 Eliz. 
 
 Dyer, 285. 
 
 (Plo. 379. b. 
 
 381. F. N. B. 
 
 surveyor, auditor, or the like, the exercise whereof is r233.~| 
 but labour and charge to him, but hee must have his | b. 
 fee : for the main rule of law is, that no mane can frus- 
 trate or derogate from his owne grant to the prejudice of the 
 grantee. And where albeit the grantee hath 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 
 164. Sid. 74. 81.) cannot discharge him of his service or attendance, for that may 
 9 Rep 5(h" ' * urn to tue P re J u dice of the grantee, if the grantor will not 
 Cro. Car. 55, 56. grant the office at all. But in all cases where the officer relin- 
 59, 60, 61. quisheth his office, and refuseth to attend, he loseth his office, 
 
 fee, profit and all. 
 
 There is another diversity where the grantee, besides his cer- 
 
 taine fee, hath profits and availes by reason of his office; there 
 
 the grantor cannot discharge him of his service or attendance, 
 
 for that should be to the prejudice of the grantee. As if a man 
 
 doth grant to another the office of the stewardship of his courts 
 
 of his mannors with a certain fee, the grantor cannot discharge 
 
 him of his service and attendance, because he hath other profits 
 
 and fees belonging to his office, which he should lose if he were 
 
 22 II. 6. 10. 3. discharged of his office. And as in the case which Littleton 
 
 6 E. 6. Dier, 71. here putteth of the office of the keeper of a parke, for that hee 
 
 hath not onely his fee certaine, but profits and availes also, in 
 
 respect of his office, as deere skinnes, shoulders, &c. But now 
 
 let us proceed and see what other particular forfeitures in law 
 
 bee of this office here spoken of by Littleton, and somewhat of 
 
 conditions in law in generall. 
 
 (Ant. 54. a.) And it is to be understood, that if any keeper kill any deere 
 
 15 E. 4. 3. b. without warrant, or fell or cut any trees, woods, or underwoods, 
 
 28 II 8 ' an< l convert them to his owne use, it is a forfeiture of his office, 
 
 Bendloes enter for the destruction of vert is, by a meane, destruction of venison. 
 
 evesque de Lon- g ft j s jf ne p U u downe the lodge, or any house within the park 
 
 li™9 fo 50^95 f° r P uttm g °f na y m ^° ^ f° r feeding of the deere or such like, 
 96. 99. it is a forfeiture; and the reason wherefore the office in these and 
 
 [/] Mich. u^ cases shall be forfeited [/] is, quia in quo quis dclinquit in 
 
 o'-'i B. 1. coram i . • t 
 
 re se mTh esa ur. €0d k e J UreeS {P Umemh "- ,, , ,_ . 
 
 l'evesque de As to conditions in law, you shal understand they bee oi two 
 
 Durham's case, natures, that is to say, by the common law, and by statute. 
 PL Com. 373. a ^ n( j tnose D y t h e coramon J aw ar e of two natures, that is to say, 
 Nevill's case. the one is founded upon skill and confidence, the other without 
 21. E. 4. 20. 93. skill or confidence : upon skill and confidence, as here the office 
 i 1 -, R o P V 14 .V of parkership, and other offices in the next Section mentioned, 
 
 Lib. 8. fo. 44. * l vi 
 
 Wittingham's and the Jlke - 
 
 case. Touching conditions in law without skill, &c. some be by the 
 
 common law and some by the statute. By the common law as 
 
 to 
 
 (1) Since sir Edward Coke's time, several statutes have been passed, par- 
 ticularly 25 Car. 2 cha. 2. 13 W. 3 ch. 6. and 1 An. ch. 22. by which all per- 
 sons admitted into offices civil or military are to take the oaths of allegiance 
 and supremacy, otherwise they forfeit their offices, and incur other penalties. — 
 But with respect to Roman Catholics, see post. 391. a. note 2. — [Note 146.]
 
 L. 3. C. 5. Sect. 378. upon Condition. [233. b. 234. a, 
 
 to every estate of tenant by the courtesie, tenant in tayle after 
 possibility of issue extinct, tenant in dower, tenant for life, 
 tenant for years, tenant by statute merchant or staple, tenant 
 by elegit, gardian, &c. there is a condition in law secretly an- 
 nexed to their estates, that if they alien in fee (1), &c. that he 
 in the reversion or remainder may enter, et sic de similibus, or 
 if they claime a greater estate in court of record, and the like. 
 
 Concerning conditions in law founded upon statutes, for some 
 of them an entrie is given, and for some other a recovery by 
 action : where an entrie is given, as upon an alienation in mort- 
 maine, &c. and the like : where an action is given, as for waste 
 against tenant for life and yeares, and the like. 
 
 11 And such condition as is intended hy the law to be annexed 
 to any thing is as strong, &c." Here it is worthy the observation 
 to take a view of the divisions aforesaid in some particular case. 
 As for example. Admit that an office of parkershippe bee (Cro. Car. 279.) 
 granted or descend to an infant or feme covert, if the conditions wluinghai^s 
 in law annexed to this office which require skill and confidence case . 
 be not observed and fulfilled, the office is lost for ever, because, (Mo. 92. 
 as Littleton saith here, it is as strong as an expresse condition. * C™- 7 ' 2 
 But if a lease for life be made to a fern covert, or an infant, and Plo< 2 05. ' 
 they by charter of feoffment alien in fee, the breach of this con- Ant. 100.) 
 ditidn in law, that is, without skill, &c. is no absolute forfeiture 
 of their estate. So of a condition in law given by statute, which 
 giveth an entrie onely. As if an infant or feme covert with her 
 husband aliens by charter of feoffment in mortmaine, this is no 
 barre to the infant or feme covert. But if a recovery be had 
 against an infant or fern 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 statute which giveth a recovery, is in some cases more strong 
 than a condition in law without a recovery. For if lessee for 
 life make a lease for yeares, and after enter into the land, and 
 make waste, and the lessor recover in an action of waste, he 
 shall avoid the lease made before the waste done. But if the 
 lessee for life make a lease for years, and after enter upon him, 
 and make a feoffment in fee, this forfeiture shall not avoid the 
 lease for yeares. Nor in any of the said cases a precedent rent 
 granted out of the land shall be avoyded. For if lessee for life (Ant. 185. a.) 
 grant a rent charge, and after doth waste, and the lessor reco- 
 vered in an action of wast, he shall hold the land 
 ["234."] B&~ charged during the life of the tenant for life, but 
 a. J if the rent were granted after the waste done, the 
 
 lessor shall avoid it. 
 
 And 
 
 (1) But this must be understood of an alienation which divests the remain- 
 der or reversion, as a feoffment, fine, or common recovery; but a conveyance 
 by lease and release, or bargain and sale, is no forfeiture. Neither is it a for- 
 feiture of the particular estate, if the reversioner, or remainder-man in fee, 
 ioins with the tenant for life or years in making the alienation ; nor is his grant 
 of an advowson. remainder, or any thing else which lies in grant, a forfeiture. 
 But if a tenant for life or years claims the fee, as by joining the mise upon the 
 mere right ; or if he affirms the fee to be in a stranger, as by accepting a fine 
 sur conusance de droit come ceo from a stranger, it is a forfeiture. See post. 
 251. b. 252. a.— [Note 147.]
 
 234. a.J Of Estates L. 3. C. 5. Sect. 378. 
 
 And the reason wherefore the lease for yeares in the case 
 
 aforesaid shall be avoyded, is because of necessitie the action of 
 
 waste must be brought against the lessee for life, which in that 
 
 case must bind the lessee for yeares, or else by the act of the 
 
 (Ant. 54.) lessee for life the lessor should be barred to recover locum vasta- 
 
 tnm, which the statute giveth (1). 
 (Post. 338. b.) If a man hath an office for life which requireth skill and con- 
 
 fidence, to which office he hath a house belonging, and chargeth 
 the house with a rent during his life, and after commit a forfeit- 
 ure of his office, the rent charge shall not be avoyed during his 
 life, for regularly a man that taketh advantage of a condition in 
 law shal take the land with such charge as he finds it. And 
 therefore Littleton is here to be understood, that a condition 
 in law is as strong as a condition in deed, as to avoid the 
 estate or interest it selfe, but not to avoide precedent charges, 
 but in some particular cases, as by that which hath beene said 
 appeareth. 
 3 H. 7. ca. 12. There be at this day more conditions in law annexed to offices 
 
 Auditor, re- than were when Littleton wrote : for example, for offices in any 
 keeper of^ 1 e ' w * se touching the administration or execution of justice or 
 castle, master clerkship in any court of record, or concerning the king's trea- 
 of the game, sure, revenue, account, customes, alnage, auditorship, king's 
 of anv'forrest " survevor > or keeping of any of his majestie's castles, forts, &c. 
 parke, chase, &c. For if any of these officers bargaine or sell any of the said offi- 
 7 E. 6. ca. l. ces or any deputation of the same, or take any money or profit, 
 Treasurer, re- or aQ y p rom j ge) covenant, bond, or assurance, to have any money 
 bailife', &c. or reward for the same, the person so bargaining or selling, or 
 
 (Vid. Ant. 3. 6.) that shal take any such promise, covenant, bond, or assurance, 
 l 1 i R 6 ep ' 89 i(5 shall not only forfeit his estate, but also every person so buying, 
 Cro. Car. 557. giving or assuring, be adjudged a disabled person to have or 
 Cro. Jac. 386. enjoy the same office or offices, deputation or deputations, &c. 
 and that all such bargains, sales, promises, covenants, and assu- 
 rances, as be before specified, shall be voide, except as in the 
 said act is excepted. 
 
 Sir Robert Vernon, knight, being coferer of the king's house of 
 the king's gift, and having the receit of a great summe of money 
 yearely of the king's revenue, did for a certaine summe of money 
 bargain and sell the same to sir A. 1. and agreed to surrender 
 the said office to the king, to the entent a grant might be made 
 to sir A. who surrendred it accordingly : and thereupon sir A. was 
 Mich. 13 Jacobi by the king's appointment admitted and sworne coferer. And it 
 R °g is - was resolved by sir Thomas Egerton, lord chancellour, the chiefe 
 
 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 dis- 
 abled 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. 180. And hereupon 
 Lib. 3. fo. 83. sir A. was removed, and sir Marmaduke Darrell sworne (by the 
 Colshil's case, king's commandment) in his place. And note, that all promises, 
 bonds and assurances, as wel on the part of the bargainor as of 
 
 the 
 
 3 Inst. 154. 
 
 (1) For the recovery relates to the time of the waste done, which is paramount 
 to the grant, but it does not relate to the time of making the estate, to avoid 
 charges by force of this condition in law, unless in the case of a lease for years, 
 which is of necessity to have the place toasted. — Lord Nott. MS. — [Note 148.]
 
 L. 3. C. 5. Sect, 379. upon Condition. [234. a. 234. 1). 
 
 the bargainee, are void by the same act. [*] Xulld alia re [*] ^ro& 
 
 .-r? 17. • •• V S J » J AJ> ,<£„, - ^. 10. 00.5. 
 
 magis Romana resptibhca tnterut, quam quod magistratus ojjicia 
 venalia erant. 
 
 [g] Jugurtha going from Rome said to the city, Vale venalis [g] Salust 
 civitas, mox periiura si emptorem invenias. 
 
 Therefore by the law of England it is further provided, that no 12 R. 2 ca. 2. 
 officer or minister of the king shall be ordained or made for any 
 gift or brocage, favour or affection, nor that any which pursueth 
 by him or any other, privily or openly, to be in any manner of 
 office, shall 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. 
 
 " Such condition as is intended by the law to be annexed to any 
 thing, is as strong as if the condition were in writing." And this vid. Sect. 419. 
 accords with that ancient rule, Utique fortior et potentior est 429, 430. 
 dispositiolegis quam hominis. 
 
 Sect. 379. 
 
 TNthis manner it is of grants of the offices of steward, constable, be- 
 delarie, bayliiviek, or other offices, £c. But if such office bee granted 
 to a man to have and to occupie by himself e or his deputie, then if the 
 office bee occupied by him or his deputie, as it ought by law to be occupied, 
 this sufficethfor him, or otherwise the grantor and his heires may oust 
 the grantee, as is aforesaid, (011 auterment* le grantor et ses heires 
 poient ouste f le grantee, come est avantdit.) 
 
 " STEWARD." Of this I have spoken before. 21 E. 4. 20 
 
 ^3 "!• Com. ScJ. 
 
 , , , (Ant. 61. a.) 
 
 " Constable.'" Of this likewise something hath beene 
 
 t234."| spoken fiST" before. But a constable is often taken in 8 E. 4. 6. 
 b. J the law for a warden or keeper, as Constabularias castri (5 Rep. 59.) 
 de Dover et 5. partnum; for the warden of the castle of 
 Dover and the Cinque ports, &c. So as in this sense Constabula- 
 rius is taken for Castellanus,-<md this is proved by the statute [*] [*] W. 1 ca. 7. 
 of W. 1. ca. 7. Desj)risesdes Constables ou Castellains faitz des 
 outers, &c. And Magna Carta, [b~\ c. 19. Nultus constabularins ["&] Magna 
 vel ejus ballivus capiatblada vel alia catalla alicujus qui non sit de Carta ' ca - ! 9 - 
 villd, ubicastrum swum situm est, &c. Stanford, fo. 152. Constabu- Btorai£fo. 152. 
 larius Turris London, for Custos Turn's, 32 H. 8. ca. 28. Con- 
 stable of the Forest, for the Keeper of the Forest. 
 
 32 II. 8. ca. 28. 
 
 " Bedelarie." Bedell is derived of the French word Bcadeau, 
 which signifies a messenger of the court, or under baylife, in 
 Latine Bedellus. 
 
 And the oath of a bedell of a manor is, that he shall duly and 
 
 truly 
 
 * le grantor — il, L. and M. and Roh. | le grantee, not in L. and M. orRoh.
 
 234. b. 235. a.] Of Estates L. 3. C. 5. Sect. 380. 
 
 truly execute all such attachemeuts and other proccs as shall be 
 directed to hiin from the lord or steward of his court, and that 
 he shall present all pound breaches which shall happen within 
 his office, and all chattels wayved, and estrayes. 
 
 u JBayliwick." Of this sufficient hath beene said before. 
 
 Sect. 380. 
 
 
 A LSO, estates of lands or tenements may bee made upon condition in 
 law, albeit upon the estate made there was not any mention or re- 
 hearsal made of this condition. As put the case that a lease be made to 
 the husband and wife, to have and to hold to them during the coverture 
 betweene them ; in this case they have an estate for terme of their two 
 lives upon condition in law, scil. if one of them die, or that there be a 
 divorce between them, then it shall be lawful for the lessor and his heires 
 to enter, £c. 
 
 (l Roll. Abr. TTERE Littleton termeth words of limitation to be conditions 
 
 401. Ant. 214. b. _£l j Q i aw . f Qr j^g g rgt exanl pl e j s 
 
 Post. 242.) ' L ' 
 
 " During the coverture betweene them," durante coopertura inter 
 
 eon. This word (durante) is properly a word of limitation, as 
 
 durante viduitate, or durante virginitate, or durante vita, &c. 
 
 And properly a condition in law is, as hath beene said, where 
 
 37 H. 6. 27. th e p^ w createth the same without any expresse words. 
 
 3 Ass' PL Dum also maketh a limitation ; as if a lease be made, dum sola 
 (Ant. 214. b. fuerit, or dum, sola et casta vixerit. Dummodo is also a 
 
 4 Rep. 3. a.) word of limitation; as, figi" dummodo solverct ' talem [~Q35.~| 
 ft t. 92 redditum. Quamdiualsoisavfovdof limitation, for if a [ a. 
 
 (10 Rep. 42.) man grant a rent out of the manor of D. quamdiu the 
 
 Plo. 242. a. grantor shall bee dwelling upon the mannor, this is good, or 
 
 Vaugnan, . quamdiu se bene qesserit. 
 
 4 Rep. 33. J- u 
 
 87 H 6. 27. (9 Rep. 95.) (Ant. 214. b. 4 Rep. 3. a.) 14 E. 2. Grant. 92. 
 
 (10 Rep. 42. Plo. 242. a. Vaughan, 32. 4 Rep. 33.) 37 H. 6. 27. (9 Rep. 95.) 
 
 10 Ass. 4. And so by these words, donee, quousque, usque ad, tamdiu, 
 6 E. 3. 8, 9. 21. ubicunque. 
 
 3 E. 3. 18. 2 
 
 19 H. 6. 54. " If one of them die, &c." For if any of them die the cover- 
 Temps E. 1. ture is dissolved, and consequently the state determined by the 
 Annuitie, 150. limitation . 
 
 11 Ass. p. 8. 
 
 21 Ass. p. 18. 26E.3. 69. 7 E. 4. 16. 9. E. 4. 25, 26. 9 11.6.39. 14 H. 8. 13. 
 
 " Or that there be a divorce between them, &c." Here is a dis- 
 tinction to be understood; for there bee two kinde of divorces, 
 :; 47 E. 3. 27. vtz. one a vinculo matrimonii*, and the other d mensd et thoro. 
 39 E. 3. 32, 33. Dioortium dicifur a divertendo, or divorteudo, quia vir divertitur 
 
 1} n : 4 ' V^'ono oh uxore. Divorces & vinculo matrimonii arc these : Causa prse- 
 Bracton, fo. 298. , . . . - . ., ., . * . 
 
 18 E. 4. 28. contractus, causa metus, causa impotenttae seu , jngmitatis, causa 
 
 24 H.S.bastards. affinitatis, causa consanguinitatis, &c. And I reade in an ancient 
 
 Br. 44. 
 
 39 E. 1. Bastard, 21. 22 E. 4. tit. Consultat. 5. 6 E. 3. 249. 25 E. 3. 39. 
 
 record,
 
 L. 3. C. 5. Sect. 380. upon Condition. [235. a. 
 
 record, coram rege Termino Pasch. 30 E. 1. William de Chad- 
 icorthe's case, that he was divorced from his wife, for that he did 
 carnally know her daughter before he married the mother ; all 
 which are causes of divorce preceding the marriage. 
 
 A mensd et thoro, as causa adulterii, which dissolveth not the (1 Sid. 64. 
 marriage ft vinculo matrimonii, for it is subsequent to the mar- 3_ 1 °oqq g r 8 _ \ 
 riage. And the divorce that Littleton here speaketh of is in- 
 tended of such divorces [*] as dissolve the marriage ft vinculo [*] Vide Sect. 
 matrimonii, and maketh the issue bastard, because they were 3 *?^ - g ng ^ 
 not justce nuptice. And therefore in Littleton's case though the 5 Rep. 98. 
 husband and wife be divorced causd adulterii, yet the freehold 7 Rep. 42. 
 continuetb, because the coverture continueth. And it is further ^^"'gjf 8, 
 to be understood, that many divorces that were of force by the Vaugh. 221. 
 canon law when Littleton wrote, are not at this day in force ; 319. 321.) 
 for by the statute of 32 H. 8. ca. 38, it is declared that all per- 32 H - 8 - ca - 38 - 
 sons be lawfull (that is, may lawfully marry) that be not prohi- 
 bited by God's law to marry, that is to say, that be not prohi- 
 bited by the Leviticall degrees. 
 
 A man married the daughter of the sister of his first wife, and 
 was drawne in question in the ecclesiasticall court for this mar- 
 riage, alleging the same to be against the canons ; and it was 
 resolved [n] by the court of common pleas, upon consideration [„] Tr. 2 Jae. 
 had of the said statute, that the marriage could not be im- Rot. 1032. 
 peached, for that the same was declared by the said act of par- ^ b > a __ e Par ~ 
 liament to be good, inasmuch as it was not prohibited by the (Cont. 1 Cro. 
 Levitical degrees, et sic de similihus (1). 2S8. Ace. Mo. 
 
 _ Sect. SL, V ' J - Sid - 
 
 (1) This passage exposed sir Edward Coke to much censure. — It was struck 
 
 out of the third and every following edition to the ninth. — It was restored to 
 
 its place in that edition, and is to be found in all the subsequent editions. — 
 
 The following account is given of this circumstance in Burn's Ecclesiastical 
 
 Law, vol. 3. p. 402. 3d edit. — "There are several degrees, which, although 
 
 " not expressly named in the Levitical law, are yet prohibited by that, and 
 
 " by the statute of 32 H. 8. c. 38, by parity of reason. Hence in the case of 
 
 " Wortley and Watkinson, a consultation was granted, where one had married 
 
 « the daughter of the sister of his former wife; which (as sir John King laid 
 
 " the argum ent) is the same degree of proximity, as the nephew's marrying 
 
 " his father's brother's wife ; and this being expressly prohibited, the other 
 
 "by parity of reason is so likewise; as it had been declared E. 16 J. in Pen- 
 
 " nington's case, before the High Commissioners. Which point was again 
 
 " argued T. 1 An. in the case of Snowling and Nursey, and consultation 
 
 " granted as before, notwithstanding the case of Richard Parsons, mentioned 
 
 " by lord Coke, 1 Inst. 235. in which it was first determined not to be within 
 
 " the Levitical degrees, and prohibition granted ; but a consultation being 
 
 " awarded on debate, two years after, that case is said to have been expunged 
 
 " out of the First Institute, by order of the King and Council. And this 
 
 " was the very point in which (presently after the making of the act) lord 
 
 " Cromwell desired a dispensation for one Massey, who was contracted to his 
 
 "sister's daughter of his late wife; but the archbishop denied it, as contrary 
 
 " to the law of God, and gave for reason, that as several persons are prohi- 
 
 " bited, which are not expressed, but understood by like prohibition in equal 
 
 " degree ; so in this case, it being expressed that the nephew shall not marry 
 
 " his uncle's wife, it is implied, that the niece shall not be married to the 
 
 " aunt's husband. Gibs. 412, 413. Much less can it be doubted, whether 
 
 " the like rule concerning parity of reason, doth not forbid the uncle to 
 
 " marry his niece, which, though not expressly forbidden, is virtually pro- 
 
 " hibited
 
 235. a. 235. b.] Of Estates L. 3. C. 5. Sect, 381. 
 
 Sect. 381. 
 
 A ND that they have an estate for term of their two lives is proved 
 thus: Every man that hath an estate of freehold in any lands or 
 tenements, either he hath an estate in fee, or in fee taile, or for terme of 
 his own life, or for terme of another man s life, and by such a lease they 
 have a freehold, but they have not by this grant fee, nor fee taile, nor for 
 terme of another s life, ergo, they have an estate for terme of their owne 
 lives, but this is upon condition in lawe in forme aforesaid; and 
 in this case if they shal do wast, the feoffor shall jggf* have a T235.1 
 writ of waste against them, supposing by his writ, quod tenet ad L b. J 
 terminum, vitae &c. * but in this (A) count he shall declare how 
 and in what manner the lease was made. 
 
 PI. Com. 561. b. " TS proved thus." By this argument logically drawne a di- 
 Vid. Sect. 345. -*- visions, it appeareth, how necessary it is that our student 
 simile. should (as Littleton did) come from one of the universities to the 
 
 studie of the common law, where he may learne the liberall arts, 
 and especially logick, for that teacheth a man not onely by just 
 argument to conclude the matter in question, but to discerne 
 betweene truth and falsehood, and to use a good method in his 
 studie, and probably to speake to any legall question, and is 
 defined thus, dialectica est scientia probabiliter de quovis themate 
 disserendi, whereby it appeareth how necessary it is for our 
 student. 
 
 37 H. 6. 27. " Supposing by Ms writ, quod tenet ad terminum vita), &c." 
 
 This and the rest of this section is evident and plaiue. 
 
 Sect. 
 
 * but — and, in L. and 31. and Eoh. 
 
 (A) The word " this" seems to be here inserted for " his". See Mr. Ritso's Intr. p. 112. 
 
 " hibited in the precept that forbids the nephew to marry the aunt ; nor is it 
 " of moment to allege, that the first is a more favourable case, as the natural 
 " superiority is preserved ; since the parity of degree, which is the proper 
 "rule of judging, is the very same. Gibs. 413. But where in the case of 
 " Harrison and Burwell, T. 20 C. 2. in the spiritual court, one had married 
 11 the wife of his great uncle, this was declared not to be within the Levitical 
 "degrees; and accordingly, after the opinion of all the judges taken by the 
 " king's special command, a prohibition was granted. Gibs. 413." — Note, die 
 case of Richard Parsons, T. 2. Ja. Ro. 1032. where a man may marry the 
 daughter of his wife's sister, which is in the editions of 1628, and that of 29, 
 and is here left out. See Moor, 1266. Manne's case, 33 Eliz. in the case of the 
 widow of one Rennington, who claimed a widoiv' s estate, but was denied, because 
 she was niece to the former wife of Rennington, who had done penance for the 
 incestuous marriage; but it was resolved she shoidd have her widow s estate, 
 because there was never any divorce had in the life of her husband, though 
 there was cause. Hob. 181. in the case of Howard v. Bartlett. 2 Inst. 683. 
 1 Cro. 228. Vaugh. 302. Hill v. Geed, 3 Lev. 364. Vide auxy, 2 Jones, 118. 
 5 Mo. 161. andB. Stillingjleet's Life, 121.— Lord Nott. MS.— [Note 149.]
 
 L. 3. C. 5. Sect. 382-83. upon Condition. [235. b. 
 
 Sect. 382. 
 
 ]N the same manner it is, if an abbot make a lease to a man for 
 yeares (B), to have and to hold to him during the time that the 
 lessor is abbot (En mesme le manner est, si nn abbe fait un lease a un 
 home a aver et tener a luy durant le temps que le lessor est abbe) ; 
 in this case the lessee hath an estate for term of his own life : but this is 
 upon condition in law, scilicet, That if an abbot resigne, or be deposed, 
 that then it shall be laivfullfor his successor to enter, $c. 
 
 11 TF an abbot." So it is of a bishop, archdeacon, and other V ide Bract 
 
 -* ecclesiasticall or temporall body politique or corporate, or lib. 5. 414 
 of any officer or graduate, or the like. (Plowd. 2 .) 
 
 "Resigne or be deposed." And so it is of a translation and 
 cession. 
 
 Sect. 383. 
 
 A LSO, a man mag see in the Booh of Assises, an. 38 E. 3 % p. 3, a 
 ^ plea of Asssise in this form following, scilicet, An assise of Novel 
 Disseisin was sometime brought against A. who pleaded to the assise, and 
 it was found by verdict, that the ancestour of the plaintife devised his 
 lands to bee sold by the defendant, who was his executor, and to make 
 distribution of the money for his soule : and it was found, that presently 
 after the death of the testator, one tendred to him a certaine sum of money 
 for the lands, but not to the value, and that the executor afterwards held 
 'the layids in his own hands two yeares, to the entent 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 
 soule of the deceased, cj-c. Moubray * justice said, the executor in this 
 case is bound by the law to make the sale as soone as he may after the 
 death of his testator, and it is found that hee 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 comming of ' the lands to the use of the dead (et 
 issint per force del devise i'l fuist tenus d'aver mis souts le profits f 
 avenants de les tenements al usele mort), and it is found that hetooke 
 them to his owne use, and so another default in him. Wherefore it was 
 adjudged, that the PV should recover. § And so it appear eth 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. 
 
 " rpHE book of Assises" is a booke of the Reports of Cases in 
 
 -* the raigne of King Edward the Third, and it is called the 
 
 Booke of Assises, because the greatest part of the cases therein 
 
 are 
 
 X p. 3, not in L. and M. or Boh. f avenants — prevenantes, in L. 
 
 * justice said, not in L. and M. or and M. and Roh. 
 R h. § dbe. added in L. and M. and Boh. 
 
 (B) It aeons, that the text should be read as if the words " for yeares" had been 
 omitted. See Mr. Ritso's Intr. p. 112. It is observable that the original French 
 does not warrant the insertion, in the translation, of the words in question.
 
 235. b. 236. a. & b.J Of Estates L. 3. 6. 5. Sect. 383. 
 
 are upon writs of assises brought, as hath been said, and which 
 hath beene cited before. 
 
 " Devised his lands to be sold by his executor." This 
 must f^° be intended to be of lands devisable by T 336.1 
 custome, for lands by the common law were not devis- |_ a. 
 able (as hath been said) : for in this section is implyed 
 (Latch. 9 Ant. a diversity, viz. when a man deviseth that his executor shal sell 
 113. a. 181.) the land, there the lands descend in the meane time to the heire, 
 and until the sale bee made the heire may enter and take the 
 profits. But when the land is devised to his executor to be sold, 
 there the devise taketh away the descent, and vesteth the state 
 of the land in the executor, and he may enter and take the 
 profits, and make sale according to the devise. And here it 
 appeareth, by our author, that when a man deviseth his tene- 
 ments to be sold by his executors, it is all one as if he had de- 
 vised his tenements to his executors to be sold : and the reason 
 is, because he deviseth the tenements whereby hee breakes the 
 descent (1). 
 
 " Mowbray" John Mowbray was a reverend judge of the 
 court of common pleas, and descended of a noble family. 
 
 " The executor in this case is bound by the law to make the sale 
 as soone as he may after the death of his testator, &c." And the 
 reason hereof is, for that the meane profits taken before the sale 
 (4 Rep. 81. b.) shall not bee assets, so as he may be compellable to pay debts 
 with the same, and therefore the law will inforce him to sell the 
 lands as soone as he can, for otherwise hee shall take advantage 
 of his owne 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 appeareth what 
 (3 Cro. 19. construction the law maketh for the speedy payment of 
 
 21. a.) debts. And here is to be observed, that many Q^r"words r£J36.~| 
 
 in a will doe make a condition in law, that make no con- | b. 
 dition in a deed : As here to devise lands to an execu- 
 Mich. 31 & 32 * or ac ^ vendendum, so if lands be devised to one ad solvendum 20/. 
 El. in the King's to Z S. or paying twentie pounds to I. N. this amounts to a con- 
 Bench. Cnck- dition. And Crickmers, case was this : A man seised of eertaine 
 
 mer's case, 
 
 adjudg.Dy. 6 E. 6. fo. 74. 7 E. 6. 70. (1 Leo. 174.) 10 Rep. 41. (Cro. Car. 1S5.) 
 
 lands 
 
 (1) Co. 25. b. Porte?-'s case. Breach of condition assigned, because he has 
 not performed within convenient time, viz. 8 years. — Ant. 113. cont. that where 
 lands are devised to executors to sell, and one refuses, yet it is within 21 //. 8. 
 though it be an interest, and though the words of the statute are, where lands are 
 'willed to be sold by executors, ichich gives only a power ; so there was a diffe- 
 rence between them. — 49 E. 3. 17. The case was, a woman seised of lands in 
 London devised them to be sold by her executors, and died without an heir ; that 
 devise prevented the escheat which the king pretended to have, and the executors 
 could enter and sell, therefore more than a bare authority passed. Yet in 1651, 
 on evidence at the bar, between Wilkinson and White, this case was started ; an 'I 
 lord chief justice Rolls doubted of this opinion, because, he said, it was only a 
 descent, according to the words of Littleton ; and that it appeared to him, that 
 wlien lands are devised to be sold by executors, there no interest passes, as in the 
 last clause here. — See ant. p. 113. a. note 2. — Lord Nott. MSS. — [Note 150.]
 
 L. 3. C. 5. Sect. 384. upon Condition. [236. b. 
 
 lands holden in socage had issue two daughters A. and B. and 
 devised all his lands to A. and her heires, to pay unto B. a cer- 
 taine sumine of money at a certaine day and place ; the money 
 was not paid, and it was adjudged, That these words, " to pay," 
 &c. did amount 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, should be 
 remedilesse, et interest reipublicte suprema hominum testamenta 
 rata, haberi : and the lessee of B. upon an actuall ejectment 
 recovered the moitie of the land against A. 
 
 " And so it appear eth by the judgement, &c." This conclusion 
 upon a judgment is of great authoritie in law, quia judicium 
 pro veritate accipitur, and, as it hath beene said, judicium is 
 quasi juris diction. 
 
 Sect. 384. 
 
 A NB many other things there are of estates upon condition in _ law 
 (f Et mults auters choses et cases y sont d'estates sur condition 
 en la ley), and in such cases lie needed not to have shelved any deed, re- 
 hearsing the condition, for that the lawitselfepurporteththe condition,^. 
 Ex paucis dictis intendere plurima possis. 
 More shall be said of conditions in the next chapter (Plus serra dit de 
 conditions en le % prochein chapter), in the chapter of Releases, and in 
 the chapter of Discontinuance. 
 
 HEREBY it appeareth that limitations (which, as hath beene 9^4. 36.^ 
 said, Littleton termeth conditions in law) may be pleaded [. Re p^" 38 )' 
 without deed : and the reason of our author is observable, 
 because the law in itselfe purporteth the condition, whereof 
 somewhat hath bin said before, and therefore looke backe to 
 the conditions in law, or words of limitation, and withall that a 
 stranger may take advantage of a limitation, as hath beene 
 said. . (Ant. 214. b.) 
 
 Littleton having spoken at large of conditions in deed and in Vide Sect. 220. 
 law, somewhat seemeth necessary to bee said of defeasances, 
 whereby the state or right of freehold and inheritance may be 
 defeated and avoyded. 
 
 "Defeasance." Defeisantia, is fetched from the French word ^^ 1; 2 foM 
 (hfaire, i. e. to defeat or undo, infectum redderc quod factum est. 17 Ag ' s- p/ 2 .' 
 There is a diversitie between inheritances executed, and inherit- 5 E. 3. 
 ances executorie : as lands executed by livery, &c. cannot^ by *2 E. 3. 1. 
 indenture of defeasance be defeated afterwards. And so if a 43 a S s. 12. 
 disseisee release (A) a disseisor, it cannot bee defeated by in- 7 H. 6. 43. 
 dentures of defeasance made afterwards; but at the time of the | 2 H ^ 6 3 2 Annu 
 release or feoffment, &c. the same may be defeated by indentures 30 ' 5 " E " u 
 Annuity, 44. 30 Ass. p. 1. 30 Ass. p. 11. 31 Ass. 32. Ant. 207. a. (1 Roll. Abr. 590.) 
 
 of 
 
 I Et mults auters choses et cases y J prochein chapter — chapitre de 
 sont d'estates sur condition en la ley, . discentz que tollent entres, in L. and 
 not in L. M. or Roh. M, and Roh. 
 
 (A) The icord to seems to be here reqxtisite.
 
 236. b. 237. a.] Of Estates L. 3. C. 5. Sect. 384. 
 
 20 Ass. pi. 7. 
 7 E. 4. 29. 
 Browning and 
 Beston's case, 
 PI. Com. 131. 
 28 H. 8. 
 Bier, 6. 
 27 H. 8.15. 
 19 R. 2. 
 Done, 10. 
 Albanie's case, 
 lib. 1. 107. 
 
 (6 Rep. 32. 
 3 Rep. Twyne's 
 case.) (*)27 
 H. 8. cap. 10. 
 (Cro. Car. 472. 
 Hob. 348. 
 9 Rep. 107. 
 1 Rep. 173. 
 175. 
 
 Lib. 1. fol. 173, 
 174. 
 
 Digge's case, 
 lib. 1. fol. 107. 
 Albanie's case, 
 lib. 10. fol. 143. 
 S erope's case, 
 lib. 7. fol. 12,13. 
 Sir Francis 
 Englefield's 
 case. 
 
 (2 Roll. Abr. 
 263. 1 Roll. 
 Abr. 331.) 
 
 of defeasance, for it is a maxime in law, Quce incontinenti Jiunt 
 in esse videntur (1). 
 
 figg^ But rents, annuities, conditions, warranties, and r^37."| 
 such like, that be inheritances executorie, may be de- [ a. 
 feated by defeasances made, either at that time, or 
 any time after : and so the law of statutes, recognizances, obli- 
 gations, and other things executorie. 
 
 H Ex paucis diet is intendere plurima possis." 
 
 Verses at the first were invented for the helpe of memoric, 
 and it standeth well with the gravitie of our lawyer to cite them. 
 By this verse of our author inferences and conclusions in like 
 cases are warrantable. 
 
 Lastly, somewhat were necessarie to be spoken concerning 
 clauses of provisoes, containing power of revocation which since 
 Littleton wrote are crept into voluntarie conveyances, which 
 passe by raising of uses, being executed by the (*) statute of 
 27 H. 8, and are become verie frequent, and the inheritance of 
 many depended thereupon. As if a man seised of lauds in fee, 
 and having issue divers sonnes, by deed indented covenanteth 
 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 himselfe for life, and after to 
 the use of Thomas his eldest son in taile, and for default of such 
 issue, to the use of his second son in taile, with divers like 
 remainders over; with a proviso that it shall be lawfull 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 states. 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, doe revoke the uses according to his power, 
 he is seised againe in fee simple without entrie or claime. 
 
 Secondly, he may revoke part at one time, and part at another, 
 
 Thirdly, if he make a feoffment in fee, or levie a fine, &c. of 
 any part, this doth extinguish his power but for that part ; 
 whereas in that case the whole condition is extinct. But if it 
 be made of the whole, all the power is extinguished ; so as to 
 some purposes it is of the nature of a condition, and to other 
 purposes in nature of a limitation. 
 
 Fourthly, if he that hath such power of revocation, hath no 
 present interest in the land, nor by the ceasor of the state shall 
 have nothing, then his feoffment or fine, &c. of the land is no 
 extinguishment of his power, because it is nieere collaterall to 
 the land. 
 
 Fifthly, By the same conveyance that the old uses be revoked, 
 
 may 
 
 (1) A power of revocation may be defeated by a defeasance made at the 
 same time, or any time after. 1 Rep. 113. — See Carth. 64. But if a thing 
 executory on its commencement be after executed, it cannot be defeated by 
 a subsequent defeasance. 5 Rep. 90. b. In the case of Cottrell v. Purchase, 
 lord Talbot said he should always discourage the practice of drawing an abso- 
 lute deed, and making a defeasance, as it wore the face of fraud. Ca. Temp. 
 Talbot, 61-64- — [Note 151.]
 
 L. 3. C. 5. Sect. 348. upon Condition. [237. a. 
 
 may new be created or limited, where the former cease ipso facto 
 by the revocation, without either cntrie or claime. 
 
 Sixthly, That these revocations are favourably interpreted, be- 
 cause many men's inheritances depend on the same(l). And 
 here I may apply the abovesaid verse : 
 
 Ex paucis dictis intend ere plurima possis. 
 
 (1) Some observations will be made in the notes to the chapter of Releases, 
 on Powers of Revocation, and other Powers deriving their effect from the statute 
 
 of uses. A reference was made, in note 1, p. 216. a. to this place, for some 
 
 observations on the doctrine of Conditions precedent, and Conditions subsequent. 
 In 1 Eq. Ca. Ab. 108, it is observed, " That conditions precedent are such as 
 " are annexed to estates, and must, at law, be punctually performed, before the 
 '•' estate can vest. A condition subsequent is, when the estate is executed ; but 
 " the continuance of such estate dependeth on the breach or performance of the 
 " condition. Though this distinction is often mentioned in courts of equity, 
 " yet the prevailing distinction there is to relieve against conditions, where 
 " compensation can be made, whether they be precedent or subsequent." This 
 observation is illustrated and confirmed by the cases collected under the title of 
 Conditions precedent and subsequent, in Mr. Viner's Abridgment; — and see 
 Francis's Maxims of Equity, p. 44. and Kaims's Princ. of Eq. 51. 81. ed. 1760. 
 — One of the most material points of discussion, respecting the doctrine and 
 ' different operations at law and in equity of Conditions precedent and Conditions 
 subsequent, arises from those cases where Conditions are annexed to Devises, 
 making them void on the marriage of the devisee without consent. These cases 
 have frequently been discussed in our courts. All the learning upon them is to 
 be found in the case of Harvey v. Aston, Com. Rep. 726. 1 Atk. 361. Reynish 
 v. Martin, 3 Atk. 330. and Scott v. Tyler, 2 Bro. Ch. Ca. 488. 
 
 The doctrine of Conditions precedent and subsequent, also frequently applies 
 to cases arising on the vesting of portions and legacies made payable 
 at A future time. There are few points of legal learning upon which the 
 cases in the books are more numerous, or seemingly more discordant. Perhaps 
 the following distinction may serve to enable the reader to reconcile them. 
 I. It was laid down in the case of Pawlet v. Pawlet, 2 Vent. 366, 367. that 
 where a legacy is charged upon real estate, if the person entitled to it dies before 
 the day of payment it sinks into the land for the benefit of the owner of the 
 inheritance. In Hall v. Terry, 1 Atk. 502. and Van v. Clark, 1 Atk. 510. lord 
 Hardwicke seems to have thought himself bound by this rule and decreed those 
 cases accordingly. — But in Lowther and Condon, 2 Atk. 130. Sherman v. Col- 
 lins, 3 Atk. 319. Hodgson v. Rawson, 1 Ves. 44. his lordship departed from this 
 rule ; and perhaps the general rule as it now stands, is, — That when a legacy 
 is given, charged upon a real estate, and payable at a future time, and there are 
 no express words in the will to make it immediately a vested interest; there, if 
 a stronger implication to the contrary does not arise from the other parts of the 
 will, the court, from its inclination to favour the heir, considers its being so 
 charged, and so payable, as circumstances amounting to an implication, that 
 the testator's intention was, that it should not vest till the time in which it is 
 made payable. Most clearly it is in the testator's power to make it immediately 
 vested and transmissible, though charged upon a real estate, and payable at a 
 future time, by using express words to indicate his intention that it should be 
 so ; — and if this can be done by express words, there cannot, it should seem, be 
 any reason why it may not be equally done by implication. Therefore, if there 
 are any circumstances or expressions in a will, from which the implication, that 
 it was the testator's intention to make it immediately a vested legacy, is stronger 
 than the implication to the contrary, which arises from its being charged upon a 
 real fund, and payable at a future day, it is to be considered as a vested and 
 
 transmissible
 
 237. b.] Of Estates upon Condition. L. 3. C. 5. Sect. 384. 
 
 transmissible interest, notwithstanding those circumstances. One of the cir- 
 cumstances, which the courts have considered as affording very strong ground 
 to imply the testator's intention to be, that the legacy should be immediately 
 vested and transmissible, though the payment is postponed to a future time, is 
 where the payment is postponed for reasons that are not personal to the legatee, 
 but arise or seem to be calculated with a view to the circumstances of the fund. 
 — Upon this ground lord Hardwicke seems in a great measure to have decided 
 in the cases cited above of Lowther v. Condon, Sherman v. Collins, and Hodg- 
 son v. Rawson. — See also King v. Withers, Ca. Temp. Talbot, 117. Butler v. 
 Duncomb, 1 P. W. 457. Pitfields case, 2 P. W. 513. Hutchins v. Foy and 
 Gover, Com. 716. Godwin v. Munday, 1 Bro. Cha. Rep. 191. 
 
 II. Where the legacy is charged upon personalty only ; there, if the legatee 
 dies before the day of payment, his personal representatives become entitled to 
 the legacy ; unless it is to be collected from the testator's will, that he intended 
 the contrary. — In the construction of bequests of this nature, there is an estab- 
 lished distinction between a gift of a legacy to a man, at, or if, or when, he 
 attains 21 (or any other future event of a similar nature), and a legacy payable 
 to a man at, or if, or when, he attains 21. — In the first case, the attaining 21 is 
 held to be individually applicable as much to the substance as to the payment of 
 the legacy, and therefore the legacy is held to lapse by the death of the legatee 
 before the time. In the second case, the attaining 21 is held to refer, not to the 
 substance, but to the payment only of the legacy, and therefore, here the legacy 
 is held not to lapse by the death of the legatee before the time. — It has been 
 held to be an exception to this distinction, where the testator has disposed of 
 the intermediate interest either to a stranger, or to the legatee. And the dis- 
 tinction does not hold where the legacy is a charge upon real estate. 
 
 III. With respect to legacies charged on a mixed fund, consisting both of real 
 and personal estate ; if the legatee dies before the time of payment, it seems to 
 be settled that the legacy should sink in the land, in all cases of this nature 
 where it would be held to sink in the land if the fund consisted of real estate 
 only : but this is only so far as it is necessary to resort to the real estate; for in 
 these cases the legacy is still vested as to the personal estate in all cases where 
 it would be vested, if the fund consisted of personal estate only. See Sherman 
 v. Collins, 3 Atk. 320. Hodgson v. Rawson, 1 Yes. 48. Duke of Chandos v. 
 Talbot, 2 P. W. 612. and Mr. Cox's excellent note on the last case. 
 
 Since the first publication of the thirteenth edition of these annotations, the 
 doctrine of conditions, as applicable to legacies, has been fully and ably ex- 
 plained by Mr. Roper, in his Treatise upon the Law of Legacies, in two volumes 
 octavo. — A succinct statement of it has been attempted, in the 6th edition of 
 Fearne's Essay on Contingent Remainders, p. 552, note 1. 
 
 For the difference between the common-law doctrine of conditions, and that 
 of the civil law and canon law, see the second part of Fulbeck's Parallel, 7th 
 Dialogue. 
 
 In the former part of these notes, some observations were made on the lead- 
 ing points of the doctrine of mortgages. The reader will find every thing 
 relating to that comprehensive subject, collected with great industry and inge- 
 nuity, in the Law of Mortgages, by Mr. Powell. — [Note 152.] 
 
 Chap.
 
 L. 3. C. 6. Sect. 385. Of Discents. [237. a, 237. b. 
 
 Chap. 6. Discents which toll Entries. Sect. 385. 
 
 jyiSQENTS which toll entries are in two manners, to wit, where tin 
 discent is in fee, or in fee taile. Discents in fee which toll entries are 
 (Discents en fee que tollent entries * sont), as if a man seised of certaine 
 lands or tenements is by another disseised, and the disseisor hath issue, 
 and dieth of stich estate seised, noiv the lands descend to the issue of the 
 disseisor by course of law, as heire unto him. And because the law cast the 
 lands or tenements upon the issue by force of the discent, so as the issue 
 commeth to the lands by course of law, and not by his own act, the entrie 
 of the disseisee is taken away, and he is -put to sue a writ of entrie sur 
 disseisin against the heire of the disseisor, to recover the Icmd.f 
 
 " JlfSCENTS." This word commeth of the Latine word dis- Mirror, cap. 2. 
 
 cendere, id est, ex loco superiore in ivferiorem movere ; and f. e b ° ', ; , 'SSq ' 
 in legall understanding it is taken when land, &c. after the death and 434.' 
 of the ancestor is cast by course of law upon the heire, which Britton, 
 the law calleth a discent. And this is the noblest and worthiest ":. <T ' 
 rneanes whereby lands are derived from one to another, because (gid. 193. Ant. 
 it is wrought and vested by the act of law, and right 13. b. Ant. 163.) 
 
 [SBy. - ! of 0^7° blood unto the worthiest and next of the blood 
 b. I and kindred of the ancestor, and therefore it hath not 
 in the common law altogether the same signification 
 that it hath in the civilllaw; for the civilians call him, haredem, 
 qui ex testamento suceedit in universum jus testator is. But by the 
 common law he is only heire which succeedeth by right of blood. 
 And this agreeth well with the etymologie of the word (heire) (Ant. 7. b.) 
 to whom the lands descend, for hares dicitur ad hcerendo quia 
 qui hseres est liserct, hoc est, proximus est sanguine illi cujus est 
 hseres. So as he that is hseres, sanguinis est hseres, & heres 
 hcreditatis. 
 
 " Discents which toll entries are in two manriers." Here is an 
 exact and perfect division made by our author, and yet withall 
 plaine and perspicuous. 
 
 Now, as a discent is the worthiest meanes to come to lands, 
 &c. so hath the heire more privileges than any other that by 
 other order or meanes come to the lands, &c. as shall appeare 
 hereafter. 
 
 Nota, In ancient time* if the disseisor had beene in long pos- * Bracton, li. 4. 
 session, the disseisee could not have entered upon him. [a] Like- ^: 162, * 20s> ; 
 wise the disseisee could not have entred upon the feoffee of the pi eta j' 4 " 0# 2 . * 
 disseisor, if he had continued a yeare and a day in quiet posses- [„] 50 e. 3.21. 
 sion. But the law is changed in both these cases, only the dying 1 Ass. 13. 
 seised being an act in law, doth hold at this day, and this secmeth A Jl™ 
 to be verie ancient, for this was the law before the conquest. 9 A ^ s 15 [ 
 \U\ Porro autem quam maritus sine lite et controversia scd< m into- 29 Ass. 5. 54. 
 luerit, earn eonjux ct proles sine controversia possi<l> nt<>, si qua in ^ Ass - }?• 
 ilium lisfuerit illata, viventem, earn hceredes adse (perinde atque 43 Assise It. 
 is vivus) accipiunto. [6] Lamb. 
 
 explicat. fol. 120. 70. 
 
 And 
 
 sont — est, in L. and 31. and Roll. &c. added in L. and M. and Roh. 
 Vol. II.— 17
 
 237. b. 238. a. | Of Discents. L. 3. C. 6. Sect. 385. 
 
 And one of the reasons of this ancient law may be, that the 
 heire cannot suddenly by entendment of law know the true state 
 of his title. And for that many advantages follow the posses- 
 sion and tenant, the law taketh away the entrie of him that would 
 not enter upon the ancestor, who is presumed to know his title, 
 and driveth him to his action against the heire that may be igno- 
 rant thereof. 
 
 n H. 7.12. "And dieth of such estate seised." To a discent that taketh 
 
 to E. 3. 24. away an entrie a dying seised is necessarie, as here it appeareth ; 
 but a man to other purposes may have lands by discent though 
 his ancestor died not seised, as hath beene said before. 
 
 33 E. 3. Gard. " Of lands or tenements." That is, of such tenements as be 
 
 1G2. 6 H. 4. 4. corporeall, and doe lye in liverie, and not of inheritances which 
 
 k w ±' u' ty e * n g ran ^ as advowsons, rents, commons in grosse, and such 
 
 F. N. B. 143. Q. like, which bee inheritances incorporeall, and yet are included 
 
 7 H. 4. 12. 5. within this word (tenements). For discents of them doe not 
 
 1 Ai s - P- 9 - put him that right hath to an action ; and the reason of this 
 
 diversitie is, for that houses serve for the habitation of men, 
 
 and lands to be manured for their sustenance, and therefore the 
 
 heire after a discent shall not be molested or disturbed in them 
 
 by entrie. 
 
 " Ishy another disseised." The like law is of an abatement or 
 intrusion, and of their feoffees, or donees, &c. 
 (8 Rep. 101.) Upon the words of Littleton a diversitie maybe col- 
 
 (6 Co. 51. b.) lected, that if arecoverie be had by A. 5®"° against i?. r£38.~| 
 33 E. 3. tit. 3. an( i before execution B. die seised, this discent shall | a. 
 45" ^3°.° Quare " nofc ta ^ e awa J tne entrie of the recoverer. But if after 
 Imp. 139. execution B. had disseised the recoverer and died seised, this 
 
 27 E. 3. 88. discent shall take away the entrie of the recoverer within the 
 21 H 6 17 expresse words of Littleton : and so it is in case of a fine. 
 
 3 E. 4. 6. 12 E- 4. 19. 3 H. 7. 3. 6 E. 4. 11. 7 II. 7. 15. 5 II. 7. 21. 
 10 H. 7. 5. b. 
 
 [n] 5 H. 7. 2. [n~\ A recoverie is had against tenant for life, where the re- 
 
 mainder is over in fee, tenant for life dieth, he in remainder 
 entreth before execution, and dieth seised, the entrie of the re- 
 coverer is lawfull, because he is privy in estate ; otherwise it is 
 if the discent had beene after execution. 
 45 E. 3. Quare A. recovereth an advowson against B. in a writ of right, and 
 
 Imp. 139. hath judgment final; the incumbent dieth ; B. by usurpation 
 
 presents to the church, and his clarke is admitted and instituted; 
 B. dieth : A. is put out of possession, and the heire of B. is not 
 so bound by the judgment either in blood or estate but that he 
 [o]8 E. 2. Quare shall present, [o] B. levies a fine to A. of an advowson to him 
 Imp. 166. and his heires; after the church becomes void ; B. presents by 
 
 (6 Co. 48.) usurpation, and his clarke is admitted and instituted : this shall 
 
 put A. the conusee out of possession. And the reason of these 
 two cases is, for that at the common law every presentation to a 
 church did put the rightful patron out of possession, and did 
 put him to his writ of right, whether the presentation were by 
 title or without, and therefore albeit the usurpation were in both 
 the said cases before execution, yet it put the rightful patron out 
 of possession. So note a diversitie betweene a recoverie of land, 
 and of an advowson. 
 
 The
 
 L. 3. C. 6. Sect. 385. Of Discents. [238. a. 
 
 " The entrie of the disseisee is taken away (1)-" Here is one 
 of the privileges which the law giveth to the heire by discent of 
 houses and lands. 
 
 (j>] At the common law if the disseisor, abator, or intrudor [ P ] L'estatute 
 had died seised soone after the wrong done, the disseisee and his de 3 ~ H. 8. 
 heiros bad been barred of his and their entrie without any time y^" e gg Ct _ 422# 
 limited by law; but now by the statute [</] made since Littleton 426. 
 'wrote, it is enacted, that except such disseisor hath been in the [?] 3 ? H. 6. 1. 
 peaceable possession of such mannors, lands, &c. whereof he 
 shall die seised by the space of five yeares next after such dis- . P1 \y. om 1 ' *1' , 
 seisin, <fec. without entrie or continuall claime, &c. that there cage> 
 such dying seised, &c. shall not take away the entrie of such 
 person or persons, &c. But after the five yeares the disseisee 
 must take such continuall claime as our author hath taught us, 
 the learning whereof is necessarie to be knowne. And it is 
 said that abators and intrudors are out of this statute (2), be- 
 cause the statute is penall, and extends only to a disseisor, and 
 that was the most common mischiefe. Et ad ea quce frequentius 
 accidunt jura adaptantur. 
 
 The feoffee of a disseisor is out of the said statute, and re- (11 Co. 46. 
 maines as at the common law. But to a disseisor, the statute is ?J?" h 15 H 5Er 
 taken favourably for advancement of the ancient right ; for j^ * 21 9_ acc- 
 whether the disseisin be without force, or with force, it is within 
 the statute. And albeit the statute speake of him that at the 
 time of such discent had title of entrie, &c. or his heires, yet 
 the successors of bodies politique or corporate, so you hold your- 
 selfe to a disseisin, are within the remedie of this statute, for (Post. 246. a.) 
 the statute extendeth cleerly to the predecessor, being disseised; 
 and consequently without naming of his successor extendeth to 
 him, for he is the person that at the time of such discent had 
 title of entrie. 
 
 But if a man make a lease for life, and the lessee for life is 
 disseised, and the disseisor die seised within five yeeres, the 
 lessee for life may enter; but if he die before he doth enter, it "Vide PI. Com. 
 is said that the entrie of him in the reversion is not lawfull, 7 ' u x su P ra - 
 because his entrie was not lawfull upon the disseisor at the time 
 of the discent, as the statute speaketh. But if lessee for life 
 had died first, and then the disseisor had died seised, he in the 
 reversion had beene within the remedie of the statute, because 
 he had title of entrie at the time of the discent, as the statute 
 speaketh, and so within the expresse letter of the statute, albeit 
 the disseisin was not immediate to him, and the like is to be said 
 of a remainder, &c. 
 
 " Writ 
 
 (1) The outlines of the doctrine contained in this Chapter are thus sum- 
 marily mentioned by lord chief baron Gilbert, in his Law of Tenures, p. 21; — 
 " When any man is disseised, the disseisor has only the naked possession, 
 " because the disseisee may enter and evict him ; but against all other persons 
 " the disseisor has a right, and in this respect only can be said to have the 
 " right of possession, for in respect to the disseisee he has no right at all. 
 " But when a descent is cast, the heir of the disseisor has jus possessionis, 
 " because the disseisee cannot enter upon his possession and evict him, but 
 " is put to his real action, because the freehold is cast upon the heir." — 
 [Note 153.] 
 
 (2) And so are the donees and feoffees of the disseisor, for they come by 
 title, though it is a defeasible one. Note to the llth edition. — [Note 154.]
 
 238. a. 238. bj Of Discents. L. 3. C. 6. Sect. 386. 
 
 F.|N. B. 191. " Writ of entrie sur disseisin." Breve de ingressu super 
 
 disseisinaru. Of this writ somewhat shall he said in the next 
 section. 
 
 Sect. 386. 
 
 TilSCENTS in tayle which take away entries are (Discents en taile 
 que tollent entries * sont), as if a man be disseised, and the dis- 
 seisor giveth the same land to another in taile, and the tenant in taile 
 hath issue and dieth of such estate seised, and the issue enter ; in this 
 case the entrie of the disseisee is taken away, and he is put to sue 
 against the issue of the tenant in taile a writ of Entrie sur disseisin f. 
 
 "T\IETHof such estate seised." 
 
 If a disseisor make a gift in tayle, and the donee 
 discontinueth in fee, and disseise M&* the discontinuee, r238.~| 
 and dieth seised, this discent shall not take away the |_ b. 
 entrie of the disseisee, for the discent of the fee sim- 
 ple is vanished and gone by the remitter; and albeit the issue 
 be in by force of the estate taile, yet the donee died not seised 
 of that estate, and of necessitie there must be a dying seised, as 
 hath beene said, which is a point worthy of observation, and 
 implyeth many things. 
 
 9 H. 7. 24. 
 (Post 2-10.) 
 
 13 II. 4, 8, 9. 
 
 33 II. 6. 5. b. 
 per Moyle. 
 
 34 H. 6. 11. a. 
 per Curiam. 
 Vide Sect. 395. 
 (Ante, 206. b.) 
 
 "In this case the entrie of the disseisee is taken away." 
 If a disseisor make a gift in taile, and the donee hath issue 
 and dieth seised, now is the entrie of the disseisee taken away; 
 but if the issue die without issue, so as the estate tail which 
 discended is spent, the entrie of the disseisee is revived, and he 
 may enter upon him in the reversion or remainder. 
 
 So if there be grandfather, father and son, and the son dis- 
 seiseth one, and infeoffeth the grandfather who died seised, and 
 the land discendeth to the father, now is the entrie of the dis- 
 seisee taken away; but if the father dieth seised, and the land 
 descendeth to the sonne, now is the entrie of the disseisee re- 
 vived, and he may enter upon the son, who shall take no advan- 
 tage of the discent, because he did the wrong unto the disseisee. 
 But in the case abovesaid some have said, that where after such 
 discent to the father, he made a lease to the son for terme of 
 another man's life, upon whom the disseisee entred, that the son 
 brought an assise and recovered ; and the reason that hath beene 
 yeelded is, for that the son had not the fee simple which he 
 gained by disseisin, but is a purchaser of the free-hold only from 
 the father, and the discent remaine not purged. Contrarie it 
 were, as it is there said, if the son were heire to the discent. But 
 the booke cited there in Fitzherb. tit. Title, placit. 6. doth not 
 warrant that case, and I hold the law to be contrarie, viz. that 
 the disseisee in that case shall enter upon the disseisor, as well 
 as if the father had conveyed the whole fee simple to the son, 
 for in that case also the discent to the father is not purged. If 
 a disseisor make a lease to an infant for life, and he is disseised, 
 and a discent cast, the infant enters, the entrie of the disseisee 
 
 is 
 
 * son — est, L. and M. and Roh. f dr. added in L. and M. and Roh. 
 
 13 E. 3. Br. 
 tit. Entrie 
 Cong. 127. 
 (Post. 241. a. 
 sect. 395.)
 
 L. 3. C. 6. Sect. 386. Of Discents. [238. b. 239. a. 
 
 is lawfull upon hiin. More shall be said of the like matter in (Sect. 408. 
 this chapter hereafter in his proper place, Sect. 393. 395. F - ^ T - B. 192. D.) 
 
 " Writ of entrie sur disseisin." Breve dc ingressu super dis- 
 seisinam. This writ lieth only upon a disseisin made to the 
 demandant or to some of his ancestors, aud of this writ there be 
 foure kindes. The first is a writ that lieth for the disseisee 19 h. 6. 56. 
 against the disseisor upon a disseisin done by himselfe, and this 9 H. 5. 9. 
 is called a writ of entrie in the nature of an assise. The second Bracton, lib. 5. 
 is a writ of entrie sur disseisin en le per, whereof Littleton here f°l. 219. b. & 
 speaketh, for the heire by discent is in the per by his ancestor : z }?- 2 {?. rit fyL 
 so it is if the disseisor make a feoffment in fee, a gift in taile, or y\^, Hb. 5. 
 a lease for life, for they are in the per by the disseisor. [*] The cap. 35. 
 third is a writ of entrie sur disseisin en le per & cui ; as where A. JL?' ?J > 21f j; 
 being the feoifee of D. the disseisor maketh a feoffment over 7 e.\ 2sf" b ' 
 to B. there the disseisee shall have a writ of entrie sur disseisin F. N. B. 192. 
 of lands, &c. in which B. had no entrie but by A. to whom D. 
 demised the same, who unjustly and without judgement dis- 
 seised the demandant. These are called gradus, degrees, which 
 are to be observed, or else the writ is abatable ; for sicut natura 
 non facit sal turn, ita nee lex. 
 
 The fourth is a writ of entrie sur disseisin in le post, which 
 lieth when after a disseisin the land is removed from hand to hand 
 beyond the degrees ; and it is called in le post, because the words 
 of the writ be, post disseisinam quam D. injuste, &c. fecit, &c. 
 The formes of these writs you shall read in the Register and 
 F. N. B. and therefore it were needlesse to recite them here. 
 So then a degree is of two sorts; either by act in law, whereof 
 Littleton here putteth an example of a discent, or by act of the 
 partie, by lawfull conveyance, as is aforesaid. But it is to be 14 h. 4. 40. 
 understood, that at the common law, if the lands were conveyed (6 Co. 9. b.j 
 out of the degrees, the demandant was driven to his writ of right, 
 in respect of such long possession in so many men's hands, which 
 the law doth ever respect and favour. And therefore by the 
 statute [a] of Marlebridge, the writ of entrie in le post is given ; r a i Marlebr. 
 Provisum est etiam quod si alienationes like de qttibus breve de cap. 29. 
 ingressu dari consuevit, per tot gradus fiant, per quot breve 2i E - 3 - 70 - 
 illud in forma prim usitata fieri non possit habeant conquerentes 
 breve ad recuperandam seisinam suam sine mentione 
 
 r239.~J J8@° graduum, ad cvjuscunque manus per hujusmodi 
 I a. J alienationes res ilia devenerit, per breve originate, & 
 per commune consilium domini regis inde providen- 
 dum, &c. (1). 
 
 Now 
 
 (1) The different degrees of title which a person dispossessing another of 
 his lands acquires in them in the eye of the law (independently of any anterior 
 right), according to the length of time and other circumstances which intervene 
 from the time such dispossession is made, form different degrees of presump- 
 tion in favour of the title of the dispossessor ; and in proportion as that pre- 
 sumption increases, his title is strengthened; the modes by which the posses- 
 sion may be recovered vary ; and more, or rather different proof is required 
 from the person dispossessed, to establish his title to recover. 
 
 Thus, if A. is disseised by B. while the possession continues in B. it is a 
 mere naked possession, unsupported by any right, and A. may restore his pos- 
 session, and put a total end to the possession of B. by an entry on the lands, 
 without any previous action. 
 
 If
 
 239. a.] Of Discents. L. 3. C. 6. Sect. 386. 
 
 Bracton,ubi Now it is necessarie to be knowne, what doth make a degree, 
 
 supra. Bntton, jfjj-g^ no estate gaiued by wrong doth make a degree, and there- 
 Fleta, ubi'supra. f° re neither abatement, intrusion, or disseisin upon disseisin, 
 4 E. 2 Brev. doth make a degree. Neither doth everie change by lawfull title 
 790. 21 H. 6. 8. worke 
 
 If B. dies, the possession descends on the heir by act of law. In this case, 
 the heir comes to the land by a lawful title, and acquires, in the eye of the 
 law, an apparent right of possession ; which is so far good against the person 
 disseised, that he has lost his right to recover the possession by entry, and can 
 only recover it by an action at law. — The actions used in these cases are called 
 Possessory Actions, and the original writs by which the proceedings upon them 
 are instituted, are called Writs of Entry. 
 
 But if A. permits the possession to be withheld from him, beyond a certain 
 period of time, without claiming it, or suffers judgment in a possessory action 
 to be given against him by default, or upon the merits ; in all these cases, B.'s 
 title in the eye of the law is strengthened, and A. can no longer recover by a 
 possessory action, and his only remedy then is by an action on the right. These 
 last actions are called Droiturel Actions, in contra-distinction to Possessory 
 Actions. They are the ultimate resource of the person disseised ; so that, if he 
 fails to bring his writ of right within the time limited for the bringing of such 
 writs, he is remediless, and the title of the dispossessor is complete. The ori- 
 ginal writs by which droiturel actions are instituted are called Writs of Right. 
 
 The dilatoriness and niceties in these processes, introduced the Writ of 
 Assise. The invention of this proceeding is attributed to Grlanville, chief 
 justice to Henry II. (See Mr. Reeves's History of the English Law, Part I. 
 ch. 3.) It was found so convenient a remedy, that persons, to avail them- 
 selves of it, frequently supposed or admitted themselves to be disseised, by 
 acts which did not in strictness amount to a disseisin. This disseisin, being 
 such only by the will of the party, is called a disseisin by election, in opposition 
 to an actual disseisin : it is only a disseisin as between the disseisor and the 
 disseisee, the person, thus propounding himself to be disseised, still continuing 
 the freeholder as to all persons but the disseisor. The old books, particularly 
 the Reports of Assise, when they mention disseisins, generally relate to those 
 cases where the owner admits himself disseised. (See 1 Burr. 111. and see 
 Bract, lib. 4. cap. 3.) 
 
 As the processes upon writs of entry were superseded by the assise, so the 
 assise and all other real actions have been since superseded by the modern 
 process of ejectment. This was introduced as a mode of trying titles to lands 
 in the reign of Henry VII. From the ease and expedition, with which the 
 proceedings in it are conducted, it is now become the general remedy in these 
 cases. Booth, who wrote about the end of the last century, mentions real 
 actions as then worn out of use. It is rather singular that this should be the 
 case, as many cases must frequently have occurred, in which a writ of eject- 
 ment was not a sufficient remedy. Within these few years past, some attempts 
 have been made to revive real actions; the most remarkable of these are the 
 case of Tissen v. Clarke, reported in 3 Wils. 419. 541. and that of Carlos and 
 Shuttlewood v. Lord Dormer. The writ of summons in this last case is dated 
 the 1st day of December 1775. The summons to the four knights to proceed 
 to the election of the grand assise, is dated the 22d day of May 1730. To 
 this summons the sheriff made his return ; and there the matter rested. The 
 last instance in which a real action was used, is the case of Sidney v. Perry. 
 In this case, it was adjudged by De Grey, chief justice, and all the other judges, 
 that the defendant, in a writ of right, by proving his actual possession, without 
 any evidence of his title, put the demandant to the necessity of producing and 
 proving his title, — a point, of which, till that decision, some doubts were enter- 
 tained. That part of sir William Blackstone's Commentary which treats upon 
 real actions, is not the least valuable part of that excellent work. — [Note 155.]
 
 L. 3. C. 6. Sect. 387. Of Discents. 239. a. 
 
 worke a degree, as if a bishop or an abbot, or the like, disseise 2 Inst. 155. 
 
 one and die, where his successor is in by lawfull title; for though Stat - Marl - 30. 
 
 the parson (A) be altered, yet the right remaines where it was, ost ' iU '' 
 
 viz. in the church, and both of them seised in the same right, viz. 
 
 in the right of the church, and therefore in that verie case 
 
 Bracton \b~\ demands the question, An faciunt gradumdc abbate [j] Bracton, 
 
 in abbatum sicut de hserede in haeredem ? Et videtur quod non lib. 4. fol. 321. 
 
 -Z C Tjl O Q O 
 
 mag is, qudm in computatione descensus, quia et si alternatur per- 5E '«, Ent '- e C6 
 sana, non propter hoc alternatur dignitas, sed semper manet. n h. 4. 83. ' 
 And herewith agreeth [c] Fleta. M Fleta, lib. 5. 
 
 Also an estate made to the king doth make no degree, and ^P- 34 -3 H - 3. 
 therefore if a disseisor by deed inrolled convey the land to the 22 E. 3. 7." 
 king, and the king by his charter granteth it over, the disseisee F. N. B. 191. K. 
 cannot have a writ of entrie in le per & cui, but in le post, for the l^ ^'^ 1 ^'- 8 "!,- 
 king's charter is so high a matter of record as it maketh no degree. 7 e\ 3. 360. ' 
 
 Also an estate of a tenant by the curtesie, or of the lord by 
 escheat, or of an execution of an use, by the statute of 27 H. 8. 
 or by judgment, or recoverie, or of any others that come in in the 
 Post; worke no degree, [d] But a tenancie in dower by assigne- [d] 36 H. 6. 
 ment of the heire doth worke a degree, because she is in by her Dower, 30. 
 husband ; but assignement of dower by a disseisor worketh no 
 degree, but is in the Post, as hereafter shall be said in his proper 
 place. 
 
 -When the degrees are past, so as a writ of entrie in the Post 44 e. 3. 4, 5. 
 doth lye, yet by event it may be brought within the degrees 39 E. 3. 25. 
 againe ; as if the disseisor infeoffe A. who infeoffes B. who in- i? J* - 'b ®- 
 feoffes C. or if the disseisor die seised, and the land discend to A. 
 and from him to C. now are the degrees past ; and yet if C. 
 infeotfe A. or B. now is it brought within the degrees againe. 
 
 If the disseisor make a lease for life, the remainder in fee, 50 e. 3. 27. 
 tenant for life dieth, he in the remainder is in the Per, because 
 he now claimeth immediately from the disseisor, and both these 
 estates make but one degree (2). 
 
 Note, there bee divers other writs of entrie besides this writ of (F. N. B. 192. a.) 
 entrie sur disseisin, whereof Littleton here speakes; as a writ of 
 entrie ad terminum qui prgsteriit, in casu. proviso, in consimili 
 casu, ad communem legem, sine assensu capituli, dum fuit infra 
 setatem, dum non fuit compos mentis, cui in vita, sur cui in vita, 
 intrusion, cessavit, and the like; and that which hath beene said (3 Rep. 86.) 
 of one, may be applyed to all. 
 
 Sect. 387. 
 
 A ND note, that in such discents which take away entries, it behoveth 
 that a man die seised in his demesne as of fee, or in his demesne as 
 of fee taile. For a dying seised for terme of life, or for terme of another 
 man 8 life, doth never take away an entry.* 
 
 IF 
 &c. added in L. and M. and Rob. 
 
 (A) parson seems to be here inserted for person. 
 
 (2) Booth, in his Real Actions, 171. makes the first degree to consist in the 
 original wrong; but sir Henry Finch, 262. and Mr. justice Blackstone, vol. 3. 
 ch. 10. agree with sir Edward Coke. Abatement, disseisin, escheat, recovery, 
 
 dower, judgment, and a third and every subsequent feoffment, are in the Post. 
 
 Finch, ibid. — [Note 156.]
 
 239. a. 239. b. ] Of Discents. L. 3. C. 6. Sect. 387. 
 
 Dier, 8 El. 2. 1 F a disseisor make a lease to a man and to his heires during 
 
 8 5 H 4 1*5 4 ' 46 ' tbC life ° f ^ ^' aUd tbe leSSGe dictU > livin g ^ & tnis shall not 
 
 17 E. 3. 48. ta ^ c awa y tne entrie of the disseisee, because he that died seised 
 
 ll H. 4.42. had but a freehold only, and heires in that case were added to 
 
 (1 Rep. 140. b. prevent the occupant, for the hcire in that case shall not have 
 
 leElizfin'oom- ^ is a ge,_as ' lt was adjudged in [d] Lamb's case (3). 
 muni banco. But if hee in the reversion disseise his tenant for life, and 
 
 (Ant. 41 b.) dieth seised, this discent shall take away the entrie of the tenant 
 
 En^ng.58. ** ™* (*)• 
 F. ST. B. 145. M. 9 H. 7. 25. a. 
 
 9 H. 7. 25. So it is if there be tenant for life, the remainder in taile, the 
 
 (Hob. 323.) remainder in fee, and tenant in taile disseiseth the tenant for 
 
 life and dieth seised, this shall take away the entrie of the tenant 
 
 for life. 
 
 (Post. 276. a.) But if the king's tenant for life be disseised, and the disseisor 
 
 (Plo. 546. a.) c ]j e seised, this discent shall not take away the entrie of the 
 
 lessee for life, because the disseisor had but a bare estate of 
 
 freehold during the life of the lessee, and Littleton saith, that a 
 
 discent of an estate for terme of another man's life shall not take 
 
 away an entrie (5). 
 
 Temps E. 1. "In his demesne as of fee." If an infant bee disseised, 
 
 Reiiefe,i2.Dier, and the disseisor die g@" seised, and after the infant r239.~| 
 40 E 3 9 3 °b" commeth to full age, and the heir of the disseisor die | b. 
 before he entreth, albeit he died not seised of an actuall 
 seisin (1), but of a seisin in law, yet that dying seised shall 
 [*] 24 E. 3. 47. take away the entrie of the disseisee. [*] And yet in pleading 
 (8 Rep. 99.] the second heire shall (as hath beene said) make himselfe heire 
 to the disseisor, and that land shall not be recovered in value for 
 the warrantie made of other lands by the first heire ; but though 
 the first heire had but a seisin in law, yet he is within the words 
 of Littleton, for he was seised and died seised in his demesne as 
 of fee. 
 
 Sect. 
 
 (3) See Note 4. page 241. a. 
 
 (4) But it will not take away the entry of a stranger ; for as to him it is 
 but the estate for life still, a fictitious and not true descendible estate. Lord 
 Nott. MSS.— [Note 157.] 
 
 (5) This is by reason of the king's prerogative, that he cannot be disseised. 
 See Hob. 322.— [Note 158.] 
 
 (1) See 1 Rep. 140. temp. Edw. The eldest son before entry died without 
 issue, the youngest will pay two reliefs, for the death of his father and the death 
 of his brother ; for they both were tenants to the lord. So note, the death of a 
 person seised of a seisin in law, is a descent to entitle the lord to relief. — By 
 Thorp and Wilby, the grandfather leased for life and died. The father makes 
 a feoffment of Black Acre with warranty, the son shall not render in value the 
 term of which the reversion descends upon him, because the father had only a 
 seisin in law. 24 E. 3. 47. L. Nott. MS.— [Note 159.]
 
 L. 3. C. 6. Sect. 388. Of Discents. [239. b. 
 
 Sect. 388. 
 
 ALSO, a discent of a reversion, or of a remainder, doihnottdke aivay 
 
 an entrie *. So as in those cases which take away entries by force 
 
 of discents, it behoveth that hee dieth seised of fee and freehold at the 
 
 time of his decease, f or of fee taile and freehold at the time of his death, 
 
 or othenvise such discent doth not take away an entrie. 
 
 AND therefore if a disseisor make a lease for yeares, and die 
 seised of the reversion, this discent shall take away the entrie 
 of the disseisee, because hee died seised of the fee and frank- 
 tenement. Like law it is if the land be extended upon a statute, 
 judgement, or recognizance, and so it is in case of a remainder. 
 
 But if he had made a lease for life, and die seised of the rever- 
 sion, this discent shall not take away the entrie of the disseisee, 
 for that though he had the fee, yet he had not the frank-tene- 
 ment (2). . 
 
 So it is of a tenant in taile mutatis mutandis; and note, the Vido Sect. 302. 
 law doth ever give great respect to the estate of freehold, though 393 - 
 it be but for terme of life. 
 
 If a disseisor make a lease for terme of his own life, and dieth, 
 this discent shall not take away the entrie of the disseisee ; for 
 though the fee and franktenement discend to the heire of the 
 disseisor, yet the disseisor died not seised of the fee and frank- 
 tenement : and Littleton saith, that unlesse he hath the fee and 
 franktenement at the time of his decease, such descent shall not 
 take away the entrie (3). 
 
 Sect. 
 
 * dx. added in L. and M. and Roh. time of his death, not in L. and M. or 
 "j" or of fee taile and freehold at the Roh. 
 
 (2) The necessity that there should be a tenant to do the feudal duties, and 
 the notoriety of title, which the disseisor acquired by being permitted to con- 
 tinue during his life in the peaceable possession of the fee, and to die seised of 
 it, are the grounds upon 'which the law is induced to defend the possession 
 of the heir of the disseisor from the entry of the disseisee, and to leave the 
 disseisee to his remedy by action. But when the disseisor parts with the free- 
 hold, there is a vacancy in the possession ; and the possession of the disseisor, 
 and consequently the notoriety of it, is lost. Thus the principles which apply 
 to the descent of an estate in possession do not apply to the descent of an 
 estate in remainder or reversion expectant on an estate of freehold. But they 
 apply when the particular estate is only for years ; a tenant for years being 
 considered merely as the bailiff of the freeholder, and to hold the possession 
 for him.— [Note 160.] 
 
 (3) But suppose the disseisor in this case had conveyed the estate to the use 
 of himself for life, remainder to the use of his first and other sons succes- 
 sively in tail, with the immediate reversion or remainder to himself in fee, and 
 that he died without issue living at the time of his decease ; it seems to be a 
 question, whether he is to be considered as seised in fee at the time of his 
 decease, so as to entitle his wife to dower. See Cordall's case, Cro. El. 315. 
 
 Hooker
 
 239. b.] Of Discents. L. 3. C. 6. Sect. 389. 
 
 Sect. 389. 
 
 A LSO, as it is said of discents which discend to the issue of them 
 which die seised, ^c. the same law is where they have no issue, but 
 the lands discend to the brother, sister, uncle, or other cousin of him 
 which dieth seised J. 
 
 B 
 
 Y this it appeareth, that a discent, in the collateral line doth 
 take away an entrie, as well as in the lineall. 
 
 " Die seised, &c." Here (&c.) implieth fee simple, or fee 
 taile. 
 
 Sect. 
 
 J &c. added in L. and M. and Boh. 
 
 Hooker v. Hooker, Cas. temp. Hardw. 13. Duncomb v. Duncomb, 3 Lev. 437. 
 In the latter case, between the estate of the tenant for life, and the limitation 
 to his first and other sons, there was interposed an estate to trustees during the 
 life of the tenant for life, for preserving the remainder to the sons. It was held 
 that this was a vested estate, and prevented the wife from dower; and lord 
 Hardwicke in Hooker v. Hooker admitted this reasoning. The passage in the 
 text and the three cases cited above were mentioned, and great stress laid upon 
 them, in the case between the heir and next of kin of the late lord Thomond. 
 In that case, lord Thomond being tenant for life, with remainder to his first 
 and other sons in tail male, with the immediate reversion expectant thereupon 
 to himself in fee, paid off a sum of 18,000?. charged upon the estate under the 
 trusts of a term of years; and afterwards died intestate, and without issue. 
 Now it is a rule in equity, that when a person, having a partial estate in land, 
 is entitled to a sum of money charged upon it, his right to the money does not 
 necessarily merge in the land, but he may keep it as a subsisting charge on the 
 estate ; and in some cases, if he makes no particular disposition of it in his life- 
 time, it goes upon his decease to his personal representative. See Jones v. 
 Morgan, 1 Bro. Cha. Ca. 206. Upon this ground, it was contended that lord 
 Egremont, upon whom the estate descended at lord Thomond's decease as his 
 heir at law, took the estate charged with the 18,000?. for the benefit of the 
 intestate's representatives. To this, it was answered, that though lord Thomond 
 was, at the time of his decease, seised of an estate for life, with the immediate 
 reversion in fee ; yet as he had no children living at the time of his decease, 
 and his heir at law immediately upon his decease took the lands in fee simple 
 in possession, by descent, he was to be considered as seised of an estate in fee 
 simple in possession, and consequently, that the 18,000?. was to be considered 
 as merged in the inheritance. But lord Chancellor Bathurst, before whom the 
 cause was heard, was of opinion, that lord Thomond was to be considered as 
 seised only for life, and that of course his lordship's personal representatives 
 were entitled to the 18,000?. This case, which, in the annotation to the 
 thirteenth edition of this Work, was started from a full manuscript report of it, 
 has since been reported by Mr. Ambler, — Wyndham and others v. Earl of 
 Egremont, 753.— [Note 161.]
 
 L. 3. C. 6. Sect. 390, 391 . Of Discents. [240. a. 
 
 p40.i m~ Sect, 390. 
 
 A LSO, if there bee lord and tenant, and the tenant be disseised, and 
 
 the disseisor alien to another in fee. and the alienee die without issue, 
 
 and the lord enter as in his escheat : in this case the disseisee may enter 
 
 upon the lord, because the lord commeth not to the land by discent, but 
 
 by ivay of escheat (1). 
 
 " FFIIE disseisee may enter upon the lord, &c." For albeit the (F.N.B.144.a.) 
 
 alienee of the disseisor die seised, and the lord by escheat 
 commeth to the land by act in law, yet because the land dis- 
 cendeth not to him, the entrie of the disseisee in respect of the 
 escheat shall not be taken away. For a dying seised and a dis- 
 cent, and not a dying seised and an escheat, doth take away the 
 entrie : for (as hath beene said) the discent is the worthier title. 
 But in that case, if the lord by escheat die seised, and the land 
 discend to his heire, the discent shall take away the entrie of the 
 disseisee. So it is if the disseisor die seised, and the heire of 37 II. 6. 1. 
 the disseisor dieth without heire, the disseisee cannot enter upon ^J^'^'olt' b\ 
 the lord by escheat. So as there is a diversitie as touching the (Ant. 238.' b.) 
 discent, when after a discent cast, the issue in tail dieth without 
 issue, and when after a discent cast, the heire in fee simple dieth 
 without heire; for he in the reversion, or remainder, upon a 
 state taile claimeth in above the state taile, but the lord by 
 escheat claimeth in under the heire in fee simple. 
 
 Sect. 391. 
 
 A LSO, if a man be seised of certain land in fee, or in fee taile, upon 
 condition to render certain rent, or upon other condition, albeit such 
 tenant seised in fee, or in fee taile, dieth seised, yet if the condition bee 
 broken in their lives, or after their decease, this shall not take away the 
 entrie of the feoffor or donor, or of their heires,for that the tenancie is 
 charged with the condition, and the state of the tenant is conditionally 
 in whose hands soever that the tenancie commeth, §c. 
 
 TPON these two sections it is to bee observed a diversitie be- 33 Ass. 11. 24. 
 vJ tweene a right, for the which the law giveth a remedic by ac- " 
 
 tion, and a title, for the which the law giveth no remedie by action, 
 but an entrie only (2). For example, the feoffee upon condition 
 
 in 
 
 (1) When the lord comes to the land by escheat, the law only casts the free- 
 hold upon him for want of a tenant. The disseisee, notwithstanding the dis- 
 seisin, continues the rightful tenant ; and as by his entry he fills the posses- 
 sion, the lord's title, which was only good while a tenant was wanting, must 
 necessarily be at an end. — [Note 162.] 
 
 (2) Though, by the disseisin a tortious possession is acquired, it is in the 
 present case, such only as between the disseisor and the disseisee, and does 
 
 not
 
 240. a. 240. b.] Of Discents L. 3. C. 6. Sect, 392. 
 
 in this case hath a right to the land, and therefore his entrie 
 may be taken away, because hee may recover his right by action j 
 but the feoffor or donor that hath but a condition, his title of 
 entrie cannot be taken away by any disccnt, because he hath no 
 remedie by action to recover the land, and therefore if a cliscent 
 should take away his entrie, it should barre him for ever. And 
 
 33 Ass. 11. 24. the law is all one whether the discent were before the condition 
 
 (Ant. 205.) broken, or after. 
 
 Brook, tit. Mort- {K/ = Also he that hath a title to enter upon a mort- TS-iO.l 
 
 maine, 6. maine shall not be barred bv a discent, because then b. 
 
 o t,' a ;l' he should bee without all remedie. And so it is in 
 
 _'l ti. 6. 17. , , . . . .... 
 
 ease where a woman hath a title to enter causa matrimonii prce- 
 locuti, no discent shall take away her entrie, because she hath 
 40 Ass. 13. but a title, and no remedie by action (1). 
 
 Sect. 392. 
 
 ALSO, if such tenant upon condition be disseised, and the disseisor 
 die thereof seised, and the land discend to the heire of the disseisor, 
 now the entrie of the tenant upon condition, who was disseised, is taken 
 away. Yet if the condition be broken*, the feoffor or the donor tvhich 
 made the estate upon condition, or their heires, may enter, causa qua 
 supra 
 
 IF a man be seised of lands in fee, and by his last will in writing 
 deviseth the same to another in fee, and dieth, after whose de- 
 cease the freehold in law is cast upon the devisee, and the heire, 
 before any entrie made by the devisee, entreth, and dieth seised, 
 this cliscent shall not take away the entrie of the devisee; for if 
 the discent, which is an act in law should take away his entrie, 
 the law should barre him of his right, and leave him utterly with- 
 out remedie (2). And so it is of him that entreth for consent to a 
 ravishment; and so it was resolved in the case of Martin Trotte of 
 
 London, 
 
 * &c. added in L. and M. but not in Roh. 
 
 not affect the estate of the feoffor on condition ; the condition being so insepa- 
 rably annexed and inherent to the land, as to bind it, in whose hands soever it 
 comes. See Ow. 141.— [Note 163.] 
 
 (1) The assertion, that a woman in this case has no remedy by action, may, 
 perhaps, be disputed, as the writ causa matrimonii pro locuti extends to all the 
 degrees. See the writ in the Register. Booth's Real Actions, 197. and Fitz. 
 Nat. Br. 205.— [Note 104.] 
 
 (2) Ace. the case of Matthewson v. Trott, Owen, 141. 1 Leo. 209. But the 
 reason given in the Commentary, that the devissee, in this case, has no remedy 
 by action, is not well founded, if what sir Edward Coke observes in page 111. a. 
 be true, that the devisee may either enter or have his writ ex gravi quarcla. 
 Upon this head, the judges Anderson and Walmesley seem to differ on the 
 case above cited. Whatever may be the case with respect to a disccnt, a fine 
 levied by the heir at law is a barr to a devisee after five years nonclaim. 
 Ilulm v. Heylock, Cro. Car. 200. It is also a bar to a title of entry for a 
 condition broken, or a right or title of entry upon any other account. Mayor 
 of London v. Alford, Cro. Car. 575. 1 Jones, 452. See Mr. Cruise's Essay 
 on Fines, 146, 147.— [Note 165.]
 
 L. 3. C. 6. Sect. 393. Of Discents. [240. b. 
 
 London [n] Pasche 32 El. in Com. Banco ; and accordingly was ["] Paseh. 
 
 the opinion of the court of common pleas, \ol Pasche 1 Jac. Req. 32 E !^ in Com - 
 m iiZ- v jj i n ' i L , • , , „ J mum Banco. 
 
 lo this may be added as a like case, the king s patentee before 7 r. 2. 
 
 he enter, &c. Another reason wherefore a discent shall not Scir. Fac. 3. 
 
 take away the entry of him that hath a title to enter by force of 41 r ^j. 3 ' llj 
 
 a condition, &c. is, for that the condition remains in the same [ofp^LlJac. 
 
 essence that it was in at the time of the creation of it, and Regis in Com- ' 
 
 cannot be divested or put out of possession, as lands and tene- muni Banco - 
 
 ments may (3). 
 
 Sect. 393. 
 
 ALSO, if a disseisor die seised, $c. and his heire enter, gc. who en- 
 doweih 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 entreth, and hath the possession of the same third part, the 
 disseisee may lawfully enter upon the possession of the wife into the same 
 third part. And the reason is, for that when the wife hath her dower, 
 she shall be adjudged in immediately by her husband, and not by the 
 heire (1); and so as to the freehold of the same third part, the descent 
 is defeated*. And so you may see, that before the endowment the dis- 
 seisee could not enter into any part, $c. and after the endowment he 
 may enter f upon the wife, §c. but yet he cannot enter upon the other two 
 parts which the heir of the disseisor hath by the discent X (2). 
 
 "&IJE 
 
 * &c. added in L. and M. and Roh. \&c added in L. and M. and 
 f upon the wife, not in L. and M. Roh. 
 or Roh. 
 
 (3) Hainsworth v. Pretty, Cro. Eliz. 919. Thomas devised to Richard, his 
 eldest son, in fee, upon condition that he should pay to his other children the 
 sums appointed to them according to the intent of his will ; and on refusal, that 
 his younger sons and daughter sshould have it to them and their heirs. 
 Richard refused payment and died ; and Thomas his son, entered, and the 
 younger son and daughters entered upon him : it was contended, that the 
 descent upon Thomas took away the entry of the younger sons and daughters : 
 but the court held the contrary. For it was not as a descent to a stranger after 
 a devise, before the entry of the devisee, which, perhaps, might take away 
 their entry, becase it was not then an immediate devise; but it was quasi a 
 devise upon a limitation, or upon a condition broken, which no descent should 
 take away or prejudice. — [Note 166.] 
 
 (1) The dowress holds of the heir; but by the institution of the law, she 
 is in of the estate of her husband ; so that after the heir's assignment, she 
 holds by an infcudation from the immediate death of her husband. Hence it 
 is that dower defeats descent, because the lands cannot be said to descend as 
 demesne, which are in tenure ; and the assignment of dower being in the nature 
 of infeudation, and taking place immediately from the death of the husband, 
 there are only two thirds which descended as demesne. Gilb. on Dower, 395 
 —See ant. 31. b.— [Note 167.] 
 
 (2) The doctrine contained in this section seems to apply to the case of a 
 recovery suffered by the heir, before the assignment of dower. — [Note 168.]
 
 240. b. 241. a.J Of Discents. L. 3. C. 6. Sect. 393. 
 
 " J^IE seised, &c." viz. in fee simple or in fee tayle. 
 
 » And Jiis heire enter, &c." So as he hath an actuall fee 
 simple. 
 
 " Of the 3. part of the land, &c." id est in severaltie. 
 By this action it appeareth, that an entrie being taken away by 
 the discent, is revived by the endowment, albeit the tenant in 
 dower shall have it but for her life. And the cause is, 
 [a] 8 E. 2. for that although the heire entred, yet (fcirwhen the wife r2-41.~] 
 
 Entrie, 7a. is endowed she shall not be in by the heire, [«] but [ a. 
 
 19 E. 2. immediately by her husband being the disseisor, who is 
 
 5 E 2. in for her life by a title paramount the dying seised and discent, 
 
 Entrie, 66. and therefore in judgment of law, the discent as to the freehold, 
 
 24 E. 3. 32. 40. an( j ^ e possession which the heire had is taken away by the 
 43 E 3 32 " endowment; for that the law adjudgeth no meane seisin be- 
 45 E. 3. 9. b. tweene the husband and the wife. 
 11 H. 4. 11. 
 7 H. 5. 3. 10 E. 3. 27, 28. 36 H. 6. Dower, 30. 
 
 31 E. 1. If there bee lord, mesne and tenant, the mesne doth grant to 
 
 ^ es ° e ' 55 - the tenant to accpuite him against the lord and his heires, the lord 
 
 dies, the wife hath the seigniories assigned to her for her dower, 
 and distraines the tenant : albeit the grant was to acquite him 
 against the lord and his heirs only, yet because shee continued 
 the estate of her husband, and the reversion remained in the 
 heire, this grant of acquitall did extend to the wife, which is a 
 notable case. 
 
 If after the dying seised of the disseisor, the disseisee abate, 
 against whom the wife of the disseisor recover by confession in a 
 writ of dower, in that case, though the discent be avoided as 
 Littleton here saith, yet the disseisee shall not enter upon the 
 tenant in dower, because the recoverie was against himselfe ; but 
 if he had assigned dower to her in pais, some say he should 
 enter upon her (3). 
 10 E 3 26. -A- man ma kes a gift in taile reserving tw r entie shillings rent, 
 
 (7 Rep. 9. a.) and dies, the donee takes wife, and dieth without issue, the heire 
 of the donor entreth, and endoweth the wife, shee is so in of the 
 estate of her husband, that albeit the estate taile be spent, and the 
 rent reserved thereupon determined, yet after she be endowed, 
 she shall be attendant to the heire in respect of the said rent. 
 And so it is of lord and tenant, the wife that is endowed shall be 
 attendant for the due services; but if any service be encroached, 
 albeit that encroachment shall binde the heire, yet the wife shall 
 be contributorie but for the services of right due (4). 
 
 "So 
 
 (3) So note, though the disseisee, being an abater, did an act to which he was 
 compellable, yet it is not as good as if he had been actually compelled. Supra, 
 35. Lord Nott. MS.— [Note 169.] 
 
 (4) Sir Edward Coke, in this passage, and in a former part of his commen- 
 tary, puts several cases on the continuance of the wife's dower after the fee 
 charged with it is determined. Perhaps the following distinctions and obser- 
 vations will assist in clearing up the complex and abstruse points of learning 
 in which this epiestion is involved. I. In those cases where the fee is evicted 
 by title paramount, the dower and curtesy necessarily cease upon the eviction. 
 Such is the case put by Littleton in the section before us. II. When the donor 
 
 enters
 
 L. 3. C. 6. Sect. 393. Of Discents. [241. a. 
 
 " So you may see, that before the endowment the disseisee 
 could not enter, and after the endowment he may enter, &c." The 
 like hath beene said before in this chapter, Sect. 386, where the 
 entrie of the disseisee may be taken away for a time, and by 
 matter ex post facto revived againe. 
 
 JSfota, 
 
 enters for breach of condition ; as his entry absolutely defeats the estate of 
 the tenant on condition, so it defeats his wife's right of dower, and the hus- 
 band's right of courtesy, and all other charges brought upon the estate, either 
 by the donee's own act, or by act of law. See note 2. fo. 202. b. III. If a 
 person seised in fee tail, or any other determinable fee, conveys in fee, the 
 wife's right of dower, and the husband's courtesy, can only be commensurate 
 with the estate of the grantee, and must necessarily cease whenever that estate 
 ceases. See 10 Rep. 97. b. 98. a. IV. As to estates in fee simple conditional 
 at the common law, and estates tail under the statute de donis ; — the wife was 
 entitled to her dower, and the husband to his courtesy, out of them, after the 
 failure of the issues. But it may be observed, that though it is now difficult 
 to avoid considering estates in fee simple conditional in any other light than 
 as estates originally granted to the donee, and to the heirs general, or to some 
 particular heirs of his body; and the estate of the donor, as that of a rever- 
 sioner expectant on the failure of these heirs ; yet this restriction to particular 
 heirs, and exclusion of others, is understood to be produced, not by any limi- 
 tation of persons introduced into the grant, but by a condition supposed to be 
 annexed to it, that if there were no such heirs, or being such, if they afterwards 
 failed, and the donee did not alien the estate, it should be lawful for the donor 
 and his heirs to enter. — This entry, therefore, was not an entry upon the natu- 
 ral expiration of a p> r evious estate, but for a condition broken ; in which case, 
 as in all others where entry is made for breach of a condition, the right of the 
 wife to her dower, and the husband to his courtesy, if the general rule were 
 adhered to, would be defeated. But for reasons now rather to be guessed than 
 demonstrated, this case was made an exception from the general rule. So with 
 respect to the right of the wife of tenant in tail to her dower, and the husband 
 to his* courtesy, after the failure of the issues in tail ; the statute de donis 
 introduced no new estate, but only preserved estates limited as conditional 
 fees to the issues inheritable under them, by preventing the tenants of such 
 conditional fees from alienating or disposing of them ; and as they preserved 
 the estates, so they preserved the incidents belonging to them, and, among 
 others, the right of the wife to her dower, and the husband to his courtesy. 
 V. If a person makes a gift in tail, reserving rent; after failure of the issues 
 in tail, the rent will not be continued, either for the dower of the wife, or the 
 courtesy of the husband. Plo. Com. 155. VI. As to limited fees; — by 
 which, in this place, are to be understood those fees which are qualified, not 
 because the estate of the grantor is limited — (such as those which are classed 
 under the third distinction) — but those which being created by a person seised 
 in fee simple, are by the original grant by which they are created, only to 
 continue till a certain event; as a grant to A. and his heirs, lords of the 
 manor of Dale, or to A. and his heirs, while there shall be heirs of the body 
 of B. : — or those fees which are originally devised or limited in words importing 
 a fee simple or fee tail absolute and unconditional, but which, by subsequent 
 words, are made determinable upon some particular event (see Note 1. 203.) : 
 — as to fees of this description, it should seem by the case cited in the Note 
 to F. N. B. 149 G. and the cases of Flavell v. Ventrice, 1 Roll. Abr. 676. and 
 Sammes and Payne's case, 1 Leo. 167. 1 And. 184. 8 Rep. 34. Goulds. 81. that 
 where the fee, in its original creation, is only to continue to a certain period, the 
 wife is to hold her dower, and the husband his courtesy, after the expiration 
 of the period to which the fee charged with the dower or courtesy is to con- 
 tinue;
 
 241. a. 241. b.J Of Discents. L. 3. C. 6. Sect. 394. 
 
 Vide Sect. 302. Nota, albeit the disseisor after a discent taketh to bim but an 
 388. 25 E. 3. 48. estate for life, yet when the disseisee doth enter upon him, he 
 ro. ^ : a 00 u' shall thereby devest the reversion, for the estate of freehold is 
 
 (rOSt. 034. D. J -111 t • 
 
 Dyer, 31. b.) that whereupon a preecipe doth lye, and therefore the entne ot 
 (l Roll. Abr. the disseisee is as available in law, as if he had recovered it in 
 65S. Ant. 55. b.) & p rCEC2 p e And so it is if a disseisor make a lease for life, and 
 grant the reversion to the king, the entrie of the disseisee upon 
 the tenant for life shall devest the reversion out of the king in 
 the same manner as if the disseisee had recovered the lands 
 against the tenant for life in a praecipe. 
 
 m° Sect. 394. Pf. 1 *] 
 
 A LSO, if a woman be seised of land in fee, wJiereof 1 have right 
 
 and title to enter, if the woman take husband and have issue betweene 
 
 them, and after the wife die seised, and after the husband die, and the issue 
 
 enter, §-c. in this ease I may enter upon the possession of the issue (en ccst 
 
 case 
 
 tinue ; but that where the fee is originally devised in words importing a fee 
 simple, or fee taile absolute and unconditional, but by subsecpient words is 
 made determinable upon some particular event; there, if that particular event 
 happens, the wife's dower and the husband's courtesy cease with the estate to 
 which it is annexed. Such appears to be the distinction established by the 
 foregoing cases. But a different doctrine as to cases of the latter description, 
 seems to have been laid down in the case of Buckworth v. Thirkell, determined 
 in Trinity term, 25 Geo. 3, in the court of king's bench. There Joseph Sut- 
 ton the testator devised his estates to trustees, upon trust to pay the rents and 
 profits of them for the maintenance and education of Mary Barrs, till she 
 arrived at twenty-one, or was married: "And from and after the said Mary 
 " Barrs should have attained her age of twenty-one years, or should be married, 
 " he gave and devised all the said lands and premises to the said Mary Barrs, 
 " her heirs and assigns for ever ; but in case the said Mary Barrs should hap- 
 " pen to die before she arrived at the age of twenty-one years, and without 
 " having issue of her body lawfully begotten ; then, from and after the decease 
 " of the said Mary Barrs without issue, as aforesaid, he gave and devised all 
 " his said estates unto his grandson "Walter for life," with several remainders 
 over. Mary Barrs married Solomon Hansard, and had issue a son, who died 
 in her life ; and afterwai'ds Mary Barrs died under twenty-one. In this case, 
 the court were unanimously of opinion, that on the decease of Mary Barrs, her 
 husband became entitled by the courtesy to the estates for his life, and that, 
 subject thereto, the devisees over became entitled to them by way of executory 
 devise. — Collect. Jurid. vol. 1. 332. 3 Bos. and Pull. 652. The ground upon 
 which the court appears to have formed their opinion on it, is, an analogy they 
 supposed it to bear to the case of estates in fee simple conditional, and estates 
 tail ; in both of which dower and courtesy continue after failure of the issues ; 
 and in both of which the wife's being seised of a fee, to which the issue might 
 by possibility inherit, entitles the husband to courtesy. — On the subject dis- 
 cussed in this note much useful learning will be found in Goodhill v. Brigham, 
 1 Bos. and Pull. 192. Doe ex dcm. Andrew?'. Hutton, 3 Bos. and Pull. 643. 
 Doe ex <lrm. Willis v. Martin, 4 Durn. and East, 39. and Maundrell v. Maun- 
 drell, 7 Yes. jun. 567. 10 Yes. jun. 246.— [Note 170.]
 
 L. 3. C. 6. Sect. 394. Of Discents. [241. b. 
 
 case jeo* poy enter sur le possession Tissue), for that the issue comes 
 not to the lands immediately by discent after the death of the mother, $c 
 fbut by the death of the father (1). 
 
 Contrarium tenetur P. 9 H. 7. per tout le court, & M. 37 H. 6. 
 
 " TN this case I may enter upon the possession of the issue, d?c." Vide 9 H. 7. 24. 
 For here was but a discent of a reversion at the time of the g nd ^ f ^; 6 ' L 
 dying seised, for the estate of the tenant by the curtesie had the chapter 
 commencement by the having of issue, and is consummate by the of Homage, 
 death of the wife, so as the fee and franktenement did not after < 3 Rep- 34- a- ^ 
 the decease of the wife descend to the heire, and albeit the tenant 
 by the courtesie dieth afterwards, and that the franktenement is 
 cast upon the heire, so as now he hath the fee and franktenement 
 by discent, yet because the heire came not to the fee and frank- 
 tenement at once, immediately after the decease of the wife, such 
 a mediate discent shall not take away the entrie of the disseisee. 
 On the other side, an immediate discent may take away an entrie 
 for a time, and mediately may be avoided by matter ex post facto, 
 as hath beene said. But if a dying seised taketh not away the 
 entrie of him that right hath at the time of the discent, it shall 
 not by any matter ex post facto take away his entrie. 
 
 If a disseisor die without heire (A) his wife privement enseint 
 with an issue, and after the issue is borne, who entreth into the 
 land, he hath the land by discent, and yet thereby the entrie of 
 the disseisee shall not be taken away, because, as Littleton here 
 saith, the issue commeth not to the lands immediately by discent 
 after the decease of the father. 
 
 And so it is if a disseisor make a gift in taile, the remainder 
 in fee, and the donee dieth without issue, leaving his wife prive- 
 ment enseint with a sonne, and he in the remainder enters, and 
 after the Sonne is borne, who entreth into the land, this discent 
 shall not take away the entrie of the disseisee, causa qud supra. 
 
 " Contrarium tenetur, &c." This is an addition, and therefore 
 to be passed over. And at this day, this case of Littleton is 
 holden for cleere law. 
 
 Sect. 
 
 * poy not in L. and M. or Roh. the note that follows, not in L. and M. 
 
 f but by the death of the father, and or Roh. 
 
 (A) heire seems to be here inserted for issue. See Mr. Ritso's Intr. p. 119. 
 
 (1) Conformably to this, it was held by lord Holt in the case of Carter v. 
 Tash, 1 Salk. 241. that a descent, which tolls entry, ought to be an immediate 
 descent ; ,and therefore if a feme disseisoress take husband, and hath issue and 
 dies, and after the husband dies, the descent to the issue does not take away 
 entry, because the interposition of tenant by the curtesy does impede it ; and 
 because coverture, to avoid a descent, ought to be continual from the time of 
 the disseisin to the descent ; for, if a feme be sole at the time of the disseisin, 
 or of the descent, or any time intermediate, her entry is not preserved, because 
 she had an opportunity to enter and prevent the descent : as if a feme covert 
 is a disseisee, and after her husband dies she takes a second husband, and then 
 the descent happens, this descent shall take away the entry of the feme : and, 
 upon this last point the plaintiff in that ca&c was nonsuited. — [Note 171.] 
 
 Vol. II.— 18
 
 241. b. 242. a.] Of Discents. L. 3. C. 6. Sect, 395-96. 
 
 (Ante, 238. b.) Sect. 395. 
 
 jl^LSO, if a disseisor enfeoff e his father in fee, and the father die, 
 seised of such estate, by which the land descend to the disseisor, as 
 sonne and heire (si un disseisor enfeoffason pier en fee, etle pier morust 
 de tiel estate seisie, per que les tenements discendont a le disseisor,* 
 come fits et heire), $c. in this case the disseisee may well enter 
 upon the disseisor, notwithstanding the H@°* discent, for that [242.1 
 as to the disseisin, the disseisor shall be adjudged in but as a L a - J 
 disseisor, notwithstanding the discent, || quia particeps criminis (1). 
 
 ]5 E. 4. 23. a. fXF this sufficient hath beene said before in this chapter, Sect, 
 is E 1 v\ 3%6. And regularly it is true, that albeit a discent be cast, 
 
 33 H. 6. 5. b.' an d the entrie of the disseisee taken away, yet if the disseisor 
 
 34 H. 6. 11. commeth to the land againe, either by discent, or purchase of 
 24 H 8 3 q an y estate or (B) freehold, -which is implyed in the (&c.) the 
 18 1L $'. 5. disseisee may enter upon him, or have his assise against him, as 
 
 5 H. 7. if no discent or meane conveyance had beene, quia particeps 
 
 S K 3. 5 2 4 5, 26. CrimMs - 
 (Post, Sect. 409.) 
 
 Sect. 396. 
 
 ALSO, if a man seised of certaine land in fee having issue two sons, 
 and die seised, and the younger sonne enter by abatement into the 
 land, and hath issue, and dieth seised thereof, and the land descend to 
 his issue, and the issue enters into the land: in this case the eldest 
 sonne, or his heire, may enter by the law upon the issue of the younger 
 son, notwithstanding the discent, because that when the younger son 
 abated into the land after the death of his father, before any entrie made 
 by the eldest sonne (devant ascun entrie per le fits eigne f fait), the law 
 intend that hee entred claiming as heire to his father. And for that 
 the eldest sonne claimes by the same title, that is to say, as heire to his 
 , t'other, hee and his heires may enter upon the issue of the younger son (il et 
 ses heires poient enter sur Tissue de puisne | fits), notwithstanding the 
 
 discent 
 
 * ent added in L. and M. t fait — not in L. and 31. 
 
 \\&c. added: quia particeps cri- J fits — frcre, L. and 31. and Roh. 
 
 minis, not in L. and M. 
 
 (B) Should it not be of instead of "or"? See Mr. Ititeo's Tntr. p. 119. , 
 
 (1) For when the disseisor enfeoffs the father, it is presumed to be done in 
 order afterwards to come in by discent, and the act of law shall not give sanc- 
 tion to the wrong of the party; nor shall any man by his own wrong, however 
 cunningly contrived, give to himself a right; for when the heir by the 
 descent gains a jus posses&ionis, he is supposed innocent of the wrong of his 
 ancestor, but here he is partner of his guilt. See Gilb. Ten. 27, 28. — 
 [Note 172.] b
 
 L. 3. C. 6. Sect. 397. Of Discents. [242. a. 
 
 discent, $c. because they claime by the same title. And in the same 
 manner it shall be, if there were more discents from one issue to another 
 issue of the younger sonne (1). 
 
 Sect. 397. 
 
 T> UT in this case, if the father tvere seised of certaine lands in fee, and 
 hath issue two sons, and die, and the eldest sonne enter (et l'eigne 
 * fits enter), and is seised, $c. and after the younger brother disseiseth 
 him, by which disseisin he is seised in fee, and hath issue, and of his 
 estate dieth seised, then the elder brother cannot enter, but is put to his 
 writ of entrie sur disseisin, &c. § to recover the land. And the cause 
 is, for that the youngest brother commeth to the lands by wrongful dis- 
 seisin done to his elder brother, and for this wrong the law cannot intend 
 that he claimeth as heire to his father, no more than if a stranger had 
 disseised the elder brother which had no title (Et la cause est, pur ceo 
 que le puisne frere vient a les tenements per tortious disseisin fait a 
 son eigne frere, et per el tort la ley ne poit entender que il claime 
 come heire a son pier, nient pluis que un estrange person que est dis- 
 seisie l'eigne frere J que n'avoit ascun title), $c. And so you may see 
 the diversitie, where the younger brother entreth after the death of the 
 father before any entrie made by the elder brother in this case, \\ and 
 where the elder brother enters after the death of his father, and after 
 is disseised by the younger brother, ivhere the younger after dieth 
 seised.^ 
 
 " TN this case the eldest sonne, &c. may enter -upon the issue 
 
 of the younger son, &c." And the reason hereof is, for (Plow. 306. a.) 
 
 that the law intendcth the youngest sonne entred claiming the 
 
 land as heire to his father, and because the eldest sonne claimeth 
 
 also by the same title, viz. as heire to his father, therefore hee 
 
 and his heires may enter upon the seconde sonne and his heires, 
 
 in respect of the privitie of the bloud betwecne them, and of the 
 
 same claime by one title, albeit the youngest son gained a fee 
 
 simple by his entrie : for Littleton here calleth it an abatement, 
 
 which proveth the gaining of a fee simple. 
 
 And it is to be observed, that a.ssisa mortis antecessors non Bract, lib. 4. 
 
 tenet inter conjunctas personas sicut fratres et sorores, &c. for fol. 261. 282, 
 
 these are privie in bloud, but it lyeth against strangers, and ! 8 , 3 ■ 1o P ^ n lt o t 1 0n, 
 ,, <• r , ' . J . ° e , ' i'»- ISO, 181. • 
 
 then damages are to be recovered against a stranger, but not pieta, lib. 5. 
 
 against his brother. cap. l, 2, Ac. 
 
 20 E. 3. 
 Darr. present. 13. 12 H. 3. Mord. pi. ultiin. 13 E. 1. Mord. 47. 29 Abs. 
 11. F. N. B. 196. b. (8 Rep. 42.) (Post. 271. a.) 
 
 Lands 
 
 * fits — frere, L. and M. and Roh. \\ &c. added in L. and M. and Roh. 
 
 § &c. not in L. and M. or Roh. f &c. added in L. and M. and Roh. 
 
 | frere, not in L. and M. or Roh. 
 
 (1) When a younger brother enters in this case, he does not enter to get a 
 possession distinct from that of the elder brother, but to preserve the posses- 
 sion in the family, that nobody else abates. Gilb. Ten. 28. — [Note 173.]
 
 212. a. 212. b. 213. a.] Of Discents. L. 3. C. 6. Sect, 397 
 
 Pasch. 3 E. 3. 
 Coram Rege 
 Kane, in The- 
 saur. 
 
 SE. 2. Ass. 380. 
 40 E. 3. 24. b. 
 
 19 Ass. 24. 
 
 Vid. Brooke, tit. 
 Entrie, 27. 
 
 (Roll. Abr. 628, 
 629.) 
 
 (4Rep.5S.) 
 
 (1 Roll. Abr. 
 629. Ant. 15. a. 
 
 22 E. 4. 4. 
 (F. N. B. 34. 
 Ant. 186. b.) 
 
 Doctor & Stud. 
 cap. 30.fol.117. 
 
 Lands were given to the husband and wife, and to the heires 
 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 sonne 0^7* abated and died seised, this dis- [~24:2.~| 
 cent did take away the entrie of the daughters, because | b. J 
 they claimed not by one title. And in ancient bookes 
 the eldest sonne is called hseres jjrojmiquus, and the younger 
 sonne hseres remohis. And albeit the eldest sonne hath issue 
 and dieth, and that after his decease the youngest son or his 
 heir entreth, and many discents he cast in his line, yet may the 
 heires of the eldest sonne enter in respect of the privitie of the 
 bloud, and of the same claime by one title; but if the youngest 
 sonne make a feoffement in fee, and the feoffee die seised, that 
 discent shall take away the entrie of the eldest, in respect that 
 the privitie of the bloud faileth. And admit that the youngest 
 sonne be of the half bloud to his brother, yet he is of the whole 
 bloud to his father, and therefore if he entreth by abatement, 
 and dieth seised, it shall not barre his elder brother of his entrie. 
 But if the eldest sonne entreth, and gaineth an actuall possession 
 and seisin, then the entrie of the youngest is a disseisin. And 
 then a dying seised shall take away the entrie of the eldest, for 
 posscssio terrse must be vacua when the youngest sonne enters 
 by abatement, as Littleton saith, because he hath more colour 
 in that case to claime, as heire to his father, who last was actu- 
 ally seised. Therefore if after the decease of the father, an 
 estranger doth first enter and abate, upon whom the youngest 
 sonne entreth and disseise him, and die seised, this discent shall 
 binde the eldest, for he entered by disseisin, and not by abate- 
 ment. 
 
 If a man bee seised of lands of the nature of £§p" |~ 94:3.1 
 burgh English, and hath issue two sonnes and die, and |_ a - J 
 the eldest sonne before any entrie made by the young- 
 est, entreth into the land by abatement, and dieth seised, this shall 
 not take away the entrie of the youngest brother. Et sic dc 
 similibus. And these and the like cases are all within the reason 
 and rule of our author. And where our author speaketh only 
 of an abatement, so it is not (A) an intrusion; for if the father 
 make a lease for life, and hath issue two sonnes and dieth, and 
 the tenant for life dieth, and the youngest sonne intrude, and die 
 seised, this discent shall not take away the entrie of the eldest. 
 But if the father had made a lease for yeares it had beene other- 
 wise, for that the possession of the lessee for yeares maketh an 
 actuall freehold in the eldest sonne. And it is to be observed, 
 that the reason of Littleton in this case (for that both the bre- 
 thren hold by one title) holdeth also in many other cases. 
 
 If two coparceners make partition to present by turne, and 
 one of them usurpe in the turne of the other, this usurpation 
 shall not put the other out of possession, because they claime by 
 one title. 
 
 If two coparceners be, and they severally present to the ordi- 
 narie, yet the church is not litigious, because they claime all by 
 one title (1). 
 
 If 
 
 (A) The text should be read, it seems, as if lord Coke had \med the word of instead of 
 'not." See Mr. Bitso's Intr. p. 119. 
 
 (1) Acc. Dig. p. 1. c. 3.— See 7th Ann. c. 18.
 
 L. 3. C. 6. Sect. 398. Of Discents. [243. a. 243. b. 
 
 If upon a writ of diem clausit extremum, the youngest sonue 12 E. 4. 18. 
 
 be found heire, the eldest son hath no remedy by the common 
 
 law, because they claimed by one title ; but otherwise it is if 
 
 they claime by severall titles, as it appeareth in our bookes (2). 
 
 But this is now holpen by a statute * made since Littleton * 2 E. 6. cap. S. 
 
 wrote. 2 II. 7. 12. a. 
 
 If two parsons be in debate for tithes, which amount to above See the Section 
 ,, j. ., r , . ' . . , , , next following. 
 
 the fourth part, and one man is patron of both churches, no 
 
 indicavit doth lye, for that both incumbents claime by one and 
 
 the same patron. Et sic de similibus. 
 
 And where Littleton saith, seised of lands in fee, the same 
 
 law it is if a man bee seised of lands in taile, and hath issue 
 
 two sonnes mutatis mutandis. 
 
 "And is seised, &c." That is to say, actually seised, either (Post. 245. a.) 
 by entrie, as Littleton here putteth it, or by possession of the 
 lessee for yeares, or the like. 
 
 " Had no title, &c." That is to say, any pretence or semblance 
 
 of title, as the younger brother here hath ; and in many other 
 
 cases there is a great diversitie holden in our bookes [o] where [<,] 2 E. 2. 
 
 one hath a colour or pretence of right, and when he hath none Bastardie, 19. 
 
 at all, whereof you may read plentifully in our bookes. ii a g- 
 
 39 E. 3.26. 17E. 3. 59. 11 E. 3. Ass. 88. 21 H. 6.14. 11 E. 3. Age, 3. 
 Vide Sect. 400. & cap. Garran. (A). 
 
 (A) See the observation under (B) at the end of the commentary on Sect. 400. 
 
 Sect. 398. 
 
 TN the same manner it is, if a man seised of certaine land in fee, hath 
 
 issue two daughters and dieth, the eldest daughter entreth into the land 
 
 claiming all to her, and thereof onely taketh the profits, and hath issue and 
 
 dieth seised, by which her issue enter, which issue hath issue and dieth 
 
 seised, and the second issue enter f, & sic ultra, yet the younger daughter, 
 
 or her issue as to the moitie, may enter upon any issue whatsoever 
 
 t243.~] oftheelder Jgggp^ daughter notwithstandiny such disc ent, for that 
 b- J they claime by one same title, S^e. But in such case where both 
 sisters have entred after the death of their father, and tvere 
 thereof seised, and after the eldest sister had disseised the younger of her 
 part, and was thereof seised infee, and hath issue, and of such estate dieth 
 seised, whereby the lands descend to the issue of the elder sister, then the 
 younger sister nor her heirs cannot enter, $c. causa, qua supra, &c. 
 
 " CLAIMING 
 
 f &c. added in L. and M. and Roh. 
 
 (2) At the common law, if the youngest son were found heir, the eldest 
 might have an office ; the doubt was, whether the point, which was heir, 
 should be tried by immediate interpleader, or at the full age of him that was 
 first fouud heir : but the 2d and 3d Ed. 6. ch. 8. hath remedied it, and giveu 
 an interpleader immediately, on traversing the first office, which cannot be, 
 unless the party who traversed had an office found for himself. 7 Co. 44. a. b. 
 Kenn's case. — [Note 174.]
 
 243. b.] Of Discents. L. 3. C. G. Sect. 399. 
 
 (Hob. 120. " f^L AIMING all to her." Here it appeareth, that when the 
 
 Post. 373. b. ' one coparcener doth specially enter, clahnins; the whole 
 
 21 Ass 19 land, and taking the whole profits, that she gaines the one 
 
 21 E. 3. 7.27.32. moitie, viz. of her sister by abatement, and yet her dying seised 
 
 26 Ass. 2. shall not take away the entrie of her sister ; whereas when one 
 
 36 A SS 68 'l coparcener enters generally, and taketh the profits, this shall be 
 
 43 E. .3. 19." accounted in law the entrie of them both, and no divesting of 
 
 4 H. 7^10. the moitie of her sister (1). 
 
 fM 60 )' ^ one C0 P arcerier enter claiming the whole, and make a 
 
 See more of tbis feoffment in fee, and take backe an estate to her and her heires, 
 
 in the chapter and hath issue and die seised, this discent shall take away the 
 
 of Warrantie, en trie f the other sister, because by the feoffment the privitie 
 
 28 Ass. 30. °f * De coparcenarie was destroyed. 
 Vide Sect.' 710. 
 
 ( 4 Le 1 °'| 2- " Claime by one same title, &c." Of this sufficient hath becne 
 said in the next precedent Section. 
 
 " Cannot enter, &c." Of this there hath beene also spoken 
 in the same Section. 
 
 Sect. 399. 
 
 A LSO if a man be seised of certain lands in fee, and liuth issue ttco 
 sonnes, and the elder is a bastard, and the. younger mulier, and the 
 father die, and the bastard entreth claiming as lieire to his father, and 
 occupieth the land all his life, ivithout any entrie made upon him by the 
 mulier, and the bastard hath issue, and dieth seised of such estate in fee, 
 and the land descend to his issue, and his issue entreth, fyc. in this case the 
 mulier is ivithout remedie, for he may not enter, nor have any action to 
 recover the land, because there is an ancient laiv in this case used, <f"c* 
 
 PL Com. 57. ti SEISED in fee." For this holds not in case of an estate 
 
 39 E. 3. Le & ^ 
 
 darreine case. 
 
 Lib. 8. fol. 101, " Mulier," seu filius mulier at us. Mulier hath three significa- 
 102. Sir Rich, tions, First, Sub nomine mulieris continetur qucelibet fcemina. 
 (2 R \l A\ CaSC ' Secondly, Proprib sub nomine mulieris, continetur virgo. Thirdly, 
 584. 586. Appellatione mulieris, in legibus Anglice, continetur uxor. Etsic 
 
 Doctor & Stud. Jilius natus vel filia nata ex justd uxore, appellatur in legions 
 ri' * l n T Anglice fil ius mulieratus, seu filia mulierata, a sonne mulier, or a 
 cap. 2. ' daughter mulier. Sicut bastardus (2) dicitur a Grceco verbo 
 
 Bract, lib. 5. cap. 19. Brit. cap. 70. Vi4e Sect. 188. 
 
 Bassaris, 
 
 * &c. not in L. and M. or Roh. 
 
 (1) Hob. 120. Smale x. Dales. The contrary is held, that one coparcener 
 cannot be disseised without actual ouster, and claim shall not alter the possession. 
 Lord Nott. MS.— [Note 175.] 
 
 (2) Sir Henry Spelman, verbo Bastard, rejects this derivation, and holds it to 
 be a pure Saxon word Bastart, viz. impure natus, ut apud nos, Upstart dicitur 
 homo novus. Lord Nott. MS. — In Germany, and with us, (who derive many 
 of our customs and political opinions from the Germans), bastardy was always 
 a circumstance of ignominy. But in Spain, Italy, and France, bastards were 
 
 in
 
 L. 3. C. 6. Sect. 399. Of Discents. [244. a. 
 
 Bassaris. i. e. meretrix, seu concubina, quia procreatur 
 
 \Q4z4z.~\ ex meretrice sen Si@f concubina. In English hee is 
 
 a. | called base borne, and thereupon some say, that a 
 
 bastard is as much as to say, as one that is base na- 
 tural!, for aerd signifieth nature. I read in Fleta [p] that there [j>] Flet. lib. 1. 
 bee three kindes of bastards, viz. manser. nothus, & spur his, ~ ?■ g . 3g0 
 
 which are described in two old verses : (l Roll. Abr. 
 
 356, 357, 358, 
 Manseribus scortum, notho moechus dedit ortum. 359. 
 
 Ut seyes e spied, sic spurius est ab arnica (1). ^FaU'Em^ 
 
 Palm. 9. 4 Inst. 36.) 
 But we terme them all by the name of bastards that are borne out 
 of lawfull marriage. By the common law |>] if the husband be W Bract, lib. 4. 
 
 *^ * • fVil 97ft 97Q 
 
 within the foure seas, that is within the jurisdiction of the king 7 ^ 4 '9 ' 
 of England, if the wife hath issue, no proofe is to be admitted 43 e. 3. 19. 
 to prove the childe a bastard, (for in that ease filiatio non potest 41 E. 3. 7. 
 probari) unlesse the husband hath an apparent impossibilitie of 29 4^*54!" 
 procreation ; as if the husband be but eight yeers old, or under g 8 Ass'. 14! 
 the age of procreation, such issue is bastard, albeit he be borne l H. 6. 7. 
 within marriage (2). [s] But if the issue be borne within a on IP 3*13 
 
 [«] 18 E.4.28. (l'Salk.'l20.) 
 moneth 
 
 in many respects on an equal footing with legitimate children. During the 
 first and second races of the king of France, no difference appears to have 
 been made between their legitimate and illegitimate offspring. The same 
 seems to have been the case of the offspring of all the sovereign princes and 
 higher ranks of nobility in France. Their acknowledging a natural child to be 
 their child was considered as tantamount to any formal act of legitimation. 
 But the natural children of all other persons were considered as villeins. After 
 the accession of the Capetian line, the condition of bastards was altered for the 
 worse in many respects. Those of royal parentage were excluded from the 
 throne, and were no longer held to be of blood royal. They were only per- 
 mitted to bear the arms of France, with a bar. A singular change took place 
 with regard to the bastards of the princes and nobility. By an ordinance of 
 the year 1600, it was declared, that the children of nobility should not be con- 
 sidered even as gentlemen, uuless they obtained letters of nobility. On the 
 other hand, the bastards whose parents were of a lower order, instead of being 
 considered villeins, as before, began about the commencement of the 16th cen- 
 tury to be considered as free men, and except as to the right of receiving and 
 transmitting succession, they are now, in France, on an ecpial footing with 
 their fellow subjects. See Oeuvrcs de Ghancdier D'Aguesseau, t. 7. p. 881. 
 Dissertation dans laquelle on discute les principes du droit Romain et du droit 
 Francois par raport aux Batards. — [Note 176.] 
 
 (1) FUius naturalis a vulgo barbarorum opponitur legitime*. Scd revera 
 opponitur Jiiio adoptivo, in quosensu Tiberius vocat Drusum filium suum natu- 
 rdem. L'al. Lex. verb. nat. fdius. Spur ii Latini et Grand sine patre. lb. — 
 Lord Nott MS. Jure pontificio nothi decuntur qui ex adulterine concubitu, 
 manseres qui ex scorto, spurii exitus qui sacids initiati sunt, aut religionem pro- 
 fessi sunt — lb. — [Note 177.] 
 
 (2) It is now held, that the husband's being within the four seas is not 
 conclusive evidence of the legitimacy of the child, and it is left to a jury to 
 consider whether the husband had access to his wife. See 3d P. W. 275, 276, 
 Pendrell v. Pendrell, 2 Stra. 925. So evidence may be given, that the hus- 
 band's habit of body was such, as to make his having children an impossibility. 
 Lomax v. Holmden, 2 Stra. ( JI0. See also 1 Roll. Abr. 358. 1 Salk. 123. 
 
 But
 
 244. a.] Of Discents. L. 3. C. 6. Sect. 399. 
 
 moneth or a day after mariage, betweene parties of full lawfull 
 age, the child is legitimate (3). 
 
 " Descend to his issue." For if the bastard dieth seised with- 
 out issue, and the lord by escheat entreth, this dying seised shall 
 not barre the mulier, because there is no discent. If the bas- 
 tard enter, and the mulier dieth, his wife privement ensient with 
 a sonne, the bastard hath issue and dieth seised, the sonne is 
 borne, his right is bound for ever. But if the bastard dieth 
 seised, his wife ensient with a sonne, the mulier enter the sonne 
 (Post. 260. 273. is borne, the issue of the bastard is bam-d ; for Littleton putteth 
 l Roll. Abr. 624. ^j g cas6) that there must not only be a dying seised, but also a 
 
 8 Hep. 101. b. i» i_ • • 
 
 Ant. 15. a. discent to his issue. 
 
 7 Rep. 42.) 
 
 " And his issue entreth, &c." And so it is to be understood, 
 albeit the midier, after the decease of the bastard, doth enter 
 before the heir of the bastard ; for the discent bindeth, and not 
 the entrie of the heire. 
 
 Lib. 8. 101, 102. " The mulier is without remedied Hereby it appeareth that 
 Sir Rich Lech- this discent differeth from other discents, for this discent barreth 
 ford s case. ^ e r jght f the mulier, whereas other discents do take away the 
 
 entrie only of him that right hath, and leaveth him to his action, 
 but here by the dying seised of the bastard, his issue is become 
 [a] 5 E. 2. lawfull heire. [a] It is holden that if the mulier bee within 
 
 Discent, Br. 49. & ^ Q at ^ ^ me Q f t k e dying se ised, that nevertheless hee shall 
 
 33 E. 3. bee barred, because the issue of the bastard is in judgement of 
 
 Verdict, 48. law become lawfull heire, and the law doth preferre legitimation 
 
 36 Ass. 2. before the privilege of infancie. 
 
 Sto-n-el's' case. And the reason of this case is, for that Justum non est aliquem 
 
 10 E. 3. 2. 2 ws t mortem facere bastardum, quitoto tempore vita' swob pro legi- 
 
 timo habebatnr. And so it seemeth to be, that if a man hath 
 
 13 E. 1. tit. issue a sonne being bastard eigne, and a daughter, and the daugh- 
 Bastardie 28. ter is married, the father dieth, the sonne entreth and dieth 
 ' Rep 9S ) E ' seised, this shall barre the feme covert. And the discent in this 
 
 case of services, rents, reversions, expectant upon estates taile, 
 
 14 E. 2. or for life, where upon rents are reserved, &c. shall binde the 
 Bastardie, 26. ^^ of tJie mu n er ^ Dut a discent of these shall not drive them, 
 
 that right have, to an action. 
 Sir Rich. Lech- S if the bastard dieth seised, and his issue endoweth the wife 
 ford's case, ubi. Q f ^ e bastard, yet is not the entrie of the mulier lawfull upon 
 (Ant. 241. the tenant in dower, for his right was barred by the discent. 
 
 20 H. 3. If the bastard eigne entreth into the land, and hath issue, and 
 
 fp^t^Vo f 9- entreth into religion, this discent shall barre the right of the 
 
 viulier. 
 
 Hill. 18 E. 3. « Hath issue two sonnes." If a man hath issue such a bastard 
 
 cor. Reg. Rot. 
 
 144. Ebor. 17 E. 3. 59 F. tit. Bastard, 32. Sir Rich. Lechford's case, ubi supra, 
 
 See afterwards in the Chapter of Warranties. (Post. 368. a.) 
 
 as 
 
 But the rule laid down by lord Coke, was once generally received. In Jenk. 
 c. 10. pi. 18. it is said, " that if the husband be in Ireland for a year, and the 
 "wife in England during that time has issue, it is a bastard ; but it seems 
 u otherwise now for Scotland, both being under one king, and make but one 
 •'continent of land. — See ant. note 2, to p. 126. — [Note 178.] 
 (3) See note 1, to page 2-45. a.
 
 L. 3. C. 6. Sect. 400. Of Discents. [244. a. 244. b. 
 
 as is aforesaid, and dieth, and the bastard entreth and dieth 
 seised, and the land desccndeth to his issue, the collaterall heire 
 of the father is bound, as well as where there be two sonnes. 
 
 And where our author speaketh of sonnes, so it is if a man 
 hath issue two daughters, the eldest being a bastard, and they 
 enter and occupie peaceably as heires ; 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 as if the bastard 
 hath issue and dieth, her issue shall inherit. 
 
 [244.~| fi@~ [6] And in the same case, if both daughters [&] 2 E. 3. tit. 
 b. J enter and make partition, this partition shall binde the g^ifs '34 b. 
 mulier for ever. 30 Ass. p. 7. 
 
 [c] And an assise of mort d'ancester lieth not betweene the Sir Rich. Lech- 
 bastard and the mulier in respect of the proximitie of bloud. f ° b r . d ' s case ' 
 And the bastard being impleaded or vouched shall have his age. [,.] Brit. cap. 73. 
 
 20 E. 3. 
 
 " And the bastard entreth as heire to his father." If a man hath Y^\ ™' e 3 
 issue bastard eigne and mulier puisne, and the bastard in the life 5 h.7. 2. 
 of the father hath issue and dieth, and then the father dieth Sir Rich. Lech- 
 seised, and the sonne of the bastard entreth, as heire to his grand- ford ^ s case ' 
 father, and dieth seised, this discent shall binde the mulier. /Ant. 170! b.) 
 
 u Because there is an ancient law in this case used, &c." As 
 hereafter in our Commentarie upon the two next Sections shall 
 appeare, by our antient bookes, and the antient statutes of the 
 realme. And here is implyed how necessarie it is, after the 
 example of our author, to looke into the antiquities, than which 
 nothing is more venerable, profitable, and pleasant (1). 
 
 Sect. 400. 
 
 T^UT it hath beene the opinion of some, that this shall be intended 
 where the father hath a sonne bastard by a ivoman, and after mar- 
 rieth the same woman, and after the espousals he hath issue by the same 
 woman a son or a daughter, and after the father dieth, $c. if such bastard 
 entreth, $c. and hath issue and die seised, 8fc. then shall the issue of such 
 bastand have the land cleerely to him, as it is said before, SfC. and not any 
 other bastard of the mother which was never married to his father. And 
 this seemeth to be a good and reasonable opinion : for such a bastard 
 borne before marriage celebrated betweene his father and his mother, by 
 the law of holy church is mulier, albeit by the law of the land he is a 
 bastard, and so he hath a colour to enter as heire to his father, for that 
 he is by one law mulier, scilicit, by law of holy church. But otherwise 
 it is of a bastard which hath no manner of colour to enter as heire (Mes 
 auterment est de bastard que n'ad ascun * maner colour d'entre come 
 
 heire), 
 
 * maner not in L. and M. but in Roh. 
 
 (1) In the case of Pride v. the earls of Bath and Montague, it was held, 
 that the rule that a person shall not be bastardized after his death, is only good 
 in the case of bastard eigne and mulier puisne. 1 Salk. 120. — [Note 179.]
 
 244. b. 245. a.] Of Discents. L. 3. C. 6. Sect. 400. 
 
 heire), in so much as hee can by no law bee said to be mulier, for such 
 a bastard is said in the law to be quasi mullius filius, &c. (2). 
 
 JB®"" " TfL'T it hath beene the opinion of some, &c." ("24:5.1 
 And our author here saith, that this opinion L a - 
 
 is good and reasonable, for that such a bastard, by the 
 * Vid Britton ^ aw °f ^°^J church * is a mulier. 
 
 fol. 128. b. 106. Matrimonium subsequens legitimosfacit quoad sacerdotium non 
 203- ^" d the quoad successionem, propter consuetud inem regni qudd se habet in 
 20 H. 3. cap. 19. <'ontrarium. Yet the canon law holdeth them legitimate quoad 
 confirmetb. this opinion. Hill. 18 E. 3. coram rege in Thesaur. Eborum. Bracton, lib. 2. fol. 63. 
 
 successionem. 
 
 (2) Nota, Inst. 96, 97. On the statute of Merton, Pope Alexander III. 
 (ann. 1160, 6 IT. 2.) ordained, that children born before matrimony, where 
 matrimony follows, should be as legitimate as those bom after marriage, quia 
 ecclesia tales habet pro legitimis. — Constitutio pontifica, or the canon law, est 
 intelligenda solummodo de filiis natis ex coitu, qui poterunt esse conjugates; 
 qui vero ex damnato coitu, nascuntur, scilicet ex coitu incestuoso vel adulte- 
 rino, cujusmodi coitus non poterat esse uxorius, tamen nunquam legitimari pos- 
 sunt per subsequens matrimonium. Ratio est quia matrimonium subsequens 
 ex fictitione legis retrahitur ad tempus susceptionis liberorum, ut legitimati 
 habeantur legitime suscepti (i. e.) post contractum matrimonium. Fictio 
 autem juris nunquam admittur contra naturam et bonos mores. Quapropter 
 lex non potest fingcre matrimonium fuisse cum eis, cum quibus nuptiae non 
 potuerunt esse per leges; quia in fictionibus translationis requiritur habilitas 
 extrcmorum a quo et ad quern. Ideoque leges civiles et decretales olim matri- 
 monium inter adulteros prohibebant, contractumque dirimebant. Jam vero 
 ista prohibitio locum non habet, nisi in mortem prioris conjugis alteruter fuerit 
 machinatus, vel premature, duni adhuc viveret, de contrahendo post mortem 
 ejus eonnubio pacta fuerit fides. Secundo notandum est quod subsequens 
 matrimonium legitimos facit quoad spiritualia, non quoad temporalia, quia 
 Papa non potest legitimare, quoad temporalia, extra sui ipsius dominica, sci- 
 licet extra terras quae sunt de patrimonio sancti Petri, quod Papa Innocen- 
 tius III. confitebatur (ergo Anglia non est ex patrimonio sancti Petri quicquid 
 fecerit Rex Johannes.) Et Sanchez quern Clemens III. valde laudavit, aperte 
 dicit, si proles habita sit ex concubitu omino fornicano, earn non posse 
 pontificem, quoad temporalia et secularia, legitimare. All this was said and 
 proved out of ancient authors by a learned advocate, whose discourse is printed at 
 large in the modern arrets collected by Moris, de Maison. Arrest20. And there 
 the principal case was, the uncle, in the life of his wife, had a child by his niece 
 and 'god-daughter, on promise of marriage when time should serve : the wife dies, 
 and then the uncle had other children, and ten years after, by dispe?isat ion from 
 the pope, containing a clause of legitimation of the children born before, marries 
 her. Res. The pope's dispensation was void as to any legitimation, which, whether 
 it iccre because the marriage were within the Lcvitical degrees, or because of spi- 
 ritual kindred, or because against the council of Trent, a general council being 
 hclel by the Sorbonne to be above, the pope, appears not ; but may be for all tin se 
 reasons, as for none of them, but only because tliepope cannot legitimate in tem- 
 jwrals. Idly. That the children of this marriage should have pensions to live 
 on, which may seem to approve the dispensation as to the marriage, oelly. 
 That no such be granted for the future. Ibid. Romani filios naturales tantum 
 non alio jure habuerunt quam peregrinos. Theodosii & Arcadii principatu 
 temperata fuit legurn severitas, ac deinde Zenonis lege obtinuit, ut natu- 
 rales liberi conscquentibus cum matre nuptiis justi ac legitimi haberentur. 
 
 Bodinus
 
 L. 3. C. 6. Sect. 400. Of Discents. [245. a. 
 
 successionem. At a parliament holden [5] anno 20 II. 3, for that [ rj ] statut. de 
 to ccrtifie upon the king's writ, that the sonne borne before mar- Merton. 
 riage as a bastard, was contra communcm formam ecclcsia, roga- y id " B y' a gt P { 5 
 verunt (mines episcop>i magnates ut consentirent, quod nati ante f. 416. 417. 
 matrimonium essent legitimi, sicut illiqui nati sunt post matrimo- 10 Ass. PL 20. 
 nium guantiim ad successionem hiercditariam, quia ecclesise tales 
 habet pro legitimis : et omncs comites & barones una voce rcspon- 
 derunt quod noluut leges Anglae mutare, quae hucusque usitatse 
 sunt & approbatse. 
 
 " So he hath colour to enter, &c." Hereit is to be observed, 
 that the law more respecteth him that hath a colourable title, 
 though it be not perfect in law, than him that hath no title at 
 all, as hath beene said [?•] before (1). [,.] vide Sect. 
 
 Cppf 397. & Cap. Gar. 
 
 ° etl> Sect.(B) 
 
 (B) See post. 376, where it is said that the hastard eigne may be vouched alone, because 
 he is in appearance heir, &c. See also 368. a. & b. 369. a. & b. and Sect. 698, and the 
 12 following sectionsl here. 
 
 Bodinus de Repub. lib. 1. cap. 4. p. 29. Sed nota, quod ante Zenonis tem- 
 pora, viz. per legem Divi Constantini, nati ante matrimonium, fiebant legitimi 
 per matrimonium subsequens; quod tanien explicatur in eodum codice, viz. 
 per matrimonium legitimantur liberi naturales modo procreati sint muliere 
 libera, & cujus matrimonium non est legibus interdictum. Vid. Mons. de Mai- 
 soris, Arrest 20, page 859. — LordNott. MS. — [Note 180.] 
 
 (1) Both by the civil and canon law, children born before marriage are 
 made legitimate by the subsequent marriage of their parents. This was esta- 
 blished in the civil law by the emperor Constantine, and confirmed by the 
 emperor Justinian. It was established in the canon law by a constitution of 
 pope Alexander the Third, in 1160. This legitimation is a privilege or inci- 
 dent inseparably annexed to the marriage ; so that though both the parents 
 and the children should wave or refuse it, the children nevertheless would be 
 legitimate. But it holds in these cases only, where, at the time of the birth 
 of the children, it was lawful for both parents to intermarry ; for, if the father 
 were married to another woman at the time of the birth of the children, and 
 afterwards his wife died, and he married the mother of the child, the child 
 would not be legitimated by this subsequent marriage. Children thus legiti- 
 mated are on an equal footing with the legitimate children; and, if they die 
 before the marriage of their parents, still they are considered as legitimate, 
 and transmit their legitimacy to their issue; but, whether they are considered 
 legitimate only from the time of the marriage of their parents, orwhether their 
 legitimacy by their parents marriage has relation back to the time of their 
 birth, is a point warmly disputed by the civilians and canonists. The prevail- 
 ing opinion seems to be, that they are to be considered as legitimate from the 
 time of their birth to all purposes but those in which, to consider them as such, 
 would operate to the detriment of a third person. Thus, if there be a natural- 
 born child, and the father afterwards marries and has sons ; his wife dies, and 
 he marries the woman by whom he had the natural child : it seems to be the 
 better opinion, that the child legitimated by the subsequent marriage does not 
 acquire the right of progeniture over the sons of the first marriage. 
 
 The doctrine of legitimacy by a subsequent marriage was never admitted 
 into the English law; and the refusal of the noblemen of our nation to admit 
 it, on the occasion mentioned in Sir Edward Coke's Commentaries, is spoken 
 of by Sir William Blackstone and other writers, as a memorable instance of 
 their jealousy of the civil law, and their firmness in opposing foreign inno- 
 vations. 
 
 The doctrine of legitimation prevails, with different modifications, in France, 
 
 Germany,
 
 24:5. a. J Of Discents. L. 3. C. 6. Sect. 401. 
 
 Sect. 401. 
 
 ~QUT in the case aforesaid, where the bastard enter after the death of 
 
 the father, and the mulier oust him, and after the bastard disseise 
 
 the mulier, and hath issue and dieth 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 
 
 Germany, and Holland. By an arret d'audience of the 21st June 1668, it 
 was adjudged, that, if a person marries in England, a woman, by whom he 
 had children previous to the marriage, the children horn in France are legiti- 
 mated by it, and acquire all the rights of legitimacy under the French law. 
 See c. 10. C. de Natur. lib. Nov. 89. c. 8.— Vinn. in Inst. 1. 1. t. 10. s. 13.— 
 Hein. Elem. Jur. de Legitimatione. — Traite des Successions par le Brun, 
 ed. 1776, lib. 1. c. 2^s. 1. d. 1. 1. 2. c. 2. s. 1. n. 13, and Sir John Fortescue, 
 c. 39. Till the statute of Merton, the question whether born before or after 
 marriage, was examined before the ecclesiastical judge, and his judgment was 
 certified to the king or his justices, and the king's court either abided by it or 
 rejected it at pleasure. But, after the solemn protest made by the barons 
 at Merton against the introduction of the doctrine of the civil and canon law 
 in this respect, sjiecial bastardy has been always triable at common law ; and 
 general bastardy alone has been left to the judgment of the ecclesiastical 
 judge, who in this case agrees with the temporal. 2 Inst. 98. Keeves's Hist. 
 of the English law, 85, 201, and see ant. note 2, to page 126. a. If the reader 
 wishes to become acquainted with the doctrine of the Roman law on marriage, 
 and the legitimacy and illegitimacy of children, he will find it succinctly and 
 perspicuously stated in Pothier Traite de Contrat de Marriage, par tie 1. c. 2. 
 In the third chapter of the same work he discusses the celebrated question, 
 ''de l'autorite de la Puissance Seculiere sur le Marriage." He concludes that 
 chapter with the following sentence, " Par tout ce qui vient d'etre dit, il ne 
 " peut rester aucun doute que la puissance seculiere a le droit de faire des 
 " loix sur les marriages, dont l'inobservation les rende absolument et entire- 
 " ment nuls, non seulement quant aux effets civile, mais meme quant au 
 " lien, et qui les empechent en consequence de pouvoir servier de matiere au 
 " sacrement de marriage." The same doctrine is laid down by Sanchez in his 
 famous Treatise de Matrimonio, lib. 7. disp. 3. n. 3. where he says, " Absque 
 " dubio dicendum est posse principem secularem ex genere et natura suae 
 " potestatis, matrimonii impedimenta dirimentia, fidelibus sibi subditis ex 
 "just§, causa indicere. . . Nee obstat principis secularis potestati, matri- 
 " monium esse sacramentuin, quia ejus materia contractus civilis j qua ratione 
 " perinde potest ex justa causa illud irritare, ac si sacramentuin non esset, 
 " reddendo personas inhabiles ad contrahendum, & sic invalidum contractual." 
 Doctor Launoi, in his treatise Begin in Matri monium Potestas, cites number- 
 less passages to the same effect, from divines of all countries and all schools. 
 The article Empechemens de Marriage, in the Encyclope'die Metltodique, lately 
 published at Paris, establishes the same doctrine in these words: "Le mar- 
 riage forme actuellement un tout compose de deux parties soumises a deux 
 "puissances qui influent sur son existence, avec cette difference cependunt, 
 "qui l'eglise est obligee de se soumettre aux empechemens etablis par le 
 " prince, et que ceux etablis par l'eglise ne peuvent avoir lieu qu'autant 
 " qu'ils sont admis par le prince." — [Note 181.]
 
 "A- 
 
 L. 3. C. 6. Sect, 401. Discents. [245. a. 245. b. 
 
 where such bastard continues the possession all his life without interrup- 
 tion, and where the mulier entreth and interrupts the possession of such 
 bastard, $c. 
 
 ND the midier oust him." An estranger in the name of 
 the mulier without his coniruandemcnt cannot enter upon 
 the bastard, for that the bastard may gaine the estate and barre 
 the midier. And therefore regularly none shall enter but the 
 mulier, or some other by his comniandemcnt. And therefore 
 Littleton saith (and the midier put him out) no more than in 
 the case [a] of the lord Awdley : for there an estranger of his [a] Mich. 38 & 
 owne head could not enter in the name of him that right had to 3 ?. Eliz. in the 
 enter within the five yeares to avoid the fine. But in both those U V1 "^ evidence 
 cases, first, if the midier agree thereunto before the disccnt of by the whole 
 the bastard : or secondly, if he that right hath before the five court. Vide 
 
 • 31 "FT *? "Pntr 
 
 yeares be past do assent thereunto, the claime is good, and shall ono . e g r 19 j 
 
 avoid the estate both of the bastard and of the conusee, as it was 
 
 holden in the lord Aivdlet/'s case, quia omnis ratihabitio retro- 4 H. 7. cap. 
 
 trahitur, & mandato cequiparatur, and it standeth well with the 
 
 words of the statute, so that they pursue their title, &c. by way Vide Sect. 334. 
 
 of action or entry; and so is the booke in \b~] 31 77. 8. to be [b] 31 H. 8. 
 
 intended. Entr. cong. 
 
 -[> -I no 
 
 But in the case of the bastard eigne which is Littleton's case, 
 gardein in socage, or gardcin in chivalrie, may enter, for they 
 are no strangers, as in another place is plainly shewed. If an 
 infant make a feoffment in fee, an estranger of his owne head 
 cannot enter [c] to the use of the infant, for the estate is voida- [ c ] p aS c. 
 ble. But where an infant or a man of full age is disseised, an 3y Eliz. in 
 entrie by a stranger of his owne head is good, and vesteth pre- Communi Banco 
 sently the estate in the infant or other disseisee. So it is if 10 h. 7. ie! 
 tenant for life make a feoffment in fee, an estranger may enter 7 E. 3. 69. 
 for a forfeiture in the name of him in the reversion, and thereby 26 E -^- 62, 
 the estate shall be vested in him, et sic de similibus. 45 e. 3. 
 
 t245.~| S^° u Where such bastard continues thr possession n \ ss [\ 
 b. J without interruption." If the mulier entreth upon the 
 bastard, and the bastard recovereth the land in an 
 assise against the midier, now is the interruption avoided ; and 
 if the bastard dieth seised, this shall barre the mulier. 
 
 If the bastard eigne after the decease of the father entreth, 2 Ass. 9. 
 and the king seiseth the land for some contempt supposed to be 
 committed by the bastard, for which no freehold or inheritance 
 is lost, but only the profits of the land by way of seisure, and 
 the bastard die, and his issue is upon his petition restored to the 
 possession, for that the seisure was without cause, the mulier is 
 barred for ever ; for the possession of the king when he hath no 
 cause of seisure shall be adjudged the possession of him for 
 whose cause he seised. But if after the death of the father the 
 midier be found heire and within age, and the king seiseth, in 
 that case the possession of the king is in right of the mulier, 
 and vesteth the actual possession in the mulier, and consequently 
 the bastard eigne is fore-closed of any right for ever. 
 
 And so it is when the king seiseth for a contempt, or other 
 offence of the father, or of any other ancestor ; in that case if 
 the issue of the bastard eigne upon a petition be restored, for 
 that the seisure was without cause, the midier is not barred, for 
 the bastard could never enter, and consequently could gain no 
 estate in the land, but the possession of the king in that case 
 
 shall
 
 245. b.J Of Discents. L. 3. C. 6. Sect. 402. 
 
 shall be adjudged in the right of the mulier. And it is to be 
 
 observed, that the bastard must enter in vacuum possessionem, 
 
 PI. Com. Parson and continue during his life, without interruption made by the 
 
 de Honylane's mulier. 
 
 case. 91. 
 
 35 EL 6. 24. " Interrupts the possession of such bastard, &c." If the bastard 
 
 21 H. 6. 9. invite the mulier to see his house, and to see pictures, &c. or to 
 
 .,, y ; I j dine with him, or to hawk, hunt, or sport with him, or such like 
 
 o E. 4. 60. upon the land descended, and the mulier commeth 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 trespasse ; but if the mulier commeth upon the 
 
 ground of his own head, and cutteth downe a tree, or diggeth the 
 
 soile, or take any profit, these shall be interruptions ; for rather 
 
 than the bastard shall punish him in an action of trespasse, the 
 
 act shall amount in law to an entry, because he hath 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 doe 
 
 amount to an entry; for albeit in these cases the mulier doth not 
 
 use any express words of entry, yet these, and such like acts, 
 
 doc without any words amount in law to an entrie ; 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 &c.) More shall be said 
 
 hereafter of interruptions in the chapter of Continuall Claime. 
 
 Sect. 402. 
 
 A LSO, if an infant within age hath such cause to enter into any lands 
 or tenements upon another, which is seised in fee, or in fee taile of 
 the same lands or tenements, if such man who is so seised dieth of such 
 estate seised, and the lands descend to his issue during the time that 
 the infant is within age, such diseent shall not take away the entry (2) 
 of the infant, but that hee may enter upon the issue which is in by diseent, 
 for that no laches shall be adjudged in an infant within age in such a case. 
 
 Brooke, tit. " TF an infant within age hath such cause to enter." If a man 
 
 Diseent, 40. seised of lands in fee die, his wife privement enseint. with a 
 
 son, and a stranger abate and die seised, and after the sonne is 
 borne, hee shall bee bound by the diseent (1), because hee at 
 the time of the diseent had no right to enter, and this is to be 
 gathered upon these words of Littleton, hath cause to enter, which 
 at the time of the diseent he hath not. 
 
 20 H. 6. 2S. b. uj s i n fry discentf & c ." Here is implyed any other heire, col- 
 
 2^20,26. i at e r all or lincall. 
 
 An 
 
 15 E. 4. 
 Diseent. 30. 
 
 (2) He need not enter hastily after his full age, but may do it two or three 
 years or more after his full age, but caveat that he do not permit a descent 
 after his full age before his entry, for then it will toll his entry. 1 Rep. 140. 
 —[Note 183.] 
 
 (1) A contrary doctrine seems to be asserted in Dyer, 94. b. — [Note 182.]
 
 L. 3. C. 6. Sect. 204. Of Discents. [246. a. 
 
 An infact is accounted in law (as hath beene often 
 
 [34:6.~j said), [d] untill he passeth the J&£g""age of 21 yeares, [d] Vide Sect. 
 a. I and certaine privileges hee hath in respect of his 259 - 403. 
 infancy. 
 
 u No laches shall be adjudged in an infant within age in such 
 a case." 
 
 And Littleton well added (in stich a case) that is, in case of 33 e. 3. Quar. 
 
 discent, for in some other cases laches shall prejudice an infant. Imp- 46. 
 
 As laches shall be adjudged in an infant if he present not to a (^ n . t- 111'?' 
 
 1 , . ,, . . J s , „ , r . , Post. 337. b. 
 
 church within six monetns, tor the law respecteth more the 350. b. 380.) 
 
 privilege of the church (that the cure bee served) than the 
 
 privilege of infancy. And so the publike repose of the realme pi. Com. 372. 
 
 concerning men's freeholds and inheritances, shall be preferred (F. N. B. 33. B. 
 
 before the privilege of infancy, in case of a fine, where the time ® 5" ep ' t 9 !'^' 
 
 begins in the time of the ancestor. So non-claime of a villaine 
 
 of an infant by a yeare and a day, who hath fled into ancient 
 
 demesne (A), shall take away the seisure of the infant. And 
 
 if an infant bring not an appeale of the death of his ancestor 
 
 within a yeare and a day, he is barred of his appeale for ever, 
 
 for the law respects more liberty and life than the privilege of 
 
 infancy. And here it is to be observed, that Littleton putteth his 
 
 case, that an infant shall enter upon a discent, when a stranger 
 
 dieth seised, but hee put it not so before, in the case of the 
 
 bastard eigne. B. tenant in taile infeoffeth A. in fee, A. hath (Post. 348. a. 
 
 issue within age and dieth, B. abateth and dieth seised; the 35 7. a.) 
 
 issue of A. being still within age, this discent shall binde[e] the [ e ] 11 e. 4. 1, 2. 
 
 infant, for the issue in taile is remitted; and the law doth more F. N. B. 35 M. 
 
 respect an ancient right in this case, than the privilege of an 
 
 infant that had but a defeasible estate. And it is said [/] if the [/] 35 h. 6. 60. 
 
 king die seised of lands, and the land descend to his successor, 
 
 that this shall bind an infant, for that the privilege of an infant 
 
 in this case holds not against the king(l). 
 
 Sect. 
 
 (A) See post, 254. b. where lord Coke states that, if a villein remained in ancient 
 demesne a year and a day, he is privileged. 
 
 (1) This and many other passages in this work, respecting the operation and 
 force of the acts of infants, were fully considered in the cases of Zouch v. Par- 
 sons, 3 Burr. 1794; and May v. Hook, heard before lord chancellor Bathurst, 
 in 1773. — There being no printed account of the last case, it may not, perhaps, 
 be unacceptable to the reader to find an account of it here. — Ann May and her 
 two sisters were, under their father's will, seised of a considerable freehold 
 estate; and possessed of a considerable leasehold estate, as joint tenants. Pre- 
 vious to the marriage of Ann May with John Hook the defendant, she being 
 then an infant, by articles of agreement dated the 28th of October 1701, and 
 made between her of the first part, John Hook of the second part, and trustees 
 of the third part, it was covenanted and agreed, that the leasehold estates should 
 be assigned to John Hook for his own use and benefit; and that the freehold 
 estates should be settled on him for life; and then on her for life; remainder to 
 their first and other sons successively in tail male; remainder to their daughters, 
 as tenants in common in tail; remainder to John Hook in fee. And he cove- 
 nanted to pay 1001. to the trustees upon trust to pay Ann Hook, if she survived 
 him, the interest of it for her life, and after her decease to divide it among the 
 children. — Afterwards Ann May died under age. The question was, Whether 
 these articles were in equity a severance of the joint-tenancy ? Lord Chancellor 
 
 Bathurst
 
 24:6. a.] Of Discents. L. 3. C. 6. Sect. 403. 
 
 Sect, 403. 
 
 A L, 
 
 LSO, if husband and wife., as in right of the wife, have title and 
 right to enter into lands which another hath in fee, or in fee tayle, 
 and such tenant dieth seised, $c. in such case the entry of the husband 
 is taken away upon the heire which is in by discent. But if the hus- 
 band die, then the wife may well enter upon the issue which is in by 
 discent, for that no laches of the husband shall turn the wife or her 
 heires to any prejudice nor losse in such case, but that the wife and her 
 heires may well enter, where such discent is eschued during the coverture. 
 
 u TF husband and wife, as in right of the wife, have title and 
 right to enter, &e. and such tenant dieth seised, &c." 
 9 H. 7. 24. a. These words are generall, but are particularly to bee under- 
 
 2 E. 4. 25. stood, viz. when the wrong was done to the wife during the 
 
 20 II 6 28 b coverture; for if a feme sole be seised of lands in fee, and is dis- 
 42 E. 3. 12. seised, and then taketh husband; in this case the husband and 
 
 15 E. 4. wife, as in the right of the wife, have right to enter, and yet 
 
 Discent, 30. ^ e dying se ised 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 shee herselfe when shee was sole might have 
 entred and recontinued the possession, as also it shall be ac- 
 counted her folly that shee would take such a husband which 
 would not enter before the discent. 
 
 But 
 
 Bathurst, when he made his decree in this cause, observed, that the first point 
 attempted to be established by the counsel was, that, had Ann May been of 
 full age when she entered into the articles, they would have amounted to a 
 severance; but that no determination to that effect had ever been made: — That 
 the co-joint-tenants were not, in this case, to be considered as volunteers, as 
 they claimed by title paramount; and that their situation approached nearer to 
 that of issue in tail, who claimed per form am doni, than to that of an heir at 
 law, who claims only under his ancestor: — That the utmost which the infant 
 could do would be an avoidable act; and that, of course, it would be in the dis- 
 cretion of the court either to give or refuse their assistance to it; and, by a 
 parity of reason, it must always be in their power to model his contracts at 
 their pleasure : — That the contract, in the present case, was not such as the 
 court would uphold. Had the infant lived to come of age, and a bill been 
 filed against her for a performance of the articles, the court would have them 
 set aside, and referred it to a master to draw new proposals for a proper settle- 
 ment : — That as the contract was not such as would have bound the infant 
 herself, a fortiori it should not bind the co-joint-tenants: — That it would be a 
 strange doctrine, that any act of an infant, which is by its nature avoidable, 
 should sever the joint-tenancy, as, if that were allowed, it would always be in 
 the power of the infant to say whether the joint-tenancy should be severed or 
 not; then, if any of the co-joint-tenants should die under age, the infant might 
 avoid his own act, by pleading infra setatem, and resort to his title of survivor- 
 ship, which would be a great injustice and hardship on the co-joint-tenants. 
 
 On these grounds his lordship was of opinion, that the articles did not amount 
 in equity to a severance of the joint-tenancy. — [Note 184.]
 
 L. 3. C. 6. Sect. 404-5. Of Discents. [246. b. 
 
 [246.1 *®* But there if the woman were within age at the 9 H. 7. 24. 
 b. | time of her taking of 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 
 shee was within age when shee tooke husband, and after cover- 
 ture she cannot enter without her husband ; all which is implyed 
 in the said (&c.) 
 
 " No laches of the husband shall turn the wife, &c. to any pre- Vid. Sect - 492 - 
 judice, &c." Laches signifieth in the common law, retchlesnesse, Ant 233 b 
 or negligence, et negligent ia semper habet infortunium comitem. i Lev. 266. 
 Here is a diversity to be observed, that albeit regularly no laches 8 Rep. 100. 
 shall be accounted in infants, or feme coverts, as is aforesaid, p lo ° 2 3 " 
 for not entry or clayme to avoid discents, yet laches shall be ac- 
 counted in them for no performance of a condition annexed to 
 the state of the land. For if a feme be infeoffed either before 
 or after marriage, reserving a rent, and for default of payment a 
 re-entrie ; in that case, the laches of the baron shall disherit 20 H. 6. 28. b. 
 the wife for ever. And so it is In] of an infant ; his laches, for [»] 31 Ass. p. 17. 
 not performing of a condition annexed to a state, either made to pj ^ j^ ', 
 his ancestor or to himselfe, shall barre him of the right of the 10 h. 7. 
 land for ever. 13 H. 7. 
 
 If a man make a feoffment in fee to another reserving a rent, ™ ^ 6- , • , 
 
 , . „ , . ... , , , . p. . , . ' PI. Com. 136. b. 
 
 ana it he pay not the rent within a moneth, that he shall double Fieta, lib.2. 
 the rent, and the feoffee dieth, his heire within age, the infant cap. 50. 
 payeth 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 sta- 
 tute, [o] non current usuruce contra aliquem infra cctatem existen', [°1 k° statute de 
 &c. But that statute doth not extend to a feme covert, neither Merton ' ca - 5 - 
 doth that statute extend to a condition of a re-entry ; which an 
 infant ought to performe, for the forfeiture thereof cannot bee 
 called usura. 
 
 * Sect. 404. 
 
 TfUT the court holdeth, where such title is given to a fern sole, who 
 after taJceth husband which doth not enter, but suffer a discent, §c. 
 there otherwise it is, for it shall be said the folly of the wife to take such 
 a husband which entered not in time, $c. 
 
 rPHIS is added, and therefore as formerly I have done, I 9 H. 7. 24. 
 -L meddle not withall j howbeit the opinion is holden for law, 
 as it appeareth in the section next precedent. 
 
 Sect. 405. 
 
 ALSO, if a man which is of non sane memory, that is to say in Latine, 
 qui non est compos mentis, hath cause to enter into any such tene- 
 ments, if such discent, ut supra, bee had in his life during the time that he 
 
 was 
 
 * This Section is not in L. and M. or lloh. 
 Vol. II.— 19
 
 246. b.] Of Discents. L. 3. C. 6. Sect. 405. 
 
 was not of sound memorie, and after dieth, his heire may well enter 
 upon him ivhich is in by diseent. And in this case you may see a case, 
 where the heire may enter, and yet his ancestor which had the same title 
 could not enter. For hee which was out of his memorie at the time of 
 such diseent, if he will enter after such a diseent, if an action uponthis 
 be sued against him, he hath nothing to plead for himselfe, or to helpe 
 him, but to say, that he was not of sane memorie at the time of such dis- 
 eent, $c. And he shall not be received to say this, for that no man of 
 full age shall be received in any plea by the law to disable his owne per- 
 son (pur ceo que nul home cle pleine age serra resceive en ascun plee per 
 la ley a * disabler le person demesne), but the heire may well disable the 
 person of his ancester for his oivne advantage in such case (pur son ad- 
 vantage f demesne en tiel cas), for that no laches may be adjudged by 
 the laiv in him ivhich hath no discretion in such case. 
 
 HERE Littleton explaineth a man of no sound memorie to be 
 non compos mentis. Many times (as here it appeareth) the 
 Sanders, lib. 4. Latin word explaineth the true sense, and calleth him not aniens, 
 fo, 127. 182. demens, furiosus, lunaticus, fatuus, stultus, or the like, for non 
 Beverley's case. com p OS men ti s is most sure and legall (1). 
 
 Mirror, cap. J, • •* . 
 
 sect. 9. ca. 5. sec*. 1. Bract, fo. 166 and 420. Britton. fo. 167. b. 217. 66. Fleta, li. 
 
 6 ca. 39. Fitz. X. B. 222. B. Staunf. Prer. 33, 34. (Hob. 96. Sid. 112.) 
 
 Non 
 
 * destultifer et, added in L. and M. f demesne — del heire, X. and M. 
 and Roh. and Boh. 
 
 (1) Scotch Pleading, anno 61. case 5. pages 69 and 70, and Sir Thomas 
 Stewart's case. Fatui sive idiotaa sunt il li tantum, qui omni ratiocinatione et 
 judicio carent, tardi, bardi, moriones macaerones, qui inopia caloris, et spiritum 
 laborant. Furor est dementia cum ferocia, et horrenda actionum vehementia. 
 Fromanus de jure furiosorum, p. 6. Furor dividitur in continuum ; ubi animus 
 continua mentis agitatione semper accenditur ; et interpolatum seu intervalla- 
 tum : qui dilucida habent intervalla ; quorum furor habet inducias, et quos 
 morbus non sine laxamento aggreditur; qui testamentum facere possunt ; & 
 quos furor stimulis suis variatis vicibus accendit. In these fury and madness is 
 but an ague or a disease ; in the others, it is temperament and complexion. Again 
 among those who have lucid intervals, it may be fit to distinguish between those 
 who have only remissionem seu adumbratam quietem, and those tcho have inter- 
 missionem seu resipiscentiam integram. Two icitnesses deposing sanae menti, 
 are preferred and believed before an hundred touching fury and madness. Me- 
 lancholy and hypochondriac vapours are like storms at sea, which, though they 
 disturb for a while, yet they do not hinder the returning to the former calm ; 
 semel furibundus, semper furibundus prgesumitur ; and therefore where the 
 question is of a fact done lucido intervallo, which may be cither by remission or 
 intermission, it is not enough to show the act zcas actus sapienti conveniens, for 
 that may happen many ways ; but it must be provtd to be actus sapientis, and to 
 proceed from judgment and deliberation, else the presumption continues. Lord 
 Nott. MS. — On the general law, repecting lunacy, and the acts of lunatics much 
 useful information may be obtained from Mr. Ridgway's report of the great 
 cause of Hume v. Burton, usually called Lord Ely's case, adjudged in the 
 House of Lords in Ireland, on the 24th March 1784 ; (Ridgway's Cases in 
 Parliament, vol. 1. p. 16. and the six Appendixes), and from lord Thurlow's 
 argument, in pronouncing his decree, in the case of the Attorney-General v. 
 Parnther, 3 Bro. Cha. Ca. 441.— [Note 185.]
 
 L. 3. C. 6. Sect. 405. Of Discents. [247. a. 
 
 [0,4:7.1 Non compos mentis is fi^g"" of four sorts ; 1. Ideota, (2 Inst. 14.) 
 a. J which from his nativitie, by a perpetuall infirmitie, is 
 non compos mentis. 2. Hee that by sicknesse, griefe, or 
 other accident, wholly loseth his memorie and understanding. 
 
 8. A lunatic that hath sometime his understanding and some- Lib. 4. 124, 125. 
 time not, aliquando gaudel lucidis intervallis, and therefore he is Beverleye's 
 called non compos mentis, so long as he hath not understanding. case " 
 Lastly, hee that by his owne vitious act for a time depriveth 
 himselfe of his memorie and understanding, as he that is drunken. 
 But that kinde of non compos mentis shall give no privilege or 
 benefit to him or to his heires. And a discent shall (1) take 
 away the entrie of an idiot, albeit the want of understanding was 
 perpetuall ; for Littleton speaketh generally of a man of non sane 
 memorie. So likewise if a man that becomes non compos mentis 
 by accident, as is aforesaid, be disseised and suffer a discent, 
 albeit he recover his memorie and understanding againe, yet hee (8 Rep. 170.) 
 shall never avoid the discent; and so it is a fortiori of one that 
 hath lucida intervalla. As for a drunkard who is voluntarius 
 daemon, he hath (as hath beene said) no privilege thereby, but 
 what hurt or ill soever he doth, his drunkenesse doth aggravate (Plo. Com. 19.) 
 it : Omne crimen ebrietas & incendit, & detegit. 
 
 If an ideot make a feoffment in fee, he shall in pleading never (4 Rep. 123. b. 
 avoid it by saying that hee was an ideot at the time of his feoff- * • • *?• ^v 
 
 i ii i i n i • • • ■ -r» i re 39 H. 6. 42. b. 
 
 inent, and so had beene ironi bis nativitie. ±>ut upon an omce Abb. Ass. 89. b. 
 found for the king, the king shall avoid the feoffment, for the F. N. B. 202. 
 benefit of the ideot, whose custodie the law giveth to the king. ^-?; 3 - 70 - 
 
 „ ' A - v -J & . i c w • Bntton, cap.28. 
 
 bo it is ot a non compos mentis by accident, and ot bira qui f i # gg # 
 
 gaudet lucidis intervallis, if an estate be made during his lunacie : 25 Ass. pi. 4. 
 
 for albeit the parties themselves cannot be received to disable 35 Ass - P 1 - 10 - 
 
 themselves, yet twelve men upon their oathes may finde the truth 
 
 of the matter. But if any of them alien by fine or recoverie, this 32 E. 3. tit. 
 
 shall not only binde himselfe, but his heires also (2). As Scire fac.160. 
 
 J ' v y Staundf. Pr. 34. 
 
 F. N. B. 202. A. Beverleye's case, lib. 4. 126, 127, 128. 
 
 amongst 
 
 (1) In all the editions except the first, the word not is here erroneously 
 inserted. 
 
 (2) Lord Hobart observes in the case of Needier v. Bishop of Winchester, 
 that in these cases "the law finds these persons not so disabled, nor admits the 
 " averment of such disablement, because it is certified by invincible and indis- 
 " putable credit of the judge, that they were perfect and able persons. And so 
 " here is a law of policy that doth not cancel the law of nature, but doth only 
 " bound it in point of form and circumstance ; it being better to admit a mischief 
 " in particular, even against the law of nature, than an inconvenience in general : 
 " and it is not the law of nature to admit an improbable surmise against au- 
 " thentic record or evidence." Hob. 224. — Sir Ed. Coke observes, post. 380. b. 
 that the only mode by which an infant can reverse a fine levied by him, is by 
 appearance in court during his infancy, and being inspected by the judges ; 
 non testium testimonio, autjuratorum veredicto, sedjudicis inspection e sola m modo: 
 the judges may, however, inform themselves in cases of this kind by means of 
 witnesses, church books, or any other kinde of evidence. It appears a great 
 hardship that infants should not be permitted to reverse their fines after they 
 attain their full age; and it seems unaccountable that the law, which will not 
 permit them to do it after they attain their full age, should permit them to do it 
 before that age. The objection that no averment can be made against any fact 
 which is upon record, applies as much to them before their attaining their full 
 
 age
 
 247. a. 247. b.] Of Discents. L. 3. C. 6. Sect. 405. 
 
 Vide Br. tit. 
 Dum fuit infra 
 aetatem, 5. 
 
 [r] Lib. 4. 
 fol. 126, 127. 
 (Plo. 19. a. 
 F. N. B. 232.) 
 
 1 
 
 26 Ass. 27. 
 
 21 H. 7.31. 
 8taundf. 16, b. 
 8 E. 2. Coron. 
 412. 414. 351. 
 
 22 E. 3. 
 ibid. 224. 
 Beverley's case, 
 ubi supra. 
 F. N. B. 202. D. 
 3 H. 7. 2. 
 Vide 3 E. 3. 
 tit. Entrie Cong. 
 Statham. 
 12 E. 4.8. 
 39 H. 6. 4. Abbr 
 
 15 E.4. 
 
 tit. Discent. 30. 
 
 amongst other things requisite to be knowcn, these cases you 
 shall finde at large in my Commentaries, wkereunto, for brevitie, 
 I referre the reader : upon all which bookes there have beene 
 foure several opinions concerning the alienation, or 
 other act of aOO^man that is non compos mentis, &c. 10,4^*7 . 
 For, first, some are of opinion, that he may avoid his j b. 
 owne act by entrie, or plea. Secondly, others are of 
 opinion, that hee 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 sup>ra. 
 And Littleton here is of opinion, that neither by plea nor by writ 
 nor otherwise, he himselfe shall avoid it, but his heire (in respect 
 his ancestor was non compos mentis) shall avoid it by entrie, plea, 
 or writ. And herewith the greatest authorities of our bookes 
 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 partie shall not disable himselfe. But this holdeth only in 
 civil causes ; for in criminall causes, as felonie, &c. the act and 
 wrong of a madman shall not be imputed to him, for that in 
 those causes, actus non facit reum, nisi mens sit rea, and he is 
 amens [id est) sine mente, without his mind or discretion ; and 
 furiosus solo furore punitur, a madman is only punished by his 
 madnesse. And so it is of an infant, untill he be of the age of 
 fourteene, which in law is accounted the age of discretion. 
 
 " And in this case you may see a case, &c." And though 
 Littleton saith (one case), yet other cases may be found to the 
 
 same end. For if there be grandfather, father, and son, and the 
 father disseise the grandfather, and make a feoffment in fee, 
 without warrantie, the grandfather dieth, albeit the right de- 
 scend to the father, he cannot by this right descended enter 
 against his owne feoffment ; but if he die the sonne shall enter 
 and avoid the estate of the feoffee. 
 
 Ass. 89. 39 H. 6. 43. (Post. 265.) 
 
 So if the grandfather be tenant in taile, and the father disseise 
 him, ut supra, mutatis mutandis. 
 
 If lands be given to two and to the heirs of one of them, he 
 that hath the fee simple shall not have an action of waste upon 
 
 the 
 
 age as after. But the contrary has been too often established to be now called 
 in question. See Ann Hungate's case, 12 Rep. 122. Warcombe and Carrel's 
 <-ase,ib. 124. Herbert Perrot's case, 2 Vent. 30. Hutchinson's case, 3 Lev. 36. 
 Requishe and Requishe, Bulst, p. 2. 320. Sarah Griffith's case, 12 Mod. 4-14. 
 With respect to the fines levied by idiots and lunatics, see 12 Rep. 124. Hugh 
 Lewing's case, 10 Rep. 42. b. But infant trustees within the stat. 7 Ann. c. 19. 
 may both levy fines and suffer common recoveries. See 3 Atk. 479. 559. Com. 
 Rep. 615. Barnes's Cases of Pract. 217. See also Fitz. Nat.Bre. 202. where 
 much argument is used to show, that a non compos may plead his disability to 
 avoid his own acts as well as an infant; and 2 Black. Com. ed. 5. p. 291. But 
 in Stroud v. Marshal, Cro. Eliz. 398. debt upon obligation, the defendant 
 pleaded, that at the time of the obligation made, he was de non sane memory : 
 and it was thereupon demurred, and adjudged to be no plea; for he cannot 
 save himself by such a plea ; and the opinion of Fitzherbert was held not to 
 be law.— [Note 186.]
 
 L.3. C. 6. Sect. 406-7. Of Discents. [247. b. 248. a. 
 
 the statute of Gloucester, against the joyntenant for life, but his (Ant. 53. b.) 
 heire shall inaintaine an action of waste against him, upon the 20 °- b -) 
 statute of Gloucester; so the heire shall maintain? that action 
 which the ancestor could not. 
 
 Sect. 406. 
 
 j\ND if such a man of non sane memorie make a feoffment, $c. he 
 himselfe cannot enter (il * mesme ne poit enter), nor have a writ 
 called Dum non fuit compos mentis, &c. causa qua supra ; but after his 
 death his heire may well enter (mes apres f la mort son heire bien poit 
 enter), or have the said writ of Dum non fuit compos mentis at his choice.% 
 The same laio is where an infant within age maketh a feoffment, and 
 dieth, his heire may enter, or have a writ of Dum fuit infra getatem, &c, 
 
 " lyiAKE a feoffment, &c." Or any other like conveyance in 
 pais ; but fines and other assurances of record are not im- 
 plyed in this {&c). 
 
 " The same law is where an infant." This is true, as to the 
 bringing of a Dum fuit infra oztatem, &c. but without question 
 the infant in that case might have entered, as it appeareth in 
 the next Section (1). 
 
 " Writ o/Dum non fuit compos mentis." This writ (as it ap- 
 peareth by our author) lieth for the heire of him that was non 
 compos mentis, and not for himselfe; but a Dum fuit infra ceta- 
 tem lieth as well for the ancestor himself after his full age, as for 
 his heire. 
 
 [ 3 t a ] 
 
 wr Sect. 407. 
 
 ALSO, if I be § disseised by an infant within age, who alieneth to 
 
 another in fee, and the alienee dieth seised, and the lands descend to 
 
 his heire, || being an infant within age, my entrie is taken away,$c. T(l)4. 
 
 Sect. 
 
 * mesme not in L. and M. or Roh. § disseised not in Roh. but in L. 
 
 f la — sa, L. and M. and Roh. and M. 
 
 I &c. added in L. and M. and Roh. || and added in L. and M. and Roh. 
 
 — The rest of this Section not in L. \ &c. not in L. and M. or Rtoh. 
 and M. or Roh. 
 
 (1) See the observation of Mr. Dunning on this passage in his argument in 
 the case of Zouch ex demiss. Abbot and Hallett v. Parsons, 3 Burr. 1794. 
 
 (1) | The original text of section 407, is " Item, si jeo sue disseisi per un 
 enfeant deins age, lequel aliena a un auter en fee, et V alienee devie seisi, et les 
 tenements descendent a son heir, esteant I' enfant deins age, mon entry est tolle, &c." 
 It is apprehended, that, on comparing the text with the version, it will be found, 
 that lord Coke has given a wrong translation of Littleton. In this and the next 
 
 section,
 
 248. a.] Of Discents. L. 3. C. 6. Sect. 408, 409. 
 
 Sect. 408. 
 
 ~B UT if the infant ivithin age enter upon the heire which is in by dis- 
 cent, (que est § ems per discent), as he well may, for that the same 
 discent was during his nonage (pur ceo que || mesme le discent fuit 
 durant son nonage), then I mag well enter upon the disseisor, because 
 by his entrie he hath defeated and taken away the discent. 
 
 Vide the next TTERE it appeareth, that the entrie of the infant is lawfull, 
 
 Sect, following. XI and giveth advantage to the disseisee to enter also, because 
 
 the discent, which was the impediment, is avoided. And it is to 
 
 be observed, that if the discent be cast, the infant being within 
 
 43 e. 3. age, he may enter at any time, either within age, or after his 
 
 tit Entr. Cong, full age. 
 
 T9fi' h' B " -^- n ^ s0 ** * s ^ an m ^ ant ma ke a feoffment, &c. he may enter 
 
 F. N. B. 192, either within age, or at any time after his full age, and so in 
 45 E. 3. 21. both cases may his heire. 
 
 Sect. 409. 
 
 TN the same manner it is, where I am disseised, and the disseisor maize 
 a feoffment in fee upon condition, and the feoffee die of such estate 
 seised, If 1 may not enter upon the heire of the feoffee (jeo ne purroy** 
 my enter sur ft l'heire le feoffee): but if the condition be broken, so as 
 for this cause the feoffor enter upon the heire, now I may well enter, 
 for that when the feoffor or his heires enter for the condition broken, 
 the discent is utterly defeated, §c. %% 
 
 Vide the Sect. T^HE reason hereof is apparent, for cessante cansd, cessat cau- 
 next precedent. _L satum. Tenant in capite maketh a feoffment in fee to the 
 f°f e 298 3 299 use °^ t ' ie f eom3e anc * hi s heires, untill the feoffor pay an hundred 
 (Ant. 5.' 395.) pounds to him or his heires, the feoffee dieth his heire within age, 
 
 now 
 
 § eins — heire L. and M. and Roh. ** my not in L. and M. or Roh. 
 ]| mesme not in L. and M. but in ff l'heire — la terre L. and M. and 
 
 Roh. Roh. 
 \ &c. added in L. and M. and Roh. JJ &c. not in L. and M. or Roh. 
 
 section, Littleton puts the case of a person disseised by an infant, who aliens 
 the land in fee, and the alienee dies, the infant disseisor being still under age. 
 A descent is thereby cast, which takes away the entry of the disseisee; but the 
 alienation being made by an infant, is voidable by his entry, and if the descent 
 happens during his infancy, it does not affect his right of entry. He may 
 therefore enter notwithstanding the descent ; and, if he does enter, the right of 
 entry of the disseisee is revived. It is obvious, that the point of this case is, 
 not that the heir of the alienee is an infant within age, as lord Coke translates 
 it, but that, at the time of the descent, the infant disseisor still continues an 
 infant. The words, esteant V enfant deins age, should therefore be translated,, 
 "the infant being under age." — [Note 187.]
 
 L. 3. C. 6. Sect. 410. Of Discents. [248. a. 248. b. 
 
 now hath the king the wardship of the bodie, and is intituled to 
 the gard of the land. But if the feoifor pay the hundred pounds 
 according to the limitation, the wardship is devested, both for 
 the body and the land, and so it is in case of a condition : for, as 
 Littleton here saith, the discent, which is the cause of wardship, 
 is utterly defeated. And by these two last cases which Littleton 
 hath here put, it appeareth, that there is no difference, where the (Ant. 76. b.) 
 discent is disaffirmed by a right paramount, as where 
 
 [248. "1 the state was never JEJgr lawfull (as in the case of an 
 b. I infant,) and where a discent is affirmed for a time, 
 the estate being lawfull, and being after defeated by 
 matter ex post facto, by a title of re-entry. 
 
 Sect. 410. 
 
 A LSO, if I be disseised, and the disseisor hath issue and entreth into 
 religion, by force whereof the lands descend to his issue, in this case 
 I may well enter upon the issue, and yet there ivas a discent. But for 
 that such discent commeth to the issue by the act of the father, scilicet, 
 for that he entred into religion, $c. and the discent came not unto him by 
 \he act of Grod, (scilicet) by death, $c. my entry is congeable. ^ For if I 
 arraigne an assise of novel disseisin against my disseisor, albeit he after 
 enter into religion, this shall not abate my writ, but my writ {notivith- 
 standing this) shall stand in his force, and * my recovery against him 
 shall bee good, f And ty tne same reason the discent which commeth 
 to his issue by his own act, shall not take from me my entry, §c. 
 
 " JpNTRETRinto religion, &c." Here is implied profession. Vide Sect. 200. 
 
 This discent shall not barre the entry of the disseisee, for ( Ant - 132 -) 
 that the discent commeth by the deed of the father, because he 
 entred into religion, wherein there is an excellent point worthy 
 of observation : for albeit the entry into religion make not the 
 discent, but the profession, whereof you have read before, Sect. 
 200, yet here you may learne by Littleton that the law respects 
 the originall act, and that is, his entry into religion, which is (Ant. 126. b. 
 his owne act, whereupon the profession followed ; whereby the g 3 ^" 61 x 
 discent happened; for Cujusque rei potissima pars, prind pium 
 est. And againe, Origorei inspici debet, whereof you shall make 
 great use in reading of our bookes. [*] Here Littleton attributeth [*] Vid.Pl.Com. 
 the cause of the discent to his entry into religion, which was his ®*™ e Hale ' s 
 owne act, whereas a discent doth not take away an entry unlesse g'e. 3. 41, &c. 
 it commeth by death, which, as Littleton saith, is the act of God, 
 and no glorious pretext of an act (no, though it bee of religion) 
 shall work a wrong to a stranger, that hath right, to barre him 
 of his entrie. But it is said, that in the case of the bastard 
 eigne, and mulicr puisne, such a discent shall bind the mulier, 10 E. 3. 55. 
 as before hath beene said, and such an heire that commeth in (Ant. 244.) 
 by such a discent shall have his age. 
 
 " For 
 
 * my recovery not in L. and M. or f And not in L. and M. or Boh,. 
 Boh.
 
 248. b. 249. a.] Of Discents. L. 3. C. 6. Sect. 411. 
 
 3 H. 6. 41. « For if I arraigne an assise, dec." Nota, if a man be tenant 
 
 18 E 4 10 or defendant m a rea ^ or personall action, and hanging the 
 
 9 E. 4. 25. 52. suit the tenant or defendant entreth into religion, by this the 
 
 7 E. 4. 15. writ is not abated, because it is by his owne act. And so it is 
 
 It e \ \t' °^ a res ig na tioii J but otherwise it is of a deposition, or depriva- 
 
 46 E. 3! 25! tion, because he is expelled by judgment, and yet his offence, 
 
 30 E. 1. &c. was the cause thereof, sed in prmsumptione legis, judicium 
 
 Briefe, 885. redditur ill invitum. 
 Bracton, ho. 4. 
 fo. 189 & lib. 5. 
 
 fo. 414. " From me my entry, &c." Here is implyed, or any of my 
 
 22 R. 2. heires. 
 
 Briefe, 936. 
 15 Ass. pi. 8. 
 
 *8t Sect. 411. |~249.-| 
 
 A LSO, if I let untoaman certaine lands for the terme of twenty yeares, 
 and another disseiseth me, and oust the termor, and die seised, and 
 the lands descend to his heire, I may not enter ; and yet the lessee for 
 yeares may well enter, because that by his entry hee doth 7iot ouste the heire 
 who is in by discent of the freehold which is descended unto him, but only 
 * claymeth to have the lands for terme of yeares, ivhich is no expulsion 
 from the freehold of the heire who is in by discent (lequel n'est f pas 
 expulsement de le franktenement del heire que est eins per discent). 
 But otherwise it is where my tenant for terme of life is disseised (ou mon 
 tenant a terme de vie est J clisseisie), causa patet, &c. || (1) 
 
 " TpOR the terme of twenty yeares." It is cleere that a discent 
 shall not take away the entrie of a lessee for yeares, as our 
 author here saith, nor of a tenant by elegit, or tenant by statute 
 merchant, or such like, as have but a chattle and no freehold ; 
 and the reason is, for that by their entry upon the heire by dis- 
 cent, they take no freehold (which, as often hath bin 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 discent of a free- 
 hold and inheritance shall take away the entrie of him that right 
 hath to a freehold, or inheritance, so a discent of a freehold and 
 inheritance cannot take away the entry of him that hath but a 
 chattle, for that no discent or dying seised can be of the same. 
 
 (2) A man 
 
 * claymeth not in L. and M. or J disseisie — seisie, &c. L. and M. 
 Hob. and Roh. 
 
 f pas not in L. and M. or Roh. || &c. not in L. and M. or Roh. 
 
 (1) A lease is considered as a covenant real, that binds the possession of 
 lauds into whose hands soever it comes, if the lands be not evicted by a superior 
 title; yet the termor has not the freehold in him, but holds the possession as 
 bailiff of the freeholder, nomine alieno, by virtue of the obligation of the 
 covenant. Now then, if the termor enters before the descent, he revests the 
 freehold in the disseisee, who has the right of possession ; but if he enters 
 after the descent, then he can only hold in the name of the freeholder, who 
 has the present right of possession, which is the heir of the disseisor. Gilb. 
 Ten. 35.— [Note 188.]
 
 L. 3. C. 6. Sect. 412. Of Discents. [249. a. 249. b. 
 
 (2) A man seised of an advowson in fee grants three avoyd- (See 2 Roll, 
 ances one after another, and after the church becommeth void, Ho £ 322 ' 32 3 # 
 and the grantor presents, and his clarke is admitted and insti- 5 R e p. 57. 102.) 
 tuted, and after the church becomes void againe, the grantee may 
 present to the second avoydance, 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 
 chattle, that any discent may be cast to take away his entry (as 
 Littleton here saith) ; so in the said case the grantor hath the 
 franktenement and fee of the advowson rightfully so as he cannot 
 make any usurpation, to gaine any estate, or to put the grantee 
 so out of possession as that he should not present, no more than 
 the lessee for yeares in this case, to enter. Also in respect of the 
 privitie that is between them, the usurpation of the grantor shall 
 not put the grantee out of possession for the two latter avoyd- 
 ances. And this was resolved [a] by all the judges of the court H nil - 18 Ehz. 
 of common pleas, which I myselfe heard and observed. banco. 
 
 Sect. 412. 
 
 ALSO, it is said, that if a man be seised of lands in fee by occupation in 
 
 time of tvarre, and thereof dieth seised in the time of ivarre, and the 
 
 tenements discend to his heire, such discent shall not oust any man of his 
 
 entry; and of this a man may see in a plea upon a writ of aiel, 7 E. 2. 
 
 " T)Y occupation in time of warre. 1 ' 
 
 First, it is necessarie to be knowne what shall bee said 
 time of peace, tempus pads ; and what shall be said tempus (4 Inst. 125.) 
 belli, sive guerrce, time of warre. Tempus, pads est 
 
 [2 -49 . "| O^T" quando cancellaria, & alia: curia: regis sunt apertce, Inter bre via de 
 b. I qidbuslexfiebatcuicunqueproulfiericonsuevit. And so ""™ j &pasch. 
 it was adjudged in the case of Roger Mortimer and of 28 E. 3. inter 
 Thomas earle of Lancaster. Utriim terra sit guerrina necne, natu- adjudicata co- 
 raliter debet judicari per recorda, regis, & eorum, qui curias regis 1*™^^ The" 
 per legem terra*, custodiunt, & gubernant, sed non alio modo. gaur , p a seh. 
 
 39 E. 3. inter ajudicata coram rege in Thesaur. lib. 2. fol. 92. (Cro. Car. 71.) 
 14 E. 3. tit. Scire facias, 122. but more fully in the record at large. 
 
 And therefore when the courts of justice be open, and the 
 judges and ministers of the same may by law protect men from 
 wrong and violence, and distribute justice to all, it is said to be 
 time of peace. So, when by invasion, insurrection, rebellions, or 
 
 such 
 
 (2) Hob. 322, 323. sir William Elvis's case. This very case was the prin- 
 cipal point ', and there, by Hobart, Warbvrton, and Winch, it was adjudged 
 contra, that usurpation by the grantor puts the grantee out of possession, and gets 
 all that teas granted out, Hutton dissentiente. But it appears that this case is 
 good laxc, and that Hutton erravit. Hil. 12 Car. C. B. Legge v. Archer. A 
 man leased an advowson for years, and then presented ', this was ruled to be no 
 usurpation, but plenarty pro hac vice : this case is cited I. 8, usurjmtion 5. idcpie 
 ratione privity, ut inter coparceners, and because it is against his own act. 8 
 Rep. Damport's case. Lord Nott. MSS. — [Note 189.]
 
 249. b.] Of Discents. L. 3. C. 6. Sect. 412. 
 
 such like, the peaceable courts of justice is disturbed aud stopped 
 so as the courts of justice be as it were shut up, et silent ley is 
 inter arma, then it is said to be time of warre. And the triall 
 hereof is by the records, and judges of the court of justice; for 
 by them it will appeare whether justice had her equall course 
 of proceeding at that time or no, and this shall not be tried by 
 
 If a man be disseised in time of peace, and the discent is cast 
 in time of warre, this shall not take away the entry of the 
 disseisee. 
 Bracton, lib. 4. Item tempore pads, quod dicitur ad differentiam eorum quce 
 fol. 240. fuerunt tempore belli, quod idem est, quod tempore guerrino, quod 
 
 nihil differt a tempore juris, & injuries ; est enim tempus injuriee, 
 cum fuerunt oppressiones violentce, quibus resisti non protest & dis- 
 seisince injustce. 
 
 So as hereby it also appeareth, that time of peace is the time 
 of law and right, and time of warre is the time of violent oppres- 
 sion, which cannot be resisted by the equal course of law. And 
 therefore in all reall actions, the expleas, or taking of the profits, 
 are layed tempore pads, for if they were taken tempore belli, they 
 are not accounted of in law. (1) 
 
 "By 
 
 (1) If tenant by elegit is interrupted in taking the profits of the land, by 
 reason of war, he shall not hold over, but it shall be in disadvantage of the 
 tenant by elegit. 19 E. 1. Execution, 246. 4 Rep. 82. b. In Lib. Rubb. 
 Scacc. fol. 241. tempus guerrae duravit a quarto die Apl. 48 H. 3. usque ad 
 17 Sep. an. 49, apud Winter post bellum de Evesham pax proclamata fuit. 
 Nota H. 3. 19 die Oct. anno ejusdem 16. fuit apud "Wall. An. 40, fuit apud 
 Oxon. 48. apud Dudl. 14 Maij. an. 49. fuit apud Evesham. Et tamen sunt 
 placita de Rich. 16 H. 3. de banco. Tr. 16 H. 3. Et assisa magna 40 H. 3. 
 48 H. 3. M. 40 H. 3. P. 48 H. 3. P. 49 H. 3. Et placita coram rege 
 a 32 usque 40 H. 3. Tr. 4 H. 3. 26 et 27 E. 1. Ent. R. T. Rot. 5. Goods 
 were seized for debt to the king : the sheriff returned, that the Scots entered 
 hostiliter, by reason of ichich they could not be taken : Rule Fiat inde inquisitio, 
 
 & interim pacem habeatde demanda. Xoy, MS. 384. 3 Inst. 53. See the 
 
 case of the earl of Lancaster put at large. Nota, that in 14 E. 3. F. scire 
 facias, 122. there is no intimation at all of the matter ; but on the record of this 
 case, as it is to be seen in the manuscript Rep.* of Coke, 428, the case was thus ; 
 Henry Lancaster granted to the Abbot of Rumsey and his successors, quod si ex 
 tunc aliquo tempore vel aliqua occasione guerrae in regno Angliae feriam suarn 
 amitterent, ita quod nihil inde percipere possunt, quieti essent ejusdem anno 
 et tempore de forma sua. prcedicta 50/. And upon scire facias for the arrears of 
 that rent, ichich was in court for three years, viz. 11, 12, and 13 E. 3. the 
 abbot pleaded these charters, and said, that guerra fuit tarn super mare quani 
 super terram inter dominum regem et illos de Francia, ita quod mercatores ad 
 dictas nundinas nee venerunt ut solebant, nee ipse abbas, aliquod proficuum de 
 iisdem nundinis per idem tempus percepit nee percipere possit, quod paratus 
 fuit verificare juxta tenorem charta3 prsedictae ; and it was resolved, quod utrum 
 terra sit guerrina, &c. prout hie notatur. Then it follows in the said manuscript ; 
 Nota, quod guerra dicitur in hoc regno esse, quando exercitium justitia) in curiis 
 et placeis regis impeditur. And Coke adds a short note : Ceo tryall de guerre 
 in cest realm ; et ex hoc semble que ne fuit guerre inter E. 4. et H. 6. car 
 
 exercitium 
 
 * The Editor has not been able to discover what the manuscript is to which lord Nottingham 
 alludes in this place.
 
 L. 3. C. 6. Sect. 412. Of Discents. [249. b. 
 
 "By occupation." Occupation is a word of art, and signifieth Ingham, cap. de 
 a putting out of a man's freehold in time of warre; and it is all Novel disseisin. 
 one with a disseisin in time of peace, saving that it is not so 
 dangerous as it appeareth here by Littleton; and therefore the 
 law gave a writ in that case of occupant, so called, by reason of 
 that word in the writ, in stead of disseisivit, in the assise of novel 
 disseisin, if the disseisin had beene done in time of peace; Lib.4.fol.49,50. 
 whereby it appeareth, how aptly both in this, and in all other Ognel's case, 
 places, Littleton thorow his whole booke speaketh. But albeit 
 occupatio, whereof Littleton here speaketh, is used only in the 
 said writ (2) and in none other, (that I can finde or remember) 
 yet hath it been used commonly in conveyances and leases, to 
 limit, or make certaine precedent words ad tunc in tenurd & 
 occupations But occupatio is applyed to the possession, be it 
 lawfull or unlawfull; it hath also crept into some acts of parlia- 
 ment, as 4 E. 7. cap. 19. 39 Eliz. cap. 1. and others; and occu- 
 pare is sometimes taken to conquer. 
 
 " And of this a man may see in a plea upon a writ of aiel, 7 
 E. 2." Hereby it appeares, that ancient termes or yeares, after 
 the example of Littleton, are to bee cited and vouched for con- 
 firmation of the law, albeit they were never printed; and that of 
 those yeares, those especially of E. 1. H. 3. &c. are worthy of 
 the reading and observation ; a great number of which I have 
 seene and observed, which in mine opinion doe give a great light, 
 not onely to the understanding and reason of the common law, 
 (which Fitzherhert either saw not, or were by him omitted) but 
 also to the true exposition of the ancient statutes made in those 
 times. Yet mine advice is, that they be read in their time. For 
 after our student is enabled and armed to set on our yeare bookes, 
 or reports of the law, let him read first the latter reports, for two 
 causes. First, for that for the most part the latter judgements 
 and resolutions are the surest, and therefore it is the best to 
 season him with them in the beginning, both for the settling of 
 his judgment, and for the retaining of them in memorie. 
 Secondly, for that the latter are more facile and easier to be 
 understood than the more ancient: but after the reading of them, 
 then to reade these others before mentioned, and all the ancient 
 authors that have written of our law; for I would wish our stu- 
 dent to be a compleat lawyer. But now to returne. As it is 
 in case of discent, so it is in case of presentation, for no usurpa- 
 tion in time of warre putteth the right patron out of possession, 
 albeit the incumbent come in by institution and induction : and 
 time of warre doth not onely give privilege to them that be in 
 warre, but to all others within the kingdome ; and although the 
 admission and institution be in time of peace, yet if the present- 
 ment were in time of warre, it putteth not the right patron out 
 of possession. 
 
 Sect. 
 
 6 E. 3. 41. 
 
 
 7 E. 3. 
 
 
 Darr. 
 
 pres. 
 
 2. 
 
 18 E. 
 
 2. 
 
 
 Quar. 
 
 imp. 
 
 175 
 
 F. N. 
 
 B. 31 
 
 I. 
 
 exercitium justitite non impeditum fuit, come appiert per les reports dc 10 E. 
 3. et 49 H. 6. nee temps H. 3. hie supra, nee temps Car. 1. Lord Nott. MS. 
 —[Note 190]. 
 
 (2) This perhaps is not quite accurate, as the words of the writ of mandamus 
 are these : Quis terras et tenementa (del tenant del rotj) a tempore mortis ejus- 
 dem tenentis occupavit et exitus et proficuas inde percepit. F. N. B. 253. B. 
 Nov. lib. intrat. fol. 402. c. and vid. Stat, de Bigamis, cap. 4.— [Note 191.]
 
 250. a.] Of Discents. L. 3. C. 6. Sect. 413. 
 
 *rSect. 413. [^o.j 
 
 ALSO that no dying seised {where the tenements come to another by 
 succession) shall take away the entrie of any person, Sj-c. As of 
 prelates, abbots, priors, deanes, or of the parson of a church, or of other 
 bodies politike (Item, * que nul morant seisie (ou les tenements viendront 
 a un auter per succession) f tollera l'entre a'ascun person, &c. % Come 
 de prelates, abbots, priors, deans, ou parson d'esglise, || ou d'auters 
 corps politicke), Sfc. albeit there were xx. dyings seised, and xx. succes- 
 sors, this shall not put any man from his entrie §. 
 More shall be said of discents in the next \ chapter. 
 
 Vid. Sect. 1. " T>Y succession." This in the common law is applied only to 
 bodies politike, or corporate, which have succession per- 
 petuall, and not to naturall men : as to a bishop and his succes- 
 sors, or to an abbot, deane, archdeacon, prebend, parson, &c. 
 and their successors, and not to I. S. or any other naturall body 
 7 E. 3. 25. a. and his successors, but to him and his heires. And the succes- 
 5 E. 3. 13. & 31. sor of any of these is in the post, and the heire of the naturall 
 man is in the per; and succedere is derived of sub and cedere. 
 
 " Bodies politike, &c." This is a body to take in succession, 
 framed (as to that capacity) by policie, and thereupon it is called 
 here by Littleton a body politike; and it is also called a corpora- 
 tion, or a body incorporate, because the persons are made into a 
 body, and are of capacity to take and grant, &c. And this body 
 politike, or incorporate, may commence, and be established three 
 manner of ways, viz. by prescription, by letters patents, or b}' 
 act of parliament. Every body politike, or corporate, is either 
 ecclesiasticall or lay: ecclesiastical, either regular, as abbots, 
 priors, &c, or secular, as bishops, deanes, archdeacons, parsons, 
 vicars, &c. ; lay, as maior and communaltie, baylifes and bur- 
 gesses, &c. Also every body politike, or corporate, is either 
 Lib. 3. fo. 73. elective, presentative, collative, or donative. And againe it is 
 in the ease of the either sole, or aggregate of many; as you mayreade in the Third 
 te^ofNorwich" ^ art °^ m J Commentaries. And this body politike, or cor- 
 (l Sid. 162.) porate, aggregate of many, is by the civilians called collegium 
 (11 Rep. 77. a.) or universitas. 
 
 Chap. 
 
 * que not in L. and M. or Roh. § &c. addded in L. and M. and Roh. 
 
 •}• ne added in L. and M. and Roh. \ next chapter — chapter of Con- 
 
 j Come — quor. L. and M. and Roh. tinuall Claime, L. and M. and Roh. 
 || ou d'auters corps politicke, not in 
 L. and M. or Roh.
 
 L. 3. C. 7. Sect. 414. Of Continuall Claime. [250. a. 250. b. 
 Chap. 7. Continuall Claime. (1) Sect. 414. 
 
 (JONTINUAL claim is where a man hath right and title to enter 
 into any lands or tenements whereof another is seised in fee (con- 
 tinual claime est f la lou home ad droit et title d'entrer en ascuns ter- 
 res ou tenements dont ** auter est seisie en fee), or in fee tail, if hee 
 which hath title to enter makes continuall claime to the lands or tene- 
 ments before the dying seised of him which holdeth the tenements, then 
 albeit that such tenant dieth thereof seised, and the lands or tenements 
 descend to his heire, yet may he who hath made such continual claime, 
 or his heire, enter into the lands or tenements so descended, by reason 
 of the continuall claime made, notwithstanding the discent. As in 
 case that a man bee disseised, and the diseeisee makes continuall claime 
 to the tenements in the life of the disseisor, although that the disseisor 
 dieth seised in fee, and the land descend to his heire, yet may the dis- 
 seissee enter upon the possession of the heire, notwithstanding the dis- 
 cent §. 
 
 HERE our Author first describeth what a continuall claime is. Mirror, cap. 1. 
 
 It is called continuum clameum, because at the common law 2 15 & 2 *?■ 
 
 it must have beene made within every yeare and day, as Littleton fo _ 4*35*436. 
 
 here teacheth. And yet if hee that right hath, maketh claime, Britton, 107. b. 
 
 and the ter-tenant dieth within the yeare and the day, 126 - 4 - . 
 
 [350.] this claime though it bee but J8@~ once [*] made (as JJj^j^s. 8, 
 
 b. I hath beene said) shall preserve the entry of him that vid. Sect. 424. 
 
 maketh the claime (1) II. Vid. Sect. 385. 
 
 v ' " 32 H. 8. c. 33. 
 
 [*] Vid. Sect. 424. 
 
 " Hath 
 
 f per added in L. and M. § &c. added in L. and M. and 
 
 ** un added in L. and M. Roll. 
 
 (1) By the statute of limitations, 21 Jac. 1. c. 16, it is enacted, that no entry 
 shall be made by any man upon lands, unless within twenty years after his 
 
 right shall accrue. By the 4th and 5th (A) Ann. c. 16, it is enacted, that 
 
 no entry shall be of force to satisfy the statute of limitations, or to avoid a fine 
 levied of lands, unless an action be thereupon commenced within one year 
 after, and prosecuted with effect. — [Note 192.] 
 
 (1) || It has been observed in the notes to the chapter of Discents, that the 
 reasons for which the law protected the possession of the heir of the disseisor 
 from the entry of the disseisee, were, the notoriety and presumptive right of 
 possession which the disseisor accpuired by his being permitted to hold during 
 his life the peaceable possession of the lands ; the necessity that there should 
 be a tenant to do the feudal duties ; and by way of a punishment on the tenant 
 for his neglect in not asserting his right. But none of these reasons could 
 exist, where the tenant entered upon the lands, and made his claim for them ; 
 as, by doing it, he prevented the presumption in favour of the title of the 
 disseisor ; made a tender to the lord of his feudal services ; and did all that 
 was in his power to restore his possession. But, to entitle the disseisee to enter 
 on the heir of the disseisor, notwithstanding the descent upon him, this claim 
 must have been made within a year and a day nest preceding the descent. 
 Lord Chief Baron Gilbert, in his commentary upon this chapter, observes, that 
 
 the 
 
 (A) The act is styled 4th Ann. c. 16, in Ruffhcad's edition of the Statutes at large.
 
 Dyer, 19 El. 
 PI. Com. 374. 
 15 H. 7.3.4. 
 Jaoobin's case. 
 28 H. 6. 28. 
 Vid. Sect. 422. 
 45 E.3. 21. 
 
 7 H. 6. 40. 
 Contin. Clairae, 
 1 Downcler's 
 case. 5 E. 4. 4. 
 (Plo. 191. a.) 
 (9 Rep. 106.) 
 {1 Rep. 67. a.) 
 (1 Roll. Abr. 
 630.) 
 
 250. b. | Of Continuall Claiine. L. 3. C. 7. Sect. 414. 
 
 " Hath right and title to enter." And yet in some cases a 
 continuall claiine may be made by him that hath right, and can- 
 not enter. 
 
 If tenant for yeares, tenant by statute staple, mercbant, or 
 elegit, be ousted, and he in the reversion disseised, the lessor, or 
 he in reversion, may enter to the intent to make his claime, and 
 yet his entry as to take any profits, is not lawfull during tbe 
 terme. And in the same manner, the lessor or he in the rever- 
 sion in tbat case may enter to avoid a collateral warranty, or the 
 lessor in tbat case may recover in any assise. And so (as some 
 have holden) may the lessor enter in case of a lease for life, to 
 this intent, to avoid a discent, or a warranty. 
 
 If the disseisee make continuall claime, and the disseisor die 
 seised within tbe yeare, his heire within age, and by office the 
 king is intitled to the wardship, albeit the entry of the disseisee 
 bee not lawfull, yet may he make continuall claime to avoid a 
 discent, and so in the like. 
 
 u Yet may he who hath made such continuall claime, or his heire, 
 enter." This is to be understood in this manner : that if the 
 father make claime, and the disseisor dieth, and then the father 
 dieth, that his heire may enter, because the discent was cast in 
 the father's time, and the right of entry which the father gained 
 by his claime shall descend to his heire. But if the father make 
 continuall claime, and dieth, and the sonne make no continuall 
 claime, and within the yeare and day after the claime made by 
 the father, the disseisor dieth, this shall take away the entrie of 
 the sone, for that the discent was cast in his time, and the 
 claime made by the father shall not availe him that might have 
 claimed himselfe. And of this opinion was Littleton himselfe 
 in our bookes, where he holdeth that no continuall claime can 
 avoid a discent, unlesse it be made by him that hath title to 
 enter, and in whose life the dying seised was. See more of this 
 matter hereafter, in this chapter, Sect. 416. 
 
 And as here Littleton putteth his case of the ancestor and 
 heire, so it holdeth in all respects of the predecessor and suc- 
 cessor. 
 
 S ect, 
 
 the notion of laches, in not claiming for a year and a day, is taken from the 
 feudal law ; this being the period of time within which the feudal services 
 must be required. It is a space of time which is prescribed for the performance 
 of different acts in our law, and in all laws derived from the feudal institutions. 
 It seems only to import the sp-.'ce of a complete year. Thus in the fourth 
 law of Charlemagne it is said, Cujuscunque hominis proprietas oh crimen quod 
 idem habet commissum in bonnum fuerit misca, & tile re cognitd ne justitiam 
 faciat venire distulerit, annumque et diem in eo banno esse permiseret, idterius 
 earn non acquirat, sed ipsafisco nostro societur. — In the laws of King Pepin it is 
 said, De rebxts forfactis, quae per diversos comitatos sunt, volumus %d. ad pala- 
 tium pertineant, transacto anno et die. In the Vieux Coutoumier de Nbrmandie 
 it frequently occurs. Something similar is to be found in the Roman law, in 
 which a person who was bound to pay a sum of money in two months, was 
 considered to acquit himself from the obligation, if he paid the money on the 
 61st day. See Pasquier, les Recherches de la France, lib. 4. cap. 32. De Van 
 etjour que Von desira es matieres de retraicts lignagers et de la complainte. — In 
 Plo. Com. 359. a lord chief justice Dyer is said to have defined claim to be a 
 challenge of the ownership, or propriety, that he hath not in possession, but is 
 detained from him by wrong. — [Note 193.] 
 
 Bracton, lib. 5 
 fo. 436. 
 Fleta, lib. 5. 
 cap. 52, 53. 
 22 H. 6. 37. 
 9 H. 4. 5. a. 
 15 E. 4. 22. a. 
 
 23 H. 6. 37.
 
 L. 3. C. 7. Sect. 415, 416. Of Continuall Claime. [251. a. 
 
 |~251.J jg^ g ect 4 15> (1 Rep. 14. a.) 
 
 TN the same manner it is, if tenant for life alien in fee, he in the re- 
 version or he in the remainder may enter upon the alienee. And if 
 such alienee dieth seised of such estate without continuall claime made 
 to the tenements, before the dying seised of the alienee, and the lands by 
 reason of the dying seised of the alienee descend * to his heir, then can- 
 not he in the reversion nor hee in the remainder enter. But f if hee in 
 the reversion or in the remainder, who hath cause to enter upon the 
 alienee, make continuall claime 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 (donques tiel home poit enter apres la 
 morte l'alienee, auxy bien come il % puissoit en sa vie) §. 
 
 BY this it appeareth, that a continuall claime may be made as 
 well where the lands are in the hands of a feoffee, &c. by 
 title, as in the hands of a disseisor, abator, or intruder, by 
 wrong, as before hath beene noted (1). 
 
 Sect, 416. 
 
 ALSO, if land be let to a man for terme of his life, the remainder to 
 another for terme of life, the remainder to the third in fee, if tenant 
 for life alien to another in fee, and he in the remainder for life maketh 
 continuall claime to the land before the dying seised of the alienee, and 
 after the alienee dieth seised, \\ and after he in the remainder for life die 
 before any entrie made by him, in this case he in the remainder in fee may 
 
 enter 
 
 * to his heir — to the heir of the \ puissoit en — poet a, L. and M. 
 alienee, L. and M. and Roh. and Roh. 
 
 ■f if not in L. and M. or Roh. § &c. in L. and M. 
 
 | &c. added in L. and M. and Roh. 
 
 (1) Except for the special purposes mentioned by Littleton and sir Edward 
 Coke, and in a few other instances, the lessor, if the lessee for life were dis- 
 seised, could not enter. But he might maintain an assise. In that case how- 
 ever, though he recovered the freehold, which was devested out of him, he 
 recovered no damages, because those were supposed to be a compensation for 
 the loss of possession, which loss was sustained not by him, but by the tenant 
 for life. 15 H. 7. 4. — The lessor might enter upon the lessee to examine 
 whether he had committed waste, or to view repairs. Bro. Trespass. 16. 97. 
 208. And if the lessee impeded his entry, the lessor might bring an action on 
 the case. Cro. Jac. 478. — Express covenants, that it shall be lawful for the 
 lessor to enter and view the lands demised, are now usually inserted in leases. 
 — For the entry of reversioners, or remainder-men to avoid a fine, see Margaret 
 Podger's case, 9 Rep. 106.— [Note 194.]
 
 251. a. 251.1).] Of Continuall Claime. L. 3. C. 7. Sect, 416. 
 
 enter f upon the heire of the alienee, by reason of the continuall claime 
 made by him which had the remainder for life, because that such right 
 as hee had of entrie, shall goe and remaine to him in the remainder after 
 him, insomuch as hee 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 continuall claim (pur ceo que tiel droit que 
 il averoit d'entre, % alera et remaindra a celuy en le remainder apres 
 luy, entant que celuy en le remainder en fee § ne puissoit pas enter sur 
 l'alienee en fee durant la vie celuy en le remainder pur terme de || sa 
 vie, et pur ceo * que il ne puissoit adonques faire continuall claim). 
 "\\{For none can make continuall claime but when he hath title to 
 enter, $c.) 
 
 (1 Roll. Abr. 
 630.) 
 
 Vide Sect. 581. 
 609, 610, 611. 
 
 (1 Rep. 14.) 
 17 El. Dy.339. 
 16 El. Dy. 324. 
 
 " A LIEN to another in fee." It is to be observed, that a 
 forfeiture may be made by the alienation of a particular 
 tenant, two manner of wayes ; either in pais, or by matter of 
 record. 
 
 In pais, of lands and tenements which lie in livery (whereof 
 Littleton intendeth his case) where a greater estate passeth by 
 livery than the particular tenant may lawfully make, whereby 
 the reversion or remainder is devested, as here in the example 
 that Littleton putteth when tenant for life alieneth 
 Jg@*" in fee, which must bee understood of a feoff- T251. "1 
 ment, fine, or recoverie by consent. b. 
 
 If tenant for life, and hee in the remainder for life, 
 in Littleton's case, hath joyned in a feoffment in fee, this had 
 beene a forfeiture of both their estates, because hee in the re- 
 mainder is partieeps injuria;. And so it is if hee in the remain- 
 der for life had entred, and disseised tenant for life, and made a 
 feoffment in fee, this had beene a forfeiture of the right of his 
 remainder (1). 
 
 A particular estate of any thing that lies in grant cannot be 
 forfeited by any grant in fee by deed. As if tenant for life or 
 yeares of an advowson, rent, common, or of a reversion or remain- 
 der of land, by deed grant the same in fee, this is no forfeiture 
 of their estates, for that nothing passes thereby, but that which 
 lawfully may passe ; and of that opinion is Littleton in our bookes. 
 
 But if tenant for life or yeares of land, the reversion or re- 
 mainder being in the king, make a feoffment in fee, this is a 
 forfeiture, and yet no reversion or remainder is divested out of 
 trusion vers the king ; and the reason is, in respect of the solemnitie of the 
 Robinson pur le feoffment by liverie, tending to the king's disherison (2). 
 
 Mann.- Aa r»roT7 ._ /» -i 1 1 1 1 n 
 
 By matter of record, and that by three manner ot wayes. 
 First, by alienation. Secondly, by claiming a greater estate 
 than he ought. Thirdly, by affirming the reversion or remain- 
 der to be in a stranger. 
 
 33 E. 3. 
 Devise, 21. 
 15 E. 4. 9. 
 Vide Sect. 608, 
 609, 610. 
 (1 Roll. Abr. 
 854.) 
 
 (IRep. 76. b.) 
 
 35 H. 6. 62. 
 Tr. 32 El. in 
 Informat. de in- 
 
 Manor de Dray 
 ton Basset, so 
 resolved by the 
 court of ex- 
 chequer. 
 
 t &c. added in L. and M. and Roh. 
 f ne in L. and M. and Roh. 
 § que added in L. and M. and 
 Roh. 
 
 First, 
 
 || sa not in L. and M. or Roh. 
 * que not in L. and M. or Roh. 
 "W {For none can make continuall 
 claime) not in L. and M. or lloh. 
 
 (1) See the observations on feoffments introduced in the notes to the next 
 chapter. 
 
 (2) See ant. 233. b. note.
 
 L. 3. C. 7. Sect. 416. Of Continuall Claime. [251. b. 252.a. 
 
 First, by alienation; and that of two sorts, viz. by alienation (Post. 332. b. 
 divesting, or not divesting, the reversion or remainder. Divest- ^T'sbb) ° ' 
 ing, as by levying of a fine, or suffering a common recoverie of 
 lands, whereby the reversion or remainder is divested : not divest- 
 ing, as by levying of a fine in fee, of an advowson, rent, common, 
 or any other thing that lieth in grant ; and of this opinion is 
 Littleton in our bookes [*]. And so note two diversities : first, [*] 15 e. 4, 9. 
 between a grant by fine (which is of record) and a grant by 31 E. 3. Gr. 62. 
 deed in pais; and yet in this they both agree that the reversion l , ' "■ .,,. 
 or remainder in neither case is divested : secondly, betweene a 
 matter of record, as a fine, &c. and a deed recorded, as a deed 
 inrolled, for that worketh no forfeiture, because the deed is the 
 originall. 
 
 Secondly, by claime ; and that may be in two sorts, either 15 E. 2. 
 exprcsse or implyed. Expresse, as if tenant for life will in Jll £ £• 2 j*- 
 court of record claime fee, or if lessee for yeares be ousted, and 9 g" 3' 4. ' 
 he will bring an assise ut de libero tenemento. Implyed, as if 18 E. 2. 
 in a writ of right brought against him he will take upon him to Fr D p S \ 12 2 q 
 joyne the mise upon the meere right, which none but tenant in 36 H ' 6 ' -2 9'. 
 fee simple ought to doe. So if lessee for yeares doe lose in a 2 H. 6. 9. 
 praecipe, and will bring a writ of error, for error in processe, this * E1> Dy- 
 is a forfeiture (3). 22 Ass. 31. 
 
 18 E. 3. 28. 16 Ass. 16. (Mo. 77. 2 12. 1 Rep. 16.) 
 
 [252.~| 8®"" Thirdly, by affirming the reversion or remainder E u 
 a. I to be in a staanger, and that either actively or passively. 5 e. 4. 2. 
 
 Actively, by five manner of wayes. As first, if tenant 24 H. 8. Fori*, 
 for life pray in aid of a stranger, whereby he affirmes the rever- Bl > 8 J- ™ *■ 
 sion to be in him. Secondly, if he atturne to the grant of a Buckler's case, 
 stranger; and there note also a diversitie betweene an atturne- 27 E. 3. 77. 
 ment of record to a stranger, and an atturnement in pais, for an ^ ™ *• '' *• 
 atturnement in pais worketh no forfeiture. Thirdly, if a stranger 29 E ' 3 ' 2 ^ 
 bring a writ of enfcrie in causa provisa, and suppose the reversion 5 Ass. 5. 
 to be in hjm, if the the tenant for life confesse the action, this is 5 E - 3 - Entr - 
 a forfeiture. Fourthly, if tenant for life plead covinously to the i^[ 3 ' 
 disherison of him in the reversion, this is a forfeiture. Fifthly, Receit. 135. 
 if a stranger bring an action of waste against lessee for life, and •*• E. 32. 
 he plead nid wast fait, this is a forfeiture; or the like. j n.*7.' 
 
 (1 Roll. Abr. 852. 3 Rep. 4. b. 1 Leo. 264. 9 Rep. 106.) 
 
 Passively, as if tenant for life accept a fine of a stranger, sur 3 M ar . Dy. 143. 
 conusans de droit come ceo, &c. for hereby he affirmes of record 
 the reversion to be in a stranger (1). 
 
 Littleton here speaketh of the forfeiture of an estate ; and here Lib. 2. fol. 55. 
 it is to be knowen, that the right of a particular estate may be Buckler's case, 
 forfeited also, and that he that hath but a right of a remainder or 
 
 reversion 
 
 (3) So in the case of a lease for life, the tenant may plead it in bar; but 
 in the case of a lease for years, or an estate of tenant by statute or elegit, the 
 defendant shall not plead in bar, as to say, assisa nan, &c. but justify by force 
 of the lease : and conclude, issint sans tort ; and if the tenant of the freehold 
 be not named, he shall plead, nid tenant de. franctenement nosm6 en le bref: 
 and in the case of a feoffment with a warranty, he must rely on a warranty. 
 See ant. 228. b. 229. a.— [Note 195.] 
 
 (1) But, though this acceptance amounts to a forfeiture, it does not devest 
 the estate of him in remainder or reversion. 9 Rep. fol. 10G. b — [Note 196.] 
 
 Vol. II.— 20
 
 252. a.] Of Continuall Claime. L. 3. C. 7. Sect. 416. 
 
 reversion shall take benefit of the forfeiture. As if the tenant for 
 
 life be disseised, and hee levie a fine to the disseisor, he in the 
 
 reversion or remainder shall 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 of his right. 
 
 13 E. 4. 4. Littleton here speaketh of an alienation in fee absolutely, but 
 
 so it is if the lessee for life make a lease for any other man's life, 
 
 or a gift in taile. If A. be tenant for life, and make a lease to 
 
 B. for his life, and B. dieth, and the lessee re-entreth, yet the 
 
 forfeiture remaineth. 
 
 (Ant. 202. b.) ^ tenant for life make a lease for life, or a gift in taile, or a 
 
 39 Ass. 15. feoffment in fee, upon condition, and entreth for the condition 
 
 43 E ' 3 ' 3d broken, yet the forfeiture remaineth. Littleton speaketh of an 
 
 2 H 5°°f ' estate for life : so it is of tenant in taile apres possibilitie, tenant 
 
 39 E. 3. 16. by the courtesie, tenant in dower, or of him that hath an estate 
 
 45 E. 3. 25. to him and his heires, during the life of I. S. &c. and so of tenant 
 
 ^ 49 n ^ -. ' a " for yeares, tenant by statute merchant, statute staple, or elegit. 
 
 Littleton saith, that where the alienation in fee is made to 
 
 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 beene spoken in the chapter of tenant 
 
 for life. 
 
 By Littleton it appeareth, that tenant for life in remainder may 
 enter for the forfeiture of the first tenant for life, and that if the 
 tenant for life in remainder make continuall claime, and the 
 alienee die seised, then may he in the remainder for life enter ; 
 and if he die before he do enter, then he in the remainder in fee 
 shall enter, because he in the remainder in fee could not make 
 any claime (2); and therefore the right of en trie, which tenant 
 for life in remainder gained by his entrie (3), shall goe to him in 
 (1 Roll. Abr. the remainder in fee, in respect of the privitie of estate : and so it 
 '' is of him in the reversion in fee in like case, for he is also privie 
 
 in estate. • 
 
 If two joyntenants be disseised, and the one of them make 
 continuall claime, and dieth, the survivor shall take benefit of 
 his continuall claime in respect of the privitie of their estate. 
 
 But if tenant for life make a continuall claime, this shall not 
 give any benefit to him in the remainder, unlesse the disseisor 
 died in the life of tenant for life, for the cause abovesaid, Sec- 
 tione 414:. 
 
 If tenant in taile, the remainder in fee with garrantie, have 
 judgement to recover in value, and dieth before execution with- 
 out issue, he in the remainder shall sue execution, for he hath 
 right thereunto, and is privie in estate. 
 
 In the same manner, if a seigniore be granted by fine to one 
 for life, the remainder in fee, the grantee for life dieth, be in the 
 remainder shall have a per quae servitia, for he hath right to the 
 remainder, and is privie in estate. Here also it appeareth, that 
 none can make continuall claime, but he that hath right to enter. 
 
 Sect. 
 
 (2) i. e. during the life of him in the remainder for life. 
 
 (3) The word entry appears to be printed in this case by mistake, instead of 
 the word claim, which the context seems to require.
 
 L. 3. C. 7. S. 41 7. Of Continuall Claime. [252. a. 252. b. 
 
 Sect. 417. 
 
 J£ UT it is to be scene of thee {my son) how and in what manner such 
 continuall claime shall be made; and to learne this wel, three things 
 are to be understood. The first thing is, if a man hath cause to enter 
 into any lands or tenements in divers townes in one same countie, if he 
 enter into one parcell of the lands or tenements which are in one towne, 
 in the name of all the lands or tenements into the which he hath right to 
 enter within all the townes of the same countie ;* by such entrie he shall 
 have as good a possession and seisin of all the lands and tenements 
 whereof he hath title of entrie (de f touts terres ou tenements dont il 
 ad^ title d'entrie), as if he had entered J in deed into every parcell: and 
 this seemeth great reason. 
 
 " TF a man hath cause to enter into any lands or tenements, &c." (Pi . 355. b. 
 
 It is not sufficient to tell one generally what he should doe, 3 &9- a. 
 but to direct him how, and in what manner he shall doe it, as 3 * nst ;> 18 - 
 Littleton doth in this place. And here, the generall (Post 263. b) 
 
 [252.1 rules of our author are to bee figg- understood, that the 
 b. J entrie of a man, to recontinue his inheritance or free- This hath beeno 
 hold, must ensue his action for recoverie of the same, adjudged, Mich. 
 As if three men disseise me severally of three severall acres of * 4 & 15 Eli . z - 
 land, being all in one countie, and I enter in one acre, in the the* Earl ^f" 
 name of all the three acres, this is good for no more but for that Arundell's case, 
 acre which I entered into, because each disseisor is a severall 
 tenant of the freehold, and as I must have severall actions 
 against them for the recoverie of the land, so mine entrie must 
 be severall. 
 
 And so it is if one man disseise mee of three acres of ground, 
 and letteth the same severally to three persons for their lives, &c. 
 there the entrie upon one lessee, in the name of the whole, is (4 Leo. 8.) 
 good for no more than that acre that he hath in his possession. (1 Leo. 36.) 
 But if the disseisor had letten severally the said three acres to \} Ro11 - Abr * 
 three persons for yeares, there the entrie upon one of the lessees, U Leo> 51 \ 
 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 
 entrie shall serve for the whole. 
 
 If one disseise me of one acre at one time, and after disseise 1 Ass. IS. 
 me of another acre in the same countie at another time, in this 12 E - 4 - 10 - 
 case mine entrie into one of them in the name of both is good : 33 ass^tJ 7 '] 
 for that one assise might be brought against him for both dis- 
 seisins. 
 
 But if I infeoffe one of one acre of ground upon condition, 11 H. 7. 25. 
 and at another time I infeoffe the same man of another acre in D ? e J;; 
 the same countie upon condition also, and both the conditions 
 are broken, an entrie into one acre in the name of both is not 
 sufficient, for that I have no right to the land, nor action to 
 recover the same, but a bare title, and therefore severall entries 
 
 must 
 
 * and added in L. and M. and Roh. J in deed, not in L. and M. or 
 f touts — tiels, L. and M. and Roh. Roh.
 
 252. b. 253. a. J Of Continual Claime. L. 3. C. 7. S. 418. 
 
 must be made into the same, in respect of the several! conditions. 
 But an entrie in one part of the land, in the name of all the 
 land subject to one condition, is good, although the parcels be 
 severall, and in severall townes. And so note a diversitie be- 
 tweene sev /all rights of entrie, and severall titles of entrie, by 
 force of a condition (1). 
 
 " In one same countie." For if the lands lye in severall 
 counties there must be severall actions, and consequently seve- 
 rall entries, as hath beene said. 
 
 5 H. 7. 7. " I n ti ie name of all, &c." If one disseise me of two severall 
 
 4 E. 4. 19. acres in one countie, and I enter into one of them generally, 
 
 12 E. 4. 11. a. without saying, In the name of both ; this shall revest only 
 
 ( ll) 1 Rep. Lam- * na * acre wherein entrie is made, as hath beene said; and that 
 
 pet's case.) is proved by our bookes, which say, that if I bring an assise of 
 
 (Plo. Com. 91.) two acres, if I enter into one hanging the writ, albeit it shall 
 revest that only acre, yet the writ shall abate. 
 
 " Whereof he hath title of entrie." Here in a large sense, 
 title of entrie is taken for a right of entrie. 
 
 (V Il«[J. lOU. V.) 
 
 £t&ftf ■»• Sect. 418. 1-253.1 
 
 O. Ren. 31. ^ L a> J 
 
 TpOR if a man will enfeoff e another without deed of certaine lands or 
 
 tenements which he hath in many townes in one countie, and he will 
 
 deliver seisin to the feoffee of par cell of the tenements within one towne in 
 
 the name of all the lands or tenements which he hath in the same toivne, 
 
 and 
 
 (1) The entry for a condition broken has been discussed in the preceding 
 chapter, and the commentary and notes upon it. — With respect to entries for 
 avoiding fines, there were four modes of avoiding a fine at the common law; 
 two by matter of record, and two by acts in pais. Those by matter of record 
 were, a real action commenced within a year and a day after the fine was levied, 
 and an entry of a claim on the record at the foot of the fine itself, in this man- 
 ner, talis venit et apponit clameum suum. Those by acts in pais were a 
 lawful entry upon the land by the person who had a right ; and if that could 
 not be done, a continual claim. But by the statute of 4 H. 7. all those who 
 are affected by a fine must pursue their title by way of action, or lawful entry ; 
 so that a claim entered on the record of a fine would now be ineffectual. The 
 actual entry must be made by the person who has a right to the lands, or some 
 one appointed by him, either by preceding command or subsequent assent, 
 within five years. See Plowd. 355. 359. 2 Inst. 518. 3 Rep. 91. 2 Bla. Bep. 
 994. — By the statute of 4 Ann. c. 16. sect. 16. it is enacted, "That no claim 
 or entry to be made of or upon any lands, tenements, or hereditaments, shall 
 be of any force or effect to avoid any fine levied, or to be levied, with procla- 
 mations, according to the form of the statute in that case made and provided, 
 in the court of common pleas; or in the courts of sessions in any of the coun- 
 ties palatine, or in the courts of grand sessions in Wales, shall be a sufficient 
 entry or claim within the statute of limitations, unless upon such entry or 
 claim an action shall be commenced within one year next after the making of 
 such entry or claim, and prosecuted with effect." — [Note 197.]
 
 L. 3. C. 7. S. 419. Of Continuall Claime. [253. a.253 b. 
 
 and in other townes, $c. all the said tenements, $c. passe by force of 
 the said livery of seisin to him to whom such feoffment in such manner 
 is made, and yet hee to whom such livery of seisin was made hath no 
 right in all the lands or tenements in all the townes (et uncore celuy a 
 que tiel livery de seisin fuit fait, n'avoit droit * en touts les terres ou 
 tenements en touts les villes), but by reason of the livery of seisin made 
 of parcell of the lands or tenements in one towne : a multo fortiori, it 
 seemeth good reason that when a man hath title to enter into the lands 
 or tenements in divers townes in one same county, before entry by him 
 made, that by the entry made by him into parcell of the lands in one 
 towne, in the name of all the lands and tenements to which he hath title 
 to enter within the same county, this shall vest a seisin of all in him 
 (ceo f vest un seisin de touts en luy), and by such entry hee hath pos- 
 session and seisin in deed, as if he had entred into every parcell. 
 
 THIS is evident, but here is a diversity betweene a feoffment 38 E. 3. 11. 
 and an entry ; for a man may make a feoffment of lands in 38 Ass » 23. 
 another county, and make livery of seisin within the view, albeit 
 he might peaceably enter and make actuall livery; and so may 
 he shew the recognitors in an assise the view of lands in another 
 county; but a man cannot make an entry into lands within the 
 view where he may enter without .any feare (for it is [*] one 
 thing to invest, and another to devest), as hereafter shall be [*] Vide Sect, 
 said in the Section next following. next following. 
 
 "A multo fortiori." Or a minore ad majus, is an argument Vide Sect. 438. 
 frequent in our author, and in our bookes, the force of argument 
 in this place standing thus: if it be so in a feoffment passing a 
 new right, much more it is for the restitution of an antient right, 
 as the worthier and more respected in law, which holdeth affirm- 
 atively, as our author here teacheth us. 
 
 The three (&c.) in this Section need no explication. 
 
 p53.-j g@- Sect. 419. 
 
 tVHE second thing to be understood is, that if a man hath title to 
 enter into any lands or tenements, if he dares not enter into the 
 same lands or tenements, nor into any parcell thereof for doubt of beat- 
 ing, or for doubt of mayming, or for doubt of death, if he goeth and 
 approach as neere to the tenements as hee dare for such doubt, and by 
 word claime the lands to bee his, presently by such claime he hath a 
 possession arid seisin in the lands as well as\\if hee had entred in deed, 
 although hee never had possession or seisin of the same % lands or tene- 
 ments before the said claime. 
 
 HERE 
 
 J lands or not in L. and M. or 
 * en — a, L. and M. and Roh. Ron. 
 
 f vest — est, L. and M. and Roh. 
 || if not in L. and M. or Roh.
 
 253. b. J Of Continuall Claime. L. 3. C. 7. Sect. 419. 
 
 Vide the Sect. TT ERE is to be observed, that every doubt or feare is not suffi- 
 preceding. XX cient, for it must concerne the safety of the person of a 
 
 (2 Roll. Abr. man> and not jjj g houses or goods; for if hee feare the burning 
 2 Inst. 483.) of his houses, or the taking away or spoiling of his goods, this 
 7 E. 4. 21. is not sufficient, because hee may recover the same, or dammages 
 
 39 H. 6. 5. tQ t ^ e va j ue -without any corporall hurt. 
 
 Again, if the feare do concern the person, yet it must not bee 
 
 a vaine feare, but such as may befall a constant man; as if the 
 
 adverse partie lie in wait in the way with weapons, or by words 
 
 menace to beat, mayhem, or kill him that would enter; and so 
 
 in pleading must hee shew some just cause of feare, for feare of 
 
 (9 Rep. 13.) it selfe is internall and secret. But in a speciall verdict, if the 
 
 39 E. 3. 28. jurors doe finde that the disseisee did not enter for feare of cor- 
 
 }\ ^ 2 * o porall hurt, this is sufficient, and shall be intended that they had 
 
 tit. Dures, 2. ? . . ' , mi- i i . ± 
 
 12 H. 4. 19 20. evidence to prove the same, lalis enim debet esse metus qui 
 
 cadere potest in virum constantem, et qui in se continet mortis 
 
 Bract, lib. 2. pericidum, et corporis cruciatum. Et nemo tenetur se in/ortuniis 
 
 fol. 16. b. e t periculis exponere. 
 
 Britton, fol. 19. * * 
 
 66. Fleta, lib. 3. cap. 7. and lib. 2. cap. 54. 49 E. 3. 14. 14 H. 4. 13. 39 Ass. 11. 
 
 11 H. 6. 51. 38 H. 6. 27. 39 H. 6. 36. 5. 20 H. 6. 28. 4 E. 4. 17. 12 E. 4. 7. 
 
 28 H. 6. 8. 41 E. 3. 9. 11 H. 4. 6. 8 Ass. 25. Vide Sect. 434. "W. 2. cap. 49. 
 
 13 H. 4. Dures, 20. 
 
 And it seemeth that feare of imprisonment is also sufficient, 
 for such a feare sufficeth to avoid a bond or a deed; for the law 
 hath a speciall regard to the safety and liberty of a man. And 
 imprisonment is a corporall clammage, a restraint of liberty, and 
 a kind of captivity. But see in the Second Part of the Insti- 
 tutes, W. 2. cap. 49. a notable diversity betweene a claime or 
 an entry into land, and the avoidance of an act or deed for feare 
 of battery. 
 
 "By such claime, he hath a possession and seisin, &c." Here 
 is to be observed, that there be two manner of entries, viz. an 
 Vide Sect. 378. entry in deed, and an entry in law. An entry in deed is suffi- 
 ciently knowne. An entry in law is when such a claime is made 
 as is here expressed, which entry in law is as strong and as for- 
 cible in law as an entry in deed, and that as well where the 
 11 H. 6. 51. lands are in the hands of one by title as by wrong. And there- 
 (Post. 256. b.) fore upon such an entry in law an assise doth lie, as well as 
 upon an entry in deed, and such an entry in law shall avoid a 
 warranty, &c. 
 Via. Sect. 442. But here is a diversity to be observed betweene an entry in 
 Pi. Com. 93. in law and an entry in deed, for that a continuall claime of the dis- 
 Ass. de fresh- se i see being an entry in law shall vest the possession and seisin 
 
 Sn of Ho h ny- ar " in him for his advanta g e > Dut nofc for nis disadvantage. And 
 lane's case. therefore if the disseisee bring an assise, and hanging the assise 
 
 he make continuall claime, this shall not abate the assise, but 
 he shall recover dammages from the beginning; but otherwise 
 it is of an entry in deed. See more of this matter in this chap- 
 ter, Sect. 422. 
 
 Sect.
 
 L. 3. C. 7. Sect. 420-21 . Of Continuall Claime. [254. a. 
 
 [ 2 ^ 4 *] m* Sect. 420. 
 
 A ND that the law is so, it is well proved by a plea of an assise in the 
 booke of assises, an. 28 E. 3. p.* 32, the tenor whereof followeth in 
 this manner. In the county of Dorset, before the justices, it was found 
 by verdict of assise, that the plaintiff ivhich had right by discent of in- 
 heritance to have the tenements put in plaint, at the decease of his ancestor 
 was abiding in the towne where the tenements were, f and by paroll 
 claimed the tenements amongst his neighbours, but for fear e of death hee 
 durst not approach the tenements, but bringeth his assise, and upon 
 this matter found, it was awarded that he should recover, §c. 
 
 HEBE it appeareth that our booke cases are the best proofes 38 Ass. p. 23. 
 what the law is, Argumentum ab authoritate est fortissimum 
 in lege. And for proofe of the law in this particular case, Lit- 
 tleton here citeth a case in 38 E. 3, but it is misprinted, for the 
 originall, according to the truth, is in the Booke of Assises, 38 
 E. 3. p. 23, and not placito 32, for there be not so many pleas 
 in that yeare. And after the example of Littleton, booke cases 
 are principally to be cited for deciding of cases in question, 
 not any private opinion, teste meipso. More shall be said of the 
 matter implyed in this Section in the next following. 
 
 Sect. 421. 
 
 rp HE third thing is to know within what time % and by what time the 
 claim which is said continuall claime shall serve and aid him that 
 maketh the claime, and his heires. And as to this it is to be understood, 
 that he ivhich hath title to enter, ivhen he ivill make his claime, if he dare 
 approach the land, then he ought to go to the land, or to parcell of it, 
 and make his claime (donques il covient aler a la terre, ou a parcel de 
 ceo, § et faire son claime) ; and if he dare not approach the land for 
 doubt orfeare of beating or maiming, or death, then ought he to go and 
 approach as neere as he dare towards the land, or parcell of it, to make 
 his claime (donques covient a luy d'aler et approcher auxy pres come 
 il osast vers la terre, ou parcel de ceo, || a faire son claime). 
 
 11 /~\UGHT he to go and approch as nrere, &c." By this it 
 should sceme, that by the authority of our author, if the 
 disseissee commeth as neere to the land as he dare, &c. and 
 maketh his claime, this should be sufficient, albeit he be not 
 within the view. 
 
 And the great authorise of the booke [*] in 9 H. 4. (being by [*] 9 II. 4. 5. 
 
 the 
 
 * p. 32, not in L. and M. or Boh. § a added in L. and M. and 
 
 f &c. added in L. and M. and Boh. Roh. 
 
 % and by what time, not in L. and || a — et L. and M. and Roh. 
 
 M. or Boh.
 
 254. a. 254. b.] Of Continuall Claime. L. 3. C. 7. S. 422. 
 
 the whole court) is not against this ; for that case is put where 
 there is no such feare, as here our author mentioneth, in 
 him that makes the continall claime, O^F" and then he r354.~| 
 that makes the continuall claime ought to bee within [ b. 
 the view of the land ; and therefore the authoritie of 
 this booke, as it is commonly conceived, is not against the opinion 
 of our author in the point aforesaid. But then it is further object- 
 ed, that the said booke is against another opinion of our author 
 in this Section, viz. that where there is no feare, &c. hee that 
 * 11 H. 6. 31, maketh a continuall claime * ought to go to the land or to parcell 
 agreeth with our thereof to make his claime, and therefore in that case he cannot 
 point. 1 1D 1S make a claime within view of the land. To this it is answered, 
 (3 Rep. 25. that where a continuall claim shall divest any estate in any other 
 
 Ant. 15. person in any lands or tenements, there, as it hath beene said, 
 
 he that maketh the claime ought to enter into the land, or some 
 part thereof, according to the opinion of our author ; but where 
 the claime is not to devest any estate, but to bring him that 
 maketh it into actual possession, there a claim within the view 
 sufficeth : as upon a discent, the heire having the freehold in law 
 may claime land within the view to bring himselfe into actual 
 possession, and in that sense is the opinion of Hull and the court 
 Vid. Sect. 177. to be intended. Et sic de similibus. But yet the entry into 
 some parcel in the name of the residue is the surest way (1). 
 
 Sect. 422. 
 
 A ND if his adversary who occupieth the land, dieih seised in fee, or 
 in fee taile, within the yeare and day after such claime, whereby the 
 lands descend to his sonne as heir to him, yet may hee which makes the 
 claime enter upon the possession of the heir, J $c. 
 
 " ~\fiT ITHIN the yeare and a day." It is to bee observed, 
 Vid. Sect. 385. ' ' that the law in manv cases hath limited a yeare and a 
 
 14 H 4 36 ^ a y ^° ^ e a l e g a U an d convenient time for many purposes. As 
 
 7 E. 3. 37. ' at the common law, upon a fine or final judgment given in a 
 
 PI. Com. 356, wr it of right, the party grieved had a yeare and a day to make 
 
 357. 367. 
 
 Mirror, cap. 2. § 18. Britton, fol. 45. b. & 126. 
 
 his 
 
 | &e. not in L. and M. or Roh. 
 
 (1) Even where a declaration in ejectment is delivered, though the defendant 
 appears to it and confesses lease, entry and ouster, yet, to avoid a fine, there 
 must be an actuall entry. This was very solemnly determined in the king's 
 bench, in the case of Berrington v. Packhurst ; and by the lords on appeal in 
 1758. See 2 Stra. 1086. 4 Bro. Par. Cas. 353. This doctrine has since been 
 twice expressly recognized ; first, in the case of Oates ex dimiss. Wigfall v. 
 Brydon, 3 Burr. 1895; and afterwards in the case of Goodright v. Cator, Doug. 
 460. In that case lord Mansfield states the distinction to be, that where entry 
 is necessary to complete tlie landlord' 1 s title, there, the confession of lease, entry, 
 and ouster, is sufficient ; but that where it is requisite in order to rebut the 
 defendant's title, actual entry must be made. The latter is the case where a 
 fine is to be avoided. — [Note 198.]
 
 L. 3. C. 7, S. 423. Of Continuall Claime. [254c. b. 255. a. 
 
 his claime. So the wife or heire hath a yeare and a day to hring 
 an appeale of death. If a villeine remained in antient demesne 
 a yeare and a day, he is privileged. If a man be wounded or 
 poysoned, dec. and dieth thereof witbin the yeare and the day, it 
 is felony. By the antient law if the feoffee of a disseisor had (Post. 2G2. a.) 
 continued a yeare and a day, tbe entry of the disseisee for bis 
 negligence had beene taken away. After judgment given in a 
 reall action, the plaintife within the yeare and the day may have 
 a habere facias seisinam, and in an action of debt, &c. a capias (Ant. 130. b.) 
 fieri facias, or a levari facias. A protection shall be allowed 
 but for a yeare and a day, and no longer, and in many other cases. 
 
 But this time of a yeare and a clay in case of continuall claime Vid. Sect. 385. 
 is, since our author wrote, altered by the said statute of 32 H. 
 8. ca. 33, as before it appeareth. 
 
 [ 3 t 5 -] 
 
 j^~Sect. 423. 
 
 J} UTin this case after the yeare and the day that such claime was made, 
 if the father then died seised the morroiv next after the yeare and the 
 day, or any other day after (Mes en cest cas apres l'an et le jour que 
 tie! claime fuit fait, *si le pere donques morust seisi ademaine procheine 
 apres l'an et le jour, ou f un auter jour apres), $c. then cannot hee 
 lohich made the claime enter: and therefore if hee which made the 
 claime will be sure at all times that his entrie shall not be taken away 
 by such discent, $c. it behoveth him that within the yeare and the day 
 after the first claime J made, to make another claime in forme aforesaid, 
 and within the yeare and the day after the second claime \\ made, to make 
 the third claime in the same manner, and ivithin the yeare and the day 
 after the third claime to make another claime, and so over, that is to say 
 to make a, claime witliin everie yeare and day next after everie claime 
 made during the life of his adversarie, and then at what time soever his 
 adversarie dieth seised, his entrie shall not be taken away by any discent. 
 And such claime in such manner made (Et tiel claime en tiel maner § 
 fait), is most commonly taken and named Continuall Claime of him 
 which maketh the claime, $c. 
 
 IT is to be observed, that the yeare and the day shall bee Vid - Sect - 385 - 
 accounted, as the day whereon the claime was made shall be ( n ' ' "' 
 accounted one : as for example, if the claime were made 2. die 
 Martii, that day shall be accounted for one; for Littleton saith in 
 the Section next before (after the claime made) and then the yeare 
 must end the first day of March, and the day after is the second 
 day of March. 
 
 See for the computation of the yeare, de anno biscxtili, and of 
 
 the 
 
 * si nul auter clayme fuist fait || made not in L. and M. or Roh. 
 added in L. and M. anil Roll. § d'estre added in L. and M. and 
 
 f a added in L. and M. and Roll. Roh. 
 J made not in L. and M. or Roh.
 
 25o.a.25o.b.] Of Continuall Claime. L.3.C.7.S.424,425. 
 
 the day naturall and artificiall, and other parts of the yeare, 
 264. 344. 359! [ a l Bracton, \1j] Britton, and [c] Fleta, excellent matter. 
 (2 Roll. Abr. 1521.) [J] Britton, fol. 209. [c] Fleta, lib. 6. cap. 11. Statute de anno 
 Bisextili. 21 H. 3. Dier, 17 Eliz. 345. 
 
 Sect. 424. 
 
 ~DUT yet in the case aforesaid, wliere his adversarie dieth within the 
 
 yeare and the day next after the * claime, this is in law a 
 continuall claime, insomuch as his adversarie Jggp^ within the V 237.1 
 yeare and the next day after the same claime dieth. For he L b. J 
 ivhich made his claime needeth not to make any other claime, 
 but at what time he will within the same yeare and day (car il ne besoigne 
 a celuy que fist son claime de faire ascun auter claime, mes a quel temps 
 que il f voit deins mesme l'an et jour), Spc. 
 
 Vid. Sect. 414. This is evident. 
 
 (Vid. Stat. C pp 4- 4.9 X 
 
 32 H. 8. c. 33.) kJC^U -tlukj. 
 
 ALSO, if the adversarie be disseised within the yeare and the day 
 after such claime, and the disseisor thereof dieth seised within the 
 yeare and the day, frc. such dying seised shall not grieve him which made 
 the claime, but that he may enter, §c. For whosoever hee be that dieth 
 seised within the yeare and the day after such claim made, this shall not 
 hurt him that made the claime, but that he may enter, ^c. albeit there 
 were many dying seised, and many discents ivithin the same yeare and 
 day, $c. 
 
 HERE it appeareth, that the continuall claime doth not only 
 extend to the first disseisor, in whose possession it was made, 
 but to any other disseisor that dieth seised within the yeare and 
 day after the continuall claime made. And whereas our author 
 speaketh of a second disseisor, &c. herein is likewise implyed 
 not only abators and iotrudors, but the feoffees or donees of the 
 disseisors, abators, or intrudors, and any other feoffee or donee 
 immediate or mediate, dying seised within the yeare and day, of 
 euch continuall claime made. 
 
 Sect. 
 
 * first added in L. and M. and Roh. f voit not in L. and M. or Roh.
 
 L. 3. C. 7. S. 426-7-8. Of Continuall Claime. [256. a. 
 
 Sect. 426. 
 
 A LSO, if a man be disseised, and the disseisor dieth seised within 
 the yeare and day next after the disseisin made, whereby the 
 
 [256.1 tenements descend to his heire, in this £0°" case the entrie of the 
 a. J disseisee is taken away, for the yeare and day which should aid 
 the disseisee in such case*, shall not bee taken from the time of 
 title of entrie accrued unto him, but only from the time of the claime 
 made by him in manner aforesaid. And for this cause it shall be good 
 for such disseisee to make his claime f in as short time as he can after 
 the disseisin, fyc. 
 
 THIS in case of a disseisor is now holpen by the statute made 32 H. 8. cap. 33. 
 since Littleton wrote, as hath beene said ; for if the disseisor Vide Sect - 385 - 
 die seised within five yeares after the disseisin, though there be ,^ n ' t 2 38 a ) 
 no continuall claime made, it shall not take away the entry of the 
 disseisee, but after the five yeares there must be such continuall 
 claime as was at the common law : but that statute extendeth 
 not to any feoffee or donee of the disseisor immediate or mediate, 
 but they remaine still at the common law, as hath beene said. 
 
 Sect. 427. 
 
 ALSO, if such disseisor occupieth the lands fortie yeares, or more 
 yeares (Item si tiel disseisor occupia la terre per xl. ans, ou per 
 % plusors ans), without any claime made by the disseisee, fyc. § and the 
 disseisee a little before the death of the disseisor makes a claime in the 
 forme aforesaid, if so it fortuneth that within the yeare and the day after 
 such claime the disseisor die, $c. the entrie of the disseisee is congeable, 
 $-c. And therefore it shall bee good for such a man which hath not made 
 claime, and which hath good title of entrie ||, when he heareth that his 
 adversarie lieth languishing, to make his claime, <fc. 
 
 THIS is evident enough, and in respect of that which hath 
 J- beene said, needeth not to be explained. 
 
 Sect. 428. 
 
 ALSO, as it is said in the cases put, where a man hath title of entrie 
 by cause of a disseisin, Sfc. the same law is where a man hath right 
 to enter by cause of another title, <frc. 
 
 HERE 
 
 * &c. added in L. and M. § and not in L. and M. 
 
 f &c. added in L. and M. || &c added in L. and M. 
 
 | plus added in L. and M.
 
 2o6.b.257. a] Of Continuall Ciaime. L.3. C. 7. S.429-30. 
 
 TT ERE title is taken in his large sense to include a right. 
 
 "Another title, 'B^F'&c." Here is implyed abators or r256.~| 
 intruders, and not only their disseisors, but the feoffees |_ b. J 
 or donees of disseisors, abators, or intruders, or any 
 other so long as the entrie is congeable. 
 
 Sect. 429. 
 
 ALSO, of the said foresaying (de les dits * presidents) thou mayst 
 know [my sonne) two things. One is, ivhereaman hath title to enter 
 upon a tenant in taile, if he maketh such a ciaime to the land, then is the 
 estate taile defeated, for this ciaime is as an entrie made by him, and is of 
 the same effect in law as if he had bin upon the same tenements, and had 
 entred into the same, as before is said, f And then when the tenant in 
 taile immediately after such ciaime continue his occupation in the lands, 
 this is a disseisin made of the same tenements to him tvhich made such 
 ciaime, and so by consequent, the tenant then hath a fee simple. 
 
 " Presidents." This should be precedents, and so is the 
 originall, and this agreeth with the right sense of Littleton. 
 (Ant. 233.) And here it appeareth, that a continuall ciaime, which is an 
 
 entrie in law, is as strong as an entrie in deed. 
 
 Vide Sect. 650, " Title to enter." Here title to enter is taken in the large 
 and 659, &c. sense for right of entrie. 
 
 Sect. 430. 
 
 THE second thing is, that as often as he which hath right of entrie 
 maketh such ciaime, % and this notwithstanding his adversary continue 
 his occupation, § so often the adversary doth ivrong and disseisin 
 to him which made the ciaime. ^^ And for this cause so often r257.~l 
 may he which makes the same ciaime (que fist || mesme le ciaime) L a - J 
 for every such wrong and disseisin done unto him, have a writ 
 of trespasse, \. Quare clausum fregit, &c. and recover his dammages, $c. 
 
 HEREBY also it appeareth, that an entrie in law is equiva- 
 lent to an entry in deed. 
 
 " Have a writ of trespasse, quare clausum fregit, and recover 
 
 his 
 
 * dites precedents L. and M. nor in MSS. before mentioned. It 
 
 f And not in L. and M. or Roh. may be here observed, that the older 
 
 t and this,—&c. L. and M. and Roh. copies of Littleton are not divided into 
 
 § &c. added in L. and M. and Roh. Sections, which seem to have^ been 
 
 j| mesme not in L. and M. or Roh. first injudiciously marked by West m 
 
 I Quare clausum fregit, &c. and re- the edition 1583, though his divisions 
 
 cover his dammages, &c. or he may have have been since retained for the con- 
 
 a writ, (the beginning of the next venience of citation. 
 
 Section) not in L. and M. or Roh.
 
 L. 3. C. 7. Sect, 431. Of Continuall Claime. [257. a. 
 
 his dammages." The disseisee shall have an action of trespasse (2 Koll. Abr. 
 against the disseisor, and recover his dammages for the first 53 °- 1 Re P- 9S - 
 
 i. m. l v. i ^ ? i, 1 Leo. 302. 
 
 entry without any regresse, but alter regresse lie may nave an 2 o h. 6. 15. 
 action of trespasse with a continuando, and recover as well for 38 H. 6. 27.) 
 all the meane occupation as for the first entry. And here note, 
 that Littleton doth here include costs within dammages. 
 
 Sect. 431. 
 
 (~)R lie may have a writ upon the statute of R. 2. made in the fifth 
 yeare of his reigne, supposing by his writ that his adversarie had 
 entred into the lands or J tenements of him that made the claime, where 
 his entry was not given by the law, $c. and by this action he shall re- 
 cover his dammages, $c. And if the case were such, that the adver- 
 sarie occupied the tenements with force and armes, or ivith a multitude 
 of people at the time of such claime, Sfc. || immediately after the same 
 claime may hee which made the claime for every such act have a writ of 
 forcible entry, and shall recover his treble dammages, £c. (1.) 
 
 THIS 
 
 | oi — and, L. and M. and Roh. || immediately after the same claime — 
 
 then, L. and M. and Roh. 
 
 (1) Perhaps this passage is not quite accurate. Till the reign of Richard II. 
 the party disseised, if his attempt were made soon after the disseisin, might 
 recover his possession by force ; but, by a statute passed in the fifth year of 
 that reign, it was enacted, that none, from thenceforth, should make any 
 entry into lands and tenements, hut in cases where entry was given by the 
 law ; and in that case, not with a strong hand, or with a multitude of people, 
 but only in a peaceable and easy manner ; and that persons convicted of doing 
 the contrary should be punished by imprisonment, to be ransomed at the 
 king's pleasure. By a statute passed in the fifteenth year of the same reign, 
 it was enacted, that, upon complaint of any such forcible entries, to the justices 
 of peace, they should take sufficient power of the county, and go to the place 
 where such force was made ; and if they found any that held such place forci- 
 bly, after such entry made, they should be taken and put into the next gaol, 
 there to abide convict by the record of the same justices, until they had made 
 fine and ransom to tLe king. By this it appears, that Littleton is equally 
 wrong in his account of the punishment inflicted by that statute, and the 
 offence it intended to correct. These statutes of the reign of Richard II. have 
 been confirmed, explained, and in some respects extended by the stat. 4 H. 4. 
 ch. 8. 8 H. 6. ch. 9. 23 II. 8. eh. 14. 31 Eliz. ch. 11. and 21 Jac. 1. ch. 15. 
 See Burn's Just. vol. ii. 181. It should be observed, that, in case an action 
 is brought on these statutes, if the defendant make himself a title, which is 
 found for him, he shall be dismissed without any inquiry concerning the force ; 
 for howsoever he may be punishable at the king's suit, for doing what is pro- 
 hibited by statute, as a contemner of the laws and disturber of the peace, yet 
 he shall not be liable to pay any damages for it is the plaintiff, whose injustice 
 gave him the provocation in that manner to right himself. See 1 Haw. 141. 
 3 Burr. 1698. 1731.— [Note 199.]
 
 257.a.257.b.] Of Continual Claime. L. 3. C. 7. Sect. 431. 
 
 (Doct Pla. 381.) THIS is the statute of 5 R. 2. cap. 7. 
 
 37 H. 6. 35. -L 
 
 34 H 6 30. 13 H. 7. 15. 10 H. 6. 14. 2 E. 4. 18. 21 E. 4. 5. 74. 13 E. 2. 3. 
 
 27 Ass. 64. 38 Ass. 9. 44 E. 3. 20. 10 H. 7. 27. Keylwey, 1. b. 5 R. 2. cap. 7. 
 
 (F. N.B. 248, 249.) 
 
 " ify /fo's action lie shall recover his dammages." 
 This is to be understood, that he shall recover damages for 
 the first torcious entry, but not for the mean profits in this 
 
 2 E. 4. 24. b. action, though he made a regresse. And here note, that also he 
 
 9 E. 4. 4. b. sha\\ recover his costs of suit, expenses litis, which Littleton doth 
 16 I . . .a. } nc i U( j e w jthin these words (dammages, &c.) 
 
 (2 Inst. 289. " Dammages." Damna in the common law hath a speciall 
 
 Post. 355. b. signification for the recompence that is given by the jury to the 
 
 10 Rep. 115, pi a i nt if e or defendant (A), for the wrong the defendant hath 
 
 11 Rep. 56.) done unto him (2). 
 
 (3 Inst. 176. "Multitude." One or more may commit a force, three or 
 
 Hale's PL C. more may commit an unlawfull assembly, a riot or a rout. A 
 
 !3 7 -) multitude here spoken of (as some have said) must be ten or 
 
 I Geo. 1. C 4.) more. Multitudinem decern faciunt. And so (say they) it is 
 
 said de grege hominum. But I could never read it restrained 
 by the common law to any certaine number, but left tn the dis- 
 cretion of the judges (3). 
 
 11 A writ of forcible entry, and shall recover his treble 
 
 3 E* 4* mu. dammages." This writ Jg@~ is grounded upon the stat- TS57.] 
 F. N. B. 248.' ute of 8 H. 6. and lieth either where one entreth with L b. J 
 
 II E. 4. 11. b. force, or where he entreth peaceably and detaineth it 
 22 H H 7 6 1 37 b ' witn force > or where he entreth by force and detaineth it by force. 
 19 U. 6. And in this action without any regresse the plaintife shall recover 
 Register, 97. treble dammages, as well for the meane occupation as for the 
 
 I? N B 249 a first entr y ^ forCe ° f ttie statute - An< * alt)eit ne slia11 recover 
 
 (2 Cr'o. i7. 19. 31. 148. 151. 199. 214. 633. 639. 1 Roll. Rep. 406. Sid. 97. 149. 
 
 Noy, 136. 1 Cro. 561. 2 Inst. 289. 4 Inst. 176. c. 15. 1 Leo. 327.) (15 R. 2. c. 2. 
 8 H. 6. c. 9. 23 H. 8. c. 15. 31 El. c. 11. 21 Jac. c. 15.) 
 
 treble 
 
 (A) defendant seems to be printed in this place by mistake instead of demandant. 
 See Mr. Ritso's Intr. jj. 119. 
 
 (2) Some observations on the progress of our law, with respect to damages, 
 costs, and mesne profits, are to be found in note 1. fol. 355. b. 
 
 (3) By the common law there must be three persons at least to constitute a 
 riot. By the 1 Geo. 1. c. 5. twelve persons at least must be unlawfully assem- 
 bled, to be within that act. By the 13 Car. 2. st. 1. c. 5. not more than 
 twenty names are to be signed to a petition to the king, or either house of par- 
 liament, for any alteration of matters established by law in church or state ; 
 and no petition is to be delivered by a company of more than ten persons. 
 By the bill of rights, or declaration delivered by the lords and commons to 
 the prince and princess of Orange, Feb. 13, 1688, and afterwards enacted in 
 parliament, when they became king and queen, the fifth article is, " That it is 
 " the right of the subjects to petition the king, and that all commitments and 
 " prosecutions for such petitioning are illegal." Sir William Blackstone ex- 
 pressly says, that the right of the subject to petition, as declared by this sta- 
 tute, is under the regulations of the 13 Car. 2. But a question may be made, 
 whether the declaration contained in the bill of rights was not, in this particu- 
 lar a repeal of the 13 Car. 2.— [Note 200.]
 
 L, 3. C. 7. Sect. 432-33. Of Continuall Claime. [257. b. 
 
 treble dammages, yet shall he recover costs which shall be 
 trebled also. 
 
 One may commit a forcible entry, as hath beene said, in re- 
 spect of the armour or weapons which he hath that are not 
 usually borne, or if he doe use violence, and threats to the ter- 
 rour of another. And if three or foure goe to make a forcible 
 entry, albeit one alone use the violence, all are guilty of force. 
 If the master commeth with a greater number of servants than 
 usually attend on him it is a forcible entrie. 
 
 It is to be understood, that there is a force implied in law, as 
 every trespasse and rescous and disseisin implieth a force, and is 
 vi et armis; and there is an actuall force, as with weapons, 
 number of persons, &c. and when an entry is made with such 
 actuall force an action doth lie upon the same statute (1). See 10 H. 7. 12. 
 before more of force and armes, Sect. 240. 33 H. 6. 20. 
 
 Sect. 432. 
 
 j^LSO, it is to be seen, (Item*, il est a veier), if the servant of a man 
 who hath title to enter, may by the commandement of his master 
 make continuall claimefor his master or not. 
 
 This needeth no explication. 
 
 Sect. 433. 
 
 A ND it seemeth that in some cases he may doe this : for if he by his 
 commandement commeth to any parcell of the land, and there 
 maketh claime, $c. in the name of his master, this claime is good 
 enough for his master, for that he doth all that which his master should 
 f or ought to do in such case, $c. % Also if the master saith to his 
 servant, that he dares not come to the land, nor to any parcell of it, to 
 make his claime, $c. and that he dare approch no neerer to the land 
 than to such a place called Dale, and command his servant to go to the 
 same place of Dale, and there make a claimefor him, $c. if the servant 
 
 doth 
 
 * il — icy, L. and M. and. Roh. J Also not in L. and M. or Ron. 
 
 f or ought to do — not in L. and M. 
 or Roh. 
 
 (1) The 21 Ja. c. 15. provides a remedy for lessees for years. Tenants 
 by copy of court roll, guardians in chivalry, tenants by elegit, statute mer- 
 chant, or statute staple, if they be ousted by force, or withheld by force out 
 of their lands or tenements. Till then, if a man entered by force on a copy- 
 holder, the lord, as the freehold and inheritance were supposed to be in him, 
 might bring against the person entering, a writ of forcible entry, or might 
 indict him. Upon restitution to the lord, the copyholder might enter. — 
 [Note 201.]
 
 258. a.] Of Continuall Claime. L. 3. C. 7. Sect. 434. 
 
 this, $c- this also seemeth a good claime for his master, as if 
 his master were Jd® * there in his proper person (sicome son r258.~| 
 master la fuit en * proper person), for that the servant did L a - J 
 all that which his master durst and ought to do by the law in such a 
 case, $c. 
 
 HERE it appeareth that where the servant doth all that which 
 he is commanded, and which his master ought to doe, there 
 it is as sufficient as if his master did it himselfe : for the rule is, 
 Qui per alium facit, per seipsum facere videtur. 
 
 7 E. 3. 69. a. b. " By commandement." If an infant or any man of full age 
 
 45 E. 3. have any right of entrie into any lands, any stranger in the name 
 
 45 E* 3*' ' anc ^ *° use °f t ne infant or man of full age may enter into the 
 
 tit. Briefe, 589. lands, and this regularly shall vest the lands in them without any 
 
 20 E. 3. 62. commandement, precedent, or agreement subsequent. [*] But 
 
 P® r A T ^ orp * if a disseisor levy a fine, with proclamation according to the 
 
 39 Ass. p. is! statute, an estranger without a commandement precedent, or an 
 
 10 H. 7. 12. a. agreement subsequent within the five yeares cannot enter in the 
 
 31 H. 8. tit. name of the disseisee to avoid the fine. And that resolution was 
 
 tit. Fauxife'r grounded upon the construction of the statute of 4 H. 7. cap. 24. 
 
 Kecovery, 29. But an assent subsequent within the five yeares should be suffi- 
 
 [A Lib ', 9 '/ 0, , cient. Omnis enim ratihabitio retrotrahitur, et mandate sequi- 
 106. a. the Lord , ., , .j ' x 
 
 AwJleye's case, paratur, as nam beene said. 
 
 "Also if the master saith to his servant that he dares not, &c." 
 Here it appeareth, that where the servant pursueth the com- 
 mandement of his master, and doth all that which his master 
 durst and ought to doe by the law, this is sufficient. And 
 although the master feareth more than the servant, or admit that 
 the servant hath no fearf. at all, yet if he goeth as farre as his 
 master durst, and as he commanded, it is sufficient. And this is 
 implyed in this Section. 
 
 Sect. 434. 
 
 A LSO, if a man be so languishing, or so decrepite, that he cannot 
 by any meanes come to the land, nor to any ^ parcell of it, or if there 
 bee a recluse, which may not by reason of his order goe out of his house %, 
 if such manner of person (si tiel maner || de person) command his servant 
 to goe and make claime for him, and such servant dare not goe to the 
 land, nor to any -parcell of it (en tiel servant ne osast aler al a terre, § 
 ne a ascun parcel de ceo), for doubt of beating, mayhem, or death, \ 
 Sj-e. and for this cause the servant commeth as nere to the land as he dareth 
 for such doubt (pur tiel doubt \. ), and maketh ** the claime, $c. for his 
 master, it seemeth that such claime for his master is strong enough, and 
 good in law. For otherwise his master should bee in a very great mis- 
 chief e; for it may well be that such a person which is sieke, decrepit, or 
 
 recluse, 
 
 * son added in L. and M. and Roh. ^ &c. not in L. and M. or Roh. 
 
 f parcell not in L. and M. or Roh. j. doubt — pavour. in L. and M. 
 
 j &c. added in L. andM. and Roh. and Roh. 
 
 || de not in L and M. ** the — such, in L. and M. and 
 
 § ne — ou, L. and M. and Roh. Roh.
 
 L. 3. C. 7. Sect. 434. Of Continuall Claime. [258. a. 258. b. 
 
 recluse, cannot finde any servant which dare go to the land, or to any 
 parcell of it (que osast aler a la terre, ne f ascum parcel de eel), to 
 make the claime for him, 8fc. 
 
 1) EGULAKLY it is true, that where a man doth lesse than (Ant. 52. a.) 
 
 -» I the commandement or authority committed unto him, there 
 
 (the commandment or authority being not pursued) the act is 
 
 void. And where a man doth that which he is authorised to 
 
 doe and more, there it is good for that which is warranted, and (Hob. 154.) 
 
 void for the rest; yet both these rules have divers exceptions ( l Leo - 289 -) 
 
 and limitations (1). 
 
 For the first, Littleton here putteth the case where a servant 
 doth lesse than he is commanded, and yet it sufficeth, for that 
 Impotentia excusat legem ; for seeing the master cannot, and the 
 servant dare not, enter into the land, it sufficeth that he come 
 as neere to the land as he dare. 
 
 If a man makes a letter of attorney to deliver seisin to I. S. 11 II. 4. 5. 
 upon condition, and the attorney delivereth it absolute, this is 12 Ass. 24. 
 void : and so some hold if the warrant be absolute, fp ^38 b 
 
 [358.1 and he delivereth JO® 5 " seisin upon condition, the liverie Mo. 280.)' 
 b. I is void. See before 
 
 Sect. 419. 
 
 "For doubt of heating, mayhem, or death." See the Second (Ant. 243. b.) 
 Part of the Institutes, W. 2 cap. 49, a diversity betweene the 
 making of an entry or a claime, and the avoydance of an act or 
 deed. 
 
 " Otherwise his master should be in a very great mischiefe." 
 Argumentum ab inconvenienti est validum in lege, quia lex non 
 permittit aliquod inconceniens. And as hath beene often ob- 
 served before, Nihil quod est inconveniens est licitum. 
 
 " Recluse," Reclusus, Heremita, sen Anchorita, so called by 46 E. 3. 
 the order of his religion ; he is so mured or shut up, quod solus Petition, 18. 
 semper sit, et in clausurd sua sedet ; and can never come out of J?f J?" (?g * 
 his place. Seorsim enim et extra conversationem civilem hoc 30. a . 
 jyrofessionis genus semper habitat. Note here, albeit the recluse 
 or anchorite be shut up himselfe, so as he by his order is not to 
 come out in person, yet to avoid a discent he must command 
 one to make claime, and such a recluse shall always appeare by 
 attorney in such cases where others must appeare in proper per- 
 son. Impotentia enim excusat legem. 
 
 Sect. 
 
 f a added in L. and M. and Roh. 
 
 (1) Where there is a complete execution of a power and something, ex 
 abundantly added, which is improper, there the execution shall be good, and 
 only the excess void ; but where- there is not a complete execution of a power, 
 or where the boundaries between the excess and execution are not distinguish- 
 able, it will be bad. See Alexander v. Alexander, 2 Ves. sen. 644. On this 
 doctrine, the reader may always be safely referred to Mr. Sugden's treatise on 
 that abstruse and important subject. — [Note 202.]
 
 258. b. 259. a. J Of ContinuallClaime. L. 3. C. 7. S. 435-36. 
 
 Sect. 435. 
 
 Z? UT if the master of such servant bee in good health, and can and 
 dare well goe to the lands, or to parcell of it, to make his claime, 
 §c. if such master command his servant to go to any parcell of the land 
 to make claime for him, \\ and when the servant is in going to doe the 
 commandement of his master (A), he heareth by the way such things as 
 he dare not come to any parcell of the land to make the claime for his 
 master, and therefore he commeth as neere to the land as he dare for 
 doubt of death, and there maketh claime for his master, and in the 
 name of his master, <fc. it seemeth that the doubt in law in 
 such case shall be, whether such claime shall availe his master ["£59.1 
 jgglP or not, for that the servant did not all that which his |_ a. 
 master at the time of his commandement durst have done, §c- 
 Quaere. 
 
 (9 Rep. 79.) r PHIS contimiall claime is void, for that the servant doth lesse 
 -•• than that which is expressly commanded, and there is no 
 impotencie or feare in the master. 
 
 (A) "is in going, &c." This is lord Coke's translation, and renders literally the text, "est en 
 alant." 
 
 Sect. 436. 
 
 A LSO, some have said, that where a man is in prison and is dis- 
 seised, and the disseisor dieth seised during the time that the dis- 
 seisee is in prison, whereby the tenements descend to the heire of the 
 disseisor, they have said, that this shall not hurt the disseisee which is 
 in prison, but that he well may enter, notwithstanding such a discent, 
 because hee could not make continuall claime when he was in prison. 
 
 (1 Roll. Abr. " TTfffERE a man is in prison and is disseised." For if hee 
 687.) ' '■ bee disseised when he is at large, and the discent is cast 
 
 9 H. 7. 24. 
 PI. Com. 360 
 
 during the time of his imprisonment, this discent shall biode 
 Bracton' lib"'5. him. Excusatur autem quis qubd clameum suum non opposuerit, 
 fol. 436. s i tempore litigii in prison a detentus fuerit, ita quod venire non 
 
 Fi 11 !^' v. vossit, nee mittere, quia nidli vertitur in dubium, et ubi eadem 
 
 fol. 116. D. * . . i r '. • 1 - • l , >7 • 1 t * • 
 
 Fleta lib. 6. ratio et idem Jus erit, ideo videtur quod excusan debet quis si 
 cap. 52, 53. per vim majorem, vel per fraudem, extra prisonam detentus 
 <fc lib. 6. cap. 7. f uer it } {f a quod venire non possit nee mittere, dum tamen hoc 
 per certa judecia probart poterit. 
 
 u Because hee could not make continuall claime when lie was in 
 prison." Here is to bee observed by the authority of Littleton, 
 that he is not enforced in this case by law to doe it by his servant 
 or any other by his warrant or commandement, for things done 
 by deputie are seldome well done, but everie man will see his 
 PI. Com. 360. owne businesse most effectually speeded and performed : and 
 in Stowei's case, that it may be once spoken for all, the reason that a man impri- 
 soned 
 
 |j &c. added in L. and M. and Boh.
 
 L. 3. C. 7. Sect. 437. Of Continuall Claime. [259. a. 259. b. 
 
 soned shall not be bound in this and the like cases is, for that 
 by the intendment of law he is kept (as it is presumed in law) 
 without intelligence of things abroad, and also that he hath not 
 libertie to go at large to make entrie or claime, or seeke coun- 
 sell. And so note a diversitie between a recluse who might 
 have intelligence, and a man in prison. 
 
 * Sect. 437. 
 
 J^UT the opinion of all the justices, p. 11 II. 7. ivas, that if the dis- 
 seisin bee before the imprisonment, although the dying seised be he 
 being in the prison, his entrie is taken away. 
 
 nHHIS is of a new addition, and mistaken, for there is no such 
 -L opinion, p. 11 H. 7. but it is, 9 H. 7. fol. 24. b. 
 
 A ND also, if hee which is in prison be outlaived in an action of debt 
 or trespasse, or in an appeale of robberie, Spc. hee shall reverse this 
 outlawry pronounced against him (il reversera tiel utlagarie § envers 
 luy pronounce), $c. 
 
 [259."] QO~ " TTE shall reverse this outlawry." Nbta, the (Post. 260. a. 
 b. originall is reversa tiel utlagarie per briefe Ante 128 - M 
 
 de error (1), and so it would bee amended; for out- ^'j.' ' s \ ' 
 
 (2 Roll. Abr. 803, 804. 2 Inst. 665. 1 Leo. 22. 186.) Mirror, cap. 3. Britton, fol. 21. 
 Fleta, lib. 1. cap. 28. & lib. 2. cap. 59. Bracton, lib. 2. 2 E. 4. 1. 4 E. 4. 10. 21 E. 
 4. 73. 11 H. 7. 5. 21 H. 6. 50. 9 H. 4. 3. 21 H. 6. Utlary. 36. 7 H. 6. 27. 21 E. 
 4. 88. 22 E. 4. 37. 18 E. 3. Villenage, 47. 21 E. 4. 37. 33 H. 6. 45, 46. 44 E. 3. 
 Villeine, 41. 4 H. 4. 19. 11 H. 4. 34. 3 Eliz. Dyer, 192. 2 Eliz. 176. 5 Eliz. ibid. 
 223. 19 H. 6. 2. 8 H. 6. 37. 37 H. 6. 19. (Doc. Pla. 230. 398.) (Ant. 248. b.) 8 H. 
 4. 7. 21 H. 7. 13. 10 H. 6. 58. 20 H. 6. 20. 21 H. 6. 55. 22 H. 6. 18. 39 H. 6. 1. 
 33 H. 6. 51. 45. 38 H. 6. 33. 21 E. 4. 94. 21 H. 7. 33. 5 H. 7. 1. 12 H. 6. 8. 11 
 H. 6. 67. 19. 1 E. 4. 2. 27 H. 8. 2. 38 Ass. pi. 17. Vide Sect. 439. 
 
 lawries 
 
 § per brief d'errour, &c. pur ceo garie, added in L. and M. and Roh. 
 qu'il fuist en prison al temps d'utla- and in MSS. 
 
 * This Section is not in L. and M. or Roh. nor in the edit. 1577, which is 
 esteemed more correct than the common copies. 
 
 (1) A writ of error properly lies, where false judgment is given in any court 
 which is a court of record. It was formerly held, that, by the common law, 
 no amendment could be permitted, unless within the very term in which the 
 judicial act so recorded was done. But the courts now allow of amendments 
 at any time while the suit is depending. — After the termination of the suit 
 the judgment can only be reversed by writ of error. From the inferior courts 
 it lies to the king's bench and common pleas; — from the common pleas to the 
 kind's bench; — from the king's bench to the house of lords. To amend errors 
 in a base court, not of record, a writ of false judgment lies. — A writ of error 
 only lies upon matter of law. There is no method of reversing an error on 
 the determination of facts but by an attaint or a new trial. See Bla. Com. 3 
 vol. c. 25. s. 3. F. N. B. 20. 4 Inst. 21.— [Note 203.]
 
 259. b.] Of Continuall Claime. L. 3. C. 7. Sect. 438. 
 
 lawries may bee reversed two manner of waves, viz. by plea, or 
 by writ of error. By plea, when the defendant commeth in 
 upon the capias utlagatum, &c. hee may by plea reverse the 
 same for matters apparent, as in respect of a supersedeas, omis- 
 sion of processe, variance, or other matter apparent in the record : 
 and yet in these cases some hold, that in another terme the de- 
 fendant is driven to his writ of error. 
 
 But for any matters in fact, as death, imprisonment, service 
 of the king, &c. he is driven to his writ of error, unlesse it be 
 in case of felonie, and there in favorem vitee he may plead it. 
 
 But albeit imprisonment be a good cause to reverse an out- 
 lawrie, yet it must be by processe of law in invitum, and not 
 by consent or covin, for such imprisonment shall not avoid the 
 outlawrie, because upon the matter it is his owne act. 
 
 Sect. 438. 
 
 ALSO, if a recovery bee by default against such a one as is in prison 
 (si un recoverie soit f per default vers tiel que est en prison) he 
 shal avoid the judgement by a writ of error, because he was in prison 
 at the time of the default made, §c. And for that such matters of re- 
 cord shal not hurt him which is in prison, but that they shall bee re- 
 versed* §c. a multo fortiori, it seemeth that a matter in fact, scilicet, 
 such discent had ivhen he was in prison shall not hurt him, fyc. especi- 
 ally seeing he could not goe out of prison to make continuall claime. 
 
 5 E. 3. 50. b. r rHIS is evident enough. 
 
 7 H. 6. 38. 1 
 
 Fleta, lib. 6. "By <*> writ of error." For hee shall have no writ of disceit, 
 
 cap. 07. & 24. because the summons was according to the law of the land, by 
 48. and the ex- suminoners and veiors, and the land taken into the king's hand 
 position thereof, by the pernor. 
 
 2 part Iustit. 
 
 Disced 51 "By default. Defaidt is a French word, and defalta is 
 
 legally taken for non-appearance in court. There bee divers 
 causes allowed by law for saving a man's default; as, first, by 
 
 Bracton, lib. 5. imprisonment, whereof Littleton here speaketh. 2. Per inun- 
 
 ™ act * h, „ dationem aquarian. 3. Per tempestatem. 4. Per pontem 
 Fleta, lib. 6. - Jf- D . . , . 1 . * j x , , • 
 
 cap. 7. 14. jractum. o. Per navigium subtraction, per fraudem petcntis, 
 
 3 H. 6. 46. non enim debet quis se pericidis et infortuniis gratis exponere, 
 38 E. 3. 5. ve i subiicere. 6. Per minorem setatem. 7. Per defensionem 
 
 1116 . ... 
 
 Barre 66 summonitionts per legem. 8. Per mortem attornati si tcnens in 
 
 12 II. 4. 13. tempore non novit. 9. Si petensessoniatus sit. 10. Siplacitum 
 
 50 E. 3. 9. mittatur sine die. 11. Per breve de warrantid diei. But sick- 
 
 2 II 4 « nesse (as one holds) is no cause of saving a default, because it 
 
 5 II. 7. 3! may be so artificially counterfeited, that it cannot be knowne. 
 
 F. N. B. 17. 
 
 Bract, lib. 4. fol. 367. 369. Glan. lib. 1. cap. 8. 28 H. 6. 11. 4 H. 5. Challenge, 153. 
 Br. Saver. Def. 45. (Cro. Eliz. 306.) 
 
 "Record." 
 
 f ewe added in L. and M. and Roh.
 
 L. 3. C. 7. Sect, 438. Of Continuall Claime. [260. a. 
 
 t gfgp~ « Record" (1) Recordum, is a memoriall or Glanvil. lib. 3. 
 
 ^JbO. rem embrance in rolles of parchment, of the proceed- jj^VfoLWd. 11 ' 
 a ' -Mugs and acts of a court of justice which hath power Britton in pro- 
 to hold plea according to the course of the common law, of emino & cap. 27. 
 reall or mixt actions, or of actions quare vi et armis, or of per- 
 sonall actions, whereof the debt or dam mage amounts to fortie 
 shillings or above, which wee call Courts of Record, and are 
 created' by parliament, letters patent, or prescription. 
 
 It is aptly derived of reeordari, which is to keepe in memorie 
 or record, as it is said, quod dicere nihil aliud est qudm reeordari ; 
 and in the same sense the poet useth it, si rite audita recorder. Cicero. 
 But legally records are restrained to the rolles of such only as Virgil, 
 are courts of record, and not the rolles of inferiour, nor of any PI. Com. 79. b. 
 other courts which proceed not secundum ley em et consuetudinem r \ I . lc- 7 * 8 Eliz " 
 Anglice. And the rolles being the records or memorialls of the 17 ' e ^' 3 ^' 9 _ 
 
 iudsies of the court of record, import in them such uncontrollable 37 H. 6. 21. b. 
 
 J fa ' * ll II. 4. 26. b. 
 
 21 H. 6. 34. Error, Br. 73. 7 H. 7. 4. 19 Ass. 7. lib. 4. fol. 52. in Rawlin's case. 
 Glanvil. lib. S. cap. S. Braetnn, lib. 3. fol. 156. Britton, cap. 27. lib. 6. fol. 11. Pentle- 
 nian's case, and 30. 45. lib. 7. fol. 30. lib. 8. fol. 60. b. & 67. a. 7 H. 6. 28. 19 H. 6. 9. 
 
 credit 
 
 (1) The public records of the kingdom are considered to relate to the 
 proceeding of the houses of parliament, the court of chancery, the courts of 
 common law, and the revenue. A general table of them, distinguished under 
 these different heads, is to be found in the appendix to the report from the 
 committee appointed to view the Cottonian library. See the report and the 
 appendix, page 183. The rolls or records of parliament were published 
 in the course of his late majesty's reign, in six volumes folio, under the 
 immediate auspices of the house of peers. This extensive and laborious 
 undertaking is executed with the greatest accuracy ; it presupposes no common 
 share of antiquarian and diplomatic learning in the gentlemen concerned in it. 
 A part of it was the work of the late Mr. Morant ; all the rest was completed 
 by Mr. Astle, the keeper of the records in the Tower, and Mr. Topham, of 
 Lincoln's-Tnn. It should be observed, that the proceedings of the legislature 
 till the reign of Edward I. were exceedingly irregular, and greatly defective 
 in point of form. They are sometimes penned, so as to appear to come from 
 the king alone; sometimes as issued jointly by the king and lords; sometimes 
 the assent of the commons is, and sometimes is not, expressed ; sometimes 
 the authority for passing the acts is mentioned ; and sometimes the acts are 
 in the form of charters. — The first summons of the knights of shires to parlia- 
 ment, extant on record, is in the 49th year of Henry III. — The first regular 
 summons directed to the sheriff for the election of citizens and burgesses, is 
 in the 23d of Edward I. — In that reign the proceedings of the Legislature 
 assumed a more regular form; but far removed from that, in which they 
 appear to present. The consent of the commons to the levying of taxes for 
 the king gave them great weight. They took advantage of this circumstance 
 to obtain a remedy for the grievances thoy had to complain of. — In the reign 
 of Edward HI. the mode of presenting their petitions, and of receiving their 
 answers, was regularly practised. If the petition and the answer to it were 
 of such a nature as to require an express and new provision to be made for 
 it, the king, with the assistance of his council and of the judges, framed, from 
 such petition and answer, an act, which was usually entered on the statute roll ; 
 but if an express and new provision were not required, the petition itself and 
 the king's answer to it were entered on the parliament roll, and then usually 
 styled an ordinance. — Alterations and improvements gradually took place ; 
 but it was not till the reign of Henry VI. that these petitions of the commons 
 were reduced, in the first instance, into the body of the bill. — [Note 204.]
 
 260. a.] Of Continuall Claime. L. 3. C. 7. Sect. 438. 
 
 credit and veritie, as they admit no averment, plea, or pi oofe to 
 the contrarie. And if such a record be alleaged, and it be 
 pleaded that there is no such record, it shall be tried only by 
 it selfe ; and the reason hereof is apparent, for otherwise (as our 
 old authors say, and that truly) there should never be any end of 
 controversies, which should be inconvenient. Of courts of record 
 you may read in my Reports : but yet during the terme wherein 
 any judiciall act is done, the record remaineth in the brest of the 
 judges of the court, and in their remembrance, and therefore the 
 roll is alterable during that terme, as the judges shall direct; but 
 when the terme is past, then the record is in the roll, and admit- 
 teth no alteration, averment, or proofe to the contrarie. 
 
 If a grant by letters patents under the great seale be pleaded 
 and shewed forth, the adverse party cannot plead mil ticl record, 
 for that it appears to the court that there is such a record ; 
 but inasmuch as it is in nature of a conveyance, the partie may 
 denie the operation thereof, therefore he may plead non concessit, 
 and prove in evidence that the king had nothing in the thing 
 granted, or the like, and so it was adjudged. But to return to 
 Littleton: What then? shall a man that is in prison be privileged 
 from suits or outlawries ? Nothing lesse ; for if the tenant or 
 defendant be in prison, he shall upon motion, by order of the 
 court, be brought to the barre, and either answer according to 
 law, or else the same being recorded, the law shall proceed 
 against him, and he shall take no advantage of his imprison- 
 ment. 
 
 (Doc. Pla, 307, 
 308. 1 Leo. 65.) 
 18 Eliz. 
 Dier, 353. 
 3 Mar. Di. 129. 
 PI. Com. 232. 
 Seignior Berke- 
 ley's case. 
 16 H.7. 11. b. 
 22 H. 8. Re- 
 cord. Br. 65. 
 39 H. 6. 4. 
 3 Eliz. Dier, 187. 
 lib. 6. fol. 15. 
 Eden's case. 
 Mich. 31 & 
 32 El. Rot.365. 
 In Bankle Roy, 
 inter Eden & 
 Franklyn & 
 Browne. 
 (4 Rep. Hind's 
 case.) 
 
 7 H. 6. 38. 
 
 8 H. 6. 16. 
 
 " A multo fortiori." Here is an argument, a minori ad ma- 
 jus (A), and the force of our author's argument is this : If a 
 man in prison shall not be bound by a recoverie by default for 
 want of answer in court of record in a reall action, which is 
 matter of record (the height and strength whereof hath beene 
 somewhat touched) d multo fortiori, a discent in the countrey, 
 which is matter of deed, shall not for want of claime binde him 
 Vide Sect. 418. that is in prison. And as the argument a minori nd majus doth 
 ever hold (as our author hath alreadie told us) affirmatively, so 
 the argument a major a ad miuus doth ever hold negatively, as 
 our author here teacheth us ; and the reason hereof is this, quod 
 in minori valet, valebit in majorij et quod in majori non valet, 
 nee valebit in minori. 
 
 " Seeing he could not go out of prison, &c." By this it appear- 
 eth, that a man in prison by processe of law ought to be kept 
 in salvd et arcta custodid, and by the law ought not to goe out 
 though it be with the keeper, and with the leave and sufferance of 
 he gaoler : but yet imprisonment must be, custodia et non poena ; 
 for career ad homines custodiendos, non ad puniendos dari debet. 
 
 Sect. 
 
 (A) It should be said to be a majori ad minus. For the argument of Littleton in Sect. 
 438. is evidently such ; and lord Coke, a few lines farther on says, " srfthe argument a 
 majori ail minus doth ever hold negatively, as our author here" (i.e. 
 " teacheth us." Mr. Ih'tso has made an observation to the same effect, 
 p. 119. 
 
 See his Intr,
 
 L. 3. C. 7. S. 439. Of Continuall Claime. [260. a. 260. b. 
 
 Sect. 439. 
 
 TJV the same manner it seemeth, where a man is out of the realme in 
 the king's service, for the businesse of the realme, if such a one be 
 disseised ivhen he is in service of the king, and the disseisor dieth seised, 
 Sfc. the disseisee being in the king's service (si tiel * home soit disseisie 
 quant il est en service le roy, f et le disseisor morust seisie, le disseisie 
 esteant en le service le roy), that such discent shall not hurt the dis- 
 seisee; but for that hee could not make continuall claime, J it seemes to 
 them, that when he commeth into England (que quant il || vient en 
 Engleterre,) he may enter upon the heire of the disseisor, §c. For such 
 a man shal reverse an outlaivrie § pronounced against him during the 
 time that hee teas in the king's service, §c. therefore, a multo fortiori, 
 he shall have aid and indemnitie by the law in the other case, 8fc. 
 
 11 r\ UT of the realme" (id est) extra regnum ; as much to say, 6 R. 2. Protect, 
 
 as out of the power of the king of England as of his 46 - Vide Sect > 
 
 crowne of England ; for if a man be upon the sea of England, (Cr ' Ca ' r 36 ^ 
 
 he is within the kingdom or realme of England, and within the 5 Rep. Co'n- 
 
 ligeance of the king of England, as of his crowne of England, stable's case. 
 
 And yet altum mare is out of the jurisdiction of the \^}' Abr * 
 
 t 260.1 common law, and within the Jggp"" jurisdiction of the ' (8H. 3. 
 
 b. J lord admirall, whose jurisdiction is verie antient, and p ° t " \ 9 H. 3. 
 
 long before the reigne of Edward the third, as some T p ?' 3 " 
 
 have supposed, as may appeare by the lawes of Oleron (so called, Avowrie,'l92. 
 
 for that they were made by king Richard the first when he was Rot. Vascon. 
 
 there) that there had beene then an admirall time out of minde, 22 fkl'-n 1 ""-! 8, 
 
 and by many other antient records in the reignes of Henrie the 1 pa rs- p^t.' 
 
 third, Edward the first, and Edward the second is most mani- 10 E. 2. 8 E. 2. 
 fW Coron. 399. 
 
 Iebl- Staundf. PL 
 
 Coron. 51. 
 
 See hereafter in another case, which Littleton put in his chap- Vide Sect. 677. 
 ter of Remitter ; there he saith, beyond the sea. This great (Hob. 212.) 
 officer in the Saxon language is called Aen mere al, (i. e.) over 
 all the sea, prafectus maris, sive classes, urchithalassus: and in 
 antient time the office of the admiraltie was called custodia 
 marince Angliaz, or maritimce Anglice. 
 
 And note Littleton saith not, beyond the sea, or extra quatuor 3 r. 3. Cont. 
 maria, for a man revera may be intra quatuor maria, and yet Claime, 13. 
 out of the realme of England. But intra quatuor maria, or 4 3 " 
 extra, is taken by construction to be within the realme of Eng- 
 land, or the dominions of the same. 
 
 But here a question maybe demanded, What if a man be out of 
 the realme, and a recoverie is had against him in a pranipe by de- 
 fault, whether shall he avoid it in a writ of error, as well as he 
 should do the outlawrie, or if he had beene imprisoned at the time 
 of such recoverie by default ? And it seemeth that he shall not 
 
 avoid 
 
 * home not in L. and, M. f cfec. added in L. and M. and Rob.. 
 
 f et le disseisor morust seise, le || revient, in L. and M. 
 
 disseisee esteant en le service le roy, § which is added in L. and M. 
 not in L. and M.
 
 260. b. 261. a.] Of Continuall Claiine. L. 3. C. 7. S. 440. 
 
 avoid the recoverie, for by that rneanes a man might be infinitely 
 delayed of his freehold and inheritance whereof the law hath so 
 great a regard. And few or none goe over, but it is either of 
 their owne free will, or by suit, for what cause soever ; and he 
 is not in that case without his ordinarie remedie, either by his 
 writ or higher nature, or by a quod ei deforceat. But outlawrie 
 in a personall action shall be avoided in that case, quia de mini- 
 mis non curat lex, and otherwise he should be without remedie. 
 See Section 437, and note the diversitie betweene that case of 
 the imprisonment, and this of being beyond sea. And Littleton 
 putteth the case of imprisonment, and omitteth the being be- 
 yond sea here : neither have I seefne any booke to warrant, that 
 he that is beyond sea shall in this case avoid the recoverie by 
 default. 
 
 Bract, lib. 5. K i» the king's service." Bracton sheweth, that the exception 
 
 fol. 436. of being beyond sea is, quia fuit in servitio domini regis ultra 
 
 mare, viz. apud talem locum, and that case is cleere : but you 
 
 shall heare the opinion of Bracton in the next Section, where 
 
 hee is not in the service of the king. 
 
 Sect. 440. 
 
 A LSO, others have said, that if a man be out of the realme, though 
 hee be not in the king's service, if such a mati being out of the realme 
 be disseised of lands or tenements within the realme, and the disseisor 
 die seised, Jj-c. the disseisee being out of the realme, it seemeth unto them, 
 that when the disseisee commeth into the realme, that he may well enter 
 upon the heir of the disseisor (que il poit * enter sur l'heire le disseisor), 
 $c. and this seemeth unto them for two causes. One is, that hee that 
 is out of the realme cannot have knowledge of the disseisin made unto 
 him by understandiny of the law, no more than that a thing done out 
 of the realme may bee tried within this realme by the oath of 12 men ; f 
 and to compell such a man to make continuall claime, which by the 
 understanding of the laiv can have no knowledge or conisance of such 
 disseisin made or done, this shall be inconvenient, namely, when such 
 a disseisin is done unto him when he was out of the realme, and also 
 the dying seised was done ivhen he was out of the realme: for in such 
 case he may not by possibilitie after the common presumption make con- 
 tinuall claime; but otherwise it should be if the disseisee were within 
 the realme at the time of the disseisin, or at the time of the dying seised 
 of the disseisor. 
 
 Bract, lib. 5. fol 
 436. b. & 16.3 
 
 fol. A ND herewith the antient law of England is agreeable with 
 -£j- Littleton, and the law at this day. So as it is vetus d: con- 
 216 '21V Flet s ^ ans opinio. Excusatur ft lam quis quod clameum 
 lib. 6. cap. 52, 53. H£§* non apjjosuerit, tit si toto tempore litigii fuit ultra T261.T 
 13 H. 4. mare quacunque occasionc. And this is also agreeable L a< 
 
 911 4 3 W ^ our y eare bookes (1). 
 
 21 H. 6. Error, 27. 33 II. 6. 1. 21 H. 6. 34. 26 II. 8. can. 18. 5 & 6 E. 6. cap. 11. 
 
 11 No 
 
 * bien added in L. and M. and Roll, f &c. added in L. and M. and Roh. 
 
 (1) The JUS 3IARI of the king may be considered under the two-fold 
 
 distinction
 
 L. 3. C. 7. Sect. 440. Of Continual! Claiine. [261. a. 
 
 " No more than a thine/ done out of the realme may hee tried 
 within this realme by the oath of 12 men." And in this rule of law 42 E. 3. 2 & 3. 
 there is warily and truly put by Littleton, these words, (by the 
 oath of twelve men) meaning by a jury. For by certificate a thing Vide Sect. 102. 
 
 done 
 
 distinction of the right of jurisdiction, which he exercises by his admiral, and 
 his right of propriety or ownership. 
 
 WITH RESPECT TO THE RIGHT OF JURISDICTION, the subject 
 is elaborately discussed by Mr. Selden, in his Mare Clatisum, a noble exertion 
 of a vigorous mind, fraught with profound and extensive erudition. In the first 
 part of it, he attempts to prove, that, the sea is susceptible of separate dominion . 
 In this, he has to combat the opposite opinions of almost all the civilians, and 
 particularly the celebrated declaration of one of the Antonines (L. 9. D. De 
 Lege Rhodia), " Ego quidem mundi dominus, lex autem maris, &c." by which, 
 the emperor has been generally considered to have disclaimed any right to the 
 dominion of the sea. For a different interpretation of this law, Mr. Selden 
 argues with great ingenuity. In this, he is followed, in some measure, by 
 Bynkershoock, in his treatise De Lege Rhodid de Jactu, Liber Singularis, in the 
 2d vol. of the edition of his works published by Vicat, Col. Allob. 1761. — 
 Mr. Selden, in the second part of his work, attempts to show that, in every 
 period of the British history, the kings of Great Britain have enjoyed the ex- 
 clusive dominion and property of the British seas, in the largest extent of those 
 words, both as to the passage through and the fishing within them. — He treats 
 his subject methodically, and supports his position with the greatest learning 
 and ingenuity. — The reader will probably feel some degree of prepossession 
 against the extent of this claim; but he will find Unsupported by a long and 
 forcible series of arguments, not only from prescription, from history, from the 
 common law, and the public records of this country, but even from the 
 treaties and acknowledgments of other nations. Here he is opposed by Bynkers- 
 hoock, in his Dissertatiode Dominio Maris, also published in the second edition 
 of his works. But it will be a great satisfaction to the English reader to find, 
 how much of the general argument used by Mr. Selden, is conceded to him by 
 Bynkershoock. Even on the most important part of the argument, the ac- 
 knowledgment of the right by foreign princes, Bynkershoock makes him con- 
 siderable concessions: "Plus momenti," says he, "adferre videntur gentium 
 " testimonia, quae illud Anglorum imperium agnovere. De confessionibus 
 " loquor non.injuria extortis, sed libere et sponte factis. Esse autem hujusmodi 
 " quasdam confessiones, neutiquam negari poterit." — After this acknowledg- 
 ment, corroborated as it is by other arguments used by Mr. Selden, many will 
 think his positions completely established. The chief objection made by 
 Bynkershoock, to the right of the crown of England to the dominion of the 
 sea is,, the want of uninterrupted possession, as he terms it of that dominion. 
 " So long as a nation has possession of the sea, just so long," says Bynkers- 
 hoock, " she holds its dominion. But to constitute this possession, it is ne- 
 " cessary that her navies should keep from it the navies of all other nations, 
 " and should themselves completely and incessantly navigate it, avowedly in 
 " the act or for the purpose as asserting her sovereignty to it." This, he con- 
 tends, has not been done by the English; on this ground therefore he objects 
 to their right of dominion of the English sea; and on the same ground he 
 objects to the right of the Venetians to the dominion of the Adriatic, and 
 to the right of the Genoese to the dominion of the Ligustic. But this seems 
 carrying the matter too far. — If it be admitted, (of which there unquestionably 
 are many instances), that the sovereign power of a state may restrain her own 
 subjects from navigating particular seas, she may also engage for their not 
 doing it in her treaties with other nations. It can never be contended, that, 
 after such a treaty is entered into, the acts of possession mentioned by Bynkers- 
 hoock,
 
 2G1. a.] Of Continuall Claime. L. 3. C. 7. Sect. 4A0. 
 
 (Ant. 74. a.) done beyond sea may be tried, as Littleton himselfe, Sect. 102, 
 
 1H 4" 12 14 ^ atu set downe. And all matters done out of the realme of Eng- 
 
 13 II. 4. f. 4. laud concerning war, combate, or deeds of armes, sball be tried 
 
 48 E. 3. 2 & 3. and determined before the constable and marshall of England, 
 
 before whom the triall is by witnesses, or by combate, and their 
 
 proceeding is according to the civill law, and not by the oath of 
 
 twelve men, as Littleton here speaketh. 
 
 This 
 
 hoock, are necessary to give it effect and continuance, unless this also makes 
 a part of the treaty. It is sufficient if the acts of possession are so often re- 
 peated as is necessary to prevent the loss of the right from the want of exer- 
 cise of it. In those cases, therefore, where the treaty itself, establishing the 
 exclusive dominion, of which we are speaking, is produced, the continued and 
 uninterrupted possession mentioned by Bynkershoock cannot be necessary. 
 But public rights, even the most certain and incontestable, depend often on no 
 other foundations than presumption and usage. The boundaries of territories 
 by land frequently depend on no other title. Then, if Bynkershoock be right 
 in his position, that the sea is susceptible of dominion, should not mere pre- 
 scription and usage in this, as in any other case, be sufficient to constitute a 
 right ? Upon what ground are the continued and uninterrupted acts of pos- 
 session mentioned by Bynkershoock, required to constitute a title in this, 
 more than in any other case of public concern ? — If this be thought a satis- 
 factory answer to the objection made by Bynkershoock, the remaining differ- 
 ence between him and Mr. Selden, respecting the right of the British monarch 
 to this splendid and important royalty, will be inconsiderable. — It is to be 
 added that Mr. Selden's treatise was thought so important to the cause, in 
 support of which it was written, that a copy of it was directed to be deposited 
 in the admiralty. Those who wish to procure it in an English translation, 
 should prefer the translation published in 1633, by a person under the initials 
 of J. H., to that of Marchemont Needham. On this subject, (with the ex- 
 ception of Sir Philip Medows) subsequent writers have done little more than 
 copy from Selden. The subject, however, is far from being exhausted. The 
 system adopted by Sir Philip Medows, in his Observations concerning the Do- 
 minion and Sovereignty of the Seas, printed in 1689, is more moderate than 
 Mr. Selden's. — He calls in question, at least indirectly, a material part of 
 Mr. Selden's positions, and places the right of the kings of England to the 
 dominion of the sea upon a much narrower ground. He confines it to a right 
 of excluding all foreign ships of war from passing upon any of the seas of 
 England, without special license for that purpose first obtained ; — in the sole 
 marine jurisdiction within those seas ; and in an appropriate fishery. He 
 denies that the salutation at sea, by the flag and top-sail, has any relation to 
 the dominion of the sea ; and he asserts that it was never covenanted in any 
 of the public treaties, except those with the United Netherlands, and never 
 in any of these, till the year 1654 ; he contends it is not a recognition of 
 sovereignty, but at most an acknowledgment of pre-eminence. His treatise is 
 deservedly held in great estimation. The late sir Thomas Parker, chief baron 
 of his majesty's exchequer, in a manuscript note in his hand-writing, thus ex- 
 presses himself respecting it : " This is a most curious and excellent treatise ; 
 " and though Mr. Selden's Mare Clausum is a learned and ingenious work, 
 "and will be ever popular with Englishmen, yet sir Phillip Medows's rules, for 
 " ascertaining the limits of the sea, seem to be founded on more solid and pru- 
 " dential reasons, than Mr. Selden has offered, in his book. Thomas Parker, 
 " 14 Sept. 1744." 
 
 With respect to TEE KING' S RIGHT OF FR OPER TY OR WJYER- 
 SHIP, it is so fully discussed by lord Hale, in his excellent treatises de Jure 
 Maris, and de Portubus Maris, published by Mr. Hargrave, that little more is ne- 
 cessary
 
 L. 3. C. 7. Sect, 440. Of Continuall Claime. [261. a. 
 
 This rule here rehearsed by Littleton, is worthy of explication. (Doc. Pla. 209.) 
 If an alien (for example borne in France) bring a reall action, 
 and the tenant plead that the demandant is an alien borne under 
 the obedience of the French king, and out of the legiance of the 
 
 king 
 
 ccssary in this place, than to state a few of the leading positions of that distingish. 
 ed writer. — It may, however, be useful to premise, that where, in inquiries of 
 this kind, it is said, that a person is entitled to the right or property in ques- 
 tion, by common right, but that it may belong to another, it is intended to say 
 that the right or property in question is by the common law annexed to the 
 particular capacity of the party, or to some property of which he is owner ; 
 yet that it is not so inseparably or inalienably annexed to this capacity or owner- 
 ship, but that the party may transfer it to another. So that in all these cases 
 the presumption is in favour of him, to whom the right or property is said to 
 belong by common right \ yet this does not exclude the possibility of its 
 belonging to another. To another, therefore, it may belong; but, if he claims 
 it, he°must prove his title to it. On the other hand, the party to whom it 
 belongs of common right is under no obligation of showing his title to it ; to 
 him, in the intendment of the law, it belongs, till there is a proof of the con- 
 trary. To exemplify this doctrine, the lord of a manor is lord of the soil of 
 the manor of common right; that is, if it be admitted or proved that he is 
 lord of the manor, his right .to the soil so far necessarily follows, that it is not 
 incumbent on him to produce any proof of it. He may, therefore, of common 
 right, dig for gravel, unless it is to the prejudice of his tenants. But this 
 right is not inseparable or inalienable from the seigniory. The lord may grant 
 it to the tenants ; to the tenants, therefore, it may belong. But if they claim 
 it, it is incumbent on them to prove their title to it. There are two ways of 
 doing this*; one by showing the grant from the lord ; the other by prescrip- 
 tion ; that is, by proving an immemorial usage of it. which, in the eye of the 
 law, always pre-supposes a grant. Now, prescription is shown by producing 
 repeated and unequivocal instances of the immemorial usage or exercise of 
 the right contended for. The tenants, therefore, in the case we have mentioned, 
 if they cannot produce the original grant, must, to make out their title to dig 
 for gravel, produce repeated and unequivocal instances of their having done it 
 immemorially. If they do this, they establish their title. But, though the 
 lord be not called upon, in the first instance to prove his title to the right in 
 question; yet, when it is claimed by others, he may disprove their claim, by 
 showing he has done acts inconsistent with it. Thus, if on the one hand, the 
 tenants can prove, by repeated instances, that they have exercised the right in 
 question of digging for gravel, the lord may, on the other, show that, in all 
 or a considerable number of these instances, the parties have been presented 
 at his court, or otherwise punished for the acts in question ; and this may 
 destroy the effect of the evidence in their favour arising from the instances 
 adduced by them. In the same manner, the lord may show that they have 
 dug only in one particular spot of the waste, at particular times, or for a 
 particular purpose ; by this, he may circumscribe their right, as to the place, 
 time and manner of its enjoyment. — In cases of this nature, it sometimes 
 happens, that the party claims to be exempted from an obligation or servitude 
 to which, of common right, he is subject. To establish this, he must either 
 produce the release of the right, or produce that kind of evidence which will 
 establish a presumption that it was released, though the instrument by which 
 it was released cannot be produced. Non-user is one of the circumstances 
 most frequently urged to establish the presumption of a release. But here, 
 an important distinction is to be made, between those cases, where non-user is 
 brought as a bar under the statutes of limitation, and those, where it is brought 
 as evidence to prove a release. In the first case, it is an absolute bar to the 
 
 claim.
 
 261. a.] Of Continuall Claime. L. 3. C. 7. Sect. 440. 
 
 20 E 3 king of England ; shall this case want triall because the matter 
 
 Averment, 34. alleaged is out of the realme ? then by the fiction of this plea, no 
 
 27 Ass. 24. demandant shall recover; therefore in this case the demandant 
 
 15 E 4 15 shall reply, that he was borne at such a place in England, within 
 
 7 H. 6. 15. ' 1 R. 3. 4. 6 H. 7. 6. 7 II. 7. 8. F. N. B. 196. 29 Ass. 11. 13 E. 1. 
 Mord. 47. 12 H. 3. ibid. 55. Lib. 7. fol. 26, 27. Calvin's case. Li. 6. f. 47. 
 
 Dowdale's case. 
 
 the 
 
 claim, and there, the strongest evidence of the previous existence of the right 
 is of no avail ; iu the second, it is only argumentative evidence of the supposed 
 release of the right, and like all other evidence, may be repelled, by stronger 
 evidence to the contrary. — It should also be observed that, though it is said, 
 that prescription pre-supposes a grant, and non-user pre-supposes a release, it 
 is not, that, strictly speaking, the courts always in these cases really believe 
 that, such a grant, or such a release, are actually executed; but because, for the 
 sake of the general principle of quieting possessions, they will not permit them 
 to be disturbed by claims long dormant, and therefore determine in the same 
 manner as they would determine, if the very instrument of grant or release 
 were produced. The principles of which we have here endeavoured to give an 
 outline, are to be found in the cases of the mayor of Kingston-upon-Hull v. 
 Horner, Cowp. 102. and Eldridge v. Knott, ib. 214. — Lord Mansfield's argu- 
 ments in delivering the judgment of the court in these cases, as they are 
 reported by Mr. Cowper, afford a striking display of the comprehensive and 
 luminous understanding, the beautiful arrangement, and the familiar, but ele- 
 gant enunciation of the most refined and complex doctrines of the law, for 
 which he was so deservedly eminent. 
 
 This being premised; — with respect to the propriety or ownership of the sea, 
 and its soil, may be considered under these three distinct divisions, the high 
 seas, the shore or the land between high-water mark and low-water mark, and 
 the soil and franchise of ports. — 
 
 As to the high seas and their soil; the right of fishing in the sea and its 
 creeks and arms, is originally lodged in the crown, as the right of depasturing- 
 is originally lodged in the owner of the waste whereof he is lord ; the king has 
 therefore, of common right, the primary right of fishing ; — yet the people of 
 England have also, by common right, a liberty of fishing in the sea and its 
 creeks or arms, as a public common of piscary. Yet, in some cases, the king- 
 may enjoy a propriety exclusive of their common of piscary. He also may 
 grant it to a subject, and consequently a subject may be entitled to it by pre- 
 scription. (Lord Hale, de Jure Maris, page 11.) 
 
 As to the soil between high-water mark and low-water mark, at ordinary tides, 
 this of common right belongs to the king. — It may however belong to a subject, 
 by grant or presci'iption. Sometimes it is parcel of the adjacent manor : Some- 
 times of the adjacent vill or parish : sometimes it belongs to a subject in gross: 
 Still however it belongs of common right to the king : It is therefore incumbent 
 on the subject to prove his right. This may be done by producing the grant. 
 (Hale, ib. ch. 4, 5, 6. Sir Henry Constable's case, 5 Rep. 107.) But as it is 
 part of the possession of the crown, jure corona?, it does not pass by general 
 words; and therefore to establish a right to it under the grant, it must contain 
 such words, as either expressly or by necessary implication convey the soil. 
 — W the grant cannot be produced, it can no otherwise be proved, than by pre- 
 scription, that is, as we observed before, by repeated unequivocal and imme- 
 morial usage. — 
 
 As to ports, there is a very material and important distinction between the 
 franchise of a port and the property of its soil. — As to the franchise ; by the 
 common law, a port is the only place where a subject is permitted to unlade 
 customable goods. — This privilege constitutes what is called the franchise of 
 
 a port.
 
 L. 3. C. 7. S. 440. Of Continuall Claime. [261. a. 261. b. 
 
 the king's leigeance, and hereupon a jury of 12 shall be charged, 
 and if they have sufficient evidence that hee was borne in France, 
 or in any other place out of the realme, then shall they finde that 
 hee was borne out of theking's alleageance ; and if they have 
 sufficient evidence that he was borne in England, or Ire- 
 land, or Jernsey, or Jersey, or elsewhere within the 
 [261.~1 king's 0O°* obedience, they shall find that he was born 
 b. | within the king's leigeance. And this hath ever beene 
 the pleading and manner of trial! in that case. And so 
 it is in the case that Littleton here putteth, if a man, in avoydance 
 of a fine or a discent, alleage that he was out of this realme in 
 Spaine, at the time of levying of the fine, and at the time of the 
 disseisin and discent, the adverse party may alleage that he was 
 at such a place in England, &c. whereupon issue shall be taken, 
 and then in evidence he may prove that he was out of the 
 realme, &c. which, upon sufficient evidence, the jury ought to 
 finde. And in both these cases and the like, in a special verdict 
 the jury may finde that he was borne beyond sea, or was beyond 
 sea at that time, &c. 
 
 The 
 
 a port. — To create the franchise of a port is part of the royal prerogative. 
 But this does not in anywise affect the propriety of the soil. It may be con- 
 sidered as a striking instance of the respect of the law of England for private 
 property, that though it intrusts the king with the prerogative of originating 
 ports, and though the use of the adjacent soil is essentially necessary to the 
 existence of a port, the law does not permit the king to take any part of the 
 soil from the owner ; so that, if the soil is not the property of the king, it is 
 necessary to secure the property of the shore beforehand, for the purposes of 
 the port. The franchise belongs to the king of common right, but by charter 
 or prescription, it may be, and frequently is, the right of the subject. — The 
 soil generally belongs to the owner of the port ; but it is going too far to say, 
 that it belongs to him of common right. — The mere grant of a port would 
 not in a modern charter pass the soil, but perhaps it would be sufficient in an 
 ancient charter, to pass it, if no evidence to the contrary could be shown, 
 and it certainly would be considered as sufficient to pass it in an ancient 
 charter, if accompanied with the additional circumstance of immemorial usage. 
 — Having thus shown in whom the soil of the shore and of ports belongs by 
 common right, it remains to state succinctly the nature of the evidence by 
 which the right to it may be proved to exist in another. It may be done 
 by showing that he, and those under whom he claims, have immemorially, 
 frequently, and without restriction to any part of the soil, dug gravel, fetched 
 away sea weed or sand, or embanked against the sea. If it be claimed to 
 be part of a manor, the right of commonage for the cattle of the lord and 
 the tenants, the prosecution and punishment of purprestures in the court of 
 a manor, its being included in the perambulations, and every other act by 
 which the right to the soil of inland property is established, may be given in 
 evidence in support of it. The right to wreck of the sea or royal fish by 
 prescription, infra manerium, is a strong presumption for the shore's being 
 parcel of the manor; lord Hale's expression is very strong — "Perchance," 
 says his lordship, " the shore is parcel almost of all such manors as by pre- 
 scription have royal fish or wrecks of the sea within their manor." lb. 27. 
 — But it should be observed, that, though wreck is frequently parcel of a 
 manor, it is a royal franchise. Like other royal franchises, it belongs of 
 common right to the crown. But by grant of prescription it may, and in fact 
 frequently does, belong to a subject, sometimes in gross, but oftener as parcel 
 of his manor, parish, or vill adjacent to the sea. — [Note 205.]
 
 261. b.] Of Continuall Claime. L. 3. C. 7. Sect. 440. 
 
 (7 Rep. 26, 27. 
 Calv. case.) 
 
 5 R. 2. Triall,54 
 
 [*] 35 H. 8. 
 cap. 2. 
 Staunford's 
 PI. Cor. 90. 
 (Cro. Car. 332.) 
 
 [a] 33Eliz. 
 case Orurke, 
 [6] 34 Eliz. 
 casede Sir John 
 Perots, 
 [c] Mich. 19 
 & 20 Eliz. 
 Dier, 360. 
 (20 H. 6. 8.) 
 48 E. 3. 3. 
 11 H. 7. 16. 
 1 R. 3. 4. 
 
 (1 Roll. 532. 
 Hob. 11. 4 Ins. 
 138. 140. 141. 
 7 Rep. 2. a. 
 Sid. 367. 
 Lut 700. 710. 
 950.) 
 
 Pasch. 28 Eliz. 
 in action de 
 covenant inter 
 Evangelist Con- 
 stantine pi. & 
 Hughgyn de- 
 fendant in the 
 king's bench. 
 Li. 6. f. 47. 
 Dowdale's case. 
 Vid. 32 H. 6. 25. 
 48 E. 3. 3. 
 11 H. 7. 16. 
 2 E. 2. Obli- 
 gation, 15. 
 (2 Cro. 76. 
 Sid. 228. 
 Hob. 11.) 
 
 The statute of 25 E. 3, deproditionibus, doth declare, that it is 
 treason by the common law to adhere to the enemies of the king 
 within the realme, or without, if hee bee thereof proveablement 
 attaint of overt fact, and that he shall forfeit all his lands, &c. A 
 man must not imagine that seeing by the common law declared 
 by authority of parliament, that adhering to the king's enemies 
 without the realme, is high treason, and that the delinquent may 
 be attainted thereof, &c. that this should want triall, for then the 
 judgement of the common law, and declaration of the parliament, 
 should be illusory, which no well advised man will thinke in a 
 matter of so great consequence. But certaine it is, that for ne- 
 cessitie sake, the adherencie without the realme must be alleaged 
 in same place within England. And if upon evidence they shall 
 finde any adherencie out of the realme, they shall fmde the delin- 
 quent guilty. But most commonly they indited him (if he had 
 lands) in some county where his lands did lie, that were to be for- 
 feited ; and this, as appeareth in our bookes, was the common use. 
 And so it is declared by the statute [*] of 35 H. 8, and that it 
 shall be tried by twelve men of the countie, where the king's 
 bench shall sit, and be determined before the justices of that 
 bench, or else before such commissioners, and in such shire of the 
 realme, as shall be assigned by the king's majestie's commission, 
 and this statute for this point remaines in force at this day, anil 
 so it was resolved [a] by all the judges in my time, viz. in 33 
 Eliz. in the case of Orurche. And anno [6] 34 Eliz. in sir John 
 Perot's case done in Ireland, for that is out of the realme of Eng- 
 land, and the case [c] in Mich. 19 & 20 Eliz. was utterly denied, 
 and sir Christopher Wray himselfe (who is supposed to give his 
 opinion in that case) protested that he never gave any such opinion, 
 but did hold the contrary. "When part of the act, especially the 
 originall is done in England, and part out of the realme, that 
 part that is to be performed out of the realme, if issue be taken 
 thereupon, shall be tried here by 12 men ; and those twelve men 
 shall come out of the place where the writ is brought. For ex- 
 ample, (which ever doth illustrate) it was covenanted by inden- 
 ture, by charter party, that a ship should sayle from Blackney 
 haven in Norfolke, to Muttrel in Spaine, and there remaine by 
 certaine dayes. 
 
 In an action of covenant brought upon this charter party, the 
 indenture was alleaged to be made at Thctford in the county of 
 Norfolke, and upon pleading, the issue was joyned, whether the 
 said ship remained at Muttrel in Spaine by the said certaine 
 dayes. And it was adjudged that this issue should be tried at 
 Thctford, where the action was brought, because there the con- 
 tract tooke his originall by making of his charter partie, and so 
 hath it beene often adjudged in such like case. 
 
 An obligation made beyond the seas may be sued here in Eng- 
 land, in what place the plaintiff will. What then if it beare date 
 at Bourdeaux in France, where shall it be sued ? And answer is 
 made, that it may be alleaged to be made in quodam loco vocat' 
 Burdeaux 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. These points 
 are necessary to be knowne in respect of the variety of opinions 
 in our bookes. And of these thus much shall suffice, and now 
 is Littleton worthv to be heard. 
 
 "By
 
 L. 3. C. 7. S.441. Of Continuall Claime. [261. b. 262. a. 
 
 tl By understanding of the law." Vide, for intendenient of intcndement 
 law, Sect. 99, 100. 110. 293. 377. 393. 406. 367. 462, 463, of law. 
 &C. 439. Vide Sect 269. 
 
 " This shall he inconvenient." Here also, as hath beene 
 often said, appeareth, that argumentum ah inconvenient i, is strong 
 in law (A). 
 
 " Otherwise it should he if the disseisee were within the realme 
 at the time of the disseisin, &c." So as if a man be disseised before 
 he goeth over sea, or couimeth into the realme againe before the 
 discent, the discent shall take away his entrie. 
 
 [ 3 t 2 -] 
 
 «r Sect. 441. 
 
 ANOTHER matter ihey alleage for a proof e that before the statute 
 '• of king Edward the Third, made the 34 yeare of his reigne (devant 
 le statute fait en le temps de roy E. 3. an * 34. cap. 16, de son raigne), 
 by which statute non claim is ousted, cfc. the law was such, that if a fine 
 tvere levied of certaine lands or tenements, if any that tvas a stranger to 
 the fine had right to have and to recover the same lands or tenements, if 
 he came not and made his claime thereof within a yeare and a day next 
 after the fine levied, he shall be barred for ever, quia dicebatur quod finis 
 finem litibus imponebat. (B) And that law was such, it is proved by the 
 statute of West, the 2. De donis conditionalibus, where it is spoken if 
 the fine be levied of tenements given in the taile, <fc. quod finis ipso 
 jure sit nullus, nee habeant hseredes, aut illi ad quos spectat reversio 
 (licet plenee aetatis fuerint in Anglia, et extra prisonam) necessitat' ap- 
 ponere clameum suum, f &c. So it is proved that if a stranger that 
 
 hath 
 
 * 34. cap. 16, not in L. and M. or "f &c. not in L. and 31. or Roh. 
 Roh. 
 
 (A) See ante 66. a. and note 1 there. 
 
 (B) Upon this section of Littleton, Mr. Ritso observes, that, "it is plainly contradictory 
 and unintelligible, according to the present reading." And after citing the same section 
 as far as the words, "So it is proved, &c." Mr. Ritso argues thus: "Now, in the first place, 
 " it is not intended to prove that before the statute 34 E. 111. the stranger to a fine, who 
 " made not his claim within a year and a day, was for ever barred, d'c. ; but, on the cou- 
 " trary, that if such stranger was out of the realm, at the time of the fine levied, &c. h< 
 " was not barred, though he made not his claim, &c. And, secondly, as the law is here 
 " stated, in the preceding part of the section, it is not proved by the words of the statute 
 " do donis, &c. but the very reverse is proved. In order, thru, to restore this section, as 
 " we may presume it to have been originally written by L ittlcton, I should read as follows : 
 " 'Another matter they allege for proof, (of the allegation contained in sect. 440, that a dis- 
 " seisin and descent shall not bind the disseisee who is out of the realm at the time, (fee.) viz. 
 '' that before the statute of King Edward III. made the 34</( year of his reign, (by ichich sta- 
 " tute non-claim is ousted, &c.) the law teas such, that if any that was a stranger to the fine, 
 " had right to have and recover the same lands and tenements, if he came not and made his 
 " claim thereof within a year nail a day next after the fine levied, he was for ever barred ;' 
 " quia dicebatur qu6d finis finom litibus imponebat. ' But if he were out of the realm at the 
 " time of the fine levied, &c. or in prison, or not of full age, he was not barred, although he 
 " made not his claim, Ac. And that the law was such is proved by the statute of West. 2. de 
 " donis, &c.' "-—See Mr. Ritso s Intr. p. 108, 109. 
 
 The effect of Time, in barring legal remedies and conferring titles, is excellently shoicn 
 in the argument of the Master of the Rolls in Bcckford v. Wade, 17 Ves. jun. 87. not 
 only in respect to the point then under the consideration of the court, but also in respect to 
 the general operation of length of possession, as a bar under the statute of limitation, and as 
 affording a presumption in favour of right. On these points, the cases of Eldridge v. Knott, 
 L'iw/>. 214. and the Mayor of Kingston upon Hull v. Homer, ib. 102. moy also be uiefully 
 consulted.
 
 262. a. 262. b.] Of Continuall Claime. L. 3. C. 7. S. 441. 
 
 hath right unto the tenements, if he were out of the realme at the time of 
 the fine levied, Src. shall have no dammage, though that hee made not his 
 claim, §c. though that such fine was matter of record : by greater reason 
 it seemeth unto them, that a disseisin and discent that is matter in deed, 
 shall not so grieve him that was disseised when he was out of the realme 
 at the time of that disseisin, and also at the time that the disseisor died 
 seised, §c. but that he may well enter, notwithstanding such discent J. 
 
 HERE it appeareth, what the common law was before the 
 said statute, for non-clayme upon a fine levied. But now 
 4 H. V. cap. 24. since Littleton wrote, by the statute of 4 H. 7, five yeares after 
 See as well this proclamations made upon the fine are given to him that right hath 
 statute as the to ma ]j e n j s c l a ime, or pursue his action, where the common law 
 cap. 36. well g ave hi m Dut a yeare and a day. But this statute of 4 H. 7. 
 expounded in extends only to fines, and not to non-claime upon a judgement in 
 my Reports. a wr j t f right, and therefore the said statute of 34 E. 3. here 
 85?'&c'. c°ase 84 dol citecl b y Littleton, which ousteth non-claime only to fines levied, 
 fines per totum. extendeth not to a judgement in a writ of right at this day, and 
 lib. l.fol. 96, 97, therefore the common law in that case remaineth to this day, viz. 
 «a a « h ??K S fni that claime must bee made within a yeare and a day after judge- 
 
 LrtiOC. 11U. —■ I'M. ^ f «* . _ . 
 
 93. Bingham's ment (1). Also if a fine be levied without proclamations, or 
 case. lib. 8. fol. w ithout so many as the law requireth, then the statute of non- 
 
 Jast L Lib!"°9 rd ' S claime doth extend to SUch a fine ' 
 
 fol. 139, 140, 141. Beaumond's case. Lib. 10. fol. 49. b. Lampot's case, and 99. a. 
 Lib. 9. fol. 105, 106. Margaret Podger's case. Lib. 5. fol. 124. Saffyn's case. Lib. 10. 
 96, 97. Seymour's case. Lib. 8. fol. 72. Grosleye's case. Lib. 11. fol. 69. 71. 78. _ PI. 
 Com. in Smith's and Staph case, and in Stowe's case, and Howel's case, and Glanvil. li. 
 13. cap. 11. Bract. 435. Fleta, lib. 6. cap. 53. Brit. 216. (4 H. 7. c. 24. 32 H. 8. c. 
 36. 2 Cro. 101. 226.) 
 
 [o] Glanvil. "Dicebaiur finis, quiafinem litibus imponebat (2)." Here you 
 
 lib. 8. cap. 3. ma y observe the etyraologie of a fine. And herewith agreeth [a] 
 M a 435 hb ' 5 " antiquity : Finis ided dicitur finalis concordia, quia imponit 
 Fleta,' lib. 6. finem litibus. And after the example [6] of Littleton, it is good 
 cap. 52, 53. _ to search out the etymologie or right derivation of words; for 
 [b] Etymologies, jg nora fa terminis ignoratur et ars, as hath beene often observed 
 Vid. Sect. 74. in other places. And the civilians call this judiciall concord 
 174. 194. 441. transactionem judicialem de re immobili. 
 520. 592. 
 
 fP££t u Licet fucritpleno?, a>tatis in Anglid et extrapri- r263.~j 
 Stat, de anno sonam." In this act of 13 E. 1. De donis conditionali- L b. J 
 13 E. l. i us i s on e omitted, who is added in the statute De modo 
 
 levandi 
 
 \ &c. added in L. and M. and Roh. 
 
 (1) If a disseisor at the common law, before the statute of non-claim, 
 had levied a fine or suffered judgment in a writ of right, until execution 
 sued they were not bars, for the year shall be accounted after the transmuta- 
 tion of the possession by execution of the fine or recovery. 1 Rep. 97. — 
 [Note 206.] 
 
 (2) Every part of the law relating to fines and common recoveries has been 
 stated and explained by Mr. Cruise, in his Essays upon those subjects, in a 
 manner that equally recommends them to the student, and the most learned 
 and experienced practitioners. Besides the obligations which the Editor has 
 to him upon this account in common with the rest of the profession, he 
 acknowledges with equal pleasure and gratitude the particular obligations he 
 has to him for the assistance he has derived from them in the course of this 
 work.— [Note 207.]
 
 L. 3. C. 7. S. 442. Of Continuall Claime. [262. b. 263. a 
 
 levandi fines, viz. et sanse memorise, [c] But a fein-covert had [ejPL Com. 
 no privilege of non-claime at the common law, as some have Stowel's case, 
 said, because she had a husband that might make claime for ?. 69 " ,., 
 her. But yet Bracton saith, Item excusatur uxor quae sub f . 436. ' 
 potestate viri supposita, quod clamcum non apposuerit licet Brit. fo. 216. b. 
 mittere possit, and citeth a judgement in the point, Trin. 4. H. 
 8. in Cusin's case. But Fleta saith, Excusatur si fuerit uxor Fleta, lib. 6. 
 alicnjus, si fuerit per virum impedita, quod non potuit apponere ca. 53(A). 
 clameum. Also they in reversion or remainder expectant upon 
 any estate of freehold were barred by the common law; and yet 
 they could make no claime, because, as hath beene said, it be- 
 longed to the particular tenant, and not to them, because their 
 entry was not lawfull; which was one of the principall causes of 
 making of the said statute of 34 E. 3. which ousted non-claime. 
 But these cases of coverture, and of them in reversion and re- (4 h. 7. c. 24. 
 mainder, are now without question holpen, and just provision 32 H. 8. c 36. 
 made for the saving of their rights and titles by the said statute 2 Inst " 516 '^ 
 of 4 H. 7. as by the said act appeareth. 
 
 (A) This reference to Fleta is incorrect. See Fleta, lib. 6. ca. 54. 
 
 Sect. 442. 
 
 ALSO, inquire if a man be disseised, and he arraigne an assise 
 against the disseisor, and the recognitors of the assise eha?ite (1) for 
 the plaintife (et les recognitors de le assise f chaunta per le plaintife), 
 and the justices of assise will bee advised of their judgements untill the 
 next assise, $c. and in the meane season (et en % le demen tiers) the dis- 
 seisor dieth seised, <frc. yet the said suit of the assise shall be \\ taken in 
 law for the disseisee a continuall claime, insomuch that no default ivas 
 in him, § tfc. 
 
 " A RRAIGNE an assise." To arraigne the assise is to cause 
 the tenant to be called to make the plaint, and to set the 
 cause in such order as the tenant may bee enforced to answer 
 thereunto; and is derived of the French word arraigner, which 
 signifieth to order or set in right place. An arraignment is some- 
 time called an astitution, of the verbe astituo, compounded of ad 
 and statuo, that is, to place or set in order one by another. In 
 the same sense that Littleton here useth it, it is used 
 
 tQ63.~j when an appeale is Jg®" arraigned, both which are 
 a. J arraigned in French, but entred in Latin. And it is (io Rep. 130.) 
 to be observed, that Littleton saith here arraigne an 
 assise, and saith not that the tenant is arraigned; and so of the 
 the appeale; for these are the suits of the subject, and no man 
 is said to be arraigned, but merely at the suit of the king, upon 
 an enditement found against him, or other record wherewith he 
 is charged. And there the arraignment of the prisoner is to take 2 & 3 E. 6. 
 
 c. 24, towards 
 the end. Staundf. PI. Cor. 105. C. 3 II. 7. ca. 1. 
 
 order 
 
 ■f chaunta — chaunteront, in L. and \\ taken not in L. and M. or Koh. 
 M. and chaunteront in Roll. § &c. not in L. and M. or lloh. 
 
 I le not in L. and M. 
 
 (1) i.e. Find, or give their verdict. 
 Vol. II.— 22
 
 263. a.] Of Conthmall Claime. L. 3. C. 7. Sect, 442. 
 
 order that he appeare, and for the certainty of the person to hold 
 up his hand, and to plead a sufficient plea to the enditernent or 
 other record, whereupon they which) follow for the king may 
 orderly proceed. 
 
 Vid. Sect. 514. "Justices of assise." Justices of assise are assigned and con- 
 
 233,234. Magna stitutcd by the king of the judges and sages of the law, and are 
 Charta, 30. called justices of assise, for that the writs of assise of novel dis- 
 
 39! Stat de ' seisin (which in former times were accounted festina remedia, 
 Ebor. ca. 3, 4. and very frequent and common) were returnable before them to 
 Artie. Sup. Cart. ^ Q taken in their proper counties twice every yeare at the least, 
 4 E. 3. ca. 11. whereupon they had authority to give judgment and award seisin 
 7 R. 2. ca. 4. and execution : and therefore both for the number of them in 
 
 27 E. 1. de times past, and for the greater authority they had then as ius- 
 
 finibus, ca. 4. .. K . ' . • / 1 • 1 * 4. • • J 1 * • 
 
 28 E 1. de tices ot nisi prius (which was to trie issues only, except in quare 
 appellatis. impedit, and assises de darreine presentment, in which cases the 
 4 E. 3. ca. 2. justices of nisi prius might give judgment) they were denomi- 
 3 II 5 ca' 7* nated justices of assises : and divers acts of parliament have 
 
 13 H. 4. ca. 7. given to them great authority both in criminall causes and corn- 
 North. mon pleas. These justices of assise have also commission of 
 Q g" „" ca " 5 " oier and terminer, of gaole delivery and of the peace, of associa- 
 
 14 H. 6. ca. 1. tion, and si non omnes throughout their whole circuits, so as they 
 21 H.^6. ca. 10. are armed with ample, provident, but yet ordinary jurisdiction; 
 
 LnV 1, n for all their commissions are bounded with this expresse limit- 
 
 00 ti. o. c. y. . , . . . . L 
 
 34 & 35 H. S. ation, facturi quod ad justiham pertxnet secundum legem etcon- 
 
 ca. 14. suetudinem Anglise. And in former time, according to the 
 
 2&3E. 6. originall institution and their commission, both the justices 
 
 1 V~ 6. ca. 7. joined both in common pleas and pleas of the crowne. 
 
 2 Mar. Dier. 99. 
 
 3 &. 4 Eliz. Dier, 205. (F. N. B. 240. C. 4 Ins. 161.) 
 
 " Yet the said suit of the assise shall be taken in law, dr. a 
 continuall claime." And it is holden at this day that it shall 
 amount to a claime, for that there was no default in him, as 
 [d] See before Littleton saith. [d] Some have objected, that if the bringing 
 in this chapter, of an assise shall amount to continuall claime, and every con- 
 xrd* at 416 tinuall claime made by the disseisee vest the possession and free- 
 (2 E. 3. 8.' hold in him, therefore if bringing the assise, &c. should amount 
 
 14 E. 3. 14.) to a continuall claime, that then the writ should abate. But 
 (Ant. 2o3. b.) hereunto it hath beene answered in this chapter, that a con- 
 tinuall claime is an entry by construction of law for the advan- 
 tage of the disseisee, but not for his disadvantage. 
 
 24 E. 3. 25. I Q a w, 'it °f entry sur disseisin against one, supposing that he 
 
 9 E. 2. Age, 141. had not entred but by S. who disseised him, the tenant said that 
 
 15 E. 3. g_ died, seised, and the land descended to him, and prayed his 
 de'oar. 5. ' a S e J ^ e plaintife counterpleaded his age, for that he arraigned 
 
 an assise against S. who died hanging the assise, and he was 
 ousted of his age, for that the bringing of the assise amounted 
 to a claime. 
 3 g 3 tir If tenant in dower alien in fee with warranty, and the heire in 
 
 Uarrantie, 62. the reversion bring a writ of entry in casu proviso, &c. and hang- 
 ing the plea the tenant dieth, the heire shall not be rebutted or 
 barred by this warranty, for that the praecipe did amount to a 
 [*] Fleta, lib. 6. continuall claime. And herewith agreeth [*] antiquity; Et si 
 ca. J2 (B). _ clameum non apposuerit, sufficit tamen si ille vel antecessor suus 
 f ra 43fi lib ' 5 " f ac ^ at 1 uo d tantundcm valeat, ut si placitum moverit tenenti vel 
 fecerit rem litigiosam; quia sicut plus est facto ajypcllare qudm 
 
 verbo, 
 
 (B) This reftrmce U> FlePq is incorrect. &« Ftya, Ub. 6. oa. 53.
 
 L. 3. C. 7. S. 443. Of Continuall Claime. [263. a. 263. b. 
 
 vefbo, ita phis est clamcum apponere facto qudm verbo(A) : et ad 
 
 hoc facit de termino Sancton Trinitatis, anno regni regis H. 3. 
 
 15. in com. Hunt, dc quddam Guldcburgd, cui objectum fuit, 
 
 quod clamcum non apposuit, et ipsa respondit quod fecit quod 
 
 tantundem valet, quia tempore finis facti implacitavit tenentcm 
 
 per aliud breve, &c. 
 
 If the goods of a villein e (before any seisure made by the 33 E. 3. 
 
 lord) be distreined, the lord may have a replevyn : and notwith- Fo^T^'a 4 ^" 
 i- . r- i i • r J , -iii ,42 E. 3. 18. b. 
 
 standing before the bringing ot the writ he had no property, yet 9 n g # 25. 
 
 the very brinfrinir of the writ doth amount to a claime of the 
 
 goods, and vesteth the property in the lord. 
 
 "Insomuch that no default was in him, &c." Hereby it is 
 implycd, that our author inclined to this opinion, that it should 
 amount to a claime, for that no default was in him ; et nemo 
 debet rem suam sine facto autdefectu suo amittere, as the rule is. 
 
 (A) Tlie bZd chapter of the 6th book of Fleta concludes nearly in the words of the first 
 part of the quotations in the text ending with, "facto qu&m verbo." The whole of the 
 quotation is in Br act on, lib. b.fol. 436. 
 
 [ 2 f ; 3 -] » Sect, 443. 
 
 ALSO, inquire if an abbot of a monasterie die, and during the time 
 of vacation a man wrongfully entreth in certaine parcels of land of 
 the monasterie, claiming the land unto him and his heires, and of that 
 estate dicth seised, and the land descendeth unto his heires, and after 
 that an abbot is chosen, and made abbot of the monasterie, a question is, 
 if the abbot may enter upon the heire or not (et puis apres un * est elect, 
 et fait abbe de inesrne la monasterie, si f mesme l'abbe poit enter sur le 
 heire ou nemy.) And it seemeth to some, that the abbot may well enter 
 in this case, for this that the covent in time of vacation was no person 
 able to make continuall claime; for no more than they be personable to 
 sue an action, no more be they able to make continuall claime, for the 
 covent is but a dead bodie without head (car nient pluis que ils sont per- 
 sonable de | suer action, nient pluis ils sont able de faire continual claime, 
 car le covent § n'est forsque || un mort corps sans teste) ; for in time of 
 vacation a grant made unto them is void ; and in this case an abbot may 
 not have a writ of entrie upon disseisin against the heire, for this, that 
 hee ivas never disseised. And if the abbot may not enter in this case, 
 then hee shall bee put into his writ of right, | $e. which shall be hard for 
 the house : by which it seemeth to them, that the abbot may ivell enter, §c. 
 
 Quaeras de dubiis, legem bene discere si vis : 
 
 Quserere dat sapere, quse sunt legitima vere % 
 
 HERE, first, it is to be observed, that albeit the freehold and (Post. 331. a. 
 inheritance is in this case in no person, but in abeyance or j?i~; b< ^ 5 " a ^ 
 in consideration of law, yet an entrie and claime by one that hath L j^ ^j^, 
 
 no 339.) 
 
 * abbe added L. and M. and Roh. 1 dr. not in L. and M. 
 
 f mesme not in L. and M. or Roh. \ vere not in L. and M. nor is any 
 
 f suer — faire, L. and M. and Roh. part of these two verses in the Caml 
 
 § n'est — est, L. and M. and Roh. MSS. 
 
 II come added L. and M. and Roh.
 
 (1 Rep. 21.) 
 
 (P. N. B. 34. M. 
 W. 2. cap. 5.) 
 
 (8 Rep. 88. 
 Ant. 252. b.) 
 
 263. b. 264 a. J Of Continuall Claime. L. 3. C. 7. S. 443. 
 
 no right shall gaine the inheritance by wrong. For here Lit- 
 tleton saith, and of such estate died seised, &c. And so it is 
 in case of a bishop, parson, vicar, prebend, or any other sole 
 Merleb. cap. 28. 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 continuall claime, there- 
 fore a discent during that time shall not prejudice the successor; 
 for, as hath beene said, Impotentia excusat legem. If an usur- 
 pation bee had to a church in time of vacation, this shall not 
 prejudice the successor, to put him out of possession, but that 
 at the next avoidance hee shall present. 
 
 "No more than they be personable to sue an action, &c." Here 
 that which hath in this chapter beene said is confirmed, viz. 
 That the entrie or continuall claime must pursue the action. 
 
 11 For the covent is but a dead bodie, &c." This is ratio una, 
 but not unica : for though the rest of the corporation be no 
 mort persons, as the chapter in case of deane and chapter, or 
 the commonaltie in case of mayor and commonaltie ; yet cannot 
 they when there is no deane or maior make claime, because they 
 have neither abilitie nor capacitie to take or to sue any action, as 
 our author here saith. 
 
 "For in time of S^° vacation a grant made unto ["26-4.1 
 them is void, &c." And the reason is, because the | a. 
 body politique which is capable, not complete, but 
 wanteth the head. But this is to be understood of an immediate 
 grant ; for if during the vacation of the abathie of Pale, a lease 
 for life, or a gift in taile 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 maior and commonaltie of D. and the maior dieth, 
 a graunt made to the maior and commonaltie of D. is void for 
 the cause aforesaid; but in that case, if a lease for life be made, 
 the remainder to the maior and commonaltie of D. the remain- 
 der is good, if there bee a maior elected during the particular 
 estate. 
 
 2 H. 7. 13. 
 
 40 Ass. 26. 
 34 E. 3. 
 Garrantie, 69. 
 
 (Post. 378.) 
 (Ant. 239. a.) 
 
 (10 Rep. 1. 
 Ant. 85. 250. a. 
 3. a. 
 
 lib. 10 Lam- 
 pett's case, 
 lib. 6. Bishop 
 of Wells case, 
 lib. 1. Rector 
 of Chedding- 
 ton's case.) 
 
 Horace. 
 
 " May well enter, &c." Here by this (&c.) is imply ed, or 
 make his continuall claime in such sort as hath beene before 
 expressed. N 
 
 Quseras de dubiis, legem bene discere si vis : 
 
 Quaerere dat sapere, qure sunt legitima vere. 
 
 Here Littleton expresseth an excellent meanes to attaine to 
 the reason of the law, by enquiring of, and conference had with, 
 learned men, of doubtful cases : 
 
 Inter cuncta leges, & percunctabere doctos. 
 
 For as collatio peperit artes, so collatio perficit artes : and this 
 must bee continuall; for as knowledge increaseth, so doubts 
 therewith increase also; Cresccnte scicnlid, crescunt simul et 
 dubitationcs. 
 
 And
 
 L. 3. C. 8. Sect. 444. Of Eeleases. [264. a. 264. b. 
 
 And here Littleton citeth verie aptly two verses; for it is truly 
 said, that Aathoritates philosophorum medicorum et poetarum 
 sunt in causis allegandse et tenendse: and our author doth cite a 
 verse for inernorie, but it is worthy of niemorie. 
 
 Chap, 8. Of Releases (1.) Sect. 444. 
 
 RELEASES arc in divers manners, viz. releases of all the right 
 which a man hath in lands or tenements, % an ^> releases of actions 
 personalis and realls, and other things. Releases of all the right which 
 men have in lands and tenements, §c. are commonly made in this forme 
 or of this effect: 
 
 HERE our author beginneth with a division of releases. Vide Mir. cap. 2. 
 
 sect. 17. 
 Vide Brit. 101. 
 Bract, li. 5. Tract, de Except. & lib. 4. fol. 318. b. Fleta, lib. 3. cap. 14. 
 
 These words must be referred thus : releases are of two sorts, 
 
 vizt a release of all the right which a man hath either in lands 
 
 and tenements, or in goods and chattels ; or there is a release of 
 
 actions reall, of or in lands or tenements; or personall, 
 
 [S6-4.~j of or in goods or chattels; or mixt, 8§^> partly in the 
 b. J realty, and partly in the personaltie. Vide Sect. 492. 
 
 "Release," Relaxatio. Of the etymologie of this word you 
 have heard before. Fleta [a] calleth it charta de quietd da- [a] Fleta, ubi 
 
 mantia. supra. 
 
 i 
 
 Sect. 
 
 J &c. added in L. and M. 
 
 (1) At eommon law, lands could not be transferred by one person to 
 another but by feoffment, with livery of the seisin. This produced a notoriety 
 of the transmutation of the possession. This notoriety was in some measure 
 effected by a disseisin ; but that was only a tortious possession, liable to be 
 defeated by the disseisee. Thus the disseisor had the possession ; the disseisee 
 the right. To complete the title of the disseisor, it was necessary he should 
 acquire the right. This could not be done by a feoffment, as that was a trans- 
 fer of the possession; but it was effected by a release, which in some respects 
 operates as an actual transfer of the right; in others, as an acquittal or dis- 
 charge from it. The different degrees of title in the disseisor, his heir, or 
 feoffee, and the different natures of the rights of the disseisee, make it neces- 
 sary that releases should be adapted to the different situation of the parties, 
 and give them, as the circumstances of the parties vary, a different effect and 
 operation. — [Note 208.]
 
 2U. b.] Of Keleases. L. 3. C. 8. Sect. 445. 
 
 Sect. 445. 
 
 TZNOW all men by these presents, that I A. of B. have remised, 
 ■"- released, and altogether from me and my heires quiet claimed : 
 (nie A. de B. remisisse, relaxasse, et omnind de me et hseredibus meis 
 quietum clamdsse): or thus, for mee and my heires quiet claimed to C. 
 of D. all the right, title, and claim (totiim jus, titulum, et clameum) 
 which I have, or by any meanes may have, of and in one messuage 
 with the appurtenances in F. &c. And it is to bee understood, that 
 these ivords, remisisse, et quietum clamasse, are of the same effect as 
 these words, relaxasse. 
 
 "TZNOW all men by these presents, &c." Here Littleton 
 -1^- sheweth presidents of releases of right : and presidents doe 
 both teach and illustrate, and therefore our student is to be well 
 stored with presidents of all kindes. 
 
 Bract, lib. 4. "Remisisse, relaxasse, et quietum clamdsse." Here Littleton 
 
 pii+f A- =.„„ sheweth, that there be three proper words of release, and bee 
 -tleta, ubi sup. i_ 2 a- i • i i • • • i 
 
 9 H. 6. 35. much oi one enect : besides, there is renunciare, acquietare, ana 
 
 24 E. 3. 27. there bee many other words of release; as if the lessor grants 
 confab ^7^ to ^ e ^ essee f° r l^ e > ^ at ^ e sua H be discharged of the rent, 
 (2 Roii.Abr.400. this is a good release. Vide Sect. 532. 
 
 403. 9 Rep. 52.) 
 
 And it is to bee understood, that there bee releases in deed, 
 or expresse releases, whereof Littleton heere hath shewed an ex- 
 27 H. 8. 29. ample. These expresse releases must of necessitie be by deed. 
 S4 H* 6 S< 44 There be also releases in law, and they are sometimes by deed, 
 
 of an attaint. aQ d sometime without deed. As if the lord disseise the tenant, 
 3 E. 3. 38. and maketh a feoffment in fee by deed or without deed, this is 
 
 TM ^ * 8 "n'l a re ^ ease °f tne seigniorie. And so it is if the disseisee disseise 
 mere's case. ^ e heire of the disseisor, and make a feoffment in fee by deed 
 (8 Rep. 136. or without deed, this is a release in law of the right. And the 
 
 ?}°: ^n' - 18 n 6 -\ same law it is of a ri^ht in action. 
 Hob. 10. 1 Ski. ° 
 
 79. 1 Roll. Abr. 934. Plo. 36. 5 Rep. 29.) 
 
 8 E. 4. 3. If the obligor make the obligee his executor, this is a release 
 
 21 E. 4. 2. j n j aw f the action, but the dutie remaines, for the which the 
 
 executor may retaine so much goods of the testator (1). 
 
 If 
 
 (1) What sir Edward Coke observes respecting obligors and obligees holds 
 equally between all other creditors and debtors; but itTinust be attended with 
 the following observations. A debt is only a right to recover the amount of 
 the money by way of action; and, as an executor cannot maintain an action 
 against himself, or against, a co-executor, the testator, by appointing the debtor 
 an executor of his will, discharges the action, and consequently discharges the 
 debt. Still, however, when the creditor makes the debtor his executor, it is 
 to be considered but as a specific bequest or legacy, devised to the debtor to 
 pay the debt, and therefore, like other legacies, it is not to be paid or retained 
 till the debts are satisfied ; and if there are not assets for the payment of the 
 debts, the executor is answerable for it to the creditors. In this case, it is the 
 same whether the executor accepts or refuses the executorship. On the other 
 
 hand,
 
 L. 3. C. 8. Sect. 44o. Of Releases. [264. b. 
 
 If the feme obligee take the obligor to husband, this is a re- 11 H. 7. 4. 
 lease in law. The like law is, if there be two femes obligees, 8E 4 ^ ' 
 and the one take the debtor to husband (2). 
 
 If an infant of the age of seventeene yeares release a debt, 
 that is void ; but if an infant make the debtor his executor, this 
 is a good release in law of the action (3). 
 
 But if a feme executrix take the debtor to husband, this is no 
 release in law, for that should be a wrong to the dead, and in 
 law worke a devastavit, which an act in law shall never worke. 
 And so it was adjudged in the king's bench, Mich. 30 & 31 Eliz. 
 in which case I was of counsell. 
 
 But it is to be observed, that there is a diversitie betweene a 30 E. 3. 24. 
 release in deed, and a release in law j for if the heirc of the dis- | 2 . E - 3. tit. 
 seisor make a lease for life, and the disseisee release his right to ^ Mo 2 3f,! 
 the lessee for his life, his right is gone for ever. But if the dis- 1 Leo. 320. 
 seisee doth disseise the heirc of the disseisor and make a lease for ?, Re P- 152 - 
 life, by this release in law the right is released but during the life Fi °' ch 294!) 
 of the lessee ; for a release in law shall be expounded more 
 favourable, according to the intent and meaning of the parties, 
 
 than 
 
 hand, if the debtor makes the creditor his executor, and the creditor accepts 
 the executorship, if there are assets, he may retain his debt out of the assets, 
 against the creditors in cquall degree with himself; but if there are not assets, 
 he may sue the heir, where the heir is bound. See Wankford v. Wankford, 
 1 Salk. 299. Selwin v. Browne, 1 Bro. Cas. in Par. 179. For. 243. Vin. vol. 
 8. p. 193. 2 Eq. Cas. Abr. 461. note at (Q).— [Note 209.] 
 
 (2) In the case of Smith & Uxor v. Stafford, Hob. 216. the husband pro- 
 mised the wife before marriage that he would leave her worth 100A The marri- 
 age took effect, and the question was, whether the marriage was a release of the 
 promise. All the judges but Hobart were of opinion, that, as the action could 
 not rise during the marriage, the marriage could not be a release of it. The doc- 
 trine of this case seems to be admitted in the case of Gage or Gray v. Acton, 
 1 Salk. 325. 12 Mod. 290. The case there arose upon a bond executed by the 
 husband to the wife before the marriage, with a condition making it void if she 
 survived him, and he left her 1,000^. Two of the judges were of opinion, that 
 the debt was only suspended, as it was on a contingency which could not by any 
 possibility happen during the marriage. But lord chief justice Holt differed 
 from them ; he admitted that a covenant or promise by the husband to the wife 
 to leave her so much in case she survives him is good, because it is only a 
 future debt on a contingency which cannot happen during the marriage, and 
 that is precedent to the debt ; but that a bond debt was a present debt, and 
 the condition was not precedent, but subsequent, that it made a present duty ; 
 and the marriage was consequently a release of it. The case afterwards went 
 into chancery. The bond was taken there to be the agreement of the parties, 
 and relief accordingly decreed. 2 Vera. 481. A like decree was made in the 
 case of Cannel v. Buckle, 2 P. W. 243.— [Note 210.] 
 
 (3) If the obligor makes the obligee his executor, the obligee may retain ; but 
 that is not applicable to the case put here. There/ore he may make an executor 
 at 17 ; tamen supra 89. b. it is said that it is at 18. It should seem that the case 
 here is understood of 17 complete, et supra 89. of 17 beginning ', and thus' the 
 jxissages agree. D'Avila His. King of France is major at 14 beginning. Thus 
 ■it seems that puberty, which by the civil law holds from 14 to 18, is understood 
 of 18 beginning; and thus our law agrees with the civil law, impuberi non licet 
 testari before 17 complete, and 18 beginning. Lord Nott. MSS. — [Note 211.]
 
 264. b. 265. a.] Of Releases. L. 3. C. 8. Sect. 446. 
 
 than a release in deed, which is the act of the partie, 
 and (fUt" shall be taken most strongly against himselfe, 
 and so in the case aforesaid, where the debtor is made 
 executor. 
 
 [ a f 5 -] 
 
 (10 Rep. 41.) « All the right, title, and claim (totum jus, titulum & da- 
 
 meum)." But note, that jus, or right, in generall signification 
 includeth not onely a right for the which a writ of right doth 
 lie, but also any title or claime, either by force of a condition, 
 mortmaine, or the like, for the which no action is given by law, 
 but only an entry. 
 
 Sect. 446. 
 
 ALSO, these words ivhich are commonly put in such releases, *scilicet 
 
 (quae quovisrnodo in futurum habere potero) are as void in law ; 
 
 for no right passeth by a release, but the rigid which the releasor hath at 
 
 the time of the release made (1). For if there be father and sonne, arid the 
 
 father 
 
 *scilicet — &c. in L. and M. and Itoh. 
 
 (l)To prevent maintenance, and the multiplying of contentions and suits, 
 it was an established maxim of the common law, that no possibility, right, title, 
 or any other thing that was not in possession, or vested in right, could be granted 
 or assigned to strangers. — A right in action could not be transferred even by 
 act of law ; nor was it considered as transferred to the king by the general 
 transferring words of an act of attainder. (See the Marquis of Winchester's 
 case, 3 Rep. 2. b. — But a right or title to the freehold or inheritance of lands 
 might be released in five manners. — 1. To the tenant of the freehold in fact, 
 or in law, without any privity. — 2. To him in remainder. — 3. To him in re- 
 version.— -4. To him who had right only in respect of privity ; as, if the tenant 
 were disseised, the law, notwithstanding the disseisin, might release his services 
 to him. — 5. To him who had privity only, though he had not the right ; as if 
 tenant in tail made a feoffment in fee, after this feoffment no right remained in 
 him ; yet, in respect of the privity only, the donor might release to him the 
 rent and services. — 6. So, if the terre-tenants and the person entitled to the 
 right or possibility joined in a grant of the lands, it would pass them to the 
 grantee discharged from the right or possibility. See 10 Hep. 49. b. — But the 
 common law is altered in the above instances in many respects. — On the assign- 
 ment of things in action, see ante note 1, to p. 232. b. The passage in the text 
 was cited by lord chief justice Trevor, in delivering his opinion on the case of 
 Arthur v. Bokenham, (Fitzgib. 234,) with an observation, that the doctrine 
 laid down there by Littleton had never been contradicted. On the trans- 
 missibility, conveyance, assignment, and devise of contingent remainders, and 
 executory estates and interests, see Mr. Fearne's Essay on Contingent Remain- 
 ders and Executory Devises, 6th ed. pp. 364, 365, 366, 367, 368, 369, 370, 
 371. 548, 549, 550, 551, 552, 553, 554, 555, 556, 557, 558, 559, 560, 561, 
 and 562 ; and Mr. Preston's Treatise on Conveyancing, vol. 1. p. 142. 209. 
 301. The case of Roe dem. Perry v. Jones, 1 Hen. Black. 30. seems to have 
 established the power of testamentory dispositions of such contingent and execu- 
 tory estates and possibilities, accompanied with an interest, as would be descendi- 
 ble to the heir of the object of them, dying before the contingency or event on 
 
 which
 
 L. 3. C. 8. Sect, 446. Of Releases. [2Q5. a. 
 
 father be disseised, and the sonne (living his father) releaseth by his 
 deed to the disseisor all the right which he hath or may have in the same 
 tenements without clause of ivarrantie, $c. and after the father dieth, 
 $c. the sonne may lawfully enter upon the possession of the disseisor, for 
 that he had no right to the land in his father s life (pur ceo que il n'avoit 
 | droit en la terre % en la vie son pier) but the right descended to him 
 after the release made by the death of his father, $c. 
 
 "MOTE, a man may have a present right, though it cannot 
 -Li take effect in possession, but in futuro (2). 
 
 As hee that hath a right to a reversion or remainder, and such (2 Roll. AJ>r. 
 a right hee that hath it may presently release. But here in the 40°. 8Kep- 
 
 i • i -r ■ i i ,i i . ,i r* ( Edw. Althams 
 
 case which Littleton puts, where the sonne release in the lile ot case ^ 
 
 his 
 
 f nul added in L. and M. and % quant il relessases added in L. 
 
 Roll. and M. and Roh. 
 
 which the vesting or acquisition of them depends. — It has been contended to 
 be a rule of law, that, whatsoever can be devised, may be granted ; and conse- 
 quently, that this case is an authority to show, that the contingent and execu- 
 tory estates and interests, to which it applies, may be granted. — [Note 212.] 
 
 (2) This doctrine was fully investigated in the case of Dormer v. Fortescue, 
 Yin. fol. 18, fol. 413. 3 Atk. 123. 135. Bro. Par. Cas. v. 4. 353. 405. The case 
 there was, that an estate was limited to the use of A. for 99 years, if he should 
 so long live ; and after his decease, or the sooner determination of the estate 
 limited to him for 99 years, to the use of trustees and their heirs, during his 
 life, upon trust to preserve the contingent remaiuders; and. after the end or 
 determination of that term, to the use of A.' a first and other sons successively 
 in tail male, with several remainders over. A. having a son, they joined in 
 levying a fine and suffering a common recovery, in which the son was vouched. 
 If the trustees took a vested estate of freehold during the life of A. the recovery 
 was void, there not being a good tenant to the praecipe ; but if they took only 
 a contingent estate, the freehold was in the son, and of course there was a good 
 tenant to the praecipe. Upon this point, the case was argued in the court of 
 king's bench, and afterwards on appeal before the house of lords, where all 
 the judges were ordered to attend. Lord chief justice Lee, when the cause 
 was heard in the king's bench, and lord chief justice Willes, in delivering the 
 opinion of the judges in the house of lords, entered very fully into the dis- 
 tinction between contingent and vested remainders. — They seem to have laid 
 down the following points. That a remainder is contingent, either where the 
 person to whom it is limited is not in esse : or where the particular estate may 
 determine before the remainder can take place ; but that, in every case, where 
 the person to whom the remainder is limited is in esse, and is actually capable 
 or entitled to take on the expiration, or sooner determination, of the particular 
 estate, supposing that expiration, or determination, to take place at that 
 moment, there the remainder is vested. That the doubt arose, by not ad- 
 verting to the distinction between the different nature of the contingency, in 
 those cases where the remainder is limited to a person in esse, but the title 
 of the remainder-man to take depends on a collateral or extraneous con- 
 tingency, which may or may not take place during the continuance of the 
 preceding estate, and those cases, where the preceding estate may endure 
 beyond the continuance of the estate in remainder. Thus if an estate is limited 
 to A. for life, and after the death of A. and J. 8. to B. for life, or in tail ; 
 there, during the life of 1. S. the title of B. depends on the contingency of 
 I. 8. dying in the lifetime of A. This is an event which either may or may 
 
 not
 
 265. a. 265. b.J Of Releases. L. 3. C. 8. Sect, 446.' 
 
 [>i] BHtton, his father, this release is void, [r<] because he hath no right at all 
 fol. 101. at the time of the release made, but all the right was at that time 
 
 42 E \ 21' * n tne f atDer > but aI " ter tue decease of the father, the sonue shall 
 
 10 H. 6.' 4.' enter into the land against his owne release. 
 25 As?. 7. 
 
 27 E. 3. Execution, 130. 1 Rep. 112. b. 
 
 16 E. 3. The baron makes a lease for life and dieth, the release made 
 
 Larre, 24o. ^ ^ •£ f ^ dower to him in reversion is good, albeit shee 
 Hoe s case, J .... P ' 
 
 5 part. f. 70,71. hath no cause or action against him in prassenti. 
 
 (Sect. 706.) " Without clause of warrantie." For if there bee a warrantie 
 
 annexed to the release, then the Sonne shall be barred. For 
 albeit the release cannot barre the right for the cause aforesaid, 
 yet the warranty may rebutt, and barre him and his heires of a 
 future right which was not in him at that time : and the reason 
 
 20 H. 6. 29. (which in all cases is to be sought out) wherefore a warrantie 
 
 being a covenant reall should barre a future right, is for avoiding 
 of circuitie of action (which is not favoured in law) ; as he that 
 made the warrantie should recover the land against the ter-tenant, 
 and he by force of the warrantie to have as much in value against 
 the same person : yet is there a diversity betweene a warrantie 
 [fc] 39 H. 6. 43. and a feoffment; \Jj\ for if there be grandfather, father, and sonne, 
 
 21 E. 4. 81. and the father disseiseth the grandfather, and make a 
 
 Entr' Con- 21 feoffluent £©*" in fee > the grandfather dieth, the father ["265/1 
 9 H.V l.°b. against his own feoffment shall not enter; but if he die, |_ b. J 
 2 E. 3. 38. his sonne shall enter. And so note a diversity betweene 
 
 io°TC L 2 33 C a rs ^ ease ? a feoffment, and a warrantie ; a release in that case is 
 
 firmation 24. void ; a feoffment is good against the feoffor, but not against 
 8 E. 2. Garr. 62. his heire ; a warrantie is good both against himselfe and his 
 
 11 H. 4. 33. heires rl 1 ) 
 
 43 E. 3. 17. ntireb^i;. 
 
 42 E. 3. 24. per Finchden. 17 E. 3. 67. Lib. 1. fol. 112, 113. in Albanie's 
 case. (9 Rep. 75.) (1 Roll. Rep. 197.) 
 
 And 
 
 not take place during the continuance of the preceding estate ; and B.'s estate 
 therefore it necessarily contingent. But then, supposing I. S. to die; still it 
 remains an uncertainty whether B.'s estate will ever take place in possession; 
 for, if the remainder be limited to B. for life; there if B. dies in A.'s lifetime, 
 A.'s estate would endure beyond the continuance of the estate limited in re- 
 mainder. The same would be the case if the remainder over were limited to 
 B. in tail, and B. was to die in A.'s lifetime without issue. — Yet, in both cases, 
 it was agreed that B. took, not a contingent, but a vested remainder. Hence, 
 they inferred that it was not the possibility of the remainders over never taking 
 effect in possession, but the remainder-man's not having a capacity or title to 
 take, supposing the preceding estate at that instant to expire, or determine, 
 and its being uncertain whether he ever will obtain that capacity or title, 
 during the continuance of the preceding estate, that makes the remainder 
 contingent. Upon these grounds they determined that the trustees took a 
 vested remainder, and that the recovery therefore was void. The doctrine 
 established in the case of Dormer and Fortescue is laid down by sir Edward 
 Coke, 10 Piep. 85 ; where he, with great accuracy of expression, observes, 
 that where it is dubious and uncertain whether the use or estate limited in 
 future shall ever vest in interest or not, then the use or estate is in contin- 
 gency; because, upon a future contingent, it may either vest or never vest, as 
 the contingent happens. And see 1 Rep. 137. b. — [Note 213.] 
 
 (1) Ant. 186. it is laid down that a man may warrant more than passes 
 from him. In Fitz. 234. lord chief justice Trevor observes, that the reason 
 
 why
 
 L. 3. 0. 8. Sect. 446. Of Keleases. [265. b. 
 
 And here are three diversities worthy of observation, viz. First, 
 betweene a power or an authoritie, and a right. Secondly, be- 
 tweene powers and authorities themselves. Thirdly, betweene 
 a right and a possibilitie. 
 
 As to the first, if a man by his last will deviseth that his exe- 
 cutors shall sell his land, and dieth, if the executors release all 
 their right and title in the land to the heire, this is void, for that 
 they have neither right nor title to the land, but only a bare au- 15 II. 7. 11. 
 thority, which is not within Littleton's case of a release of a right. 
 And so it is if cesty 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. 
 
 As to the second, there is a diversity betweene such powers or (i R e p. 111. a. 
 authorities as are only to the use of a stranger, and nothing for 173. Ant. 215. a. 
 the benefit of him that made the release (as in the case before) 21&- b ' 23 '- a -) 
 and a power or authority which respecteth the benefit of the 
 releasor ; as in these usuall powers of revocation, when the 
 feoffer, &c. hath a power to alter, change, determine, or revoke 
 the uses (being intended for his benefit) he may release ; and 
 where the estates before were defeasible, he may by his release 
 make them absolute, and seclude himselfe from any alteration or 
 revocation, as it hath beene resolved ; which diversity you may 
 read in [m] Albanie's case (2). [«i] Lib. 1. 
 
 As to the third, before judgement the plaintife in an action of Albanie's case, 
 debt releaseth to the baile in the king's bench all demands ; Lib.' 5. Jloe's 
 and after judgment is given, this shall not barre the plaintife to case, 70, 71. 
 have execution against the baile, because at the time of the 10 n - 6 - 4 - 
 release he had but a meere possibility, and neither jits in re, nor 
 jus ad rem, but the duty is to commence after upon a contingent, 
 and therefore could not be released presently. So if the conu- 2 5Ass. p. 7. 
 see of a statute, &c. release to the conusor all his right in the 27 E. 3. 
 land, yet afterwards he may sue execution ; for he hath no right Execution, 130. 
 in the land till execution, but only a possibilitie; and so have I j^S^l inter.' 
 knowne it adjudged (3). Borough et 
 
 Gray. (2 Roll. Abr. 404. 40S. Hob. 46. 2 Cro. 401. 449.) 
 
 Sect, 
 
 why the feoffment prevails against the father is, that by the disseisin he had 
 acquired possession, and might make a feoffment, and the operation of a feoff- 
 ment is to bar future and contingent rights. — [Note 214.] 
 
 (2) See Note 2 to page 113. The doctrine of the suspension and ex- 
 tinction of the powers will be considered in a note to the chapter of Discon- 
 tinuance. 
 
 (3) In the king's bench, where the proceeding is by bill, the bail is not 
 bound in a certain sum to the plaintiff, but only undertakes that the defendant 
 shall pay the condemnation money, or render his body to prison ; so that they 
 are but in the nature of gaolers to the defendant : but in the common pleas, 
 the bail are bound to the plaintiff in a certain sum. 5 Hep. 70. 10 Rep. 51. — 
 [Note 215.]
 
 265. b. 266. a.] Of Releases. L. 3. C. 8. Sect. 447. 
 
 Sect. 447. 
 
 A LSO, in releases of all the right which a man hath in certaine lands, 
 &c. it behoveth him to whom the release is made* in any case, that 
 he hath the freehold in the lands~\ in deed, or in law, at the time of the 
 release made, $c.% For in every case where he to whom the release is 
 made hath the freehold in deed, or in law, at the time of the release \\, Sfc. 
 there the release is good (§ donque le releas est bone) (4). 
 
 49 E. 3. 28. « QF all the right." This must be intended of a bare right 
 
 and not of a release of right, whereby any estate passeth, 
 
 as to a lessee for yeares, &c. as shall be said hereafter. Also it 
 
 (Doct. and Stud. mus t be intended of a release of a right of freehold at the least, 
 
 10 iiep. 48. b. an( ^ not to a right for any terme for yeares or chattle reall ; as if 
 
 Post. 276. a.) lessee for yeares bee ousted, and hee in the reversion disseised, 
 
 and the disseisor maketh a lease for yeares, the first lessee may 
 
 release unto him. All which is implyed in the first &c. Also in 
 
 some case a release of a right made to one that hath neither free- 
 
 [c] 7 E. 4. 13. hold in deed, nor freehold in law, is good and available in law, [c] 
 
 20 H. 6. 29. as the demandant may release to the vouchee, and yet the vouchee 
 
 lai? « 19 hath nothing in land : but the reason of that is, for that when 
 
 S H. 4. 5. the vouchee entreth into the warrantie, he becommetn tenant to 
 
 5 E. 3. 36. the demandant, and may render the land to him, in respect of 
 
 xr-i a 40 *' ,an the privitie : but an estranger cannot release to the vouchee, 
 Vido Sect. 490, «• . ' . . , . o „ , . , 
 
 491. because, in rei veritate, he is not tenant ot the land. 
 
 (Post. 284. b. [(/] jggg~ And so it is if the tenant alien hanging thcj-^p „ 
 
 3 R° P ' 29 b' precipe, the release of the demandant to the tenant to 
 
 [<7] 10 E. 4. 14. the praecipe is good, and yet he hath nothing in the land. 1 - -* 
 
 12 Ass. p. 41. In time of vacation an annuity, that the person (A) ought to 
 
 46 E E 3 '3 21 f" b P a ^' ma y ^ e re ^ ease( ^ to tne P at ron in respect of the privity ; 
 8 H. 6.23. ' but a release to the ordinary only seemeth not good, because 
 
 21 H. 7.41. the annuitie is temporall. 
 
 <rR St " 2 ffk a " "^ a disseisor make a lease for life, the disseisee may release to 
 
 5 Rep.' 24. b. hi tn (^); f° r to such a release of a bare right there needs no 
 2 Cro. 151.) privity, as shall be said hereafter. But if the disseisor make a 
 lease for yeares, the disseisee cannot release to him (C), because 
 he hath no estate of freehold. And yet in some case a right of free- 
 hold shall drowne in a chattell ; as if a feme hath a right of dower 
 she may release to the gardein in chivalry, and her right of 
 freehold shall drowne in the chattle, because the writ of dower 
 doth lie against him, and the heire shall take advantage of it. 
 
 And 
 
 * any — such, in L. and M. and made added in L. and M. and 
 
 Rob. Rob. 
 
 f &c added in L. and M. and § donque not in L. or M. or 
 Roll. Boh. 
 
 | &c. not in L. and M. or Roh. 
 
 (A) "person" seems to be printed here by mistake instead of parson. See Mr. Iiitso't 
 Intr.p. 119. 
 
 (B) i. e. to the tenant for life, as it seems. 
 
 (C) i. e. to the tenant for years, as it seems. 
 
 (4) Ant. 1st Note to this Chapter.
 
 L. 3. C. 8. Sect. 447. Of Releases. [266. a. 
 
 And it is to be observed, that by the antient maxime of the jPJgJ'^ *■ 
 common law, a right of entrie or a chose in action, cannot be 
 granted or transferred to a stranger, and thereby is avoyded Mirror, ea P- 2 - 
 great oppression, injurie, and injustice. Nid charter, nul vende, « 2 R ^ n Ahn 
 ne nul done vault perpetualment si le donor n'est seisie al temps de 45, 46, if, 43. 
 contracts de 2. droits, si deldroit de possession, et del droit del pro- Ant. 214. a. 
 pertie. And therefore well saith Littleton, that he to whom a po ^. 28Q ^ 
 release of a right is made must have a freehold. 
 
 For the better understanding of transferring of naked rights to 
 lands or tenements, either by release, feoffment, or otherwise, it is 
 to be knowne that there is jus proprietatis, a right of ownership, Mirror, ubisn- 
 jus possessions, a right of seisin or possession, and jus proprietatis (^ 2l ^oL 32°' 
 & possessions, a right both of property and possession: and this Britton,fol.89. 
 is antiently called jus duplicatum, or droit droit. For example, if 121. Bracton, 
 a man be disseised of an acre of land, the disseisee hath jus pro- llb - 5 - fo1 - ^' 2 - 
 prietatis, the disseisor hathy«s possessionis (A) ; and if the dis- 
 seisee release to the disseisor, hee hath jus proprietatis et pos- 
 session is (1). And regularly and holdeth true, that when a naked 
 right to land is released to one that hath jus possessionis, and 
 another by a meane title recover the land from him, the right of 
 possession shall draw the naked right with it, and shall not leave (2 Rep,. 56. 
 a right in him to whom the release is made. For example, if the |^ ***■ fe 
 heire of the disseisor being in by discent A. doth disseise him, the 2 $6 a .) 
 disseisee release to A. now hath A. the meere right to the land. 
 But if the heir of the disseisor enter into the land, and regaine 
 the possession, that shall draw with it the meere right to the 
 land, and shall not regaine the possession only, and leave the 
 meere right in A. but by the recontinuance of the possession, the 
 meere right is therewith vested in the heire of the disseisor. 
 
 But if the donee in taile discontinue in fee, now is the reversion 
 of the donor turned to a naked right. If the donor release to the 
 discontinuee and die, and the issue in taile doth recover the 
 land against the discontinuee, he shall leave the reversion in the 
 discontinuee ; for the issue in taile can recover but the estate taile 
 onely, and by consequence must leave the reversion in the dis- 
 continuee, for the donor cannot have it against his release ; but 
 if the disseisee enter upon the heire of the disseisor, and infeoffe 
 A. in fee, and the heir of the disseisor recover the whole estate, 
 that shall draw with it the meere right, and leave nothing in the 
 feoffee. Nota the diversity. Another diversity is observable 
 when the naked right is precedent before the acquisition of the (Post. 319. a.) 
 defeasible estate, for there the recontinuance, of the defeasible 
 
 estate 
 
 (A) But, according to sir William BlaeJcstone, the disseisin gives to the disseisor no more 
 than an actual possession, and leaves jus possessionis in the disseisee. See Black. Comm. 
 v. 2. p. 195. Archbold's ed. — However, lord Coke perhaps only meant to say, that the 
 disseisor hath jus possessionis against strangers only. Fur though a stranger in the name 
 and to the use of the disneisce mag enter into the lands, and thereby revest the same in the 
 disseisee, even without the knowledge or agreement of the latter (see ante 25S. a.); yet a 
 stranger may not, in this case, enter in his own name and to his oicn use. 
 
 (1) These may be subdivided, with respect to the disseisor, into that bare, 
 naked possession which he acquires by the disseisin, and the estate by title 
 which his heir acquires by the descent; and, with respect to the disseisee, into 
 that right of possession which he can restore by entry, and the bare right which 
 he can only recover by action. — [Note 216.]
 
 266. a. 266. b.] Of Releases. L. 3. C. 8. Sect. 448. 
 
 [e] 5 As8.1. estate shall not draw with it the preceding right. \e] As if the 
 o E3 7 disseisee disseise the heire of the disseisor, albeit the heire re- 
 
 4 e. 3. ' cover the land against the disseisee, yet shall he leave the pre- 
 
 Estopp. 133. ceding right in the disseisee. So if a woman that hath right of 
 i ? F? J dower disseise the heire, and he recover the land against her, yet 
 
 Entrie,56. shall he leave the right of dower in her. 
 
 12 Ass 41. Another diversity is to be noted, when the mere right is sub- 
 
 fi S' 3 ' *£' 4 ? S " sequent, and transferred by act in law ; there, albeit the possession 
 be recontinued, yet that shall not draw the naked right with it, 
 but shall leave it in him ; as if the heire of the disseisor be dis- 
 seised, and the disseisor (A) infeoffe the heire apparent of the dis- 
 23 H. 8. tit. seisee being of full age, and then the disseisee dieth, and the 
 restore ai naked right descend to him, and the heir of the disseisor recover 
 
 action. Ur. o. ^ 
 
 50 E. 3. 7. the land against him, yet doth he leave the naked right in the 
 
 Vtd Sect. 473. heire of the disseisee. So if the discontinuee of tenant in taile 
 475. 478. 487. infeoffe the issue in taile of full age, and tenant in taile die, and 
 then the discontinuee recover the laud against him, yet he leaveth 
 [c] 38 E. .3. 16. the naked right in the issue, [<•] But if the heire of the disseisor 
 ?p /' 2 *q' be disseised, and the disseisee release to the disseisor upon con- 
 
 4 Rep. 9. b.)' dition, if the condition be broken, it shall revest the naked right. 
 And so if the disseisee hath entered upon the heire of the dis- 
 seisor, and made a feoffment in fee, upon condition, if he entred 
 for the condition broken, and the heir of the disseisor entred upon 
 him, the naked right should be left in the disseisee. But if the 
 heire of the disseisor had entred upon the condition broken, 
 then the right of the disseisee had beene gone for ever. But 
 now let us heare what Littleton saith. 
 
 m» Sect. 448. pee.i 
 
 T^REEHOLD in law is, if a man disseiseth another, and dieth 
 seised (Franktenement en lay est, sicome un home disseisist un 
 auter, et * morust seisie), whereby the tenements descend to his son, 
 albeit that his sonnedoth not enter into the tenements, yet he hath a free- 
 hold in law, which by force of the discent is cast upon him, and there- 
 fore a release made to him, so being seised of a freehold in law, is good 
 enough; and if he taketh tvife being so seised in law, although he never 
 enter in deed, and dieth, his ivife shall be endowed^. 
 
 (Doct. & Stud. T] ERE Littleton describeth what a freehold in law is, for he 
 
 fol Bract li 4 ^ad s P°^ e before in many places of freeholds indeed. This 
 
 f. 206. 236. Bracton calleth [a] civilem et naturalem possessionem sen seisi- 
 
 Britton, fol. S3, nam. The naturall seisin is the freehold in deed, and the civil 
 
 cn/lf '™?" the freehold in law (1). 
 
 Sect. 680. J-i 
 
 * ent added in L. and 31. and Roh. f (fee. added in L. and M. and Boh. 
 
 (A) i. e. who disseised the heir of the original disseisor, as it seems. 
 
 (1) It may not, perhaps, be improper in this place, to attempt a short expla- 
 nation of some words familiar both in the ancient and modern law. 
 
 Seisin, is a technical term denoting the completion of that investiture by 
 which the tenant was admitted into the tenure, and without which no freehold 
 could be constituted or pass. It is a word common as well to the French as to 
 
 the
 
 L. 3. C. 8. Sect, US. Of Releases. [26G. b. 
 
 If a man levie a fine to a man mr conusance de droit come ceo 42 e. 3. 20. 
 que il ad de son done, or a fine sitr conusance de droit tan turn ; 10 H. 6. 14. 
 these be feoffments of record, and the conusee hath a freehold 1" E - 3 - < 8 - 
 in law in him before hee entreth (2). 7 5 £ " 1 ' 23> ^ \ 
 
 Upon (Mo. 141.) 
 
 the English law. It is either in deed, which is, when the person has the actual 
 seisin or possession ; or in law,, when after a descent the person, on whom the 
 lands descend, has not actually entered, and the possession continues vacant, 
 not being usurped by another. When lands of inheritance are carved into dif- 
 ferent estates, the tenant of the freehold in possession, and the persons in 
 remainder or reversion, are equally in the seisin of the fee. But, in opposi- 
 tion to what may be termed the expectant nature of the seisin of those in 
 remainder or reversion, the tenant in possession is said to have the actual seisin 
 of the lands. The fee is entrusted to him. By any act which amounts to a 
 disaffirmance by him of the title of those in the reversion, he forfeits his estate, 
 and any act of a stranger which disturbs his estate is a disturbance of the 
 whole fee. 
 
 Disseisin seems to imply the turning the tenant out of his fee, and usurping 
 his place and relation. It has been observed in a preceding note, that persons, 
 to avail themselves of the remedy by assise, frequently supposed or admitted 
 themselves to be disseised, when they were not ; and that this was called dis- 
 seisin by election, in opposition to an actual disseisin. To constitute an actual 
 disseisin, it was necessary that the disseisor had not a right of entry; (or, to 
 use the old law expression, that this entry was not congeable ;) that the person 
 disseised was, at the time of the disseisin, in the actual possession of the lands; 
 that the disseisor expelled him from them by some degree of constraint or 
 force ; and that he substituted himself to be tenant to the lord. But, how 
 this substitution was effected, it is difficult, perhaps impossible, now to dis- 
 cover. From what we know of the feudal law, it does not appear how a 
 disseisin could be effected without the consent or connivance of the lord ; yet 
 we find the relationship of lord and tenant remained after the disseisin. Thus, 
 after the disseisin, the lord might release the rent and services to the disseisee ; 
 might avow upon him ; and, if he died, his heir within age, the lord was en- 
 titled to the wardship of the heir. See Litt. Sect. 454, and the commentary 
 upon it. It should be observed, that a disseisin did not disturb rent issuing 
 out of land, the seisin of the rent being considered as a separate and distinct 
 seisin from that of the land. 1 Rep. 133. b. 
 
 A discontinuance is the effect of a disseisin, when, on certain events, the 
 person disseised has lost his right of entry upon the disseisor, and can only 
 recover by action. 
 
 The word freehold is now generally used to denote an estate for life, in oppo- 
 sition to an estate of inheritance. Perhaps, in the old law, it meant rather the 
 latter than the former. It is known that fees were held originally at the will 
 of the lord; then for the life of the tenant; that afterwards they were de- 
 scendible to some particular heirs of the body of the tenant ; then to all the 
 heirs of his body ; and that in succession of time the tenant had the complete 
 dominion or power over the fee. The word freehold always imported the whole 
 estate of the feudatory, but varied as that varied. Hence we find the freeholder 
 represented the whole fee, did the duty to the lord, and defended the possession 
 against strangers. See Feud. L. 1. tit. 25. 1. 2. t. 1, 2. Craig, lib. 2. tit. 2. 1 
 Inst. 31. 153. Litt. Sect. 59. 279. 592. Britton, Cha. 32. and Sir Ed. Coke's 
 Commentary upon those Sections; and the case of Taylor on the demise of 
 Atkyns v. Horde, 1 Burrow, 60. and post, note 1, to page 330. b. — [Note 217.] 
 
 (2) But a common recovery vests no freehold in deed or in law before exe- 
 cution served. See Moor, 141. — [Note 218.]
 
 266. 1). 267. a.] Of Releases. L. 3. C. 8. Sect. 449. 
 
 11 H. 4. 61. Upon an exchange, the parties have neither freehold in deed, 
 
 21 H. 7. 12. nor in law, before they enter; so upon a partition the freehold 
 
 is not removed untill an entry. 
 r„i 32 e. 3. [#] If tenant for life by the agreement of him in the reversion 
 
 Barre, 262. surrender unto him ; he in the reversion hath a freehold in law 
 
 ■n tj SS 4. 2 ' * n ^ m before he enter [/<,]. Upon a livery within the view no 
 
 Surrender, 10. freehold is vested before an en trie. 
 
 [/<] 38 E. 3. 12. If a man doth bargaine and sell land by deed indented and 
 inrolled, the freehold in law doth passe presently. And so when 
 uses are raised by covenant upon good consideration (A). 
 
 17 E. 3. 77. If a tenant in a, praecipe being seised of lands in fee, confesse 
 
 18 E. 4. 29. himselfe to be a villeine to an estranger, and to hold the land 
 
 in villenage of him, the estranger by this acknowledgement is 
 actually seised of the freehold and inheritance without any entry. 
 But let us returne to Littleton. 
 
 (Pio. 352.) Sect. 449. 
 
 A LSO, in some cases of releases of all the rigid, albeit that he to whom 
 the release is made hath nothing in the freehold in deed nor in law, 
 yet the release is good enough. As if the disseisor letteih the land 
 which he hath by disseisin to another for terms of his life, saving the 
 reversion to him, if the disseisee or his heire release to the rpp^ n 
 disseisor all the right, £c. this ggp~ release is good, because w a 
 hee to whom the release is made, had a law in reversion at 
 the time of the release made (1). 
 
 7 E. 4. 13. TTERE Littleton addeth a limitation to the next precedent 
 
 14 H. 4. 32. b. XX Section, viz. that a release of all the right may be good to 
 41 E. 3. 17. -^ m m reversion, albeit he hath nothing in the freehold, because 
 
 49 E. 3. 28. i v .i 4. t • -L- 
 
 case ult. ne natn au estate in nim - 
 
 "All 
 
 (1) Releases may enure four manner of ways. — 1st, Per mitter le droit, 
 where a person is disseised, and he releases to the disseisor his heir or feoffee. 
 — 2d. Per mitter Testate, viz. when two or more are seised by a joint title of 
 the same estate, as by a contract, or by descent, as jointenants, or coparceners, 
 and one of them releases to the other, this enures per mitter V estate. — 3d, Per 
 Venlarger, is where the possession and inheritance are separated for a particular 
 time, and he who hath the reversion or inheritance, releases to the tenant in 
 possession all his right and interest. Such release is said to enlarge his estate, 
 and to be ecpial to an entry and feoffment, and to amount to a grant and attorn- 
 ment. — 1th, Per extinguishment, where the releasee cannot have the thing per 
 mitter le droit, yet the release shall enure by way of extinguishment against 
 all manner of persons; as when the lord grants the seigniory to his tenant, 
 such releases absolutely extinguish the rent, &c. although the releasee be only 
 tenant for life. Ant. 193. b. and see post. 273. b— [Note 219.]
 
 L. 3. C. 8. Sect. 450-51-52. Of Releases. [267. a. 267. b. 
 
 " All the right, &c." Or title, interest, demand, or the like : 
 and so it is if he in the reversion hath an estate for life or in 
 taile in reversion, as in the like case it appeareth in the next 
 Section. 
 
 Sect. 450. 
 
 TNthe same manner it is, where a lease is made to a man for terme of 
 life, the remainder to another for terme of another mans Mfefyw 
 terme de * auter vie), the remainder to the third in taile, the remainder 
 to the fourth in fee, if a stranger which hath right to the land releaseth 
 all his right to any of them in the remainder, such release is good, be- 
 cause everie of them hath a remainder in deed vested in him. 
 
 HERE is another limitation, that a release is good to him in 7 B. 4. 13. 
 the remainder, albeit hee hath nothing in the freehold in 41 E. 3. 7.^ 
 possession, because he hath an estate in him, as hath beene 18 E ' 2 * 
 said. In both these limitations it is to be observed, that the tit. Entrie, 74. 
 state which maketh a man tenant to the praecipe is said to be ^ it E - E ^ trie 7 
 the freehold, as here the state of tenant for life, and not the E ' N> n Bg 2 'o7." E. 
 reversion in fee. 
 
 Sect. 451. 
 
 T) UT if the tenant for terme of life be disseised, and afterivards he 
 
 that hath right {the possession being in the disseisor) releaseth to 
 
 one of them to whom the remainder was made all his right (tout f son 
 
 droit), this release is void, because he had not % a remainder in deed at 
 
 the time of the release made, but only a right of a remainder. 
 
 " J>UT only a right of a remainder." For a release of a right 
 ^ to one that hath but a bare right regularly is void ; for, 
 as Littleton hath before said, he to whom a release is made of Vide Sect. 454. 
 a bare right in lands and tenements, must have either a freehold 
 in deed or in law in possession, or a state in remainder or rever- 
 sion in fee or fee taile, or for life. 
 
 r<267.-| • ^ Sect. 452. 
 
 A ND note, that every release made to him ivhich hath a reversion or 
 a remainder in deed, shall serve and aid him who hath the freehold, 
 as well as him to whom the release was made, if the tenant hath the re- 
 lease in his hand \. to plead. 
 
 Sect. 
 
 * auter not in L. and M. or Roll. % in him added in L. and M. and Ron. 
 nor in Cambr. MSS. -j- to plead not in L. and M. or Rob.. 
 
 f son — le, L. and M. and Roh. 
 
 Vol. II.— 23
 
 267. b.] Of Keleases. L. 3. C. 8. Sect. 453. 
 
 Sect. 453. 
 
 TN the same manner f it is tvhere a release % is made to the tenant for 
 life, or to the tenant in taile, || this shall enure to them in the rever- 
 sion, or to them in the remainder, as well as to the tenant of the free- 
 hold, and they shall have as great advantage of this, if they can sheiv it §. 
 
 B- 
 
 Y this it appeareth, that as a release made of a right to him 
 in reversion or remainder, shall aid and benefit him that 
 hath the particular estate for yeares, life, or estate taile, so a 
 release of a right made to a particular tenant for life, or in taile. 
 shall aid and benefit him or them in the remainder. 
 
 If two tenants in common of land graunt a rent charge of 40s. 
 
 (2Roll.Abv.414. out of the same to one in fee, and the grantee release to one of 
 
 SJS'b 285% them, this shall extinguish but twentie shillings, for that the 
 
 297.' a ." graunt in judgment of law was severall (1). So it is if two 
 
 Ant. 147. b. 197.) men be seised of severall acres, and grant a rent ut supra. But 
 
 there is a diversitie betweene severall estates in severall lands, 
 
 and severall estates in one land ; for if one be tenant for life of 
 
 lauds, the reversion in fee over to another, if they two joyne in 
 
 (1 Rep. Mayoe's a grant of a rent out of the lands, if the grantee releaseth either 
 
 case -) to him in the reversion, or to tenant for life, the whole rent is 
 
 extinguished, for it is but one rent, and issueth out of both 
 
 estates, and so note the diversitie (2). 
 
 35 H. 6. 8. il If the tenant hath the release in his hand to plead." And 
 
 so it is in both cases : for albeit he in the reversion or remain- 
 der is a stranger to the deed, when the release is made to the 
 tenant, and the tenant for life or in taile 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. 
 
 (Ant. 232. a.) "If they can shew this." The one cannot plead the release 
 
 Hob. 66. made to the other without shewing of it, for that they are privie 
 
 ' '' in estate, as hath beene said. The residue of these two Sections 
 
 needs no explication. 
 
 Sect. 
 
 t it is where not in L. and M. or Roh. || this not in L. and M. or Roll. 
 | is not in L. and M. or Roh. § &c. added in L. and M. and Roh. 
 
 (1) If they grant a rent-charge of 20s. which in laic amounts to a rent- 
 charge ofiO s. as two grants, for otherwise non est casus. When two tenants 
 in common grant a rent, that is, several estates in one land, and yet they are 
 several grants, therefore quasre of this diversity. Flo. Que. pi. 315. contra. 
 Lord Nott. MS.— [Note 220.] 
 
 (2) For Flowd. in his Quccre 815. if tenant for life grants rent, an<7 the 
 grantee purchases the reversion, the rent remains during the life of the tenant 
 for life. Lord Nott. MS.— [Note 221.]
 
 L. 3. C. 8. Sect. 454. Of Releases. [268. a. 
 
 268.1 %cr Sect. 454. 
 
 [ 2 ? a ] 
 
 ALSO, if there bee lord and tenant, and the tenant be disseised, and 
 the lord releaseth to the disseisee all the right which he hath in the 
 seigniorie or in the land, this release is good, and the seigniorie is ex- 
 tinct ; and this is by reason of the privitie which is betweene the lord and 
 the disseisee. For if the beasts of the disseisee be taken, and of them the 
 disseisee sueth a replevin against the lord, he shall compell the lord to 
 avow upon him : for if he avow upon the disseisor then upon the matter 
 shewn the avowrie shall abate, for the disseisee is tenant to him in right 
 and in law (1). 
 
 HEREUPON may bee collected and observed two diver- 
 sities : first, betweene a seigniorie or rent service, and a rent 
 cbarge : for a seigniorie or rent service may bee released and 
 extinguished to him that hath but a bare right in the land. And 
 the reason hereof is, in respect of the privitie betweene the lord (3 Rep. 35. b.) 
 and the tenant in right ; for he is not only as tenant to the avowrie, 
 but if hee die, his heire within age, hee shall bee in ward; and if 
 of full age, hee shall pay releefe; and if he die without heire. 
 the land shall escheat. But there is no such privitie in case of 
 a rent charge, for there the charge only lieth upon the land. 
 
 The second diversitie is betweene a seigniorie and a bare right yid. Sect. 451. 
 to land ; for a release of a bare right to land to one that hath but 
 a bare right isvoid, as hath beene said. But here in the case of 
 our author, a release of a seigniorie to him that hath but a right, 
 is good to extinguish the seigniorie. ' 
 
 Xuta, a seigniorie, rent, or right, either in prcescnti, or in Lib. 10. fol. 48. 
 futuro, may be released five mauner of wayes, and the first three Lancet's case, 
 without any privitie. First, to the tenant of the freehold in deed (Post. 275. 
 or in law. Secondly, to him in remainder. Thirdly, to him in ^"j 
 the reversion. The other two in respect of privitie : as, first, here 
 the lord releaseth his seigniorie to the tenant being disseised, 
 having but a right, and no estate at all; secondly, in respect 
 of the privitie, without any estate or right ; as by the demandant 
 to the vouchee, or donor to the donee, after the donee hath dis- 
 continued in fee, as appeareth hereafter in this chapter. Sect. 455. 
 
 u By reason of the privitie, &c" See for this word (privitie). 
 Sect. 461. 
 
 " lie shall compel/ the lord to (iron- upon him, dx." This is 20 II. ii. 9. b. 
 regularly true ; but if the lord hath accepted services of the dis- 41 E. 3. 26. 
 seisor, then the disseisee cannot enforce the lord to avow upon « e 4 a 
 him, though his beasts be taken, &c (2). 
 
 » V If 
 
 (1) Here the release operates by way of extinguishment. See post. 279. b.. 
 
 (2) But the opinion of the 48 E. 3. 9. seems to be contrary; because, when, 
 the tenant pleads the disseisin, to compel the lord to avow upon him, it is- 
 strange that the lord, by his own act of acceptance, should maintain his avowry,, 
 and destroy the feudal contract. Gilb. Ten. 64, 65.— [Note 222.]
 
 268, a. 258. b.] Of Eeleases. L. 3. C. 8. Sect. 454. 
 
 31 E. 1. Discent, 
 17. 26 E. 3. 72. 
 4 H. 6. 21. 
 F. N. B. 144. b. 
 
 [d] 7 E. 6. tit. 
 Escheat. Br. 18. 
 
 (9 Rep. 22. 
 1 Roll. Abr. 
 316. b.) 
 
 [e] 7 H. 4. 17. 
 3 R. 2. Entr. 
 cong. 38. 
 2 H. 4. 8. 
 6 H. 7. 9. 
 Vide Sect. 556. 
 
 [/] 21 H. 8. 
 cap. 19. 
 (Hob. 242.) 
 
 Lib. 9. fol. 136. 
 Ascoujjk's case. 
 
 27 H. 8. fol. 4. 
 32 H. 8. cap. 2. 
 Lib. 9. fol. 36. 
 Bucknal's case. 
 
 34 H. 8. Avow- 
 rie. Br. 113. 
 27 H. 8. 4& 
 20. Bucknal's 
 case, ubi supra. 
 
 Lib. 9. fol. 22. 
 in case d'avow- 
 
 20. 
 
 4. 
 
 40. 
 
 ne. 
 
 44 E. 3. 
 
 11 H. 7. 
 
 21 H. 
 
 34 II. 6. 18. 
 
 16 E. 4. 10. 
 
 6 R. 2. Res- 
 
 cous, II. 
 
 (Ant. 101.) 
 
 I 
 
 If a man hath title to have a writ of escheat, if he accept ho- 
 mage or fealtie of the tenant, he is barred of his writ of escheat ; 
 but if he accept rent of the tenant, that is no bar to him, for it 
 may be received by the hands of a baylife. [d~] But some doe 
 hold, that if there be lord and tenant, and the tenant be disseised, 
 and the disseisee die without heire, the lord accepts rent by the 
 hands of the disseisor, this is no barre to him. Contrarie it is, if 
 he avow for the rent in court of record, or if he take a corporall 
 service, as homage or fealtie, for the disseisor is in by wrong ; 
 but if the lord accept the rent by the hands of the heire of the 
 disseisor, or of his feoffee, because they be in by title, 
 this shall barre him of his escheat, which is to (f^f be TQ68. 
 understood of a discent or feoffment, after the title of | b. 
 escheat accrued ; [e] for if the disseisor make a feoff- 
 ment in fee, or die seised, and after the disseisee die without 
 heire, then there is no escheat at all, because the lord hath a 
 tenant in by title. And when Littleton wrote, the disseisee in the 
 case here put, should have compelled the lord to have avowed 
 upon him, as Littleton holdeth. But now this is altered by a 
 latter statute of [/] 21 H. 8. For whereas by fines, recoveries, 
 grants, and secret feoffments, &c. made by tenants to persons 
 unknowne, the lords were put from knowledge of their tenants, 
 upon whom by order of law they should make their avowrie, &c. 
 it is by that statute enacted, that if the lord shall distreine upon 
 the lands and tenements holden, &c. that he may avow, &c. upon 
 the same lands, &c. as in lands, &c. within his fee or seigniorie, 
 &c. without naming of any person certaine, and without making 
 avowrie upon a person certaine. Upon which statute these foure 
 points are to be observed. First, that the lord hath still election 
 either to avow according to the common law, by force of the 
 statute, by reason of this word {may). Secondly, albeit the pur- 
 view of the act be generall, yet all necessary incidents are to be 
 supplyed, and the scope and end of the act to be taken; and 
 therefore, though he need not to make his avowrie upon any 
 person certaine, yet he must alleage seisin by the hands of some 
 tenant in certaine, within forty yeares. Thirdly, that if the avowrie 
 be made according to the statute, everie plaintife in the replevin, 
 or second deliverance, be he termor or other, may have everie 
 answer to the avowrie that is sufficient ; and also have aid, and 
 every other advantage in law (disclaimer only except) ; for dis- 
 claime he cannot, because in that case the avowrie is made upon 
 no certaine person. Fourthly, where the words of the statute be, 
 if the lord distreine upon the lands and tenements holden, yet if 
 the lord come to distreine, and the tenant enchase his beasts 
 which were within the view out of the land holden, and there 
 the lord distreine, albeit the distresse be taken out of his fee and 
 seigniorie in that case, yet is it within the said statute : for in 
 judgment of law the distresse is lawfull, and as taken within his 
 fee and seigniorie ; and this statute being made to suppresse 
 fraud, is to be taken by equitie (1). 
 
 Sect. 
 
 £1) &e the following page, Gilb. Distr. 189. Lord Raym. 257.
 
 L. 3. C. 8. Sect. 4:55-56. Of Releases. [268. b. 269. a. 
 
 A 
 
 Sect. 455. 
 
 LSO, if land be given to a man in taile, reserving to the donor and 
 to his heires a certaine rent, if the donee be disseised, and after the 
 donor release to the donee and his heires all the right which hee hath in 
 the land, and after the donee enter into the land upon the disseisor; in this 
 case the rent is gone, for that the disseisee at the time of the release made, 
 tvas tenant in right and in laiv to the donor, and the avowrie of fine (2) 
 force ought to bee made upon him by the donor for the rent behinde (et 
 avowrie a fine force covient de estre fait sur luy pur le donor pur le rent 
 aderere), §c. But yet nothing of the right of the lands, (scilicet) of the 
 reversion, shall passe by such release (Mes uncore rien de droit de terres, 
 scilicet, de le droit de le reversion, * passera par tiel release), for that the 
 donee to whom the release is made, then had nothing in the land but onely 
 a right, and so the right of the land could not f then passe to the donee 
 by such release. 
 
 t 269.1 B^ 3 * " TFthe donee be disseised &c." This is evident Vide Sect. 454. 
 a. by that which hath beene said. But admit Q rant *43 l 
 
 that the donee maketh a feoffment in fee, and the 14 h. 4. 38. 
 donor release unto him and his heires all the right in the land, h. 3. fol. 29. 
 
 1 " V\ ft &Q 
 
 this shall extinguish the rent, because the lord must avow upon " ; '• ' - 
 
 i -l o 1 j» rr 11 • i Lampet s case, 
 
 bun, and yet the tenant in taile alter the feoffment hath no right u bi supra. 
 in the land. But the reason is in respect of the privity, and that (Ant. 46. Post 
 the [m] donor is by necessity compellable to avow upon him only; r^'] E 3 26 
 for if he should avow upon the discontinuee, then it should 4 § e. 3. 8. b. 
 appeare of his owne shewing that the reversion whereunto the 31 E. 3. Gard. 
 rent is incident, should be out of him, and consequently the 7 -r" 4 27 
 avowrie should abate ; and so was it \ji\ resolved Trin. 18 Eliz. in 15 e. 4- y im 
 the court of common pleas in sir Thomas Wiat's case, which I [n]Trin. 18 Eliz. 
 heard and observed. And Littleton saith here, that in case of the ?": Thomas 
 disseisin of fine force, the avowrie must be made upon the donee. CO mmuni banco. 
 
 " Yet nothing' of the right, &c. of the reversion, &c." Here the 
 diversitie aforesaid betweene the rent service and a bare right 
 to the land appeareth. 
 
 Sect. 456. 
 
 TN the same manner it is, if a lease be made to one for terme of life 
 (si leas soit § a un pur terme de vie), reserving to the lessor and to his 
 heires a certaine rent, if the lessee be disseised, and after the lessor release 
 to the lessee and to his heires all the right which he hath in the land, and 
 after the lessee entreth, albeit in this case the rent is extinct, yet nothing 
 of the right of the reversion shall passe, causa qua supra. 
 
 HEREBY 
 
 * adonques ne added in L. and M. f then not in L. and M. 
 and Roh. § fait added in L. and M. and Roh. 
 
 (2) That is, of necessity.
 
 269. a. 269. b.] Of Releases. L. 3. C. 8. Sect. 457. 
 
 HEREBY the diversity is made apparent betweene a release 
 of a rent service out of land, and a release of right to laud, 
 in this section. 
 
 Sect. 457. 
 
 i a 
 
 p UT if there be very lord and very tenant, and the tenant maJceth 
 
 feoffment in fee, the which feoffee doth never become tenant to the 
 lord, f if the l° r d release to the feoffor all his right, £c. this release is al- 
 together void, because the feoffor hath no right in the land, and he is not 
 tenant in right to the lord, but only tenant as to make the avowrie, and 
 hee shall never compellthe lord to avoiv upon him, for the lord shall avow 
 upon the feoffee if hee will. 
 
 Vide Ascough's 
 case, 1. 9. f. 135, 
 136. 20 H. 6.9. 
 2 H. 4. 24. 
 12 E. 4. 2. 
 26 H. 6. 
 Avowrie, 17. 
 UEliz.Dier,257. 
 b H. 7. 11. 
 7 E. 4. 24. 
 
 20 E. 3. 
 Avow. 131. 
 
 (9 Rep. 135. b. 
 
 21 H. 8. e. 19.) 
 47 E. 3. fol. 
 ultimo. 
 
 38 H. 6. 23. 
 (Doc. Pla. 53.) 
 21 H. 8. cap. 19. 
 (Post. 345.) 
 
 (Doc. Pla. 321.) 
 
 " \TERY lord and very tenant." This is to be understood of 
 a lord in fee simple, and of a tenant of like estate. 
 There be foure manner of avowries for rents and services, &c. 
 viz. 1. Super verum tenentem,&s in the case here put. 2. Super 
 verum tenentem in forma prsedicta, as where a lease for life, or a 
 gift in taile bee made, the remainder in fee. 3. Upon one as 
 upon his tenant by the mannor omitting (very); and this is when 
 the lord hath a particular estate in the seiguiorie, and 
 so shall the donor Jg®* upon the donee, or lessor upon r269.~| 
 the lessee. 4. Sur le matter en la terre, as within his L b. J 
 fee and seigniorie. As where the tenant by knights 
 service maketh a lease for life reserving a rent, and die his heire 
 within age, the gardeine shall avow upon the lessee, scilicet, 
 super mater iam prsedictam in terris et tenementis prsedictis ut in- 
 fra feodum et dominium suum. Now by the statute the very 
 lord may avow, as in lands within his fee and seigniorie, without 
 avowing upon any person in certaiue (1). 
 
 Here appeareth the diversity betweene a tenant in taile, and a 
 tenant in fee simple ; for albeit tenant in taile make a feoffment 
 in fee, yet the right of the entaile remaines, and shall descend to 
 the issue in taile. But when the tenant in fee simple make a 
 feoffment in fee, no right at all remaines of his estate, but the 
 whole is transferred to the feoffee. 
 
 Also the lord is not compellable in that case to avow upon 
 the feoffor ; but if he will, as Littleton here saith, he may avow 
 on the feoffee; but so it is not, as hath beene said, in case of 
 tenant in taile. 
 
 Note a diversity betweene actions and acts which concerne the 
 right, and actions and acts which concerne the possession only. 
 For a writ of customes and services lieth not against the feoffor, 
 nor a release to him shall extinguish the seigniorie. So if a 
 
 rescous 
 
 f &c. added in L. and M. and Boh. 
 
 (1) On the continuance of the right of the entail in the tenant in tail after a 
 feoffment made by him, see the case of Lord Sheffeild v. Batcliffe, Hob. 334, 
 and see Duncombe v. Wingfield, ibid. 254. — [Note 223.]
 
 L. 3. C. 8. Sect. 457. Of Releases. [269. b. 
 
 rescous be made, an assise shall not lie against the feoffor, and 
 him that made the rescous, because the feoffee is tenant, and in 
 assise, the surplusage incroached shall be avoided. For these 
 actions and acts concerne the right; but of a seisin and an 
 avowrie which concerne the possession, it is otherwise. And if 
 the lord release to the feoffor, this is good betweene them, as to 
 the possession and discharge of the arrearages, but the feoffee 
 shall not take benefit of it, for that, as hath beene said, it ex- 
 tendeth not to the right. But the feoffor shall plead a release 
 to the feoffee, for thereby the seigniorie is extinct; as if lessee 
 for life doth waste, and grant over his estate, and the lessor re- 
 lease to the grantee, in an action of waste against the lessee, he 
 shall plead the release, and yet he hath nothing in the land. 
 And so in waste shall tenant in dower or by the courtesie in the 
 like case, and the vouchee, and the tenant in a praripe after a 
 feoffment made. And so in a contra furmam collationis. 
 
 " The which feoffee doth never become tenant." Nota here an 4 E. 3. 22. 
 excellent point of learning, viz. if there be lord and tenant, and 7 %' I' 27 
 the rent is behind by divers yeares, and the tenant make a feoff- 2 9 h.'s. tit. 
 ment in fee, if the lord accept the service or rent of the feoffee Avowrie. 
 due in his time, he shall lose the arrerages due in the time of Br. ^V"^' 3 ' 
 the feoffor; for after such acceptance he shall not avow upon the p e 'nn ant's' ease, 
 feoffor, nor upon the feoffee for the arrerages incurred in the 7 H. 4. 14. 
 time of the feoffor. But in that case if the feoffor dieth, albeit I^Wq 
 the lord accept the rent or service by the hand of the feoffee due 37 H | 6 ] 
 in his time, he shall not lose the arrerages, for now the law com- 29 H. 8. 
 pelleth him to avow upon the feoffee (2), and that which the law ^ v ° wrie ; s 
 compelleth him unto shall not prejudice him. ( ep " ° ' 
 
 So it is, and for the same reason, if there be lord, mesne, and 
 tenant, and the rent due by the mesne is behinde, and after the 
 tenant fore-judge the mesne, and the lord receive the services of 
 the mesne which issue out of the tenancie, he shall not be barred 
 of the arrerages which issued out of the mesnalty; and so if 
 the rent be behinde, and the tenant dieth, the acceptance of the 
 services by the hand of the heire shall not barre him of the 
 arrerages j for in these cases, albeit the persons be altered, yet 
 the lord doth accept the services of him which only ought to 
 doe them (3). 
 
 But as long as the feoffor liveth the lord shall not be com- 4 E . 3 . 2 2. 
 pelled to avow upon the feoffee, unlesse he giveth the lord no- 47 E. 3. 4. 
 tice, and tender unto him all the arrerages. 
 
 But now by the statute the lord may avow upon the lands so 
 holden, as in lands within his fee or seigniory, without naming 
 of any person ccrtaine to bee tenant of the same, and without 21 H - 8 - ca P- 91# 
 making of any avowrie upon any person certaine, as hath beene 
 said, which hath much altered the common law in the cases 
 abovesaid, for the benefit and safety of the lord. 
 
 But yet these cases are neccssary^to be knowne (for which 
 purpose I have added them), for that the lord may avow still at 
 the common law if he will. 
 
 Sect. 
 
 (2) For the lord could not introduce the heir into the feud contrary to the 
 express alienation of the ancestor. Gilb. Ten. 67. — [Note 224.] 
 
 (3) By acceptance of rent from the assignee, the lessor loses his action of 
 debt against the first lessee, but he may still maintain an action of covenant 
 against 5 him. 1 Saund. 240, 241. 2 Saund. 302.— [Note 225.]
 
 270. a.] Of Releases. L. 3. C. 8. Sect. 458, 459. 
 
 m~ Sect. 458. r270. 
 
 [T-] 
 
 f) THER WISE it is where the very tenant is disseised, as in the case 
 aforesaid ; for if the very tenant who is disseised, hold of the lord 
 by knights service and dieth (his service being within age,) the lord shall 
 have and seize the wardship of the heire, and so shall he not have the 
 ward of the feoffor that made the feoffment in fee, $c. so there is a 
 great diversitie between these two cases. 
 
 12 H. 4. 13. Of this sufficient hath beene said before. 
 
 36 E. 3. tit. 
 
 Gard. 10. 6 H. 7. 9. 37 H. 6. 1. 32 H. 6. 27. 7 E. 6. tit. Gard. Br. (Post. 345. b.) 
 
 Sect. 459. 
 
 ALSO, if a man letteth to another his land for terme of ye ares, if the 
 lessor release to the lessee all his right, 8fC. before that the lessee had 
 entred into the same land by force of the same lease, such release is void, 
 for that the lessee had not possession in the land at the time of the re- 
 lease made, but only a right to have the same land by force of the lease. 
 But if the lessee enter into the land, and hath possession of it by force 
 of the said lease, then such release made to him by the feoffor, or by his 
 heire, is * sufficient to him by reason of the privitie which by force of 
 the lease is betiveen them, fyc. (1) 
 
 49 E. 3. 28. " ~OEFORE that the lessee had entred, &c." For before entry 
 
 32 H. 6. 8. t b e lessee hath but interesse termini, an interest of a terme, 
 
 22 e.4.' 37! aQ d n0 possession, and therefore a release which enures by way 
 
 4 H. 7. 10. of enlarging of an estate cannot worke without a possession (2), 
 
 15 H. 7. 14. f or before possession there is no reversion; and yet if a tenant 
 
 for twenty yeares in possession make a lease to B. for five yeares, 
 
 and B. enter, a release to the first lessee is good, for he had an 
 
 actuall possession, and the possession of his lessee is his posses- 
 
 22 E. 4. Sur- sion. And so it is if a man make a lease for yeares, the remaiu- 
 
 render, ,6. (j er f or y eareS) ant j the first lessee doth enter, a release to him in 
 
 the remainder for yeares is good to enlarge his estate (3). 
 
 But 
 * good and, added in L. and M. and Roh. 
 
 (1) On releases which operate by enlargement, see post. 273. a. 
 
 (2) But this must be understood of a lease at common law; for if it be so 
 framed as to be a bargain and sale under the statute, the possession is immedi- 
 ately executed in the lessee, so that no entry is necessary. See the note page 
 271. b. and Cro. Car. 110. 2 Ventris, 35.— [Note 226.] 
 
 (3) By this passage it appears, that what sir Edward Coke observes a few 
 lines before, that a release which enures by enlargement cannot worke without 
 a possession, must be understood to mean, not that an actual estate in posses- 
 sion
 
 L. 3. C. 8. Sect 459. Of Releases. [270. a. 270. b. 
 
 But if a man make a lease for yeares to begirme presently, 
 reserving a rent, if before the lessee doth enter the lessor re- 
 leaseth all the right that bee hath in the land, albeit this release 
 cannot enlarge his estate, yet it shall in respect of the privity (Ant. 46. b.) 
 extinguish the rent. And so it is if a lease be made to beginne 
 at Michaelmas, reserving a rent, and before the day the lessor 
 release all the right that he hath in the land, this 
 270. "1 cannot enure to JS®* enlarge the estate but to extin- 
 
 [T-] 
 
 guish the rent in respect of the privity, as it was re- 
 solved \U\ in the exchequer, which I observed. [h] Mich. 39 & 
 
 L 40 Eli/., in 
 
 Scaccario, betwocno sir Henrie Woodhouse and sir William Paston. 
 
 A man granteth the next avoidance of an advowson to two, 
 the one of them may before the church become 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 
 become void, then such a release is void, because then it is (as 
 it were) but a thing in action. And this was resolved [c] by the [ c ] Pnsch. 
 whole court of common pleas, which I myselfe heard and ob- 38 Eliz. in quare 
 served. And by consequent in the case of Littleton, if a lease gj^ 1 ' P" s _ 
 for yeares be made to two, albeit the lessor before they enter l'evesque de 
 cannot release to them to enlarge their estate, yet one of them Norwich in 
 may before entry release to the other. 
 
 coimnuni banco. 
 
 " But only a right, &c." "Which is not so to be understood pi. Com. 423. 
 that he hath but a naked right, for then he could not grant it 
 over; but seeing he hath interesse termini, before entrie, he may 
 grant it over, albeit for want of an actuall possession, he is not 
 capable of a release to enlarge his estate. 
 
 "But if the lessee enter into the land, &c." This is evident. 
 And herein note a diversity betweene a lease for life, and for 
 yeares, for before the lessee for yeares enter, a release cannot be 
 made unto him : but if a man make a lease for life, the remainder 
 for life, and the first lessee dieth, a release to him in the re- 
 mainder and to his heires is good before hee doth enter to en- 
 large his estate, for that he hath an estate of a freehold in law 
 in him, which may be enlarged by release before entrie. 
 
 And where our author speaketh only of a lessee for yeares, 25 E. 3. 53. 
 the same law it is of a tenant by statute merchant or staple, or 31 E- i. 
 tenant by elegit, or the like. :;i a5"pi. 13. 
 
 Sect. 
 
 sion is necessary, but that a vested interest sufiices, for such a release to ope- 
 rate upon. By comparing this with what is said in note 1. 271. b. of the ope- 
 ration of a lease and release, it will be seen, that not only estates in possession, 
 but estates in remainder and reversion, and all other incorporeal hereditaments, 
 may be effectually granted and conveyed by lease and release : but it is an in- 
 accuracy to say, that the releasee, in these cases, is in the actual possession of 
 the hereditaments; the right expression is, that they are achtally vested in him, 
 by virtue of the lease of possession, and the statute. — [Note 227.]
 
 270. 1).] Of Releases. L. 3. C, 8. Sect. 460. 
 
 Sect. 460. 
 
 7~A T the same manner it is, as it seemeth, where a lease is made to a 
 man to hold of the lessor at his will, by force of ivhich lease the lessee 
 hath possession : if the lessor in this case make a release to the lessee of 
 all his right, $c. this release is good enough for the privitie which is 
 behoeene them ; for it shall be in vaine to make an estate by a liverie of 
 seisin to another, where he hath j)ossession of the same land by the lease 
 of the same man before, fyc. 
 
 But the contrarie is holden, Pasch. 2 E. 4, by all the justices*. 
 
 21 H. f>. 37. ~R^ these two Sections is to be observed a diversity between 
 
 2 E. 4. 6. b. -L) a tenant at will, and a tenant at sufferance: for a release to 
 
 3 E 4 16 a tenant at will is good, because betweene them there is a pos- 
 29 h. 6. session with a privity : but a release to a tenant at sufferance is 
 Release, 6. void, because he hath a possession without privity. As if lessee 
 i'sd n ^ or y eares n °ld over his ternie, &c. a release to him is void, for 
 Ant. 47. that there is no privity betweene them; and so are the books 
 Cro. Jac. 1G9.) that speake of this matter to be understood (1). 
 
 "But 
 * This paragraph is not in L. and M. or Roh. 
 
 (1) A tenant at will is he who enters and enjoys the land by the express or 
 implied consent of the owner, without there being any obligation on the part 
 either of the lessor or lessee to continue it for any certain or determinate term. 
 A tenant by sufferance is he who, having entered and obtained possession by 
 title, continues the possession, after his title is ended, by the laches of the 
 lessor. The former is in by the consent of the owner of the lands; this creates 
 a privity between them. A tenant by sufferance is in only by the laches of 
 the owner; so that there is no privity between them. Both these estates differ 
 from that of a tenant from year to year, the tenant of which may determine it 
 at the end of any year; but after a new year is begun, the tenure cannot be 
 determined either by the lessor or lessee till the end of the year. See 1 Lord 
 Raymond, 707, 708. 2 Salk. 413. 3 Salk. 222. If a person holds by lease 
 and the term expires, the lease itself is notice of the expiration of the term' 
 and the lessor may enter on the lessee without further notice, unless for double' 
 rent, under the 4 Geo. 2. c. 28. sect. 1. in which case there must be a previous 
 demand in writing. Where the tenant holds by will, the modern determina- 
 tions are, that there must be a previous notice; but this notice varies according 
 to the custom of the place, and the nature of the hereditaments in lease. 
 
 The editor has been favoured with the following note of an important deter- 
 mination on this point. York, Lammas Assizes 1773. Richard Roe ex d. 
 Chr. Brown against Ann Wilkinson. Ejectment for two messuages and other 
 premises at North Cowton. Thomas Beaver proved that he, by the lessor of 
 the plaintiff's order, delivered a notice in writing to the defendant, on the 
 10th of February, which notice he received from lessor of plaintiff. The notice 
 was as follows: "10th February 1773. Ann Wilkinson, Take notice, that 
 '•you are to quit and yield up the possession of the dwelling-house, stable, 
 "shop, and coal-house, with their appurtenances, situate at North Cowton, 
 " which you rent under me, on the 13th day of May next. Yours, Ch. Brown." 
 Thomas Masterman deposed, that for 30 years he had been bailiff at North 
 
 Allerton,
 
 L. 3. C. 8. Sect. 461. Of Releases. [270. b. 271. a. 
 
 " But the contrary is holden, &c." This is of a new addition, 
 and the booke here cited ill understood, for it is to be under- 
 stood of a tenant at sufferance. 
 
 PI 1 '] isrSect. 461. 
 
 T> UT zvhere a man of his owne head occupieth lands or tenements at 
 the will of him which hath the freehold (Mes lou home de sa teste 
 demesne occupia terres ou tenements a la volunt celuy que ad f le frank- 
 tenement), and such occupier claimeth nothing but at will, §c. if hee 
 which hath the freehold will release all his right to the occupier, $c. this 
 release is void, because there is no privitie betweene them by the lease 
 made to the occupier, nor by other manner, $-c. 
 
 " fkF his owne head." Hee doth not say of his owne head Vl&SectM. 
 entreth, &c. so as this is to bee understood of a tenant at ^ 5g _ t0 ^nt.57. 
 sufferance, viz. where a man commeth to the possession first Cro. Car. 303.) 
 lawfully, and holdeth over. 
 
 For 
 
 •j" ent added in L. and M. and Roh. 
 
 Allerton, the market town for Cowton ; that it was the usage to give half a 
 year's notice in case of lands, but had known a great many given to quit houses 
 at North Allerton at Candlemas for May Day, and submitted to. This place 
 is about eight miles from North Allerton. Verdict for plaintiff, subject to 
 judge Gould's opinion. The question was, This being the case of a house and 
 buildings only, under 10/. per annum, viz. only bl. 5s. per annum, and the 
 year expiring at May Day, old style, Whether in an holding from year to year, 
 the above notice was sufficient, or whether it ought not to have been given half 
 a year before the expiration of the year? 22d January 1774. Before judge 
 Gould at his chambers, Mr. Davenport for plaintiff argued, that a week's notice 
 to a tenant at will was sufficient; that the defendant was tenant at will; that 
 the custom in London required only three months notice for tenements under 
 10/. a year ; that the same custom was in general observed every where ; and 
 it was reasonable and agreeable to late determinations ; that the custom of the 
 country was in this case proved in favour of plaintiff, and cited the following 
 cases ; 13 Hen. S.'fo. 16. — 59. Year Book. Brook, title Leases, pi. 53. Keil- 
 way, 163. Co. Lit. 68. See title Tenant at Will, 55. a. 69. Allen, 4. Sir Thomas 
 Bowes's case. 2 Lord Raym. 100S. Title v. Grevett. 2 Jones, 5. Timberly v. 
 Grobbam— How. 2 Salk. 413, 414. 3 Burrow, 1003. Timrains v. llowlinson. 
 11 Viner, 406. tit. Estate. Mr. Le2 for defendant, argued, there was not, ac- 
 cording to modern determinations, any such estate aii an estate at will ; every 
 tenant being a tenant for a year or more ; and that the rent was immaterial and 
 custom local ; and expatiated on the hardship of poor tenants, if turned out on 
 short notice ; and cited Brook, tit. Leases, fo. 61. Yelverton, 73, 74. In April 
 following, Mr. justice Gould delivered his opinion to Mr. Davenport thus; — 
 " I have consulted all the other judges, and we are all of opinion that six 
 "months notice to quit is necessary in all cases, whether of houses or lands, 
 " under or above bl. per annum, unless where there is a particular custom to 
 "the contrary; and the custom of North Allerton was too far distant from 
 " North Cowton to affect the inhabitants there, unless proved to extend to that 
 "place also." Judgment for defendant, — [Note 228.]
 
 271. a.] Of Keleases. L. 3. C. 8. Sect 462-63. 
 
 [m] Temps H. 8. [m] For if a man entreth into land of his owne wrong, and 
 
 M - Te t na ^ t j'- take the profits, his words to hold it at the will of the owner 
 
 2 E. 4. 38. cannot qualifie his wrong, but hce is a disseisor (1), and then the 
 
 18 E. 4. 25. release to him is good; or if the owner consented thereunto, 
 
 19 f' I' a 8 ' sfl ^ ea ^ e * s a * enant at w ^> anc ^ tnat wa y a ^ s0 tne release is good. 
 
 11 E. 3. ibid! 87! ^ ut there is a diversitie when onecommeth to a particular estate 
 
 12 Ass. 21. in land by the act of the partie, and when by act in law ; for if 
 
 9^ a' 3 'n SS " 92 ' t ^ ie g arc ^ em n0 ^ over, he is an abator, because his interest came 
 
 34 Ass". 10! by act in law (2). 
 
 10 E. 3. 41. 8 E. 3. 63. (1 Roll. Abr. 662. Post. 277.) Vide 2 part of the 
 Institutes. Marlb. cap. 16. 10 E. 4. 9, 10. (1 Roll. Abr. 861. Ant. 57. b.) 
 
 Old N. B. 117. u No privitie." Privitie is a word common as well to the 
 
 fo 37 23 Walker's English as to the French, and in the understanding of the corn- 
 case. ' Lib. 4. mon law is fourefold. 
 
 fol. 123, 124. 1. As to privies in estate, whereof Littleton here speaketh; as 
 
 \ ide Sect. 454. betweene the donor and donee, lessor and lessee, which privitie 
 
 is ever immediate. 
 (8 Rep. 42. b.) 2. Privies in bloud; as the heir to the ancestor, or betweene 
 
 coparceners, &c. 
 (Ant. 242. a.) 3. Privities in representation; as executors, &c. to the testator. 
 
 And fourthly, privies in tenure, as the lord and tenant, &c. 
 
 which may be reduced to two generall heads, privies in deed, 
 
 and privies in law. 
 
 Sect. 462, 463. 
 
 ALSO, if a man enfeoff e other men of his land upon confidence, and 
 to the intent to performe his last will, and the feoffor occupieth the 
 same land at the will of his feoffees, and after the feoffees release by 
 their deed to their feoffor all their right, §c. this hath beene a question 
 if such release be good or no. And some have said, that such release 
 is void, because there was no privitie betiveene the feoffees and their 
 feoffor, insomuch as no lease was made after such feoffment by the 
 feoffees to the feoffor, to hold at their will: and some have said the con- 
 trarie, and that for two causes. 
 
 Sect. 463. 
 
 QNE is, that when such feoffment is made upon confidence to performe 
 
 the will of the feoffor, it shall bee intended by the law, that the feoffor 
 
 ought presently to occupie the land at the will of his feoffees ; and so there 
 
 is 
 
 (1) This is to be understood when there is no terme of years in the land ; 
 but if there be a terme in esse, and one enters claiming the term, he shall not 
 be a disseisor, but an action of debt or waste shall be against him, and one may 
 be executor de son tort of a term. 3 Lev. 35. — [Note 229.] 
 
 (2) P. 9 Car. C. B. on the argument of the case of Blundell or Baugh, com- 
 mon! 1/ called the Earl of Nottingham's case justice Barclay said, that he whom 
 lord Coke calls in this place an abator, must be taken for a disseisor, as he (A) 
 had actual possession by the possession of the guardian. Lord Nott. MSS. — 
 See Cro. Ca. 302. Litt. Rep. 372. 1 Vent. 55. 80.— [Note 230.] 
 
 , (A) i. e. the heir in xoard. *
 
 L. 3. C. 8. Sect. 463. Of Releases. [271. a. 271. b. 
 
 is the like kinde of privitie betweene them, as if a man make a feoffment 
 to others, and they immediately upon the feoffment will and grant, that 
 their feoffor shall occupy the land at their will, $c. 
 
 HERE is a question moved, and the reasons of both sides 12 E. 4. 12. b. 
 shewed, and as it hath beene observed, the latter opinion g H \ ' 25> 
 
 is the better, being Littleton's owne opinion. Vide Sect. 302. 
 
 176. 340. 
 
 "It shall be intended by the lav), that the feffor ought presently 9 g.' h f ^ Vj_ 
 to occupy the land at the will of his feoffees." For intendments timo. 
 of law mentioned by our author see the Sections in the marsent. 15 H. 7. 2. b. 
 
 J ° 14 H. 8. 9. a. 
 
 Sect. 99, 100. 110. 367. 377. 393. 406. 440. 
 
 Here is to bee observed the intendment of the law, that when a 35 H. 6. 
 
 feoffment is made to a future use, as to the perform- jj£ jj™/™. b. 
 [271. "1 ance of his last will, the OCT feoffees shall be seised 37 h! 6. 36. 
 b. to the use of the feoffor and of his heires in the meane 11 H. 4. 52. 
 
 L J . • 7 H. 4. 22. 
 
 time - 1 Mar. 111. 
 
 Dier. (6 Rep. 18. a.) (Ant. 111. 112. a.) (2 Rep. 58.) 
 
 Ipsoz etenim leges cupiunt tit jure regantur. 
 
 And reason would that seeing the feoffment is made without con- (l Roll. Abr. 
 
 sideration, and the feoffor hath not disposed of the profits in D 5 " |[g 6 " 4 & \ ' 
 
 the meane time, that by construction and intendment of law the 35 h.' 6. 
 
 feoffor ought to occupie the same in the meane time. And so Subpena, 22. 
 
 it is when the feoffor disposeth the profits for a particular time Revise 
 
 in prcesenti, the use of the inheritance shall be to the feoffor 
 
 and his heires, as a thing not disposed of; wherein it is to be 
 
 observed, that lands and tenements conveyed upon confidences, 
 
 uses, and trusts, are to be ruled and decided, if question grow- 
 
 eth upon the confidences, uses or trusts, by the judges of the 
 
 law ; for that it appeareth by this and the next Section, they 
 
 are within the entendment and construction of the lawes of the 
 
 realme (1). 
 
 And it is to be observed (as hath beene said) that there is a ( Ant - 111 ' *>• 
 diversitie betweene a feoffment of lands at this day upon confi- * a- ' 
 dence, or to the intent to performe his last will, and a feoffment 
 to the use of such person and persons, and of such estate and 
 estates, as hee shall appoint by his last will : for, in the first case, 
 the land passeth by the will, and not by the feoffment; for after 
 
 the 
 
 (1) Many references have been made, in the foregoing notes, to this part of 
 the work, for some observations on conveyances at common law, and those 
 which derive their effect from the statute of USES. It appeared advisable 
 to collect them into one continued note, that the difference between the two 
 modes of conveyance might appear in a stronger light; and to prevent a neces- 
 sity of frequently repeating those general principles and illustrations, which 
 otherwise must have been introduced, on every occasion, where any point of 
 this nature seemed to require an explanation. On the same ground, it seemed 
 advisable to anticipate some passages which otherwise would have had a place 
 in a subsequent part of the notes. 
 
 I. Feoffments and grants were the two chief modes used in the Common 
 Law for transferring property. 
 
 I. 1. The most comprehensive definition that can be given of a feoffment, 
 seems to be, a conveyance of corporeal hereditaments, by delivery of the pos- 
 session upon, or within view of, the hereditaments conveyed. The delivery of 
 
 the
 
 271. b. 272. a.] Of Releases. L. 3. C. 8. S. 463. 
 
 the feoffment the feoffor was seised in fee simple, as he was be- 
 fore ; but in the latter case the will pursuing his power is but a 
 direction of the uses of the feoffment, and the estates passe by 
 execution of the uses, which were raised upon the feoffment ; 
 Lib. (5. fol. 17, but in both cases the feoffees are seised to the use of the feoffor 
 18. .Sir Edward an( j j^ h e i res \ n the mean time : and all this and much more 
 
 concerning this matter hath been adjudged. 
 Dillon & Frayn's Note, uses are raised either by transmutation of the estate, as 
 £ asc ' J- l > &c ' by fine, feoffment, common recoverie, &c. or out of the state of 
 the owner of the land, by bargaine and sale by deed indented 
 and inrolled, or by covenant upon lawfull consideration, whereof 
 you may read plentifully in my Reports. 
 (2 Roll. Abr. A feoffee to the use of A. and his heires before the statute of 
 
 7 9 7 ' \f^\ ^ H- 8. for money bargaineth and selleth the land to G, and his 
 Stat, 27. H. 8. heires, who hath no notice of the former use ; yet no use passeth 
 c. 10. by his bargaine and sale, for there cannot be two uses in esse, 
 
 Plow. 348. f one ant [ the same land ; and seeing there is no transmutation 
 
 Sid. e ]}6.) ' of possession by the terre-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 (ftr* not the said [ Q72.1 
 statute execute either of them for the uncertaintie. |_ a. J 
 (Ant. 22. b.) But if A. disseise one to the use of B. and A. doth 
 
 bargaine and sell the land for money to G, G hath an use; and 
 here be two uses of one land, but of severall natures ; the one, 
 viz. upon the bargaine and sale to be executed by the statute, 
 and the other not. 
 
 But since Littleton wrote, all uses are transferred by act of 
 
 [c] 27 H. 8. Parliament [c] into possession, so as the case which Littleton 
 
 cap. 10. hgj-g p U t s i s thereby altogether altered. Yet it is necessarie to 
 
 98a) ^ee knowne, what the common law was before the making of the 
 
 statute, and may serve for the knowledge of the law in like case. 
 
 " Immediately upon the feoffment." Quce incoiitinenti fiunt 
 in esse violent'. 
 
 " At their will, &c." Here is implyed, everie tenancie at will 
 is at the will of both parties, as before in his proper place hath 
 beene shewed. 
 
 the possession was made on, or within view of, the land, that the other tenants 
 of the lord might be witnesses to it. No charter of feoffment was necessary : 
 it only served as an authentication of the transaction ; and, when it was used, 
 the lands were supposed to be transferred, not by the charter but by the 
 livery, which it authenticated. Soon after the Conquest, or perhaps towards 
 the end of the Saxon government,' all estates were called fees. The original 
 and proper import of the word feoffment is, the grant of a fee. It came after- 
 wards to signify, a grant, with livery of seisin, of a free inheritance to a man 
 and his heires, more respect being had to the perpetuity, than the feudal tenure 
 of the estate granted. In early times, after the Conquest, charters of feoff- 
 ment were various in point of form. In the time of Edward I. they began to 
 be drawn up in a more uniform style. The more ancient of them generally 
 run with the words dedi, concessi, or donavi. It was not till a later period, that 
 feoff avi came into use. The more ancient feoffments were also usually made in 
 consideration of, or for, the homage or service of the feoffee, and to hold of 
 the feoffor and his heirs. But after the statute quia empiores, feoffments 
 were always made, to hold of the chief lords of the fee without the words 
 pro homagio et servitio. Sir Edward Coke mentions in page G. a. that there 
 
 are
 
 L. 3. C. 8. Sect. 463. Of Eeleases. [272, a. 
 
 are eight necessary parts in a feoffment. The fifth, sixth, and seventh of these 
 are not to be found in many of the ancient charters. When the land comprised 
 in the feoffment descended from the ancestor, or by usage retained the pro- 
 perty of the ancient bock-land, of not being alienable from the kindred, the 
 ancient feoffments were often expressed to be made with the assent of the 
 feoffor's wife, his heir or his heirs. In ancient charters there was inserted a 
 general warranty: in that, the phrase was much varied. The oath of the 
 party was often added to it, and sometimes a clause, that if the feoffor's title 
 was evicted, he should give other lands of equal value. Sometimes these 
 clauses extended to a second eviction; and sometimes the feoffor obliged him- 
 self, if he should make default in warranting the lands granted, to make resti- 
 tution to the feoffee. The proper limitation of a feoffment is to a man and his 
 heirs ; but feoffments were often made of conditional fees (or of estates tail, 
 as they are now called), and of life estates ; to which may be added, feoffments 
 of estates given in frankmarriage and frankalmoigne. To make the feoffment 
 complete, the feoffor used to give the feoffee seisin of the lands : this is what 
 the feudists called investiture. It was often made by symbolical tradition : but 
 it was always made upon, or within view of, the lands. When the king made 
 a feoffment, he issued his writ to the sheriff, or some other person, to deliver 
 seisin : other great men did the same. This gave rise to powers of attorney. 
 (See the preface to Mr. Madox's Formidare.) 
 
 I. 2. A grant, in the original signification of the word, is a conveyance or 
 transfer of an incorporeal hereditament. As livery of seisin could not be had 
 of incorporeal hereditaments, the transfer was always made by writing, in 
 order to produce that notoriety in the transfer of them, which was produced 
 in the transfer of corporeal hereditaments, by delivery of the possession. But. 
 except that a feoffment was used for the transfer of corporeal hereditaments, 
 and a grant was used for the transfer of incorporeal hereditaments, a feoffment 
 and a grant did not materially differ. 
 
 I. 3. Such was the original distinction between a feoffment and a'grant, 
 But, from this real difference in their subject matter, a difference was supposed 
 to exist in their operation. A feoffment visibly operated on the possession ; a 
 grant could only operate on the right of the party conveying. Now, as pos- 
 session and freehold were synonymous terms, no person being considered to 
 have the legal possession of the lands but he who had the actual freehold of 
 them, a conveyance which was considered as transferring the possession, must 
 necessarily be considered as transferring the freehold; or, to speak more 
 accurately, as transferring the whole fee. But this reasoning could not apply 
 to grants; their essential quality being that of transferring things which did 
 not lie in possession ; they therefore could only transfer the right ; that is, could 
 only transfer that estate which the party had a right to convey. It is in this 
 sense, we are to understand the expressions which frequently occur in our law- 
 books, where they describe a feoffment to be a tortious, and a grant to be a 
 rightful, conveyance. Thus, from a difference in the quality of the heredita- 
 ments conveyed by these two modes of conveyance, a difference has been con- 
 sidered to exist in their operation. A great part of Mr. Knowler's celebrated 
 argument in the case of Taylor on the demise of Atkins v. Horde, turns on this 
 distinction. See 1 Burr. 92. This appears to have been the outline of con- 
 veyances at the common law. 
 
 II. The introduction of USES produced a great revolution in the transfer 
 and modification of landed property. Without entering into a minute discus- 
 sion of the difference between uses at common law, and uses since the statute 
 of 27 H. 8. — a point, particularly well explained in Mr. Sanders's Essay on 
 Uses and Trusts, it is sufficient to state the following circumstances. Uses 
 at the common law were, in most respects, what trusts are now. When a 
 feoffment was made to uses, the legal estate was in the feoffee. He fillcdthe 
 
 possession,
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 463. 
 
 possession, did the feudal duties, and was, in the eye of the law, the tenant 
 of the fee. The person to whose use he was seised, called by the law-writers 
 the cestui/ que use, had the beneficial property of the lands, had a right to the 
 profits, and a right to call upon the feoffee to convey the estate to him, and to 
 defend it against strangers. This right at first depended on the conscience 
 of the feoffee : if he withheld the profits from the cestui/ que use, or refused to 
 convey the estate as he directed, the cestuy que use was without remedy. To 
 redress this grievance, the writ of subpoena was devised, or rather adopted from 
 the couimon-law courts, by the court of chancery, to oblige the feoffee to attend 
 in court, and disclose his trust, and then the court compelled him to execute 
 it. Thus uses were established. — They were not considered as issuing out of, 
 or annexed to the land, as a rent, a condition, or a right of common ; but as a 
 trust reposed in the feoffee, that he should dispose of the lands, at the discre- 
 tion of the cestui/ que use, permit him to receive the rents, and, in all other 
 respects, to have the beneficial property of the lands. Yet an use, though con- 
 sidered to be neither issuing out of, or annexed to the land, was considered to 
 be collateral to it, or rather as collateral to the possession of the feoffees in it, 
 and of those claiming that possession under them. Hence the disseisor, abator, 
 or intruder of the feoffee, or the tenant in dower, or by the courtesy of a 
 feoffee, or the lord entering upon the possession by escheat, were not seised to 
 an use, though the estates in their hands were subject to rents, commons and 
 conditions. They were considered as coming in by a paramount and extra- 
 neous title; or, as it is called in the law, in the post, in contradistinction from 
 those who, claiming under the feoffee, were said to be in the per. Thus, 
 between the feoffee and cestui/ que use, there was a confidence in the person 
 and privity in estate. (See Chudleigh's case, 1 Rep. 120. and Burgess and 
 Wheate, 1 Bla. 123.) But this was only between the feoffee and cestuy que 
 use. To all other persons the feoffee was as much the real owner of the fee, as 
 if he did not hold it to the use of another. He performed the feudal duties ; 
 his wife was entitled to dower : his infant heir was in wardship to the lord ; 
 and, upon his attainder, the estate was forfeited. To remedy these inconve- 
 niencies, the statute of 27 H. 8. was passed, by which the possession was 
 divested, out of the persons seised to the use, and transferred to the ccstuys 
 que use. For, by that statute, it is enacted, that, "when any person shall be 
 " seised of any lands to the use, confidence, or trust of any other person or 
 <•' persons, by reason of any bargain, sale, feoffment, fine, recovery, contract, 
 " agreement, will, or otherwise : then, and in every such case, the persons 
 " having the use, confidence, or trust, should from thenceforth be deemed and 
 " adjudged in lawful seisin, estate, and possession of and in the lands, in the 
 " same quality, manner, and form, as they had before in the use." 
 
 III. There seems to be little doubt, that the intention of the legislature, in 
 passing this act, was utterly to annihilate the existence of uses, considered as 
 distinct from the possession. But they have been preserved under the appel- 
 lation of Trusts. The courts hesitated much before they allowed them under 
 this new name. On the one hand, it had clearly been the intent of the legis- 
 lature to destroy them, while they continued uses at the common law ; on the 
 other hand, motives of equity, or rather of compassion, and the general bent 
 of the nation, pleaded strongly in their favour. The latter prevailed. Thus 
 (to use the expression of lord Hardwicke, 1 Atk. 591), a statute, made upon 
 oreat consideration, and introduced in a solemn and pompous manner, has had 
 no other effect than to add, at most, three words to a conveyance. Besides, 
 this, — one of the chief inconveniences produced by trusts, was, the secret 
 method they afforded for the transfer of property.— The statute intended to 
 restore the notoriety of the old common-law conveyances. So far from 
 effecting it, the existence and transfer of fiduciary or trust estates has conti- 
 nued. Secret modes of transferring the possession itself have been discovered, 
 
 and
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 and have totally superseded that notorious and public mode of transferring 
 property, which the common law required, and the statute intended to restore; 
 and many modifications or limitations of real property have been introduced in 
 consequence of the statute of uses, which the common law did not admit. An 
 attempt will be made to give the reader a succinct view of these points, by 
 some observations : First, on the nature cf the estates of the feoffee and the 
 cestuy que use, since the statute of uses : Secondly, on the limitations and 
 modifications of landed property unknown to the common law, which have 
 been introduced under the statute of uses : Thirdly, on the mode by which con- 
 veyances to uses operate : Fourthly, on the doctrine of powers deriving their 
 effect from the statute of uses : Fifthly, on uses not executed by the statute. 
 It is to be premised, that what is here said of a feoffee to uses, is equally to be 
 understood of a releasee, conusee, or recoveror, who stands seised to uses. 
 
 IV. As TO THE ESTATES OP THE FEOFEE AND THE CESTUY QUE USE J 
 
 the statute unites the possession to the use, so that the very instant the use is 
 raised, the possession is joined to it; and the use and the possession are 
 thereupon immediately consolidated, and become convertible terms. Thus, 
 had all uses been vested either in possession or in right, no estate or interest 
 of any kind could have been left in the feoffee. But, uses are frequently 
 limited in contingency, to serve which, as they come in esse, it is necessary 
 that there should be a seisin somewhere. When this case was first considered 
 by the lawyers, it was found difficult to discover any mode of reasoning, con- 
 sistent with the system generally received on the doctrine of uses, by which 
 that seisin could be supposed to exist any where ; or what the precise nature of 
 it was. This was the great difficulty in Chudleigh's case. There, the following 
 case was put : Suppose a feoffment is made to the use of A. during his life, 
 remainder to the use of his sons successively in tail, and, for want of such issue, 
 to the use of B. in fee; is there any, and what seisin, to serve the uses limited 
 to the sons of A. ? — In whom, does that seisin exist ? — and how does it operate ? 
 Upon this point the judges seem, by the accounts which have come to us of 
 that case, particularly sir Edward Coke's and lord chief justice Popham's, to 
 have held very different opinions. All agreed, that, to the execution of an use 
 under the statute, it was indispensably necessary, that there should be a person 
 seised to the use; an use in possession, reversion, or remainder; and a cestu}' 
 que use in esse. From these positions, some of the judges in that case inferred, 
 that the whole use was executed in A. and B. in a manner that left nothing of 
 the ancient seisin in the feoffees ; and that the contingent use, when it came 
 in esse, was executed out of the first livery, and the original estate of the 
 feoffees. Others held, that an actual estate in remainder was vested in the 
 feoffees, to serve the contingent uses as they arose. But both these systems 
 were found to be open to unanswerable objections. For, with respect to the 
 first, one of the requisites indispensably necessary to the execution of an use, 
 under the statute, is, that there must be a person seised to the use, at the time 
 of the execution of it. Now, if the whole original seisin was divested out of 
 the feoffees, there would not. when the son of A. was born, be any person seised 
 to his use ; — or, in other words, there could be no seisin to that use. This, 
 would make the estates limited to the sons of A. and all other contingent re- 
 mainders, void in their creation, for want of a seisin to feed them, when they 
 come in esse. With respect to the latter system, — it is to be observed, that, 
 under the limitations upon which the case arose, A. took an estate for life in 
 possession, and B. took an estate in remainder in fee ; — and that previously 
 to the birth of A.'s children, there was no use vested in any person, which 
 separated those two estates. Those uses, therefore, were commensurate to the 
 whole fee, and admitted no opening for any intermediate vested use. Besides, 
 the feoffor neither limited, nor intended to limit, any such intermediate use to 
 the feoffees. Thus, on the one hand, the objection to the supposition, that 
 
 nothing 
 Vol. II.— 24
 
 272. a. J Of Releases. L. 3. C. 8. Sect. 463. 
 
 nothing of the old seisin remained in the feoffees, on the other, the objection 
 to the supposition, that any use or legal estate remained in them, made it 
 difficult to conceive what estate or seisin could be in them, to serve the contin- 
 gent use. To clear up this difficulty it was observed, that the possession was 
 not executed by the statute, but in the manner, and to the extent, in which 
 the use was limited. Now, in the case we have mentioned, the use was lim- 
 ited, and consequently the possession executed, to A. during his life, remainder 
 to B. in fee, but subject to the possibility of A.'s having sons, and their 
 becoming entitled to the use, and consequently to the possession, for an estate 
 or estates in tail. Thus, during the suspense of the contingent use, the feoffees 
 had a possibility of possession, untouched and unaffected by the statute, as 
 there was no use in esse to which it could be executed. The moment the use 
 came in esse, the feoffees would be entitled at common law to the possession, 
 to the use, or, as we should now call it, in trust for the cestuy que use ; but by 
 the operation of the statute, the possession is instantaneously divested from 
 the feoffees, and executed in the cestuy que use. Thus, by supposing a possi- 
 bility of seisin, but no actual seisin or use to remain in the feoffees during the 
 suspense of the contingent use, a sufficient seisin is provided to serve the con- 
 tingent use when it comes in esse, without interfering with, or breaking in 
 upon, the legal fee. This intricate subject has been elaborately discussed by 
 Mr. Sanders, in his Essay on Uses and Trusts; by Mr. Sugden in his Practical 
 Treatise of Powers; and by Mr. Rowe in his Scintilla Juris. A short, but 
 masterly view of it, is also given by Lord Chief Baron Gilbert, in his Law 
 of Uses and Trusts. An attempt to explain it, may be found, in the note in 
 page 291. of the sixth edition of Mr. Fearne's Essay on Contingent Remain- 
 ders. 
 
 V. With respect to the limitations and modifications of landed 
 
 PROPERTY, UNKNOWN TO THE COMMON LAW, WHICH HAVE BEEN INTRO- 
 DUCED under the statute of uses ; the principal of these are known by 
 the general appellation of springing or secondary uses. No estate could be 
 limited upon or after a fee, though it were a base or a qualified fee; nor could 
 a fee or estate of freehold be made to cease as to one person, and to vest in 
 another, by any common-law conveyance. But, there are instances where, 
 even by the common law, these secondary estates seem to have been allowed, 
 when limited, or rather when declared, by way of use. See Jenk. Cent. 8. 
 case 52. After the statute of uses, the judges seem to have long hesitated 
 whether they should receive them. In Chudleigh's case it was strongly con- 
 tended, that it would be wrong to make "any estate of freehold and inherit- 
 " ance lawfully vested, to cease as to one, and to vest in others against the 
 " rule of law, and that no estates should be raised by way of use but those 
 xc which could be raised by livery of seisin at the common law." The courts, 
 however, admitted them. After they were admitted, it was found necessary 
 to circumscribe them within certain bounds ; because, when an estate in fee 
 simple is first limited, there is no method by which the first taker can bar or 
 destroy the secondary estate, as it is not affected either by a fine or common 
 recovery. It is now settled, that when an estate in fee simple is limited, a 
 subsequent estate may be limited upon it, if the event upon which it is to take 
 place be such, that if it do happen it must necessarily happen within the com- 
 pass of one or more life or lives in being, and 21 years and some months over. 
 It was long before the courts agreed upon this period. In Buckworth and 
 Thirkell, 1 Collect. -lurid. 332. lord Mansfield mentioned that it was not settled 
 till his time. It is observed in note 5. to p. 20. a. " that this period was not 
 " arbitrarily prescribed by our courts of justice with respect to the limitation 
 "of personal estates, but wisely and reasonably adopted in analogy to the cases 
 "of freehold and inheritance, which cannot De limited by way of remainder, 
 " so as to postpone a complete bar of the entail, by fine or recovery, for a 
 
 " larger 
 
 a
 
 L. 3. C. 8. Sect. 463. Of Eeleases. [272. a. 
 
 " larger space." The same analogy have been observed with respect to these 
 secondary fees, when limited upon an estate in fee simple. But the reason 
 which induced the courts to adopt this analogy, with respect to these estates 
 when limited upon an estate in fee simple does not hold when they are limited 
 upon or after an estate in tail ; because when they are limited upon or after an 
 estate in tail, the tenant in tail, by suffering a common recovery before the 
 event takes place, bars or defeats the secondary estate, and acquires the fee 
 simple absolutely discharged from it. Sec Page v. Haywood, 2 Salk. 570. 
 Goodiar v. Clarke, 1 Sid. 102. 1 Lev. 35. Hence, if the secondary estates 
 we are speaking of, are limited upon or after an estate in tail, they may be 
 limited generally, without restraining or confining the event or contingency 
 upon which they are to take place, to any period. Thus, if an estate be limited 
 to A. and his heirs ; and if B. (a person in esse) dies without leaving any child 
 of his body living at the time of his decease ; or, leaving one or more such 
 child or children, if such child or all such children shall die before any of them 
 attain the age of 21 years, then to C. and his heirs ; here, the limitation to C. is 
 limited after a previous limitation in fee simple; and it is a good limitation, 
 because the event upon which it is to take place, must, if it do take place, 
 necessarily take place within the period of a life in being, and 21 years and a 
 few months. But, if the estate were limited to A. and his heirs ; and after the 
 decease of B. and a total failure of heirs or heirs male of the body of B. to C. 
 and his heirs; here, as the secondary use is limited after a previous limitation 
 in fee simple, and the event on which the fee limited to 0. is to take place, 
 is not such as must necessarily happen within the period we are speaking of, 
 (for B. may have issue, and that issue not fail till many years after the expira- 
 tion of 21 years after B.'s decease), the limitation to C. and his heirs is void. 
 On the other hand, if the estates were limited to A. for life, then to trustees 
 and their heirs during his life, for preserving contingent remainders ; then to 
 A.'s first and other sons successively in tail male ; with several remainders over ; 
 with a proviso, that if B. dies, and there should be a total failure of heirs or 
 heirs male of his body, the uses limited to A. and his sons and the remainders 
 over, should determine, and the lands remain and go over to C. and his heirs ; 
 here, the limitation to C. and his heirs is limited so as to depend on previous 
 limitations for life, or in tail ; and the event, upon which it is to take effect, 
 may possibly not happen till after a period of one or more life or lives in being, 
 and 21 years. But so far as it is limited on an event which may happen during 
 the continuance either of one or more life or lives in being, it is within the 
 bounds we have mentioned; and so far as it is limited upon an event which may 
 happen during the continuance of the estate of. the tenants in tail, or after 
 them, the first tenant in tail in possession by suffering a recovery, before the 
 event happens, may bar the limitations over, and thereby acquire an estate in 
 fee simple ; and therefore the limitation over to C. and his heirs, is good. 
 
 It sometimes happens, that between the estate of the tenant for life, and the 
 remainders in tail, to his issue, a term for years is limited to trustees, in trust 
 to raise sums of money, for portions for children, or for other purposes. — As a 
 term for years, thus interposed, precedes the estates tail, it is not subject to the 
 operation of a recovery suffered by any tenant in tail under them. Now, it 
 may be considered, that the trusts of such a term are subject to the same ob- 
 servation. In declaring trusts of money to be raised under such a term, it is, 
 therefore, advisable not to protract the vesting of the money beyond the 
 boundary prescribed by the law for the suspense of personal estate. See lord 
 Southampton v. marquis of Hertford, 2 Ves. and Beamcs, 54. Thus, where 
 it is intended to limit lands to the issue male of the marriage, in strict settle- 
 ment, and to provide portions for daughters, on the failure of the issue male, it 
 is advisable to limit, for that purpose, a term for years in remainders imme- 
 diately expectant on the failure of the issue male entitled or inheritable under 
 the limitations. In this case the portions may be properly directed to be 
 
 raised,
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 463. 
 
 raised, in the event of there being a general failure of issue male of the marriage ; 
 for as the term is subject to the recovery of any preceding tenant in tail, the 
 trusts of it will be equally subject to his recovery. But, if the portions are 
 provided under a term preceding the estates tail, such a trust would exceed the 
 boundary prescribed by law for such trusts, and would, on that account, be 
 void. In such a case, therefore, the portions of the daughters should be made 
 raiseable on the event of there being no son of the marriage who should attain 
 the age of 21 years, or, who should die under that age, leaving issue male of 
 his body, living at the time of his decease, or born in due time after. 
 
 VI. With respect to the mode, by which conveyances to uses ope- 
 rate. — It is to be observed that to raise an use under the statute, the posses- 
 sion or seisin to serve the use must be in some person distinct from the cestui/ 
 que use ; as the statute requires that the person seised to the use, and the per- 
 son to whom the use is limited, should be different persons ; so that, if the 
 possession is conveyed, and the use limited to the same person, at least if the 
 use is limited in fee simple, that is not an use executed by the statute, but 
 the party is in by the common law. For the statute of uses mentions those 
 cases only, where "any person or persons stand seised to the use of any other 
 " person or persons." Thus, in the case of Jenkins v. Young, Cro. Car. 231. 
 245. lands were given to two, habendum to the use of them and the heirs of 
 their two bodies : It was argued, that the estate out of which the use should 
 rise, was but for their lives, and that therefore, on the death of the cestuys que 
 vie, the use limited upon their estate was determined : but the court held, that, 
 where an estate is limited to one, and the use to a stranger, the use should not 
 be more than the estate, out of which it was derived ; but that, when the 
 limitation is to two, habendum to the use of them and the heirs of their bodies, 
 it was no limitation of the use, nor was the use to be executed by the statute. 
 So in Gilb. Rep. p. 17, it is expressly said, that if a fine be levied to a man and 
 his heires, to the use of him and his heirs, he shall take by the common law, and 
 not by way of use. And see Dyer, 186. and Ant. 22. b. and Bac. Uses ed. 1785, 
 p. 63. Com. 313. Skin. 209. On this ground, it has been contended, that, if 
 lands are conveyed to A. and his heirs, to such uses as A. shall appoint; and, 
 in default of appointment, to the use of himself, his heirs and assigns — the 
 power of appointment is void ; but that, — if lands are conveyed to B. and his 
 heirs, to such uses as A. shall appoint, and, in default of appointment, to the 
 use of A. his heires and assigns, — the power of appointment is good. 
 
 In all limitations of uses now, the possession or seisin on which the use is 
 declared, must either remain in the party, or be transferred to some third per- 
 son. This is the meaning of those passages in the books, where it is said, 
 that uses are raised either by transmutation of the possession, or without such 
 transmutation. A bargain and sale, and a covenant to stand seised, operate 
 on the possession of the bargainor or covenantor. A feoffment, fine, and com- 
 mon recovery, operate on the possession of the feoffee, conusee, or rccoveror. 
 A lease and release has a mixt operation ; the lease having the operation of, 
 and being in fact, a bargain and sale under the statute, and the estate of the 
 releasee being extended or enlarged to an estate of inheritance to the operation 
 of the release at the common law. 
 
 VI. 1. For with respect to a bargain and sale, and a covenant to stand seised; a 
 bargain and sale is considered as a real contract, whereby the bargainor for some 
 pecuniary consideration bargains and sells, and contracts to convey the lands to 
 the bargainee. A covenant to stand seised to uses, is where a man covenants to 
 stand seised of them to the use of his wife, his child, or kinsman. But it is 
 to be observed, that the words bargain and sell, are not appropriated to the 
 former, nor the words covenant to stand seised, appropriated to the latter of 
 those conveyances. If a person for a pecuniary consideration covenants to 
 stand seised to the use of the purchaser, it is a bargain and sale, and if enrolled, 
 
 is
 
 L. 3. C. 8. Sect. 463. Of Keleases. [272. a. 
 
 is valid and effectual, as a bargain and sale under the statute of uses, to convey 
 the estate to the purchaser. In the same manner, if a person for natural love 
 and affection bargains and sells his lauds to the use of his wife, it is a covenant 
 to stand seised, and as such without enrolment, vests the estate in the wife. 
 7 Eep. 40. b. 2 Inst. 672. 1 Leo. 25. 1 Vent. 137. 1 Mod. 175. 2 Lev. 10. 
 In the case of a bargain and sale, the bargainor stands seised to the use of the 
 bargainee; in the case of a covenant to stand seised, the covenantor stands 
 seised to the use of the parties intended to be benefited. In both, the pos- 
 session or seisin remains in the party; and the statute draws it from them, 
 and executes it in the cestuys que use. 
 
 VI. 2. With respect to a feoffment, fine, and common recovery ; the transfer 
 or transmutation of the possession from the feoffor, conusor, and recoveree to 
 the feoffee, conusee, or recoveror, is effected solely by the operation of these 
 conveyances or assurances at the common law; and if the use is declared to the 
 feoffee, conusee, or recoveror, in fee simple, the conveyance is completed at 
 the common law, in the same manner as if the statute of uses had never pass- 
 ed. It is only when the use is declared to a third person, that the statute has 
 any operation; and then, by the operation of the statute, the possession pre- 
 viously transferred or transmuted to the feoffee, conusee, or recoveror, by the 
 operation of the feoffment, fine, and common recovery, at the common law, is 
 divested from the feoffee, conusee, or recoveror, and vested in the cestuys que 
 use by the statute. 
 
 As to the conveyance by lease and release : The form of that conveyance is 
 originally derived to us from the common law, and it is necessary to distinguish 
 in what respect it operates as a common-law conveyance, and in what it ope- 
 rates under the statute of uses. At the common law, where the usual mode of 
 conveyance was by feoffment with livery of seisin, if there was a tenant in 
 possession, so that livery could not be made, the reversion was granted, and 
 the tenant attorned to the reversioner. As by this mode the reversion or 
 remainder of an estate might be conveyed without livery, when it depended on 
 an estate previously existing, it was natural to proceed one step farther, and to 
 create a particular estate for the express and sole purpose of conveying the 
 reversion ; and then, by a surrender or release, either of the particular estate 
 to the reversioner, or of the reversioner to the particular tenant, the whole fee 
 vested in the surrenderee or releasee. It was afterwards observed, that there 
 was no necessity to grant the reversion to a stranger ; and that if a particular 
 estate was made to the person to whom it was proposed to convey the fee, 
 the reversion might be immediately released to him ; which release, operating 
 by way of enlargement, would give the releasee the fee. In all these cases, 
 the particular estate was only an estate for years; for at common law, the 
 ceremony of livery of seisin is as necessary to create an estate of freehold, 
 as it is to create an estate of inheritance. Still an actual entry would be 
 necessary on the part of the particular tenant ; for, without actual possession, 
 the lessee is not capable of a release, operating by way of enlargement. I3ut 
 this necessity of entry for the purpose of obtaining the possession, was super- 
 seded, or made unnecessary, by the statute of uses : for, by that statute, the 
 possession was immediately transferred to the cestuy que use ; so that a bargainee 
 under that statute is as much in possession, and as capable of a release before 
 or without entry, as a lessee is at, the common law after entry. All, therefore, 
 that remained to be done, to avoid, on the one hand, the necessity of livery of 
 seisin from the grantor, and, on the other, the necessity of an actual entry on 
 the part of the grantee, was, that the particular estate (which, for the reasons 
 above mentioned, should be an estate for years) should be so framed, as to be 
 a bargain and sale within the statute. Originally it was made in such a 
 manner as to be both a lease at the common law, and a bargain and sale under 
 the statute. But as it is held, that where conveyances may operate both by 
 the common law and statute, they shall be considered to operate by the com- 
 mon law, unless the intention of the parties appears to the contrary, it became 
 
 the
 
 272. a.] Of Releases. L. 3. C. 8. Sect, 463. 
 
 the practice to insert among the operative words, the words bargain and 
 sale, (in fact, it is more accurate to insert no other operative words), and to 
 express that the bargain and sale or lease is made to the intent and purpose, 
 that thereby, and by the statute of uses, the lessee may be capable of a release. 
 The bargain and sale, therefore, or the lease for a year, as it is generally 
 called, operates, and the bargainee is in the possession, by the statute. The 
 release operates by enlarging the estate or possession of the bargainee to a fee : 
 this is at the common law, and if the use be declared to the releasee in fee 
 simple, it contains an estate at the common law ; but if the use is declared to 
 a third person, the statute again intervenes, and annexes or transfers the pos- 
 session of the releasee to the use of the person to whom the use is declared. 
 It has been said, that the possession of the bargainee, under the lease, is not 
 so properly merged in, as enlarged by the release : but, in all events, it does 
 not, after the release, exist distinct from the estate passed by the release. As 
 the operation of a lease and release depends upon the lease, or bargain atod sale, 
 the grantor must be a person capable, at law, of being seised to an use, other- 
 wise the release will be void for want of possession in the releasee. By some 
 very respectable authorities it has been said that a corporation cannot be seised 
 to an use. Pop. 72. 1 Co. Rep. 127. a. Bacon Stat, of Uses, 357. Plo. 
 102.538. Jenk. Cent. 195. 2 Ves. 399. .Gilb. Uses, 5. 170. 285. Shep. 
 Touchs. 508. A contrary doctrine, so far as relates to the conveyances of cor- 
 porations by bargain and sale, seems to be laid down in sir Tho. Holland v. 
 Bonis. 1 Leo. 183. 2 Leo. 121. 3 Leo. 175. And see 13 H. 7. fol. 9. pi. 
 5. To avoid doubt upon this subject, it seems advisable that corporations 
 should convey by feoffment, or by a lease and release, with an actual entry by 
 the lessee, previous to the release ; after which the release will pass the rever- 
 sion. It may also be observed, that, in .exchanges, if one of the parties die 
 before the exchange is executed by entry, the exchange is void. Ant. 50. b. 
 But if the exchange be made by lease and release, this inconvenience is pre- 
 vented, as the statute executes the possession without entry, and all incidents 
 annexed to an exchange at common law, will be preserved. — By a temporary 
 Irish statute of 9 G-eo. II. ch. 3. § 6, the recital of a lease for a year in a re- 
 lease, is made, in all cases, sufficient evidence of it. By the 1 G-eo. III. c. 3, 
 that statute was made perpetual, and profert of the release declared sufficient 
 in pleading. 
 
 VII. The next consideration is, upon the doctrine of powers deriving 
 their effect from the statute of uses; but the nature of these notes 
 requires, that what is said on this head should be confined to some general ob- 
 servations upon the mode, by which such powers operate ; and the relation, 
 which the deeds by which they are executed, bear to the deeds, by which they 
 are created ; and Uses of Rents. 
 
 VII. 1. As to the mode in which they operate. — All powers of this kind are, 
 in fact, powers of revocation and appointment : indeed, every declaration of an 
 use may, in some respect, be considered as an appointment of the use or uses 
 to which the feoffee is to stand seised : but the word appointment is generally 
 applied to those cases, where, either the power of appointment is first reserved, 
 or given, with a subsequent limitation of uses, to take place until, and in default 
 of the appointment ; or, where the uses are first limited, and a power is after- 
 wards given to some person to limit other uses. As the uses limited under 
 powers cannot operate, but by the postponing, abridging, or defeating the prior 
 uses, it is usual, in some cases, to precede the power of appointment by a power 
 of revocation. But this is immaterial. The powers of leasing, jointuring, 
 charging, selling, and exchanging, usually inserted in marriage settlements, 
 are powers of revocation and appointment. All of them postpone, abridge^ or 
 defeat, in a greater or less degree, the previous uses and estates, and appoint 
 new uses in their stead. As soon as the uses created by them spring up, they 
 draw to them the estate of the feoffee : and the statute executes the possession, 
 
 But
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 But it must be observed, that these powers do not operate as a conveyance 
 of the possession of the estate, but as a limitation of the use. Hence, if a, 
 person, having a power of appointment, appoints the estate to A. and Ms 
 heirs, to the use of B. and his heirs, the use is executed in A. and his heirs, 
 and B. takes only an equitable fee. Thus, suppose a marriage settlement 
 framed in the usual manner, and with the usual power of selling and ex- 
 changing reserved to the feoffees ; in these cases, it is sometimes expressed, 
 that it shall be lawful for the feoffees to grant, bargain, sell and convey. _ But, 
 whatever are the words made use of, they can only operate as a limitation of 
 the use ; and the vendee will take the legal estate. If the feoffees make a 
 conveyance by lease and release, there is no doubt but it will be effectual ; it 
 will operate, however, as an appointment; the releasee will take the legal 
 estate, and if the release is made to uses, the intended cestuijs que use will have 
 only equitable estates. To explain this more fully, it is to be observed, that 
 those uses which are not vested either in possession or right, immediately on 
 the execution of the deed, are termed future uses, and are said to arise, either 
 by the act of God, or the act of the party. Mr. Booth, in his printed opinion, 
 at the end of Mr. Ilillyard's edition of Sheppard's Touchstone, gives an ex- 
 planation of this distinction, which, if his expressions are understood in the 
 sense, in which it is evident he intended using them, will be found perspicuous 
 and exact. " It is wholly immaterial," he says, " how, or by what means, the 
 " future use comes in esse, whether by means of some event provided for, in 
 '•'case it happened, in the creation of the uses, which event may be called the 
 " act of God ; or, by means of some work performed by any certain person, 
 " for which provision was likewise made, in the creation of the uses, which 
 " may be called the act of man. In either case, the statute operates the same 
 "way; for the instant the future use comes in esse, either by the act of God, 
 " or by the act of man, the statute executes the possession to the use, and 
 " the cestuy que use is deemed to have the same estate in the lands as is 
 " marked out in the use, by the deed that created it. When the use arises 
 "from an event provided for by the deed, it is called a future, a contingent, 
 "an executory use; when it arises from the act of some agent or person 
 " nominated in the deed, it is called a use arising from the execution of a 
 " power. In truth, both are future or contingent uses, till the act is done ; 
 "and afterwards they are, by the operation of the statute, actual estates. 
 " But till done, they are in suspense, the one depending on the will of Heaven 
 " whether the event shall happen or not, the other on the will of man. _ Whilst 
 " these last are in suspense, they are called powers." According to this expla- 
 nation, the uses raised by limitations to first and other sons, or to such first 
 or only son who shall attain twenty-one, or to the survivor of A. and B. or to 
 the right heirs of I. S. — a person then in existence, — or to G. if A. dies in the 
 life-time of B. &c. &c. are all uses arising by the act of God ; as they are 
 events, designated by the original deed, but which though designated by the 
 party, depend for their effect, on the will of Providence. On the other hand, 
 where there are limitations to such uses as A. shall appoint, or to such of the 
 children of J.., as A. shall appoint ; or, where a power is given to A. to jointure, 
 to charge with portions, to mortgage, to lease, to sell, or to exchange ; — in all 
 these cases, the persons, and the estates and interests are to be designated by 
 the party. He designates the persons, the children, the mortgagee, the lessee, 
 the vendee, and exchangee. These, therefore, are said to arise by the act 
 of the party. From this explanation it is evident, that there is no material 
 difference in the quality of the uses; the difference is in the act, which pro- 
 duces them. In the latter case, the party has the power of raising them, and it 
 is in that sense, that the word power is used in this place. Now, if an estate 
 is conveyed to A. and his heirs, to the use of B. for life, remainder to his first 
 and other sons, successively in tail male; upon the birth of the first son, the 
 possession is executed in him by the statute. Suppose the estate were con- 
 veyed
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 463. 
 
 veyed to A. and his heirs, to the use of B. for life, remainder to such uses 
 generally, or to such son of B. as B. shall appoint, and B. appoints to the 
 use of his first son. Immediately upon the appointment, the use is executed 
 in the son. Then how does this appointment operate ? Clearly not as a con- 
 veyance. For B. had only a life estate, and consequently could not convey 
 an estate-tail, to his own son ; it operates therefore as a designation of the 
 person to take the use : jB.'s right to make this designation is termed a power 
 of appointment, the exercise of it is termed an appointment, the person taking 
 under it is termed the appointee. This may be made more clear, by consider- 
 ing how it would have stood on a limitation of uses at common law, before the 
 statute of uses. Till that statute, a conveyance to A. and his heirs, to the 
 use of B. for life, with remainder to such uses, or to such of his sons, as he 
 should appoint, was tantamount to what now is a conveyance unto and to the 
 use of A. and his heirs, in trust for B. for life, remainder in trust for such 
 persons, or for such of his sons, as he shall appoint. When, at common law, 
 an appointment was made, to the use of the first son, the trustee stood seised at 
 common law, to the use, or, as we should now call it, in trust for that first son ; 
 he thereupon became the cestui/ que trust. Since the statute has executed the 
 use, where the son takes under an appointment of this nature, the use is exe- 
 cuted in him, and he is the cestui/ que use. Thus, at the common law, an ap- 
 pointment operated to substitute one cestui/ que trust in the room of another. 
 Since the statute, an appointment operates to substitute one cestui/ que use in 
 the room of another. The conclusion is, that, wherever a party, having a legal 
 estate, conveys it to a person and his heirs, to such uses as that person or 
 any other person shall appoint, and an appointment is made, it operates not as 
 a conveyance of the land, but as an appointment of the use, and consequently 
 the appointee takes the use or legal estate. Therefore, as has been observed 
 before, if a person having a power of appointment, appoints to A. and his heirs, 
 to the use of B. and his heirs, the legal estate is in A. In the same manner, if 
 a person having a power of selling and exchanging, conveys the estate to A. 
 and his heirs, to the use of B. and his heirs, the legal estate is equally in A. 
 by the exercise of the power. 
 
 VII. 2. As to the relation, which deeds, by xchich poicers are executed, bear to 
 the deeds, by which the powers were created. — It is generally true, that the use 
 created under the power takes effect in the same manner, as if, in the deed 
 containing the power, it had been inserted instead of the power: thus, suppose 
 an estate conveyed to the use of A. for life, remainder to such uses as B. should 
 appoint, and in default of appointment, to the use of B. and his heirs ; B. ap- 
 points the estate to 0. for life ; remainder to his first and other sons in tail male. 
 After this appointment is made, it is the same as if the estate had been originally 
 limited to the use of A. for life, remainder to the use of C. for life ; remainder to 
 6Vs first and other sons in tail male ; remainder to B. and his heirs. So, if the 
 estate is limited to A. for life ; remainder to the use of his first and other sons in 
 tail male, with power to A. to appoint a rent charge to his wife, with usual reme- 
 dies and a term of years for securing the same, and to charge the estate with por- 
 tions, and to create a term of years for securing the same, and he exercises these 
 powers ; it is the same, as if, in the original settlement, the estate had been limited 
 to the use of A. for life, remainder to the use and intent that the wife might re- 
 ceive her jointure and distrain, and enter upon and take possession of the estate, 
 in case the same should be in arrearj and, subject thereto, to the use of 
 trustees for a term of years for further securing the rent charge; remainder to 
 the use that the lands in question may be charged with portions, and subject 
 thereto, to the use of trustees for a term of years for raising the portions ; 
 remainder to A.'s first and other sons successively in tail male. The relation 
 therefore which the deed by which the power of appointment is executed, as 
 to the deed by which the power is created, holds so far as the use thus ap- 
 pointed derives its effect from, and is served by or out of, the original seisin of 
 
 the
 
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 the conusee, recoveror, feoffee, or releasee ; and as it precedes and takes place 
 of all the uses limited subsequent or subject to the power. In this sense it 
 clearly has a relation to the deed by which it is raised. But it has no other 
 relation in point of time. In the case of the duke of Marlborough v. lord 
 Godolphin, 2 Ves. 61. lord Sunderland left the interest of 30,000^. to his 
 wife for her life, and the principal, after her decease, to such of her children 
 as she should by deed or will appoint. By her will she appointed 2,0007. to 
 Mr. Spencer and 1,5001. to lady Morpeth, who both died in her life-time. It 
 was contended that the appointment related back to the time of lord Sun- 
 derland's will, which relation would over-reach the death of the two parties, 
 who were alive at the time of the death of the testator, lord Sunderland ; 
 and then it would be considered as vesting in them in their lives. But lord 
 Hardwicke denied this. He admitted that an use taking effect by virtue 
 of an execution of a power, was taken under the authority of that power, but 
 not from the time of its creation; and he exemplifies this distinction by ap- 
 pointments of uses ; in which case, says his lordship, if a feoffment is executed 
 to such uses as the feoffor shall appoint by will ; when the will is made, it is 
 clear the appointee is in by the feoffment, but has nothing from the time of the 
 execution of the feoffment, so as to vest the estate in him; and he thereupon 
 decreed these legacies to have lapsed by the death of the legatees in the life- 
 time of the testator. This shows how much it is necessary to qualify the 
 general expressions above alluded to. It also reconciles them with a known 
 circumstance attending powers of this nature, with which it is otherwise difficult 
 to reconcile them, viz. that by an execution of a general power, a person may 
 limit estates which he could not limit by the deed in which the power is con- 
 tained. By a general power of appointment is understood that kind of power, 
 which enables the party to appoint the estate to any person he thinks proper ; 
 and, in this sense, it is opposed to a qualified or particular power, which enables 
 the party to appoint to or among particular objects only; as a power of ap- 
 pointing to his children, or the children of any other person. The former has 
 been termed a Power of Ownership, — the latter, a Power of Selection. A 
 general power of appointment has no tendency to a perpetuity, as from its 
 very nature, it enables the party to vest the whole fee in himself, or in any 
 other person, and to liberate the estate entirely, from every species of limita- 
 tion, inconsistent with that fee. In fac-t therefore giving a person such a 
 power, is nearly the same as giving him the absolute fee. The only difference 
 is, that it enables him to do, through the medium of a seisin previously created, 
 that which, if the fee had been actually limited to him, he might do by a 
 conveyance of the land itself; so that in both cases his power of alienation is 
 of the same extent. But in the case of a particular or qualified power, where 
 the objects are limited, the case is entirely different. The limitation of the 
 object takes the land out of commerce, and of course has a tendency to that 
 perpetuity, which the English law of real property does not admit. "The con- 
 sequence therefore is, and by a series of cases it now appears to be settled, 
 that where the power is general, estates for life, with remainders over, to 
 their issue in strict settlement, may be limited under them to persons not in 
 esse at the time of the execution of the original deed, in the same manner, and 
 to the same extent, as if instead of being derived out of the seisin of the feoffees 
 of the original deed, and in that point of view, as making a part of that deed, 
 the uses and estates so limited were created by an original, substantive, inde- 
 pendent, and integral conveyance. On the other hand, in the case of a par- 
 ticular or qualified power, that is, where the objects are qualified, as a power 
 of appointing to the children of the party himself, though perhaps it may 
 enable him to appoint life estates, to children unborn at the date of the deed 
 creating the power; yet, if it enables him to appoint life estates to those 
 children, it certainly does not authorize him to extend the appointment to 
 the children of these children, so as to make them take by purchase, nor to 
 
 appoint
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 463. 
 
 appoint any other estate, which might not have been created by the very deed 
 creating the power. In all cases therefore of particular or qualified powers, 
 both in the creation and the exercise of them, care should be taken to ascer- 
 tain, that the uses which the party is empowered to raise under them, or actually 
 assumes to raise under them, when he comes to exercise the power, are such 
 as the deed creating the power might itself have raised. 
 
 It may, however, be proper to add, that between deeds and wills there is this 
 material distinction : a deed takes effect immediately on the execution of it : — 
 a will is ambulatory, and waits for its effect till the testator's decease. In in- 
 quiring therefore into the legality of the limitations we are speaking of, the 
 reference in the case of a deed, should be to the time of its execution; but the 
 reference in the case of a will, should be to the death of the party. If, there- 
 fore, in a deed exercising such particular power of appointment, there is a limi- 
 tation for life to a person unborn at the date of the deed creating the power, 
 with remainders over to his sons in strict settlement, these remainders over will 
 be void, and will not be helped though a son is born on the following day. In the 
 case of a will it is different. If the son is born in the party's life, he is capable of a 
 limitation to himself for life, with remainders over to his sons in strict settlement. 
 
 In cases of this nature, there is another material distinction between deeds 
 and wills. In deeds, technical expressions are, in some cases, absolutely ne- 
 cessary, so that they cannot be supplied by others, however forcible or clear ; 
 in other cases they have a determinate sense appropriated to them by law, in 
 which, and in no other, the law permits them to be construed. In wills there 
 is a greater latitude of construction : technical expressions are never necessary, 
 and every expression is construed in the sense, in which the testator appears 
 to have designed to use it, so that, when his intention is once discovered, 
 whether he uses technical language or not, and if he uses it, whether he uses 
 it in a proper or an improper sense, his will is construed solely with a view to 
 what appears to be his obvious meaning, and not according to the rigid or 
 technical import of his expressions. Another rule in the construction of wills, 
 which is admitted in a much greater latitude than it is in the construction of 
 deeds, is, that when a testator's general intent appears, the court, in order to 
 give it effect, will sacrifice to it a particular intention inconsistent with it. 
 Now, in the cases of which we are speaking, where the limitations are con- 
 strued to import a life estate to an unborn son, and successive estates tail by 
 purchase to the sons of that son, there, in a deed, the latter limitations suspend 
 the inheritance from vesting beyond the period allowed for its suspension by 
 the rules of law, and are therefore void. But in the case of wills, the law 
 will not construe these expressions thus rigidly. From the manifest tenor of 
 the devises we are speaking of, it must appear to be the intention of the party, 
 that, all the issue, (male or female, as the case may happen) should take the 
 estate. This is his general intention : besides this, he appears to intend, that 
 they should take the estate in that manner, which, if allowed, must necessarily 
 give estates by purchase to the sons of the unborn son. This is his particular 
 intention ; but it cannot be effectuated, being contrary to law. To allow it 
 therefore would subvert his general intention. The court therefore, to give 
 effect, as far as the law admits, to the testator's will, sacrifices the particular to 
 the general intent ; and conformably to this principle, as the general intent 
 can only be answered, by giving an estate tail to the unborn son, the court 
 will construe the devise to import an estate tail to him. This construction, by 
 making the sons of the unborn son take by descent, sacrifices the testator's in- 
 tent that they should take by purchase ; but by letting in all the issue, preserves 
 his general intent, that all the issue should take — see Doe d. Blandford & Ux. <fc 
 Dymock v. Applin, 4 Term Bcp. 82. Humberston v. Humberston, 1 Peere Wil- 
 liams, 332 ; Chapman v. Browne, 3 Burr. 1 634 ; Nicholl v. Nicholl, 2 Black. Bep. 
 1159; Pitt v. Jackson, 2 Bro. Ch. Cases, 51 ; andBobinson v. Hardcastle, 2 Term 
 Bep. 241. To this point the ultimate decree in the great case of Hopkins v. 
 
 Hopkins
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 Hopkins is very important. As the points in that case involve some of the 
 most interesting doctrines of the law of uses, and the printed account of them 
 is to be found only in separate and detached cases, taken by different reporters, 
 and in different stages of the cause, and as no account has yet appeared in print 
 of the final decree, it was thought the following succinct account of the whole 
 cause would be acceptable to the reader, and would not be considered as mis- 
 placed in the present Note. — The case was, that Mr. Hopkins by his will de- 
 vised his estates to the use of trustees and their heirs, in trust for Samuel 
 Hopkins, (the son of John Hopkins the cousin and heir at law of the testator,) 
 for his life; remainder to his first and other sons successively in tail male; and 
 for want of such issue, "in case his said cousin John Hopkins should have 
 " any other son or sons of his body lawfully begotten, then in trust for all 
 "and every of such other son and sons respectively and successively, for their 
 "respective lives; with the like remainders to their several sons, successively 
 "and respectively, as are thereinbefore limited to the issue male of the said 
 "Samuel Hopkins, son of the said John Hopkins; and for default of such 
 " issue, then in trust for the first and every other son of the body of Sarah, 
 "the eldest daughter of his said cousin John Hopkins, lawfully to be begot- 
 "ten, successively and according to priority of birth, for their respective 
 "lives; with remainders to the heirs male of the body of every such son, 
 "respectively and successively, the elder and the heirs male of his body to 
 "take before the younger and the heirs male of his body issuing; and for want 
 " of such issue, then in trust for the first and every other son of the body of 
 " Mary, the second daughter of his said cousin John Hopkins, lawfully to be 
 "begotten, successively and respectively, according to priority of birth, for 
 "their respective lives; with remainders to the heirs male of the bodies of 
 "every such son respectively and successively, the elder and the heirs male of 
 "his body to take before the younger and the heirs male of his body issuing; 
 " and for want of such issue, then in trust for the first and every other son of 
 "the body of Elizabeth, the third daughter of his said cousin John Hopkins, 
 "lawfully to be begotten, successively and respectively, according to priority 
 "of birth, for their respective lives; with the like remainders to the heirs male 
 "of the body of every such son, respectively and successively, the elder and 
 "the heirs male of his body to take before the younger and the heirs male of 
 "his body issuing; and for want of such issue, then in trust for the first and 
 "every other son of the body of Hannah, the youngest daughter of his said 
 "cousin John Hopkins, lawfully to be begotten, successively and respec- 
 "tively, according to priority of birth, for their respective lives; with the 
 "like remainders to the heirs male of the body of every such son respec- 
 tively and successively, the elder and the heirs male of his body to take 
 " before the younger and the heirs male of his body issuing; and for want 
 "of such issue, and in ease his said cousin John Hopkins should have any 
 " other daughter or daughters lawfully begotten, then in trust for the first 
 "and every other son of every such other daughter, respectively and suc- 
 cessively, according to priority of birth, for their respective and successive 
 "lives; with the like remainders to their, several and respective heirs males 
 "successively, the elder and the heirs male of his body to take before the 
 "younger and the heirs male of his body issuing; and in default of such issue, 
 "then in trust for the first and every other son of his cousin Hannah Dare, the 
 "then wife of Francis Dare, and daughter of his uncle Samuel Hopkins, de- 
 " ceased, lawfully begotten or to be begotten, successively and respectively, ac- 
 cording to priority of birth, for their respective lives; with the like remainders 
 "to the heirs male of the body of every such son respectively and successively, 
 "the elder and the heirs male of the body of every such son respectively to 
 "take before the younger and the heirs male of his body issuing; and for want 
 "of such issue, then in trust for James Bennett, the only son of his cousin 
 
 "Sarah
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 463. 
 
 "Sarah Alloway, then the wife of William Alloway, and another daughter of 
 " his said uncle Samuel Hopkins deceased, by Mr. Bennett, her former hus- 
 "band, for his the said James Bennett's life; with remainder to his first and 
 "every other son lawfully to be begotten, successively, according to priority of 
 "birth, and the heirs male of every such son respectively and successively, the 
 "elder and the heirs male of his body to take before the younger and the heirs 
 "male of his body issuing; and in default of such issue, then in trust for his 
 "own right heirs for ever?" With a proviso, that whoever should come to his 
 estate should take his surname and coat of arms; and a proviso, disposing of 
 the rents during the minorities of the devisees: — And, after giving a great 
 number of legacies, he gave the rest and residue of his personal estate to his 
 executors, in trust that the same should be by them, or the survivors of them, 
 with all convenient speed laid out in the purchase of messuages, lands, and 
 tenements of inheritance in England, to be conveyed to the executors and their 
 heirs, upon the several trusts and for the same purposes as were thereby de- 
 clared touching the estates he was then seised of, and which he had devised. 
 And the testator appointed sir Richard Hopkins, John Ruclge, and James Hop- 
 kins, executors of his will. And after his decease it was proved by sir Richard 
 and Mr. James Hopkins. Samuel Hopkins, the son of John Hopkins, the tes- 
 tator's cousin, died in the testator's life. After the testator's death, John Hop- 
 kins, the cousin and heir of the testator, and his four daughters, the said Sarah, 
 Mary, Elizabeth, and Hannah Hopkins, and also Amey Hopkins, another daugh- 
 ter of John Hopkins the cousin, born after making the said will, exhibited a 
 bill in chancery against sir Richard Hopkins, John Rudge, and James Hopkins, 
 and against John Dare, Francis Dare, and Philip Dare, infants, (children of 
 Hannah Dare) and also against the said James Bennett : stating, amongst other 
 things, the will of Mr. Hopkins; and praying that the executors might account 
 for the testator's personal estate, and the rents and profits of his real estate, 
 and that such of those profits as did not pass by his will, together with the 
 legacy given to John Hopkins, the cousin, might be paid to him, and that the 
 residue of the said testator's personal estate, after payment of his debts, legacies, 
 and funeral expenses, might be placed out in proper purchases, according to 
 the directions in the testator's will; and in the mean time be improved at 
 interest. In Hilary term 1782, sir Richard Hopkins and James Hopkins 
 filed a cross bill against the complainants, to have the trusts of the will carried 
 into execution, and for an account of the real and personal estate of the testa- 
 tor. On the 25th October 1733, by a decree in these causes, by the master of 
 the rolls, it was declared, among other things, that the plaintiff John Hopkins 
 was entitled to the rents and profits of the testator's real estate accrued since 
 his decease, till some person should come in being, that should be entitled to 
 an estate for life, according to the limitations in the said will; and that he was 
 in like manner entitled to the surplus produce of the said testator's personal 
 estate, after payment of the annual sums charged thereon by the said testator's 
 will; and that the residue of the personal estate was to be laid out in the pur- 
 chase of lands, with the approbation of the master, and settled to the same uses 
 and upon the same trusts as the real estates, devised by the said testator's will, 
 stood settled; and that until such purchase could be found out, the personal 
 estate should be put out at interest upon government or other securities, with 
 the approbation of the master, in the names of sir Richard Hopkins and James 
 Hopkins, upon the trusts of the will, and the surplus rents and profits of the 
 estates devised to sir Richard Hopkins and James Hopkins, and the estates to 
 be purchased as aforesaid, and also the surplus produce of the said personal 
 estate, until such purchase was made, was to be paid to John Hopkins, the tes- 
 tator's cousin, until some person should come in being, that should be entitled to 
 an estate for life, according to the limitations of the testator's will. On the 18th 
 November 1734, the cause came before lord chancellor Talbot upon an appeal ; 
 and the decree was affirmed, with the addition that the words "in possession" 
 
 should
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 should be inserted in the decree in two places next after the clause " until 
 " some person should come in being, that should be entitled to an estate for 
 " life. — The report of this cause in Cas. in Eq. temp. Talbot, 44. reaches this 
 period of the cause. By the decrees made on these parts of it, the two follow- 
 ing important points were settled ; that during the suspense, which, by the 
 death of Samuel Hopkins in the testator's life-time, took place during the life 
 of John until he had another son, or until, by his decease without other issue, 
 (if that event had happened,) the possibility of his having another son would 
 have determined, the limitations enured as executory devises ; and that, during 
 such suspense, the rents and profits of the real estate being undisposed of by 
 the testator, (his disposition of them having effect only during the minorities 
 of the persons actually entitled,) belonged to the heir at law. — Here the cause 
 was left by lord Talbot's decree. — In June 1736, John Hopkins had a second 
 son, named William, who died in the following December. — Upon this, the 
 eldest son of Hannah Dare having attained 21, and being the first tenant for 
 life in esse, brought his bill to have a settlement made by the trustees, in which 
 settlement he insisted to be made immediate tenant for life. — In this stage of 
 the business it was argued, that the estate having become vested in the second 
 son of John Hopkins (the testator's cousin) and by his death without issue, the 
 suspense of there being a future child of John Hopkins being again renewed, 
 the ulterior limitations must operate as contingent remainders, and that as there 
 was no estate to support them, they were absolutely void, and the heir at law of 
 course entitled to the estate. In answer to this, it was contended, that the sub- 
 sequent limitations might be supported as so many distinct executory devises; 
 but that, if it was necessary to consider them as contingent remainders, they 
 were good in their original creation, and supported by the legal fee outstanding 
 in the trustees. These points came before lord Hardwicke in 1738, and his 
 lordship was of opinion, that the preceding freehold being once vested, the 
 ulterior devises thereupon operated as contingent remainders; and having once 
 become such, no subsequent event could make them enure as executory devises; 
 so that they were thenceforth to be considered as contingent remainders ; and 
 his lordship was of opinion, that the legal fee in the trustees was sufficient to 
 support them. Mr. Atkyns's report of this case, 1 vol. 581. embraces this 
 stage of it. After this there is no printed account of this important case. 
 From the proceedings of the cause, it appears, that John Hopkins, the cousin 
 of the testator, died without issue male, and without having had any son 
 except Samuel and William. — Sarah Hopkins had one daughter, who died an 
 infant and unmarried; and afterwards Sarah died. — Mary had a son and a 
 daughter, who both died without issue; and afterwards Mary herself died. — 
 Elizabeth, the third daughter, intermarried with Benjamin Bond, esquire, by 
 whom she had issue one son, named Benjamin Bond Hopkins, he having taken 
 upon him the name and arms of Hopkins, in pursuance of the directions for that 
 purpose contained in the testator's will. — Hannah, the fourth daughter, inter- 
 married with William Mallet, esquire, and died, leaving only one child, named 
 Hannah. Amey, the youngest daughter of John Hopkins, the cousin, died an 
 infant, and without issue. John Dare also died, leaving one sou, also named 
 John Dare; and Francis Dare also died. — In 1772, Mr. Benjamin Bond Hop- 
 kins suffered a recovery of the estates, and declared the use to himself in fee 
 simple. In Miehaelmas term in the same year, he filed a supplemental bill in 
 chancery against the trustees of the real and personal estate of the testator John 
 Hopkins, and his heirs at law and devisees in remainder, and prayed thereby 
 that the real estates might be conveyed to him and his heirs. On the 8th July 
 1774, the cause was heard before lord chancellor Bathurst, and his lordship 
 thereupon finally ordered, that the trustees should convey the real estates to 
 Benjamin Bond Hopkins, and his heirs, or as he should appoint. — In the exe- 
 cution of powers, too rigid an adherence to the form prescribed cannot be 
 observed : but it is not necessary that the words, or even the form of the power, 
 
 should
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 463. 
 
 should be used, if the material circumstances of the power are pursued, and the 
 party appears to have had the subject of his power in contemplation. By a 
 series of acknowledged authorities, it is settled beyond all doubt, first, that, to a 
 valid exercise of a power, a reference to or notice of that power is not necessary, 
 if it sufficiently appears that the party intends exercising it : Secondly, that it is 
 considered as sufficient evidence of the party's intention to exercise the power, 
 if his intention appears to be, to do that act, which his power authorizes him to 
 do, but which he is not authorized to do, without resorting to his power. Thus, 
 where a tenant for life, with several remainders over in strict settlement, and 
 with a general power of revocation and new appointment, conveys to a purchaser 
 by lease and release, bargain and sale, or feoffment, without noticing his power, 
 it is a valid, but a very informal and improper execution of the power; for the 
 party cannot vest the fee in the purchaser without resorting to his power, it is 
 therefore evident he intends exercising it ; and consequently if the formalities 
 prescribed by the power are pursued, it will be considered as a substantial exe- 
 cution of the power. Still it is necessary that it should appear to be the inten- 
 tion of the party to exercise the power; and therefore, generally speaking, it 
 is necessary he should mention the property which is the subject of the power. 
 See sir Edward Clere's case, 6 Rep. 17. b. 12 Mod. 469. Guy v. Dormer, 
 sir Tho. Raymond, 295. Snape v. Turton, 2 Roll. Abr. 263. Fitzwilliam's 
 ease, Moore, 681. Kibbett v. Lee, Hob. 312. Fitzgerald v. lord Fauconberge, 
 Fitzgibbon, 207 — 215. Tomlinson v. Dighton, 1 P. W. 149. Jenkins v. 
 Kemishe, Hard. 395. 1 Lev. 150. Campbell v. Leach, Amb. 740. Molton 
 v. Hutchinson, 1 Atk. 558. and ex parte George Caswall, ibid. 559. — In all 
 cases, however, where there is an informal execution of a power, it operates in 
 the mode in which the power operates, not in the mode in which the deed, the 
 form of which is used, would operate. If, therefore, a person having a power 
 of appointment, conveys by lease and release, and these can only have effect, as 
 an execution of a power, the conveyance operates as an appointment, and not 
 as a release ; and of course, if it is a release to A. and his heirs, to the use of 
 B. and his heirs, the legal estate is vested in A. 
 
 In the exercise of powers, conveyancers have introduced two precautions, 
 which are often proper, but certainly sometimes superabundant : one is, to 
 make the party exercising the power, declare, that he acts, not only in exercise 
 of that particular power, but in exercise of every other power, enabling him to 
 do the act in question : the other is, where the party has a special power over 
 land, and is also entitled to the fee, or to any particular estate carved out of it, 
 he is made not only to exercise his power, but also to convey the land as owner 
 of it. Thus, where a person having a power of appointment, intends conveying 
 his estate to a purchaser, he is made not only to appoint the fee, but to convey 
 it by lease and release. Sometimes the appointment and the release are 
 blended together; but this is very informal, and is always improper, where it 
 is not the intent of the deed that the party should have the legal estate. It may 
 however be contended, that the court would marshal the words, so as to give 
 them all their intended effect; as, where a person having a power, is made to 
 grant, bargain, sell, alien, release, limit, appoint, and confirm the lands to A. 
 and his heirs, to the use of B. and his heirs; it may be contended, that the 
 court would construe the words grant, bargain, sell, alien, release and confirm, 
 as referrible to A. and his heirs, and the words limit and appoint as referrible 
 to B. and his heirs. See Cox v. Chamberlain, 4 Ves. jun. 631. Roach v. 
 Wadhani, 6 East, 289. One reason for making the party in these cases both 
 convey and appoint, is, that if the power either was not well created, or is 
 become suspended, and he has himself any estate in the land, the conveyance 
 will operate on his estate. 
 
 In some cases, it is necessary both to appoint and convey; as where an estate 
 is limited to A. for life, remainder to such uses as he shall appoint; here the 
 appointment would operate only on the reversion expectant on the life estate : 
 
 a conveyance
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 a conveyance therefore is necessary to pass the life estate. This observation 
 may serve to correct a mistake which is sometimes made by those who levy fines, 
 with a view to enable them to dispose of their estates, and therefore direct the 
 fine to operate to the use of the party himself during his life, remainder to his 
 wife for life, remainder to such uses as he shall appoint. Here the appoint- 
 ment operates only to the reversion, and consequently, to pass the wife's life 
 estate, a new fine is necessary. To prevent this, the power of appointment, 
 in these cases, should precede the uses. For the same reason, when a settle- 
 ment is executed of personal estate, which it is intended to subject to the 
 appointment of the husband and wife, or either, with successive life estates to 
 them in default of appointment, the power should precede the trusts conferring 
 these life interests on them. 
 
 It may be observed, that, when a person creates a power of appointment, to 
 enable him to dispose of his estate, within a short time after, it is better to 
 vest the legal estate in the trustees, by conveying it unto and to the use of them, 
 and their heirs, upon trust to convey it as the party shall appoint, than to con- 
 vey it to the trustees and their heirs, to such uses as the party shall appoint; 
 for powers are liable to be suspended and extinguished by very secret acts ; of 
 these, from their nature, purchasers must often be ignorant. In these cases, 
 therefore, they often rest, in some measure at least, on the honour of the ven- 
 dor ; but, when the legal estate is vested in the trustees, a conveyance from 
 them will, at all events, give the purchasers the legal estate. 
 
 As estates created by powers, and estates created by conveyances, are after 
 their creation the same, the terms expressing the operation of appointments 
 and conveyances, are very often, both in the deeds creating the powers, and the 
 deeds by which they are exercised, confounded. Something of this, was, till 
 lately, generally discernible in the best drawn marriage settlements. Thus, in 
 the power of leasing, the party is authorized to grant, lease, or demise, when, 
 in fact, he can neither grant, lease, or demise for a longer term than his own 
 life ; the power therefore does not authorize him to grant, &c. the lands, but to 
 appoint the use of the lands, for the number of years or lives in question : the 
 expression therefore should be, to limit or appoint by way of lease or demise. 
 So, in the power of selling and exchanging, it is often said, that it shall be law- 
 ful for the trustees to grant, bargain, sell, release, and confirm the lands ; but, 
 in the strict sense of these words, it is impossible for the trustees to grant, 
 bargain, sell, release, or confirm ; for the trustees have no actual estate, except 
 their estate for preserving contingent remainders; and therefore, cannot convey 
 the lands for a larger term. The power therefore operating as an appointment 
 of the whole fee, the expression here, as in the former case, should be, limit 
 and appoint. As this last power amounts to a total determination of all the 
 subsisting uses, and a creation of an entire new estate of inheritance, it seems 
 advisable to accompany it with a power of revocation. It may therefore be ex- 
 pressed, that it shall be lawful for the trustees to sell and exchange, and, for 
 that purpose, to revoke the uses of the deed, and to appoint new uses ; and the 
 more general these powers of revocation and new appointment are expressed, the 
 better, as a mere power to revoke the uses of the estate intended to be sold, and 
 to appoint it to the purchaser, is sometimes found insufficient to answer the 
 object, as where there is an agreement between the vendor and vendee to ap- 
 portion rents. It is also a consequence of these powers operating by way of 
 appointment, that the use is vested by them in the appointee, and, therefore, 
 when by them the lands are expressed to be conveyed to A. and his heirs, to the 
 use of B. and his heirs, or to the use of B. for life, with remainders over, the 
 whole legal fee is vested in A. and the uses declared upon it have effect only as 
 trusts in equity. The appointment therefore should be immediately to the use 
 of the persons intended to take beneficially under the proposed instrument. 
 
 It is observable, that powers of leasing, and of selling and exchanging, are 
 
 generally
 
 272. a. J Of Releases. L. 3. C. 8. Sect. 463. 
 
 generally limited to the persons to whom they are intended to be given, and the 
 survivor of them, and the heirs of the survivor : it is a necessary consequence 
 of this, that, if the power becomes vested in the heir of the survivor, and that 
 heir is an infant, the power cannot be exercised during his minority. By the 
 act 7 Ann. c. 19, infant trustees, by the direction of the court of chancery, signi- 
 fied by order upon petition, are empowered to convey estates held by them in 
 trust. But infants cannot convey under a power, without an act of parliament. 
 To avoid this inconvenience, it is advisable to limit the power in question to the 
 executors or administrators of the survivor. This observation, however, is con- 
 fined to the case of powers, and does not extend to the cases of trusts, where 
 the legal estate is vested in trustees ; for the trust should always follow the 
 legal estate of the land, when it is conveyed to, and intended to reside in, the 
 trustees. It should consequently be vested in those persons upon whom the 
 lands are intended to devolve. Where therefore lands are conveyed unto and 
 to the use of trustees and their heirs in trust to sell ; as the lands necessarily 
 devolve on the survivor, and the heirs and assigns of the survivor, the trust 
 should in like manner be limited to the survivor, his heirs and assigns. 
 
 It often happens that the same deed contains several powers ; and, supposing 
 all or even more than one of them, to be executed, there is, at least, ground to 
 argue that, generally speaking, the use limited by the power last executed, 
 will take place of all the uses created by the powers previously executed, unless 
 the contrary is expressed or implied in the deed. In Moore, 788. lord Coke is 
 made to say, that if a tenant for life, with a power of leasing, and a general 
 power of revocation, makes a lease under his power of leasing, he may after- 
 wards revoke all but the leases. It is however to be observed, that when a 
 power is exercised for a valuable consideration, in such a manner as shows it to 
 be the intention and agreement of the parties, that the use created under it 
 should not be over-reached by the execution of another power, it is contrary to 
 equity, that it should be thus over-reached, and, consequently, the unexecuted 
 powers may be so far affected, both at law and in equity, as to be subject to the 
 use created under the executed power. To avoid all disputes upon these heads, 
 it is necessary to express very clearly what uses are, and what uses are not, 
 intended to be over-reached, by the execution of the powers, both as to the uses 
 actually limited by the settlement itself, and as to the uses to be limited under 
 the powers contained in that settlement. In a marriage settlement, the wife and 
 the younger children of the marriage are principal objects. Unless therefore the 
 parties intend the contrary, all the powers of charging with money should be 
 declared to be subject and without prejudice to the provisions made for the wife 
 and younger children. With respect to the other powers, the principal of these 
 are the powers of leasing, and of selling and exchanging. As it is equally 
 for the benefit of the persons entitled in remainder or reversion as of the tenant 
 for life, that the estate should be properly let out upon leases, there is no 
 reason why the estate of the wife, or any other person claiming in remainder or 
 reversion, should be made paramount to the leases. With respect to the powers 
 of selling and exchanging, the jointure of the wife, and the portions of the 
 children, may be transferred to the estates to be acquired under those powers, 
 and to the money arising from the sale of the settled estate, till the new estate 
 is purchased : it is also to be observed, that the sales and exchanges cannot be 
 made without the parents consent. There seems therefore no reason for 
 exempting any of the uses, except the leases, from the exercise of that power; 
 but, with respect to the leases, these, from their nature, cannot be transferred 
 to the lands to be acquired under the powers, and consequently these should 
 not be subject to the powers of selling and exchanging. The same objection 
 lies, in a certain degree, to powers of raising money by way of mortgage. No 
 person would advance money on mortgage of this nature, if they were to be 
 made subject to the general powers of sale or exchange ; and therefore, to pre- 
 vent all doubt on this head, it should be declared, that the powers of selling and 
 
 exchanging
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 exchanging should be subject to mortgages previously made, unless it shall be 
 with the consent of the mortgagee; and that, in the case of such consent, the 
 lands to be purchased, or taken in exchange, may be mortgaged to them for 
 their security. 
 
 It often happens, that powers are given to parties to be exercised by them, 
 when in the actual possession of the estate. In some cases this is done with- 
 out adverting sufficiently to the situation and probable wants of the parties. 
 Suppose an estate devised by the husband to his wife for her life, remainder 
 to her son for his life, with remainders over in strict settlement; with powers 
 to the son, when in possession, to jointure and charge with portions. During 
 the mother's life, the son is not in possession, and consequently is not in a 
 situation to exercise those powers. Now, though it may be improper, and 
 contrary to the intention of the parties, that the jointure to be made by the 
 son should charge the mother's estate, during her life, against her consent, 
 there can be no reason why it should not charge the estate with her consent; 
 neither is there any objection to the son's being enabled to exercise the power 
 in her life-time, provided the jointure do not take effect, so as to be payable or 
 to charge the estate, till after her decease. It seems therefore advisable, that, 
 in cases of this nature, the son should be entitled to exercise the powers, with 
 the mother's consent, during her life, or to exercise them, without her consent, 
 subject to her life estate. Sometimes, when the difficulty in question has arisen, 
 it has been attempted to put the party in a situation to exercise the power by 
 accelerating his possession of the estate. In one case this may be thought to 
 answer the object intended; this is, where A. is tenant for life with the imme- 
 diate remainder, (without any limitation to trustees), to B. for life, with a 
 power to B. to jointure when in possession. Here, if A. surrenders to B., B. 
 is, to all purposes, in possession of the estate, and may therefore be considered 
 to be in a situation to exercise his powers. But, where there is an intermediate 
 estate, this never can be relied on. If it is expressed in the deed, as it gene- 
 rally is, that it shall be lawful for the party to exercise the power when in 
 possession under the limitations, and there is a limitation to trustees to pre- 
 serve the contingent remainders, the first tenant for life can in no wise put the 
 second tenant for life in possession of the estate but by an actual conveyance 
 of his life estate; consequently the party will then be in possession, not by 
 virtue of the limitations of the deed, but by the act of the first tenant for life. 
 For, instead of being tenant in possession for his own life only, as he would 
 be, if he was in possession under the limitations in the deed, he is tenant in 
 possession for the life of another person, with a remainder for his own life; so 
 that he has two estates which are perfectly distinct, and under the limitations 
 of the settlement, he is only tenant for life in remainder. Where these words 
 therefore are inserted, it seems clear the party is not in possession within the 
 words or meaning of the deeds, and consequently not in a situation of exer- 
 cising his power. Where these words are not inserted, it may be contended 
 that they ought to be implied. 
 
 VII. 3. Before we proceed to the last head of this annotation, of the uses 
 not executed by the statute, the following observations are offered on USES 
 OF RENTS. — These are executed by the statute : so that, where lands are 
 conveyed to A. and his heirs, to the use, intent, and purpose, that B. or that 
 B. and his heirs may receive a rent, the rent is executed. When therefore 
 lands are conveyed to A. and his heirs, to the use, intent, and purpose, that 
 B. and his heirs may receive a rent, with a declaration that B. and his heirs 
 shall stand seised of the rent, to the use of C. for life, with remainders over; 
 the rent is executed in B., and then C. and the remainder-men take only the 
 trust of the rent. If the estate be conveyed to A. and his heirs, to the use 
 that B. may receive a rent for life; and after his decease, to the use that his 
 first and other sons successively, and the heirs of their respective bodies, may 
 
 Vol. II. — 25 receive
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 463. 
 
 receive the rent; these, it may be contended, are distinct rents; and therefore 
 the rent to the second son may be considered too remote, as being a new rent 
 limited to take effect after an indefinite failure of the issue of the first son. 
 Objections also may be made to recoveries suffered by the father and son, as 
 the tenant to the praecipe being made by the father he will not be seised of 
 that rent, in which the son's entail subsists. The way therefore to limit the 
 rent is, to grant a rent to a stranger and his heirs, that he may re-grant it to 
 the intended uses. 
 
 VIII. The remaining subject for observation is, WHAT USES ARE 
 NOT EXECUTED BY THE STATUTE. 
 
 VIII. 1. As to uses created by wills, it is to be observed, that lands were 
 not devisable at common law, otherwise than by local customs of particular 
 places, except through the medium of a previous feoffment to uses. The 
 cestuy que trust might dispose of the use by will : the court of chancery consi- 
 dered the will as a declaration of the use, and compelled the feoffees to convey 
 the lands accordingly. But, when by the statute of the 27th Henry VIII. 
 the possession was annexed to the use, as the use thereby became merged in 
 the land, this indirect power of devising lands was absolutely lost. The 32 
 and 34 Hen. VIII. gave a power to devise the whole of lands held in socage, 
 and two-thirds of lands held by knight's service. The 12 Car. II. converted 
 knight's service into socage; and thus, all landed property, except that which 
 is of the tenure of copyhold, became devisable. But, as the statute of uses 
 preceded the statutes of wills, it does not necessarily extend to them. It is 
 true, that the statute of uses speaks of persons seised to uses by virtue of wills : 
 but this must apply either to those lands, which were devisable by custom; — 
 as, when a person seised of lauds devisable by custom, devised them to A. and 
 his heirs, to the use of B. and his heirs: — or to uses at common law; — as 
 where a feoffment was made to A. and his heirs, to the use of B. and his heirs, 
 and B. devised the use. To uses of this description the statute extended; but 
 it is difficult to conceive how uses created under the testamentary power given 
 by the statutes of wills can be within the statute of uses. It is said, that 
 though the law will not force the operation of the statute of uses upon devises 
 to which it is the testator's intention it should not extend; yet it will apply it 
 to those cases to which it is his intention it should extend. This opinion 
 makes it depend entirely on the will of the testator, whether the statute of uses 
 shall or shall not operate upon the devises of his will. Thus, if a devise is 
 made to the use of A. for life, with remainders over, if it were to be con- 
 sidered as a limitation under the statute of uses, it would be void, for want of 
 a seisin to serve the uses. It cannot therefore be the testator's intention that 
 it should operate under that statute; consequently the law will not force it 
 under that statute, but leave it solely to its effect under the statutes of wills. 
 But, suppose a devise to A. and his heirs, to the use of B. and his heirs, that 
 would be good to give the legal fee to B. as a limitation under the statute of 
 uses. The testator therefore might intend, and the form of the devise shows 
 he did intend, to raise an use under that statute, and the law, in conformity to 
 his intentions, extends its operation to the devise. But, against this it may be 
 argued, that a statute can never be considered as relating to any thing which 
 did not exist at the time of its passing; and therefore, as lands were not de- 
 visable till some years after the statute of uses, the statute of uses cannot ex- 
 tend to uses created by devise : that in wills the testator's intention is chiefly 
 considered; and as by a devise to A. and his heirs, to the use of B. and his 
 heirs, the testator shows it to be his intention that B. should have the legal 
 fee, the law will put that construction on the devise, and give it that operation. 
 At the end of Mr. Hillyard's edition of Sheppard's Touchstone, there is a very 
 learned opinion of the late Mr. Booth on the doctrine of uses. In two copies 
 which the editor has seen of this opinion, made immediately under the eye of 
 
 Mr.
 
 L. 3. C. 8. Sect. 463. Of Releases. [272. a. 
 
 Mr. Booth, and delivered by him to the persons in whose custody they now 
 are, and also in a copy of it bequeathed by Mr. Booth, with his other valu- 
 able law manuscripts, to Mr. Holliday, the following note is added to it. — 
 " P. S. Powers under wills are not like powers under conveyances operating 
 " by way of use. The execution of a power under a devise, is not the limita- 
 " tion of a use ; no, not where the devise is to uses : as where there is a devise 
 " to /. S. and his heirs, to the use of A. for life, remainder to B. in tail, with 
 u power for A. to limit a jointure, or lease, or charge; here there will be no 
 " seisin in I. S. consequently no such use in A. or B. as is executed by the 
 " statute of uses ; consequently, the execution of the power is no use ; it 
 " operates as a devise under the statute of wills." — See Popham v. Bampfeild, 
 
 1 Vern. 79. Burchett v. Durdant, 2 Vent, 312. Broughton v. Langley, 2 Salk. 
 679. Gilb. Uses, 281. — But whether a devise to uses operates solely by the 
 statute of wills, or by that statute jointly with the statute of uses, is, except 
 where the devisee to uses dies in the lifetime of the testator, rather a matter of 
 speculation than of use ; as it is now settled, that an immediate devise to uses, 
 without a seisin to serve those uses, is good ; and that where the estate is de- 
 vised to one for the benefit of another, the courts execute the use in the first or 
 second devisee, as appears to suit best with the intention of the testator. 
 
 VIII. 2. With respect to copyhold estates, the statute of uses does not extend 
 to them, as it is against the nature of a copyhold tenure, that any person should 
 be introduced into the estate without the consent of the lord. Gilbert's 
 Tenures, 170. 
 
 VII [. 3. With respect to leases for years ; — these estates are not executed 
 by the statute. But this must be understood of leases actually in existence, 
 at the time of their being assigned to the use. Therefore, if A. possessed of 
 a lease for years, grants it over, or assigns it, to B. and C. to the use of D. ; 
 all the estate is in B. and C, and D. takes only a trust, or equitable estate. 
 But if A. being seised of lands in fee, makes a feoffment to the use of B. and 
 G. for a term of years, this term is served out of the seisin of the feoffee, and 
 is executed by the statute. — It is the same if he bargains and sells the estate, 
 of which he is seised in fee, for a term of years. Gilb. Uses, 198. Dver, 369. 
 
 2 Inst. 671. 
 
 Such are the general outlines of the doctrine of uses ; one of the most im- 
 portant parts of the law, as all the landed property of the kingdom is, either 
 directly or indirectly, regulated by it. It is to be observed, that one of the 
 chief objects, both of the legislature and the judicature of this kingdom, in 
 their regulations upon this subject, has been, on the one hand, to guard against 
 those restraints upon alienation, which are incompatible with the welfare of a 
 free and commercial country ; and on the other, to admit of reasonable settle- 
 ments and provisions being made for wives and children, and the general wants 
 of families. Experience seems to show that they have accomplished their 
 object. This fully answers the objections which foreigners make to the nature 
 of our family settlements, that we exclude the ancestor, whose character is 
 known to us, from the disposal of the property ; and intrust it to the children, 
 with whom we must be perfectly unacquainted. — So detrimental has an 
 unqualified and unlimited power of settlement been found even in France, 
 that it was, under the ancien regime, a question there, whether it would not 
 be for the advantage of the nation at large, that all settlements and trusts 
 should be abrogated. This question, so far as it related to moveables, was by 
 the order of Louis XV. proposed in the year 174-1 by the Chancellor D'Agues- 
 seau to all the parliaments and superior councils of France. See Questions 
 eoncerncnt les Substitutions, avee les Responses cle touts les Parlemens et Cours 
 SouveravKS da Royuutrie, et les Observations de M. le Chancelier D'Aguesseau 
 sur Irs dMs Responses. Toulouse, 1770. And see also Oommentaire de V Ordmi-. 
 nafid'e de Louis XV. sur les Substitutions, par Jluns. Furgolc. Paris, 1767. 
 
 It
 
 272. a.] Of Releases. L. 3. C. 8. Sect. 464. 
 
 Sect. 464. 
 
 ANOTHER cause they alleage, that if such land bee worth fortie 
 shillings a yeare, fyc. then such feoffor shall be sworn in assise and 
 other enquests in flees reals, and also in plees personals, of what great 
 sum soever the plaintiffe will declare, $c. And this is by the common 
 law of the land. Ergo, this is for a great cause. And the cause is, 
 for that the law ivill that such feoffors and their heires ought to occupie, 
 8fc. and take and enjoy all manner of profits, issues, and revenues, $c. 
 as if the lands were their own, ivithout interruption of the feoffees, not- 
 withstanding such feoffment. Ergo, the same law giveth a privitie 
 between such feoffors and the feoffees upon confidence, $c. for which 
 causes they have said, that such releases made by such feoffees upon 
 confidence to their feoffor or to his heirs, $c. so occupy iny the lands, f 
 shall be good enough : and this is the better opinion, as it seemeth. 
 X Quaere, for this seemeth no law at this day. 
 
 (Ant. 156. b. 
 28 H. 8. 
 
 BY the statute of 2 H. 5. cap. 3. statute 2, it is enacted, that, 
 in three cases, he that passeth in an enquest, ought to have 
 vfd f \V 9 lands and tenements to the value of fortie shillings, viz. First, 
 
 cap." 38." " upon triall of the death of a man. Secondly, in plea reall be- 
 
 L'estat. de tweene partie and partie. And thirdly, in plea personall, where 
 
 21 E. i. de fo e (jgj^ or t jj e d amiIia g es in the declaration amount unto fortie 
 
 in assise &c. *' markes (1). And it is worth the noting, that the judges that 
 
 (Fortescue, 62. a. 27 El. c. 6. Ant. 157. a.) 
 
 were 
 
 * (f-c. not in L. and M. or Roh. J This paragraph not in L. and M. 
 
 f &c. added in L. and M. and Roh. or Roh. 
 
 It is hoped, that the importance of the subject, will be thought a sufficient 
 apology for the great length of the foregoing note. Lord chief baron Gilbert's 
 Essay upon Uses and Trusts, considered in the only light in which it can be 
 considered with justice to its author, as an unfinished sketch, is entitled to 
 great commendation ; it certainly contains several most profound and learned 
 observations, but in many instances is very defective and erroneous. Its in- 
 trinsic value is greatly increased, by Mr. Sugden's recent edition of it. The 
 want of a comprehensive and systematic treatise upon uses which was men- 
 tioned in a former edition of this note, is now supplied by Mr. Sanders's Essay 
 on Uses and Trusts. The account given in that work of the Doctrine of Uses, 
 as it stood before the stat. of 27 H. 8. is particularly* interesting. The doc- 
 trine of Powers is exhausted by Mr. Sugden's treatise upon them. Had the 
 public been in possession of these works before this annotation was submitted 
 to them, it would not have been attempted. — [Note 231.] 
 
 (1) By 35 H. 8. c. 6. inhabitants of corporate towns worth 40s. in goods, 
 may try felonies in sessions and gaol deliveries for such towns, and this is not 
 repealed by subsequent statutes concerning jurors. 1 Vent. 366. The 4th and 
 oth W. and M. c. 24. requires that all trials in the courts at Westminster, or 
 before the judges of nisi prius, oyer and terminer, or gaol delivery, or general 
 sessions of the peace, must be by jurors, each worth 107. per annum, of free- 
 hold or copyhold in the same county, if the trial be in England; and by jurors 
 
 worth
 
 L. 3. C. 8. Sect. 464. Of Releases. [272. a. 272. b. 
 
 were at the making of that statute did construe it by equitie : for 
 where the statute speakes in the disjunctive debt or damniages, 
 they adjudged that where the debt and damages amounted to 9 II. 5. fol. 5. 
 fortie markes, that it was within the statute. Fortescue [/] IQ Fortesc. 
 saith, Ubi damna vel debitum inpersonalibus actionibus non exce- 
 dunt quadraginta marcas monetae Anglicanae, hinc non requiritur, 
 qubdjuratores in actionibus hujusmodi lantum expendere possint : 
 habebunt tamen terram velredditum ad valorem competentem,jux- 
 ta discretionem justitiariorum, &c. And forasmuch as at the time 
 of the making of this statute, the greater part of the lands in 
 England in those troublesome and dangerous times (when that 
 unhappie controversie betweene the houses of York and Lan- 
 caster was begun) were in use; and the statute was made to 
 remedie a mischiefe, that the sheriffe used to return 
 
 t 272.1 B@ t "siinple men of small or no understanding; and 15 H. 7. 13. b. 
 b. | therefore the statute provided that hee should returne J 3 ^^ ^ 
 sufficient men : and albeit in law the land was the feof- 
 fees, yet for that they had it but upon trust, and cesty que use 
 tooke the whole profits, as our author here saith, and in equity 
 and conscience the land was his, therefore the judges, for ad- 
 vancement and expedition of justice, extended the statute (against 
 the letter) to cesty que use, and not to the feoffees (1). 
 
 [n] But note, if a man hath freehold purterme de auter vie, or [»] 3 H. 6. 39. 
 is seised in his wife's right, and is returned on a jurie, yet if after ^y 16 ,? g g 9 19 ' 
 he be returned, cesty que vie, or his wife die, hee may be chal- ( Ant " { b7 , a _) 
 lenged : and so it is if after the returne the lands be evicted. 
 
 " And this is by the common law." Here three things are to be 
 observed. First, that the surest construction of a statute, is by 
 the rule and reason of the common law. Secondly, that uses were 
 at the common law. Thirdly, that now seeing the statute [g~\ [?] 27 H. 8. 
 of 27 II. 8. cap. 10. which hath beene enacted since Littleton ca P- 10 - 
 wrote, hath transferred the possession to the use, this case hold- 
 eth not at this day ; but this latter opinion before that statute 
 was good law, as Littleton here taketh it. 
 
 " TJie same law giveth a privitie. &c." Hereof it followeth, (8 Rep. 42. b.) 
 that when the law gives to any man any estate or possession, 
 the law giveth also a privitie and other necessaries of the same, 
 and Littleton concludeth it with an illative, ergo the same law 
 giveth a privitie, which is verie observable for a conclusion in 
 other cases. 
 
 And the (quaere) here made in the end of this Section is not (Ante, 156. b.) 
 in the originall, but added by some other, and therefore to be 
 rejected. 
 
 Also since Littleton wrote, the said statute of 2 H. 5, is altered : 27 El. cap. 6. 
 for where that statute limited fortie shillings, now a latter statute 
 hath raised it to foure pounds, and so it ought to be contained in 
 the venire facias. 
 
 Nota 
 
 worth 6?. per annum, if in Wales ; and talesmen must have bl. per annum in 
 England, and 3/. per annum in Wales, excepting strangers returned propter 
 medietatem linguae. — But by the 4th and 5th Ann. c. 16. no hundreders are 
 required except in prosecutions criminal, and on penal statutes, because in 
 other cases the venire shall be de corpore comitates. — [Note 232.] 
 
 (1) See lord Bacon's reading on the statute of uses, p. 8, accord, edit. 1785.
 
 272. b.] Of Releases. L. 3. C. 8. Sect, 465. 
 
 PI. Com. 352. b. Nota, an use is a trust or confidence reposed in some other, 
 in Delamere's which is not issuing out of the land, hut is a thing collaterall, 
 case, an^ ^ . annexe( j j n p r j v itie to the estate of the land, and to the person 
 122. 127. 140. touching the land, scilicet, that cesty que use shall take the profit, 
 in Chuclleye's anc l that the terre-tenant shall make an estate according to his 
 fol^S K 8 direction. So as cesty que use had neither jus in re, nor jus ad 
 
 Lib. 6. fol. 64. rem, but only a confidence and trust, for which he had no remedie 
 Lib. 7. fol. 13. by the common law, but for breach of trust, his remedy was only 
 by subpazna in chancerie; and yet the judges, for the cause 
 aforesaid, made the said construction upon the said statute. 
 
 Now how jurors shall be returned, both in common plees, 
 
 and also in'plees of the crowne, and in what manner evidence 
 
 shall be given to them, and how they shall be kept, untill they 
 
 Fortesc. cap. 25, give their verdict, you may read in Fortescue, and therefore 
 
 26, 27. need not be here inserted. 
 
 Sect. 465. 
 
 ALSO, releases according to the matter in fact, sometimes have their 
 
 effect by force to enlarge the state of him to whom the release is made. 
 
 (1) As if I let certain e land to one for terme of yeares, by force whereof 
 
 hee is in possession, and after I release to him all the right ivhich I have 
 
 in the land without putting more ivords in the deed, and deliver to him the 
 
 deed, then hath he an estate but for terme of his life. And the reason is, 
 
 for that when the reversion or remaynder is in a man ivho will by his release 
 
 inlarge the estate of the tenant, £c. hee shall have no greater estate, but 
 
 in such manner and form as if such lessor were seised in fee (il'n'avera 
 
 pluis greinder estate, mes en * tiel manner et forme sicome f tiel feoffor 
 
 fuit seisie en fee) and by his deed will make an estate to one in a certain 
 
 forme, and deliver to him seisin by force of the same deed : if in such deed 
 
 of feoff ement there be not any word of inheritance, % then he hath but an 
 
 estate 
 
 * tiel — la, L. and 31. and Roll. | &c. added in L. and M. and Roh. 
 
 "j" si added in L. and 31. and Roh. 
 
 (1) Here Littleton treats of releases which operate by enlargement of the 
 estate of the releasee. To make releases operate in this manner, it is necessary 
 that the releasee, at the time the release is made, should be in actual possession 
 of, or should have a vested interest in, the lands intended to be released; that 
 there should be a privity between him and the releasor ; and that the possession 
 of the releasee should be notorious. Hence it is said, that a person, who is 
 tenant by sufferance, is not capable of a release to operate by enlargement. 
 But a tenant in dower or by the courtesy is capable of that species of release, 
 as they have notoriety of possession, ancl privity of estate, with respect to the 
 releasor. See Roll. Abr. 400, 401. and Gilb. Ten. To the circumstance re- 
 quiring the possession of the releasee to be notorious, the statute of uses 
 furnishes an exception exemplified in the effect, which is allowed to the con- 
 veyance by bargain and sale for a year, and a release to enlarge that estate. 
 At the common law, till entry or attornment, the lessee was not capable of a 
 release. A bargainee has a vested interest immediately after the execution of 
 the bargain and sale, without any entry, attornment, or other act of notoriety 
 whatsoever. — [Note 233.]
 
 L. 3. C. 8. Sect. ±$5. Of Releases. [272. b. 273. a. & b. 
 
 estate for life ; and so it is in such release made || by those in the reversion 
 or in the remainder. For if I let land to a man for terme of his life, and 
 after I release to him all my right without more saying in the release, his 
 estate is not enlarged. But if 1 release to him and to his heires, then he 
 hath a fee simple; and if I release to him and to his he ires of his lodie 
 begotten, then hee hath a fee taile, $c. And so itbehoveth to specif e in 
 the deed what estate hee to whom the release is made shall have. 
 
 IT is a certaine rule, that when a release doth enure by way of Flet - lib - 5 - 
 enlarging of an estate, that there must be privitie of estate, as j* 1 ^ J 14 
 betweene lessor and lesses, donor and donee. For if A. 22 E. 4. 1. 
 
 t 3 73.1 make a lease to B. for life, and the Be^ lessee maketha 
 a. I lease for yeares, and after A. releaseth to the lessee for ( Post - 206 - *•) 
 yeares, and his heires, this release is void to enlarge 
 the estate, because there is no privity betweene A. and the les- 
 see for yeares. 
 
 If a man make a lease for twenty yeares, and the lessee make (Ant. 270. a.) 
 a lease for ten yeares, if the first lessor doth release to the 
 second lessee, and his heires, this release is void for the cause 
 aforesaid. 
 
 For the same cause, if the donee in taile make a lease for his 
 owne life, and the donor release to the lessee and his heires, this 
 release is void to enlarge the estate. 
 
 And as privitie is necessarie in this case, so privity only is not 
 sufficient. As if an infant make a lease for life, and the lessee (Ant. 264. a. 
 eranteth over his estate with warranty, the infant at full age Post. 285. b. 
 
 • Cnnf Aflrt .101 ^ 
 
 bringeth a dum fruit infra setatem, the tenaut voucheth his ' " ; 
 
 grantor, who entereth into warranty, the demandant releaseth 
 to him and his heires ; here is privitie in law, and a tenancie in 
 supposition of law ; and yet because hee in rei veritate hath no 
 estate, it cannot enure to him by way of enlargement ; for how 
 can his estate be enlarged that hath not any ? 
 
 If a tenant by the courtesie grant over his estate, yet he is 
 tenant as to an action of waste, attornement, &c. and yet a re- (Ant. 53. a. 
 lease to him and his heires cannot enure to enlarge his estate that 54 - a -) 
 hath no estate at all. 
 
 But if a man make a lease for yeares, the remainder for life, a 
 release by the lessor to the lessee for yeares, and to his heires, 
 is good, for he that hath both a privity and an estate ; and the 
 release also to him in the remainder for life and his heires, is (2 Roll. Abr. 
 good also. 400 -) 
 
 If I grant the reversion of my tenant for life to another for ^ j>„ as Z~*i 
 life, now shall I not have an action of waste (2) : but if I re- Finchden. 
 
 lease to the grantee for life, and his heires, now he 41 E. ?>. 17. a. 
 
 [273.1 JB@~ hath the fee simple, and shall punish the waste 7 ( j^ t \l". 
 b. * J done after (1). " 
 
 It is further to be observed, that to a release that 
 
 enureth 
 
 || by those not in L. and M. or Roh. 
 
 (2) Because no person is entitled to an action of waste, but he who has 
 an estate immediate in remainder or reversion, expectant on the estate of the 
 person committing waste. See ant. note 2. to page 218. b. — [Note 284.] 
 
 (1) By the release the tenant for life in reversion obtains the immediate 
 reversion in fee. — [Note 235.]
 
 273. b.] Of Releases. L. 3. C. 8. Sect. 465. 
 
 enureth by way of enlargement of the estate, there is not only 
 
 required privity, as hath beene said, and an estate also, but 
 
 sufficient words in law to raise or create a new estate. If a man 
 
 make a lease to A. for terme of the life of B. and after release 
 
 (Ant. 42. a.) to A. all his right in the land, by this A. hath an estate for 
 
 terme of his owne life ; for a lease for terme of his owne life is 
 
 higher in judgment of law than an estate for terme of another 
 
 man's life. 
 
 16 H. 6. If a feme covert be tenant for life, a release to the husband 
 
 2*> iT *2 Re'- and Q is heires 1S g°°dj f° r there is both privity and an estate in 
 
 lease". Statham. the husband, whereupon the release may sufficiently enure by 
 
 [a] H. 4. 6. wa y of enlargement [a] ; for by the intermarriage he gaineth a 
 
 18E n 4 f ' P 5 er ' 7 ' b * freehold in his wife ' s ri § ht - 
 
 22 Ass.' 12. 
 
 \\ £ « \ 9 V " All the right:' Vide Sect. 650. 
 
 10 H. 6. 11. " 
 
 (Post. 299. a. 
 
 Ant, 270. b.) " For terme of yeares." So it is if a release be made to tenant 
 
 by statute staple, or merchant, or tenant by elegit, as hath beene 
 said : and so likewise to gardeine in chivalrie which holdeth in 
 for the value, by him in the reversion of all his right in the land, 
 by this a freehold passeth for the life of him to whom the release 
 is made, for that is the greatest estate that can passe without 
 apt words of inheritance. 
 
 If a man make a lease for ten yeares, the remainder for twenty 
 yeares, he in the remainder releaseth all his right to the lessee, 
 (1 Leo. 303. 323. he shall have an estate for thirty yeares; for one chattle cannot 
 Ant. 193. b.) drowne another, and yeares cannot he consumed in yeares. 
 
 " But if I release to him and to his heires, &c." Here it is to 
 bee observed, that when a release doth enure byway of enlarge- 
 ment of an estate, no inheritance either in fee simple or fee taile, 
 can passe without apt words of inheritance. 
 9 Eliz. Dier, But there is a diversity betweene a release that enureth by way 
 
 263. 10 Ehz. f enlargement of the state and by way of milter restate (2) ; for 
 Liu Hb% fol. when an estate passeth byway of mitter V estate, there sometime 
 68, 69, 70. b. there need not any words of inheritance. As if a joynt estate be 
 13 °- b - made to the husband and to his wife, and to a third person and 
 
 to theire heires, the third person releaseth all his right to the 
 husband, this shall enure by way of mitter Testate, and not by 
 way of enlargement of the estate, because the husband had a 
 See before in the fee simple, and needeth not to have any words of inheritance, 
 chapter of Eee g it is if the release had been made to the wife. 
 r/XIV^E 3 41 M ^ there be three joyntenants, and one release to one of 
 40 E. 3. the 
 
 19 H. 6. 33 H. 6. 5. 10 E. 4. 3. 
 
 (2) Here the release operates by mitter V estate; which is, where two 
 persons come in by the same feudal contract, as joint-tenants or coparceners, 
 and one of them releases to the other the benefit of it. In releases which 
 operate by this last mode, the releasee being supposed to be already seized of 
 the inheritance by virtue of the former feudal contract, and the release only 
 operating as a discharge from the right or pretension of another seized under 
 the same contract, words of inheritance in the release are useless; but, where 
 the release operates by enlargement, the releasee having no such previous in- 
 heritance, and fiefs being cither for life or in fee, as they are originally granted, 
 the release gives the estate to the releasee for his life only, unless it be ex- 
 pressly made to him and his heirs. — [Note 236.]
 
 L. 3. C. 8. Sect, 466. Of Releases. [273. b. 274. a. 
 
 the other all his right, this enureth by way of mitter Testate, 
 and passeth the whole fee simple without these words (heires.) 
 But if there be two joyntenants, and the one of them release 
 all his right to the other, this doth not to all purposes enure by 
 way of mitter Testate, for it rnaketh no degree, and hee to whom 
 the release is made shall for many purposes be adjudged in from 
 the first feoffor, and this release shall vest in the other joynten- 
 ant without these words (heires). 
 
 But if there be two coparceners, and the one release all his 10 E. 4, 3. b. 
 right to the other, this shall enure by way of mitter Testate, and S X- 8 : ilt ' 
 shall make a degree, and without these words (heires) shall passe B r . 31. 
 the whole fee simple. And it is to be observed, that to releases 31 H. 4. 8. 
 that enure by way of mitter Testate, there must be privity of n ^ 88 '^* 
 estate at the time of the release. 263. ' ' 
 
 If two coparceners be of a rent, and the one of them take the (2Roll.Abr.403. 
 ter-tenant to husband, the other may release to her, notwith- 10 E> 4 * 3> *>•) 
 standing the rent be in suspence, and it shall enure by way of 
 mitter Testate, 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 bee seene how it 
 shall enure. 
 
 Littleton having now spoken of releases that enure by way of Vid. Litt. fol. 
 enlargement of the estate, and of releases that enure by way of fo'rr 9 ^ \ 
 mitter Testate, proceedeth to releases that enure by way of mitter rp os \, 230. a.) 
 le droit. So as of that which hath beene and shall bee said by 
 our author of releases, it appeareth that some doe enure by way 
 of enlargement of estate, some by way of mitter Testate, some 
 by way of mitter le droit, by way of entrie and feoffment, and 
 some by extinguishment. 
 
 [ 3 I 4 *] » Sect. 466. 
 
 A LSO, sometimes releases shall enure de mitter, and vest the right of 
 
 him which makes the release to him to whom the release is made. As 
 
 if a man be disseised, and he releaseth to his disseisor all his right, in 
 
 this ease the disseisor hath his right, so as where before his state ivas 
 
 wrongfuXl, noio by this release it is made laivfull and right (1). 
 
 " A ND he releaseth to his disseisor, &c." This release so put- 
 
 ~^ teth the right of the disseisee to the disseisor, that it 
 
 changeth the quality of the estate of the disseisor ; for where his 
 
 estate 
 
 (1) Here Littleton treats of releases which operate by mitter le droit. Re- 
 leases of this kind must be made either to the disseisor, his feoffee, or his heir. 
 In all these cases the possession is in the releasee ; the right in the releasor ; 
 and the uniting the right to the possession completes the title of the releasee ; 
 but the different degrees of title in the disseisor, his feoffee, or his heir, give 
 the releases made to them different operations. They all agree in this respect, 
 that no privity is required, or indeed can, from the nature of the case, exist 
 between them and the releasor. — [Note 237]
 
 274 a. 274. b.] Of Releases. L. 3. C. 8. Sect. 467. 
 
 estate was before wrongful!, it is by this release made lawfull. 
 But how farre, and to what respects his estate is changed, shall 
 be said hereafter in this chapter in his proper place. 
 
 * 
 
 Sect, 467. 
 
 J^UT here note, that when a man is seised in fee simple of any lands 
 or tenements, and another will release to him all the right which he 
 hath in the same tenements, lie needeth not to speake of the heires of 
 him to tvhom the release is made, for that he hath a fee simple at the 
 time of the release made. For if the release was made to him * for a 
 day, or an hour, this shall be as strong to him in law as if he had re- 
 leased to him and his heirs. For when his right was once gone from 
 him by his release without any condition, $c. to him that hath the fee 
 simple, it is gone for ever. 
 
 11 TTE needeth not to speake of the heires, &c." And the reason 
 of Littleton hereof is, for that the disseisor hath a fee simple 
 at the time of the release made. And this appeareth by that 
 (Post. 280. a.) which hath beene said before, so as regularly hee that hath a fee 
 simple at the time of the release made of a right, &c. needeth 
 not speake of his heires. 
 
 Vide 6 E. 3.17. 
 12 E. 4. tit. 
 Descent, F. 29. 
 
 (Ant. 252. a.) 
 
 "For if the release was made to him for a day, &c." For 
 the diversity is betweene a release of part of the estate of a 
 right, and between a release of a right in part of the land. And 
 therefore Littleton here saith, that a release of a right for a day 
 or an houre is of as good force, as if he had released his right 
 to him and his heires. But if a man be disseised of two acres, 
 he may release his right in one of them, and yet enter into 
 the other. 
 
 " Without any B^" condition, &c." Herein is im- rQ'7-4. "J 
 plyed two diversities : first, betweene the quantity of j_ b. 
 the estate in a right, and the quality thereof; for albeit 
 the disseisee cannot release part of the estate, as hath beene 
 said, yet may he release his right upon condition, as here it ap- 
 peareth by Littleton [c], and it agreeth with our bookes. 
 
 Also here is another diveisity betweene a right, whereof Lit- 
 tleton putteth his case, which is favoured in law, and a condition 
 created by the party which is odious in law, for that it defeateth 
 estates. And therefore if a condition be released upon condi- 
 tion, the release is good, and the condition void. 
 
 What things may be done upon condition is too large a matter 
 
 to handle in this place, our author having treated of Conditions 
 
 before : only to give a touch of some things omitted there shall 
 
 suffice. An expresse manumission of a villeine cannot be upon 
 
 condition, for once free in that case, and ever free ; also an 
 
 attornment to a grantee upon condition, the condition is void 
 
 because the grant is once settled. But this is to be understood of 
 
 Rot. Parliament a condition subsequent, and not of a condition precedent; for 
 18 H. 6. num. 1 ' r 
 
 29 Ap. Gwilliam's case. 10 E. 3. cap. 2. 3 H. 7. f. 6. 
 
 in 
 
 * and to his heirs added in L. and M. and Boh. 
 
 [c] 4 E. 2. 
 Release, 50. 
 43 Ass. 12. 
 17 Ass. 2. 
 31 Ass. 13. 
 21 H. 24. 
 
 (6 Rep. 62. a. 
 Post. 297. a. 
 300. b.)
 
 L. 3. C. 8. Sect. 468-69. Of Releases. [274. b. 275. a. 
 
 iu both those cases the condition precedent is good. But letters 
 patents of denization made to an alien, may be cither upon 
 condition subsequent or precedent ; and so may the king make 
 a charter of pardon to a man of his life upon condition, as is 
 abovesaid. 
 
 SeCt. 468. (2 1loll.ALr.400.) 
 
 T) UT where a man hath a reversion in fee simple (Mes lou * home ad 
 un reversion in fee simple), or a remainder in fee simple, at the time 
 of the release made, there if he will release to the tenant for years, or 
 for life, or to the tenant in taile, hee ought to determine the estate which 
 he to whom the release is made shal have by force of the same release, 
 for that such release shall enure to enlarge the estate of him to whom 
 the release is made f (1). 
 
 Of this sufficient hath beene said before. 
 
 Sect. 469. 
 
 T> UT otherwise it is where a man hath but a right to the land, and hath 
 nothing in the reversion nor in the remainder in deed. For if such 
 a man release all his right to one which is tenant in the freehold, all his 
 right is gone, albeit no mention be made of the heires of him to ivhom 
 the release is made. For if I let lands \\ to one for terme of 
 ["275.1 his life, if I after release g@=* to him to enlarge his estate, it 
 L a - J behoveth that I release to him and to his heirs of his body en- 
 gendered, § or to him and his heires, or by these words, To have 
 and to hold to him and to his heires ± of his bodie engendred, % or to the 
 heirs male of his bodie engendred, or such like estates, or otherwise hee 
 hath no greater estate than hee had before. 
 
 u rp O one who is tenant of the freehold." Here it appcareth, (Ant. 266.) 
 
 that to a release of right, made to any that hath an estate 
 of freehold in deed or in law, no privitie at all is requisite. As if 
 
 a disseisor 
 
 * home — un, L. and 31. and Roll. §or not in L. and M. or Roh. 
 
 f<fcc. added in L. and M. and \male added in L. and M. and 
 
 Roh. Roh. , 
 
 || or tenements added in L. and M. %or to the heirs male of his body 
 
 and Roh. engendred, not in L. and M. or Roh. 
 
 (1) All releases per milter le droit also agree in this, that words of inherit- 
 ance are not necessary in releases which operate by mittcr le droit; as the dis- 
 seiso-, to whom, or to whose feoffee, or heir, that release is made, acquires the 
 fee by the disseisin, and therefore cannot take it under the release. In this 
 respect they differ from releases by enlargement, — [Note 238.]
 
 275. a. 275. !>.] Of Keleases. L. 3. C. 8. Sect. 470. 
 
 a disseisor make a lease for life, if the disseisee release to the 
 lessee, this is good, and directly within the rule of Littleton, 
 because the lessee hath an estate of freehold, albeit there be no 
 privitie. And so it is if a disseisor make a lease to A. and his 
 heires during the life of B. and A. dieth, a release by the dis- 
 seisee to his heire, before hee doth actually enter, is good. 
 
 (Post. 327.) Sect. 470. 
 
 J) TIT if my tenant for life letteth the same land over to another for 
 terme of the life of his lessee, the remainder to another in fee, now if 
 I release to him to whommy tenant made a lease for terme of life, I shall 
 bee barred for ever (ore si jeo relessa a celuy a que mon tenant lessast 
 pur terme de vie, § ceoserra barre a touts jours), albeit that no mention 
 be made of his heires, for that at the time of the release made I had no 
 reversion, but only a right to have the reversion. For by such a release, 
 and the remainder over, which my tenant made in this case, my rever- 
 version was discontinued, \\ $c. and this release shallenureto him inthere- 
 mainder, to have advantage of it, aswell as to the tenant for terme 
 of life (1). 
 
 (Post. 279.) T ITTLETON having before spoken of releases which enure 
 
 by way of enlargement, by way of mitter V estate, and by wav 
 of mitter le droit, here speaketh of a release of a right which in 
 some respects enureth by way of extinguishment; as in this case 
 which Littleton here putteth, the release to the lessee of the lessee 
 doth not enure by way of mitter le droit, for then should he have 
 the whole right, but as it were by way of extinguishment, in 
 respect of him that made the release, and that it shall enure to 
 him in the remainder, which is a cmalitie of an inherit- 
 ance fisH^ extinguished. But yet the right is not extinct [~Qy5.~| 
 in deed, as shall be said hereafter in this chapter. b. 
 
 (Post. 327. b.) " My reversion was discontinued, &c." Here discontinue is in 
 
 a large sense taken for divested, though the entrie of the lessor 
 be not taken away, which is implyed in this (&c). 
 
 Sect. 
 
 § ceo — jeo, L. and M. and Roh. || &c. not in L. and M. or E-oh. 
 
 (1) Here Littleton shows the operation of a release per mitter le droit, when 
 made to the feoffee of the disseisor. The feoffee is in by title ; his estate can- 
 not be devested or disaffirmed, but by an act equal to that which created it. 
 A release does not affect his possession or title, but discharges him from the 
 right of the releasor ; so that whether the whole fee is in the feoffee, or carved 
 out into particular estates, it remains unaltered by the release, except as it is 
 discharged by it from the right of the releasor. — [Note 239.]
 
 L. 3. C. 8. Sect, 471, 472. Of Releases. [275. b. 
 
 Sect. 471. 
 
 FOR 
 
 to this intent the tenant for terme of life and he in the remainder 
 are as one tenant in laiv, and are as if one tenant were sole seised 
 in his demesne as of fee at the time of such release made unto him, $c. 
 
 " A RE as one tenant in law." Which is certainly true in this 
 case of remainder, and so it is also in case of a reversion ; 
 as if a disseisor make a lease for life, and the disseisee doth 
 release all his right to the lessee, this release shall enure to him 
 in the reversion, albeit they have severall estates, as hath beene 
 said, which is implyed in this (<Ct.) 
 
 But if a disseisor make a lease for life, the remainder in fee, 
 albeit they to some purposes (as here is said) are as one tenant 
 in law, yet if the disseisee release all actions to the tenant for life, 
 after the death of the tenant for life, he in the remainder shall 
 not take benefit of this release, for it extended only to the 
 tenant for life, as it is holden [a] in Edward Altham's case. And [a] Lib. 8. fol. 
 in like manner, if the disseisor make a lease for life, and the dis- 148. Edw. Alt. 
 seisee release all actions to the lessee, this inureth not to him in ,p ogt g ec ^ \ 
 the reversion ; 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, 
 as to or for the benefit of him in the remainder or reversion. 
 
 Sect. 472. 
 
 ALSO, if a man be disseised by two, if he release to one of them (1), 
 hee shall hold his companion out of the land, and by such release hee 
 shall have the sole possession and estate of the land. But if a disseisor 
 infeoffe two in fee, and the disseisee release to one of the feoffees, this 
 shal inure to both the feoffees, and the cause of the diversity between these 
 two cases is pregnant enough. * For that they come in by feoffment, and 
 the others by ivrong, <f*c. 
 
 " TF a man be disseised, &c." This is to bee understood where 21 lien. 6. 41. 
 tenant in fee simple is disseised and release; for if tenant (Ant 194. a. b.) 
 
 for 
 
 * The remainder of this Section not in L. and M. or Roh. 
 
 (1) Here the release is to the disseisors themselves. They have only a bare 
 possession, preceded by no previous conveyance, and founded on no right or 
 title, and therefore the release of the disseisee who has the right, passes the 
 right to the disseisor to whom it is made, and his holding out his companion is 
 an act of notoriety equal to that by which the joint estate by disseisin was 
 originally acquired. Thus the possession of each of the estates being founded 
 on an equal degree of wrongful title, the disseisor to whom the release is made, 
 having the right, must be preferred to him who has none : so that, in this case, 
 the release is tantamount to an actual entry and feoffment. — [Note 240.]
 
 27o. b. 276. a.] Of Releases. L. 3. C. 8. Sect. 472. 
 
 for life be disseised by two, and be releasetb to one of tbem, tbis 
 
 sball inure to tbem botb ; for be to whom, tbe release is made, 
 
 batb a longer estate tbanbee tbat releasetb, and therefore caDuot 
 
 inure to him alone, to hold out his companion, for then should 
 
 the release inure by way of entrie and grant of his estate ; and 
 
 consequently the disseisor, to whom the release is made, should 
 
 [6] 13 E. 4. tit. become tenant for life, and the reversion revested in the lessor [&], 
 
 Discent, F. 29. which strange transmutation and change of estates in this case 
 
 the law will not suffer. But if lessee for yeares be 
 
 ousted, and he in the S^° reversion disseised, and the J~Q76."1 
 
 lessee release to the disseisor, the disseisee may enter, |_ a. J 
 
 (Ant. 265. b. for the terme of yeares is distinct and determined. But 
 
 Ant. 239. a.) otherwise it is in case of a lessee for life, for the disseisor hath 
 
 a freehold, whereupon the release of tenant for life may enure ; 
 
 but tbe disseisor hath no terme for yeares, whereupon the release 
 
 of the lessee for yeares may enure. 
 
 And so it is if donee in taile be disseised by two, and releasetb 
 to one of them, it shall enure to them both. But if the king's 
 tenant for life be disseised by two, and he releaseth to one of 
 them, he sball hold out his companion, for the disseisor gained 
 but the estate for life. So if two joyn tenants make a lease for 
 life, aud after doe disseise the tenant for life, and he release to 
 one of them, he shall hold out his companion, for the disseisin 
 was but of an estate for life. 
 
 If tenant for life be disseised by two, and he in the reversion 
 and tenant for life joyne in a release to one of the disseisors, 
 he shall hold his companion out, and yet it cannot enure by way 
 of entrie and feoffment. But if they severally release their 
 severall rights, the severall releases shall enure to both tbe 
 disseisors. 
 
 But here in Littleton's case, where tenant in fee simple is dis- 
 seised by two, and releasetb to one of them, this for many pur- 
 poses enureth by way of entrie and feoffment, and therefore he 
 to whom the release is made shall hold out his companion, and 
 be made sole tenant of the fee simple. And this holdeth 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 bee in by wrong, and not by title. 
 
 If two men doe gaine an advowson by usurpation, and the 
 
 right patron releasetb to one of them, he shall not hold out his 
 
 companion, but it sball enure to them both ; for seeing their 
 
 clerke came in by admission and institution, which are judicial! 
 
 acts, they are not merely in by wrong : for an usurpation shall 
 
 cause a remitter, as it appeareth in F. N. B. 31. m 
 
 19 H 6 22 But if a lease for life be made, the remainder for life, the re- 
 
 38 1L 6 - . 28! mainder in fee, and he in remainder for life disseiseth the tenant 
 
 Case de occu- f or \[fe^ an( j then tenant for life dieth, the disseisin is purged and 
 
 ?Ant' 42 b ) ne in the remainder for life hath but an estate for life. And so 
 
 note a diversitie where the particular estate for life is precedent, 
 
 and when subsequent. 
 
 Where our author puttetb his case of one disseised, put the 
 case that two joyn tenants in fee be disseised by two,_and one of 
 the disseisees release to one of the disseisors all his right, he 
 shall not hold out his companion, because the release is but of 
 the moy tie, without any certaintie. If a man be disseised by 
 two women, and one of them take husband, and the disseisee 
 release to the husband, this shall enure to the advantage of both 
 
 the
 
 L. 3. C. 8. Sect. 473. Of Releases. [276. a. 276. !>. 
 
 the disseisors, because the husband was no wrong doer, but in a (Post, 278. a.) 
 manner in by title. 
 
 u Uee shall have the sole possession and estate." If two dis- 
 seisors be, and they make a lease for life, and the disseisee 
 release to one of them, this Bhail enure to them 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 seemeth) if the disseisors make a lease for 
 yeares, and the disseisee release to one of them, this shall enure 
 to them both, for by the release he cannot have the sole pos- 
 session : and it appeareth by Littleton, that he must have the 
 sole possession, and hold his companion out. But the morgagee 
 upon condition, having broken the condition is disseised by two, 
 the morgagor having the title of en trie for the condition broken, 
 release to the one disseisor, albeit they be in by wrong, yet the 
 release shall enure to them both for two causes : first, for that 
 they are not wrong doers, to the morgagor, but to the morgagee ; 
 and by Littleton's case it appeareth, that wrong is done to him 
 that made the release; secondly, thathee that makes the release 
 hath but a title by force of a condition, and Littleton's case is of 
 a right. Like law of an cntrie for mortmaine, or a consent to 
 ravishment, &c. 
 
 " But if a disseisor infeoffe two, &c." And the reason of this 21 H. 6. 41. 
 diversitie is, for that the feoffees are in by title, and are presumed ( A ° t ' 1 ^t\ 
 to have a warrantie, which is much favoured in law, and the 
 disseisors are meerely in by wrong. And the equitie of the law 
 doth preserve in this case the benefit of the estranger to the 
 release coming in by one joynt title. 
 
 " For that they come in by feoffment, and the other by wrong." 
 This is of a new addition, and not in the originall, and therefore 
 I passe it over. 
 
 [*l G '] m* Sect. 473. 
 
 A LSO, if I bee disseised, and my disseisor be disseised, if I release to 
 the disseisor of my disseisor, I shall not have an assise nor enter upon 
 *the disseisor, because his disseisor hath my right by my release, <f <?. "\And 
 so it seemeth in this case, if there be xx. disseised one after another, and 
 I release to the last disseisor, J this disseisor shall barre all the others of 
 their actions and their titles. And the cause is, §#« it seemeth, for that in 
 many cases, when a man hath lawfull title of entrie, although he doth not 
 enter, he shall defeat all meane titles by his release (quant un home ad 
 loyal title d'entre, || coment que il n'entra pas, il defeatera touts meane 
 
 titles 
 
 * the — his, in L. and M. and Roh. § as it seemeth, not in L. and M. 
 
 f Andnot in L. and M. or Roh. or Rob. 
 
 % this disseisor — he, L. and M. and || coment que il n'entra pas— etcntre. 
 
 R,oh. L. and M. and Roh.
 
 276. b. 277. a.] Of Releases. L. 3. C. 8. Sect. 474. 
 
 titles per son release), §c. But this holds not in everie case, (mes ceo 
 n'est if my en chescun case), as shall be said hereafter (1). 
 
 HERE it is to be observed, that a release by one whose entry 
 is lawfull to him that is in by wrong, shall purge and take 
 away all meane estates and titles. And where our author first 
 putteth his case of two estates by wrong, and after of twentie 
 disseisins, all estate be wrong. 
 (Post. 277. b. If A. disseise B. who enfeoffeth C. with warrantie, who en- 
 
 ^I V^fi 41 feoffeth D. with warrantie, and E. disseiseth D. to whom B. the 
 
 11 IL 4! 3o! firs* disseisee releaseth, this doth defeat all the meane estates 
 9 H. 7. 25. and warranties, because the release of B. is made to a disseisor, 
 
 £. E - **. 1 ^- and his entrie is lawfull. 
 
 21 E. 4. 78. 
 
 12 Ass. 22. Vid. 3. H. 6. 38. 
 
 Sect. 474. 
 
 ALSO, if my disseisor letteth the tenements whereof he disseised met 
 to another (a un *auter home) for terme of life, and after the tenant 
 for terme of life alieneth in fee, and I release to the alienee, frc. then my 
 disseisor cannot enter causa qua supra, albeit that at one time the aliena- 
 tion was to his disinheritance, $c. 
 
 " A LSO, if my disseisor letteth, &c. If the desseisor make a 
 lease for life, and the lessee maketh a feoffment in fee, and 
 the disseisee releaseth to the feoffee, the disseisor shall not enter 
 upon the feoffee; for albeit the release to one joynt feoffee of a 
 disseisor, as hath beene said, shall not exclude the other, yet a 
 release to the feoffee of a tenant for life in this case shall take 
 away the entrie of the disseisor for the alienation which 
 was made to his fi@ Q " disinheritance, hee having the rQ?"/'.l 
 f8 Rep. 148. inheritance by disseisin, so as he could have no war- | a. 
 i^R 70 ranty annexed to it, and tenant for life hath forfeited 
 
 Hob. 279.) his estate. But if the entrie of the disseisee were not lawfull, it 
 
 is otherwise. As if a man make a lease for life, and the lessee 
 for life is disseised, and that disseisor is disseised, and in the 
 reversion releaseth to the second disseisor, the first disseisor shall 
 enter upon the second disseisor, and his entry is lawfull ; and if 
 the lessee for life re-enter, he shall leave the reversion in the 
 first disseisor; and the cause is, for that the entry of the dis- 
 seisor (A) at the time of the release made was not lawfull. And 
 
 the 
 
 (A) disseisor seems to be here printed by mistake instead of disseisee. See Mr. Ritso's 
 Intr. p. 119. 
 
 f\ my — pas. L. and M. and Roll. * auter not in L. and M. or Roh. 
 
 (1) This is upon the same principal, that, where the title to the possession is 
 equal, the party who obtains the right shall be preferred. — So, by the modern 
 law, where the equity of the party is equal, he who has the law, is to be pre- 
 ferred.— [Note 241.]
 
 L. 3. C. 8. Sect. 475. Of Releases. [277. a. 
 
 the booke of [m] 9 H. 7. 25. is to be intended (B) of an estate [m] 9 H. 7. 25. 
 taile mutatis mutandis. 
 
 If, in the case aforesaid, the disseisor make a lease for life, 
 and the lessee infeoffeth two, and the disseisee release to one of 
 the feoffees, this shall barre the disseisor, as hath beene said; 
 but yet he shall not hold out his companion for the cause afore- 
 said. 
 
 Sect. 475. 
 
 A L/SO, if a man be disseised, who hath a sonne within age and dieth, 
 and the sonne being within age the disseisor dieth seised, and the 
 land descend to his heire{\), and a stranger abate, and after the sonne 
 of the disseisee, when hee commeth to his full age, releaseth all his right 
 to the abator; in this case the heire of the disseisor shall not have an 
 assise of mor-d 'ancester against the abator; but shall be barred (encest 
 case l'heire le disseisor n'avera assise de mor-d'ancester envers l'abator, 
 mes serra bar,*) because the abator hath the right of the sonne of the 
 disseisee by his release, and the entry of the sonne was congcable, \for 
 that, hee was within age at the time of the discent, $c. 
 
 M X HE reason of this case is, for that the entry of the heire is 
 i congeable, and the abator is in the land by wrong. 
 
 "Abate," is both an English and French word, and signifieth Vet. N. B. 115. 
 in his proper sense to diminish or take away, as here by his Britton, cap. 51. 
 entrie he diminisheth and takcth away, the freehold in law de- C ap C 2° n 
 scended to the heire: and so it is said to abate an account, f. N. B. 203. F. 
 signifying subtraction or withdrawing, &c. and to abate the W. 1. ca. 17. 
 courage of a man. In another sense it signifyeth to prostrate, 
 beat downe, or overthrow, as to abate castles, houses, and the 
 like, and to abate a writ; and hereof commeth a word of art, 
 abatamentum, which is an entrie by interposition. Now the 
 
 difference 
 
 (B) For it is not so expressed in any part of page 25 of the year hook referred to; 
 and in another place lord Coke, after observing that the case in 9 //. 7. 25. a. is mis- 
 printed, mi at ions what the reading should be according to the manuscript, which he had 
 seen. See 6 Hep. 70. 
 
 * d'assise added in L. and M. and Roll, f &c. added in L. and M. and Roll. 
 
 (1) Littleton having treated of releases per mitter le droit, when made to 
 the disseisors themselves and their feoffees, now treats of their operation when 
 made to the heir of the disseisor. In note 1. to page 239, it was observed, 
 that a disseisor has a mere naked possession, unsupported by any right, and 
 that the disseisee may restore his possession, and put a total end to the posses- 
 sion of the disseisor, by entry. But, though the feoffee of the disseisor comes 
 in by title, still the right of possession remains in the disseisee, and he may 
 equally enter on the feoffee as on the disseisor; so that a release per mitter le 
 droit gives both to the disseisor and his feoffee the right of possession and the 
 right of property : but if the disseisor dies, the entry of the disseisee is taken 
 away, and a presumptive right of possession is in the heir; so that the release 
 of the disseisee only passes the right of property. — [Note 212.] 
 
 Vol. II.— 26
 
 277. a. 277. b.] Of Releases. L. 3. C. 8. Sect, 476. 
 
 difference inter disseisinam, abatamentum, intrusionem, deforcia- 
 mcntum, et usiirpationem, et purpresturam, is this: 
 
 A disseisin is a wrongfull putting out of him that is actually 
 
 seised of a freehold. And abatement is when a man died seised 
 
 of an estate of an inheritance, and betweene the death and the 
 
 entry of the heire, an estranger doth interpose himselfe, and abate. 
 
 [»»] F. N. B. 203. Intrusion first properly [n] is, when the ancestor died seised of 
 
 Flota, li. 4. any estate of inheritance expectant upon an estate for life, and 
 
 cap. 30. then tenant for life dieth, and between the death and the entry 
 
 of the heire an estranger doth interpose himselfe and intrude, 
 [o] PI. Com. Secondly, [o] he that entreth upon any of the king's demesnes, 
 
 case de mynes. and taketh the profits, is said to intrude upon the king's possession. 
 r»l F.N.B. 141. 0^7° Thirdly, [jj] when the heire in ward entreth at r-oryry -i 
 F. Q-. H. his full age without satisfaction for his mariage, the / 
 
 writ saith, quod intrusit. *- ' -■ 
 
 Deforciamcntum comprehendeth not only these aforenamed, 
 but any man that holdeth land whereunto another man hath 
 right, be it by discent or purchase, is said to be a deforceor. 
 
 Usurpation hath two significations in the common law : one, 
 when an estranger that no right hath presenteth to a church, 
 and his clerke is admitted and instituted, hee is said to bee an 
 usurper, and the wrongfull act that he hath done is called an 
 usurpation. 
 
 Secondly, when any subject doth use, without lawfull war- 
 rant, royal franchises, he is said to usurpe upon the king those 
 franchises. 
 [q] Glanvil. Purprestura, or pourprestura, a purpresture. \jf\ Purpres- 
 
 lib. 9. cap. 11. tura est, &c. generaliter quoties aliquid Jit ad nocumentum regii 
 Britton, fol. 2S, tenementi, vel rcgise vise (vel cdiquarum publicarum) vel civi- 
 (Cro. Car. 17. tatis, &c. And because it is properly when there is a house 
 2 Inst. 278.) builded, or an enclosure made of any part of the king's demesnes, 
 or of an highway, or a common street or publike water, or such 
 like publike things, it is derived of the French word pourpris, 
 which signifieth an inclosure, but specially applied, as is afore- 
 said, by the common law. 
 
 Sect. 476. 
 
 Z? UT if a man he disseised (Mes si * home soit disseisee), and the dis- 
 seisor maheth a feoffement upon condition, viz. to render to Mm a 
 certaine rent, and for default of payment a re-entry, S^c. if the disseisee 
 release to the feoffee upon condition, yet this shall not amend the estate 
 of the feoff ee upon condition (uncore ceo f n'amendra Testate le feoffee 
 sur condition) ; for notwithstanding such release, yet his estate is upon 
 condition, as it was before (1). 
 
 % And with this agreeth the opinion of all the justices, Pasch. 9 H. 7. 
 
 HERE 
 
 * ascxm added ill L. and M. and Roll, n'avoidera, Veil. MS. 
 fn'amendra — ne abatera, L. and | This paragraph not in L. and M. 
 M. and Roh. ne alterast, Pap. 31 S. or Roh. 
 
 (1) The observations made on note 1. to page 275. a. note 1. to page 276. b. 
 and the note to the preceding page, apply to the cases put by Littleton in this 
 
 and
 
 L. 3. C. 8. Sect. 477. Of Releases. [277. I). 
 
 HERE the entry of the disseisee is congeable, and yet the 9 H. 7. 25. 
 release doth not avoid the condition, because the feoffee is 
 in by title, as hath beene said, and may have a warranty (2). And 
 herein our author expresseth a diversitie betweene a condition 
 in law, and a condition in deed ; for in the case before when the 
 disseisee releaseth to the feoffee of the tenant for life, the con- 
 dition in law is taken away, but otherwise it is in this case of a 
 condition in deed. 
 
 But if the feoffee upon condition make a feoffment in fee over (Sect. 415.) 
 without any condition, and the disseisee release to the second ^ lb - L f ; 147 - 
 feoffee, the condition is destroyed by the release before the con- 
 dition broken or after. For the state of the second feoffee was 
 not upon any expresse condition, as Littleton here putteth his 
 case, and he may have advantage of the release, because it is not 
 against his owne proper acceptance, as Littleton speaketh in the 
 next Section. 
 
 But if it be a wrongfall title, such a title is taken away by a 
 release; as if A. disseised B. to the use of C, B. release to A. 
 this shall take away the agreement of C. to the disseisin, because 
 it should make him a wrong doer : as if the disseisor be disseised, 
 the disseisee releaseth to tbe second disseisee (C), this taketh 
 away the right the first disseisor had against. the second, and a 14 H. 8. 18. 
 relation of an estate gained by wrong shall never defeat an estate P er Port - 
 subsequent gained by right, against a single opinion, not affirmed i> 76 \> \ ' ' 
 by any other in one of our bookes. 
 
 Sect, 477. 
 
 TN the same manner it is where a man is disseised of certaine lands, 
 and the disseisor grant a rent-charge out of the same land, <f e. albeit 
 the disseisee doth afterwards release to the disseisor, $0. yet the rent- 
 charge remaynes in force. And the reason in these tivo cases is this, 
 that a man shall not have advantage by such release which shall bee 
 against his proper acceptance, and against his own grant. And albeit 
 some have said, that tohcre the entry of a man is congeable upon a ten- 
 ant, if hee releases to the same tenant, that this shall availe the tenant, as 
 if he had entered upon the tenant, and after enfeoffed him, Sj-c. this is 
 not true in every case. For in the first case of these two cases aforesaid, if 
 the disseisee had entered upon the feoffee upon condition, and after en- 
 feoffed him, then is the condition wholly defeated and avoided. And so 
 in the second case, if the disseisee entereth and enfeoff etli him who grant- 
 ed the rent-charge, then is the rent-charge taken away and avoided, but 
 it is not void by any such release without entrie made, $c. 
 
 "AND 
 
 (C) disseisee seems to be here printed by mistake instead of disseisor. See Mr. Hi tin's Tntr.p. 119. 
 
 and the following Section, and by sir Edward Coke in his commentary. The 
 whole of the doctrine contained in this chapter is particularly well explained 
 by lord chief baron Gilbert in his treatise on tenures. — [Note 243.] 
 
 (2) Thereason of this easr in the book lore cited is, that the condition islikc 
 a covenant betwet n than; and he is estopped from claiming it othenoise : and 
 the diversity follow inn seems to warrant this. Post. 278. b. — Lord Nott. MSS. 
 —[Note 214.]
 
 278. a. 278. b. Of Eeleases. L. 3. C. 8. Sect. 477. 
 
 " A ND the disseisor grant a rent charge, <kc." Here 
 (6 Rep. 78. b.) ^ is implyed commons or any other 0^ profit out r278.~| 
 of the lands. And the reason is, because he shall not [_ a. J 
 avoid his owne grant by a release hee himselfe hath 
 acquired since the grant : but if the disseisor in that case be dis- 
 seised, and the disseisee release to the second disseisor, he shall 
 R 38 ) avoid it, as by that which hath beene said, Sect. 473, appeareth. 
 
 (Post. 349. a.) So likewise if A. and B. bee joynt disseisors, and B. grant a rcnt- 
 (Mo. 95.) charge, and the disseisee release to A. all his right, A. shall avoid 
 
 the rent-charge, because it was not granted by him, and so not 
 within the reason of our author. 
 
 If there bee two femes joint disseisors, and the one taketh 
 (Ant. 276. a.) hugfoand, and the disseisee release to the other, she is sole 
 seised, and shal hold out the husband and wife. 
 
 If two disseisors bee, and they infeoffe another, and take backc 
 an estate for life or in fee, albeit they remain disseisors to the 
 disseisee as to have an assise against them, yet if he release to 
 one of them, he shall not hold out his companion, because their 
 state in the land is by feoffment. 
 
 If there be two disseisors, and they be disseised, and they 
 release to their disseisor, and after disseise him, and then the dis- 
 seisee release to one or both of them, yet the second disseisor 
 shall re-enter, for they shall not hold the land against their owne 
 release ; for Littleton here saith, that they shall not avoid their 
 owne grant, and by like reason they shall not avoid their owne 
 release, et sic de similibus. 
 
 "As if he had entered upon the tenant, and after enfeoffed him, 
 ( n ' <fcc." Here is another kinde of release, viz. a release which 
 
 enureth by way of entry and feoffment ; for if a disseisee release 
 to one of the disseisors to some purpose, this shall enure by way of 
 entry and feoffment, viz. as to hold out his companion. 
 But as to a rent-charge J3@~ granted by him, it shall TQT'S.l 
 not enure by way of entrie and feoffment; for if the L b. J 
 disseisee had entred and enfeoffed him, the rent-charge 
 had beene avoided. But it is a certaine rule, that when the entry 
 of a man is congeable, and he releaseth to one that is in by title, 
 (as here to the feoffee upon condition is) it shall never enure by 
 way of entry and feoffment, either to avoid a condition with 
 which he accepted the land charged, or his owne grant, or to 
 hold out his companion. 
 (Dr and Stud And wuere i* appeareth by our author, that acts done by the 
 50. a.) disseisor shall not be avoided by the release of the disseisee, it is 
 
 to be noted, that acts made to the disseisor himselfe shall not be 
 avoyded by the alteration of his estate by the release of the dis- 
 seisee; as if the lord before the release had confirmed the estate 
 of the disseisor to hold by lesser services, the disseisor shall take 
 advantage of it, and so of estovers to be burnt in the house, and 
 the like law of a warrantie made unto him. 
 
 If the heire of the disseisor indow his wife ex assensu patris, 
 and the disseisee release to the disseisor, he shall not avoide the 
 indowment, for that is like the case put by Littleton of the rent- 
 charge. 
 
 If an alien be a disseisor, and obtaine letters of denization, 
 and then the disseisee release unto him, the king shall not have 
 the land, for the release hath altered the estate, and it is as it 
 were a new purchase ; otherwise it is as if the alien had beene 
 the feoffee of a disseisor. If
 
 L. 3. C. 8. Sect, 478. Of Eeleases. [278. b - 
 
 If the lord disseise the tenant, and is disseised, the disseisee 
 release to the second disseisor, yet the seigniore is not revived, 
 for betweene the parties the release enures by way of entrie and 
 feoffment as to the land ; but not having regard to the seigniore, 
 and for that the possession was never actually removed or re- 
 vested from the disseisor, who claimeth under the lord, the seig- 
 niorie is not revived. But if the lord and a stranger disseise the 
 tenant, and the disseisee release to the stranger, there the seig- 
 niorie by operation of law is revived, for the whole is vested in 
 the stranger which never claimed under the lord : and in that 
 case, if the lord had died, and the land had survived, the seig- 
 niorie had been revived. But if the lord had disseised the 
 tenant, and beene disseised by two, and the disseisee released 
 to one of them, the seigniorie is not revived, because he claimed 
 (as hath beene said) under the lord. 
 
 Sect. 478. 
 
 ALSO, if a man be disseised by an infant *, tvho alien in fee, andtlu- 
 alienee dieth seised, and his heire entreth, f the disseisor being within 
 age, now is it in the election of the disseisor (ore est en election J le dis- 
 seisour) to have a writ \\ of dum fuit infra setatem, or a writ of right 
 against the heire of the alienee, and which writ of them he shall chusc, 
 hee ought to recover by the laiv, § S^e. And also he may enter into th>- 
 land without any recovery, and in this case the entrie of the disseisee is 
 taken away, $c. But in this case if the disseisee release his right to the 
 heire of the alienee, and after the disseisor bring eili a writ of right against 
 the heire of the alienee, and hee joyne the mise upon the meere right, $c. 
 the great assise ought to finde by the laiv, that the tenant hath more meere 
 right \. than the disseisor, ^[ fyc.for that the tenant hath the right of the 
 disseisee by his release, the which is the most ancient and most meere right : 
 for by such release all the right of the disseisee passeth to the tenant, and 
 is in the tenant. And to this some have said, that in this case where a man 
 which hath right to lands or tenements (but his entrie is not congeable) if 
 he release to the tenant ** all his right, Sj-c. that such release shall enure 
 by way of extinguishment. As to this it may bee said, that this is tnij 
 (que ceo est f f voyer) as to him which releaseth ; for by his release he 
 hath dismissed himself quite (%% quietment) of \.\. his right as to his 
 person, but yet \\\\ the right which he hath may well pass to the tenant by 
 
 his 
 
 * within age added in L. and M. ** &c. added L. and M. and Roh. 
 
 and Roh. ff voyer — verite, L. and M. and 
 
 f the disseisor — the alienor in L. and Roh. 
 
 M. and Roh. \\ quictmont not in L. and M. or 
 
 J le disseisour — d'alienour, L. and Roh. — nettement, MSS. 
 
 M. and Roh. \.\. all added L. and M. and Roh. 
 
 || of not in L. and M. or Roh. |||| the right which he hath may well 
 
 § &c. not in L. and M. or Roh. pass to the tenant by his release, not in 
 
 \. &c. added L. and M. and Roh. the Veil. MS. but omitted most pro- 
 
 \ &c. not in L. and M. or Roh. bably through mistake.
 
 278. b.] Of Releases. L. 3. C. 8. Sect. 478. 
 
 his release. For it should bee inconvenient that such an ancient rigid 
 should bee extinct altogether, $c. for it is commonly said, that a right 
 cannot die (1)- 
 
 " WHICH 
 
 (1) Few parts of Littleton's tenures require more attention than the present 
 Section, and the Five Sections by which it is immediately followed. 
 
 The case, propounded by Littleton, is, that A. is disseised by B. an infant ; 
 — that B. during his infancy, executes a feoffment, with livery of seisin, to G. 
 and his heirs ; — that, while B. continues an infant, 0. dies, and the land 
 descends to D. and his heirs; — that, after this descent, B. attains 21; — that 
 A. then releases to D. and his heirs; — and that B. then brings a writ of right 
 against D. to recover the land. 
 
 The feoffment of B. being executed by him during his minority, was origi- 
 nally voidable by him ; yet, being only voidable and not void, it conferred on 
 G. an actual estate in fee simple ; and this estate would remain in G. till it 
 should be recovered from him by B. or his heirs. Thus the rights of the 
 parties stood immediately upon the execution of the feoffment; and both A. 
 and B. might recover against G. by entry, or by a possessory action, or by a 
 writ of right ; — and in addition to these remedies, B. might recover against 
 
 C. by the writ dum fuit infra oetatem. 
 
 The death of G. during the minority of B. produced a considerable altera- 
 tion in the right of A. In the chapter on Descents which take away Entries, 
 it has been shown (c. 6. § 385), that, if a disseisor hath issue, and dies seised 
 of the land acquired by the disseisin, the law casts the land on the issue ; and 
 the disseisee thereby loses his right to recover the land by entry, and can only 
 recover it by action. The law is the same, when the disseisor aliens ; and the 
 alienee dies seised and the land descends to his issue. But, in Section 402, it 
 is observed, that this effect of a disseisin does not hold in cases where both the 
 disseisin and the descent take place during the minority of the disseisee. In 
 respect therefore to A. the death of G. during the minority of B. was attended 
 with this important consequence, that it deprived A. of his right to restore his 
 possession by entry, and reduced him, if he sought to restore it, to the neces- 
 sity of doing it by action. In respect to B. the descent of the land, on C'.'s 
 decease, to £>. was altogether inoperative : so that, in this stage of the title, 
 A. was equally, in respect to B. and D. the rightful owner of the fee ; B. in 
 respect to A. was the tortious possessor, and in respect to D. was the rightful 
 owner of it; and A. by action, and B. both by entry and action, might reco- 
 ver the land from D. The actions by which A. and B. might recover were 
 either possessory, as a writ of disseisin or assize, or droitural, as a writ of 
 right ; — in addition to the writs which have been mentioned, B. had the writ 
 dum, fuit infra cetatem. 
 
 Under these circumstances A. released to D. — Now, if B. had either entered 
 on the land, or brought his possessory action against D., B. would have reco- 
 vered. For, in a suit upon either, the gist would have been, whether B. or 
 
 D. had the better right to the possession. Now, B. would prove his actual 
 seisin ; D. could only produce the feoffment from B. to G. and prove his heir- 
 ship to G. Against these, B. would plead his non-age ; and by proving it, 
 would avoid the feoffment, and consequently obtain judgment. But, instead 
 of entering on the land, or bringing his possessory action, B. unadvisedly 
 proceeds by writ of right. In such an action, the gist is, which has the most 
 mere right, the demandant or tenant. If A. had not executed the release to 
 D., B. must have recovered; for possession, standing singly, carries with it, 
 as well in a writ of right, as in a possessory action, a good title, till a better is 
 shown. Now, B. was evidently in possession when he executed the feoff- 
 ment ; but that feoffment was voidable on account of the non-age, and was 
 
 avoided
 
 L. 3. C. 8. Sect. 478. Of Releases. [278. b. 
 
 " ~X/\TH1CU writ of them hee shall chuse, dr." Note, many (Ant. 45. a.) 
 
 times in one case the law doth give a man severall reme- "Vide Sect. olt. 
 dies, and of severall kindes, as in this case by action and by £ E 4 ° 46 ' 
 entry; by action, either a writ of right, or dum fuit infra ceta- 21 E. 4. 55. 
 tern. 41 E. 3. 10. 
 
 2 H. 4. 12. 
 "And after the disseisor bringeth a writ of right, &c." Here it 
 
 appeareth that there is a great art and knowledge for a man that 
 hath divers remedies to chuse his aptest remedie; as in this case, 
 
 if 
 
 avoided by the action. Thus, the feoffment, standing singly, was no defence 
 against B. 
 
 But the release altered the case; it conferred the right on D. : and conse- 
 quently in a droitural action, where the question to be tried is, which of the 
 parties has the most mere right, it gave D. a better title than B. 
 
 This, however, was open to the objection noticed by Littleton ; — that D. 
 having the actual estate of freehold, A.' s right was merged in it by the release; 
 and as, on this supposition, it ceased to exist, D. could not avail himself of it, 
 as a defence against B. — Something of this nature occurs in modern law. If 
 a person purchase an estate, which is subject to a judgment, of which, at the 
 time of the purchase, he has not notice, and procures a term of years, prior in 
 its creation to that judgment, to be assigned to a trustee for him, the term 
 will protect him against the judgment. But if, instead of having the term 
 assigned to a trustee, he takes an assignment of it to himself, it merges in 
 the freehold, and cannot afterwards be set up as a protection against the judg- 
 ment. 
 
 Such is the nature of the objection noticed by Littleton. He answers it by 
 observing, that, in these cases, the effect of the release is different, in respect 
 to the releasor, from what it is in respect to strangers ; for that, in respect to 
 the releasor, it ceases to exist, as by his release the releasor hath dismissed 
 himself quite of his right ; but that, in respect to strangers, the right, which 
 the releasor had, passes by his release to the releasee, and subsists in him for 
 all beneficial purposes. 
 
 He proves his position, — 1st, by producing the maxim of the common law, 
 that a right cannot die; — -dly, from the general rule, that a release can never 
 operate by way of extinguishment, if the releasee can have that which is re- 
 leased to him. This he shows, by the nature of the cases to which only such 
 releases apply; as, wheu a lord releases service to a tenant (Sect. 479), or 
 where the owner of a rent-charge or common, releases it to the owner of the 
 land, which is subject to it. In the first of these cases, the tenant could not 
 do the service to himself; and in the second, he could not hold, distinct from 
 his land, the servitude with which it was charged : — in each case, therefore, 
 the release necessarily operates by way of extinguishment. Hence Littleton 
 infers, that, as releases can only operate by way of extinguishment, when the 
 releasee cannot have the subject which is released, and in the case proposed, the 
 releasor could take and hold the right, the release could not operate to extin- 
 guish it. 
 
 In support of this conclusion, he states, (Sect. 481), that, as the law stood 
 before the statute of Westm. 2, if a lease were made to a man for the term of 
 his life, with the remainder over in fee, and a stranger, by a feigned action, 
 recovered the land against the tenant for life, by default, and after the tenant 
 died, the person in remainder had no remedy. On this doctrine of the 
 common law, Littleton (Sect. 482) proposes the following case: A. is tenant 
 for life, with the immediate remainder to 7. S. in fee. 1. S. disseises A., and 
 A. being thus disseised, enters on /. S., and ('. then brings a feigned action 
 against A. and recovers, by default. A. then dies, and 1. S. brings a writ of 
 right against 0. Now A. by his entry, defeated the fee, which /. S. acquired 
 
 bv
 
 278. b.] Of Releases. L. 3. C. 8. Sect. 478. 
 
 if he bring his writ of right, the disseisor shall be barred, but 
 if he had entred upon the heire of the alienee, he should have 
 enjoyed the land for ever. For in that case the heire of the 
 alienee after such an entrie shall never have a writ of right, no 
 more than if the disseisee entreth upon the heire of the disseisor, 
 
 and 
 
 by the disseisin, but restored his own life estate, and the remainder in fee o* 
 1. S. expectant on it; and then in consequence of A.' a default, 1. S. according 
 to the doctrine of the common law, would, on A.'a decease, if the previous 
 disseisin had not taken place, have been wholly without remedy. Yet, says 
 Littleton, I. S. shall recover in a writ of right — The reason is given by lord 
 Coke, in his commentary on Section 482. "This seisin," says his lordship, is 
 "defeated, between the tenant for life, and him in remainder, yet, having re- 
 " gard to the recoveror, who is a mere stranger, and hath no title, it is suffi- 
 " cient against him. But otherwise it is against the party who defeated the 
 "seisin, the law being propense to give remedy to him that right hath." This 
 case and lord Coke's explanation of it, exemplify, and, to a certain extent, 
 establish Littleton's position. The analogy between the case propounded by 
 Littleton, and the case which he cites in support of his conclusion on that case, 
 seems to be, that, in each case, the possession of the parties in contest was 
 equally tortious : and the law, therefore, preferred the litle of him who had the 
 most mere right. For, in the first case, B. the infant acquired the possession 
 by disseisin : D. acquired it by descent from C. who claimed under the voidable 
 feoffment of B. But, as the release of A. conferred A.' a right to the land on 
 D. the law preferred his title to that of B. as D. by the acquisition of the 
 right of A. had most mere right. — In the other case, I. S. acquired the pos- 
 session by disseisin, and C. acquired it under a covinous default. But though 
 I. S. by his tortious entry, accelerated his possession of the estate, yet, under 
 the original settlement of the land, he became, on A.'a decease, the rightful 
 owner of it. The law therefore considered, that the title of I. S. which was 
 originally a rightful estate, should be preferred to the title of G. which was 
 originally founded in collusion between him and A.; and therefore adjudged it 
 to /. S. as having the most mere right. — These observations seem to explain 
 the sections to which they are applied; and the nature of the argument, sug- 
 gested by Littleton in support of his opinion, and the case, by which he illus- 
 trates it. 
 
 With respect to the statute of Westminster 2, mentioned by Littleton — it has 
 been stated, that, at common law, if a man were tenant for life, with remainders 
 over, and a stranger, by a feigned action, recovered against the tenant for life, 
 the remainder-man had no remedy, till it was supplied by this statute. 
 
 Further remedy was provided for them, by the statute 32 Hen. S. c. 31. 
 which enacted, that all common recoveries suffered by tenant for life, without 
 the consent of the persons in remainder or reversion, should be totally void. 
 
 To avoid the effect of this statute, the tenant for life sometimes made a 
 lease for years; the lessee then made a feoffment, and a praecipe was brought 
 against the feoffee, and he vouched the tenant for life. It was held that, as 
 the tenant for life was disseised by the feoffment of his lessee for years, he was 
 not the actual tenant for life, or seised of the actual freehold, when the reco- 
 very was suffered; and did not, therefore, fall within the terms of the statute of 
 Hen. 8. To brin£ such cases within the intended remedv the statute of 14 Eliz. 
 c. 8. was passed; which enacted that recoveries, prosecuted against tenants for 
 life, or in tail after possibility of issue extinct, or against any other with the 
 voucher of the particular tenant, should be void against all persons in remainder 
 or reversion ; with a proviso, that nothing in the act should extend to recoveries 
 by good title, or to recoveries by assent and agreement of the persons in 
 ramainder or reversion, so that such assent and agreement appeared of record 
 
 in
 
 L. 3. C. 8. Sect. 478. Of Eeleases. [279. a. 279. b. 
 
 and make a feoffment in fee, if the heire of the dis- 
 ["279.1 seisor Mg°*re-enter he shall detaine the land for ever, (Ant. 266. a.) 
 |_ a. J and the feoffee shall not maintainc any writ of right; 38 E. 3. 10. 
 
 for a bare right shall never be left in the feoffee, but 2 *^"J' r Re " 
 shall ever follow the possession, as hath beene said: but if the action* I! 1 ™ 
 disseisee entreth upon the heire of the disseisor, and make a Vide Sect. 447. 
 feoffment in fee upon condition, and entreth for the condition 
 broken before the heire of the disseisor enter, bee is restored to 
 his right againe. 
 
 ^A man maketh a gift in taile, the remainder in fee, tenant in 9 h. 7. 24. 
 taile dieth without issue, an estranger intrude, and he in the 
 remainder brings a formedon, and recovereth by default, and 
 maketh a feoffment in fee, the intrudor reverse the recoverie in 
 a writ of disceit and entreth, he shall detaine the land for ever, 
 and the feoffee shall not have a writ of right. 
 
 And so likewise if a disseisor die seised, and a stranger abate, 9 h. 7. 24. 
 and the disseisee release to him, the heire of the disseisor shall 
 enter and detaine the land for ever. For the right to the pos- 
 session shall draw the right of the land to it, and shall not leave 
 a right in him to whom the release is made, as hath been said 
 before in the 447 Section. 
 
 " The right of the disseisee passeth to the tenant, and is in the 
 tenant. For seeing the tenant hath the whole fee simple, he is 
 capable of the whole right of the disseisee, and, as Littleton here 
 saith, the right is in the tenant. 
 
 "It should be inconvenient" Here againe, as hath beene Vide Sect 87 
 often observed, an argument ab inconvenienti is forcible in law; 138, 139. 231.' 
 and that judges by the authoritie of our author are to judge of 2G9 - 44 °- 722 - 
 
 inconveniences as of things unlawful (A) as hereby 
 T279.1 and O^Tby many other places it appeareth. 
 
 " A right cannot die." Dormit aliquando jus, moritur 
 nunquam. For of such an high estimation is right in the eye of 
 the law, as the law preserveth it from death and destruction : 
 trodden downe it may bee, but never trodden out. For where it 
 hath beene said, that a release of right doth in some cases enure 
 by way of extinguishment, it is so to be understood, either (as 
 Littleton doth here) in respect of him that makes the release or 
 in respect that by construction of lawitenureth not alone to him 
 to whom it is made, but to others also who be estrangers to the 
 
 release, 
 
 (A) Vid. ante 66. a. n. 1. as to the necessity of qualifying the maxim here alluded to. 
 
 in any of her majesty's courts; and the statute of 32 Hen. 8. was repealed. 
 In consequence of the last proviso in the statute, a tenant for life may now 
 join with the person in remainder or reversion, in suffering a common recovery 
 This was first settled in Wiseman v. Crow, Cro. Eliz. 562; and is every day's 
 practice. 
 
 It sometimes happens, that a tenant in tail supposing himself seised in fee 
 executes a settlement, and takes an estate for life under it : a question has been 
 made, whether such a tenant for life is prevented from suffering a recovery by 
 the statutes cited. It seems to be clear, that he is not; as all the deeds must 
 be considered as forming one conveyance, and as referring back to the original 
 conveyance, executed by the party when he was actually tenant in tail;— so 
 that the recovery, and the deed leading the uses of it, operate merely by way 
 of further assurance. — [Note 244*.]
 
 279. b.] Of Keleases. L. 3. C. 8. Sect. 479. 
 
 release, which, as hath beene said, is a qualitie of an inheritance 
 extinguished. 
 14 H. 8. 6. b. As if there be lord and tenant, and the tenant tnaketh a lease 
 
 for life, the remainder in fee, if the lord release to the tenant 
 for life, the rent is wholly extinguished, and he in the remain- 
 der shall take benefit thereof; even so when the heire of a dis- 
 seisor is disseised, and the disseisor make a lease for life, the 
 remainder in fee, if the first disseisee release to the tenant for 
 life, this is said to enure by way of extinguishment, for that it 
 shall enure to him in the remainder, who is a stranger to the 
 release; and yet in truth the right is not extinct, but doth fol- 
 low the possession, viz. the tenant for life hath it during his 
 time, and he in the remainder to him and to his heires, and the 
 right of the inheritance is in him in the remainder; for a right 
 toland cannot die or be extinct in deed; and therefore, if after 
 the death of tenant for life, the heire of the disseisor bring a 
 writ of right against him in the remainder, and he joyue the 
 niise upon the nieere right, it shall be found for him, because 
 in judgment of law he hath by the said release the right of the 
 first disseisee. 
 
 Sect. 479. 
 
 T3UT releases which enure by way of extinguishment (1) against all 
 perso?is, are where hee to ivhom the release is made cannot have 
 that which to him is released. As if there bee lord and tenant, and 
 the lord release to the tenant all the right which hee hath in the seig- 
 niory, or all the right which he hath in the land, $c. this release goeth 
 by way of extinguishment against all persons, because that the tenant 
 cannot have * service to receive of himself e, 
 
 HERE Littleton putteth a diversity betweene releases which 
 enure by way of extinguishment against all persons, and 
 whereof all persons may take advantage, and releases' which in 
 respect of some persons enure by way of extinguishment, and of 
 other persons by way of mitter le droit: or betweene releases 
 which in deed enure by extinguishment, for that hee to whom 
 the release is made, cannot have the thing released, and releases 
 which, having some quality of such releases, are said to enure 
 by way of extinguishment, but in troth doe not, for that he to 
 whom the release is made may receive and take the thing re- 
 leased. And here Littleton putteth cases where releases do 
 absolutely enure by extinguishment without exception, having 
 respect to all persons. And first of the lord and tenant : secondly, 
 of the rent-charge : thirdly, of the common of pasture. 
 
 Sect, 
 
 14 H. 8. fol. 5, 6. 
 11 H. 7. 25. 
 
 30 H. 6. tit. 
 Barre, 39. 
 38 E. 3. 10. 
 
 * service to receive — this, L. and M. and Rob. 
 
 (1) Here Littleton returns to releases by extinguishment. See ant. 268.
 
 L. 3. C. 8. Sect. 480. Of Releases. [279. b. 280. a. 
 
 Sect. 480. 
 
 TN the same manner is it of a release made to the tenant of the land of 
 a rent-charge or common of pasture, 8fc. because the tenant cannot 
 have that which to him is released, Sfc. so such releases shall enure by way 
 of extinguishment in all ways (issint tiels releases urera * per extin- 
 guishment en touts voyes). 
 
 FIRST, of the lord and tenant, and the lord release 
 to the tenant his seigniorie,*® 1 ** this must of neces- 
 a. | sity enure by way of extinguishment to all men; for the 
 tenant cannot have service to be taken of himselfe, nor 
 can one man be both lord and tenant. The second is of a rent- (2 Rol. Abr. 
 charge ; a man cannot have land and a rent issuing out of the ' 
 same land. Thirdly, a man cannot have land and a common of 
 pasture issuing out of the same land, etsic de caeteris. For in all 
 these cases and the like he to whom the release is made cannot 
 have and enjoy the thing that is released. But in the case of the 
 right ,of the land, the tenant of the land may take and enjoy it 
 for strengthening his estate therein. 
 
 The mesne being afemeentermarrie with the tenant peravaile, (Ant. 273. b.) 
 if the lord release to the feme, the seigniorie only is extinct ■ 
 but if hee release to the husband, both seigniorie and mesnaltie 
 are extinct. And in this case, if the lord release to the husband 
 and wife, it is a question how the release shall enure ; but it is 
 no question but that a release may be made to a mesnaltie or a 
 seigniory suspended in part of the estate. 
 
 But here observe a diversity where a release enureth by way of ( 274 - a - 1 Roll, 
 extinguishment of an inheritance, which is in possession and may , A ^j 214. a 
 be granted over, and a release of a right, or an action to lands 232. b. 266. a.) 
 which cannot be granted over, [r] For the lord may release his M 13 E - 3 - 
 seigniorie to the tenant of the land for life or in taile, et sic de ***" , p J^S^k" 
 cceteru. But so cannot one release a right or an action ; for if e t tit. Voucher, 
 it be released but for an houre, it is extinct for ever, as hath F. 120. 
 beene said. j|| ^ g' ^ 
 
 And two things are to be observed here. First, that by the 21 E. 3." 33.' 
 
 release of all the right in the land the seigniorie is extinct, as well 38 Ass. 17. 
 
 as bv the release of all the right in the seigniorie, for the seig- ]} . H> 4 * *f** 
 • ■ • 1 n 1 i i n ,, P , 1 ,i 1 °. Release, 21. 
 
 nione issuetli out of the land. Secondly, that by the release of jg p. 2. ibid. 5. 
 
 all his right in the seigniorie or the land, the whole seigniorie is 26 H. 8. 5. 
 
 extinct without any words of inheritance. If the tenancie be 41 Ass - 6- 
 
 given to a lord and to a stranger, and to the heires of the stranger, 
 
 the lord release to his companion all the right in the land, this 
 
 release doth not onely passe his estate in the tenancie, but ex- 
 
 tinguisheth also his right in the seigniorie, and so one release 
 
 enures to extinguish severall rights in one and the same land. 
 
 If there be lord and tenant by fealty and rent, the lord granteth 
 
 the seigniorie for yeares, and the tenant atturneth, the lord re- 
 
 leaseth his seigniorie to the tenant for yeares, and to the tenant 
 
 1 .... -11 
 
 of the land generally, the whole seignone is extinct and the state 
 
 of 
 
 * per extinguishment en touts voyes, envers toutz persons 3 L. and M. and 
 — toutz foitz per voi d'extientisement Roh.
 
 280. a. 280. b.] Of Keleases. L. 3. C. 8. Sect. 481. 
 
 of the lessee also. But if the release had beene to them and 
 their heires, then the lessee had had the inheritance of the one 
 moitie, and the other moitie had beene extinct. And the reason 
 of this diversity is, because when the release is made generally, 
 it can enure to the lessee but for life, because it enureth by way 
 of enlargement of estate, and being made to the tenant of the 
 land, it enureth by way of extinguishment, as Littleton here saith, 
 and then there cannot remaine a particular estate in the seigniorie 
 (Ant. 152. b.) for life. But when the release is made to them and their heires, 
 (Mo. 59.) g^k one takes a moitie, the one by way of encreasing of the 
 
 state, and the other by extinguishment. 
 
 Sect. 481. 
 
 A LSO, to prove that the grand assise ought to passe for the demandant, 
 in the case aforesaid, I have often heard the reading of the statute of 
 West. 2. which begun thus (joe aye oye sovent * la lecture de l'estatute 
 de Westminster second, que commence) : In casu quo vir amiserit per 
 defaltam tenementum quod fait jus uxoris sujb &c. that at the common 
 law before the sayd statute (devant f mesme l'estatute), if a lease were 
 made to a man for terme of life (si lease soit fait J a un home pur terme 
 de vie) the remainder over in fee, and a stranger by feigned action 
 (per feint action) recovered against the tenant for life by default, and after 
 the tenant dieth (et puis § le tenant morust), he in the remainder had no 
 remedie before the statute, because he had not any possession of the land. 
 
 (2 Inst. 345.) » T HA VE often heard the reading of the statute of West. 2." 
 Here it is to be observed, of what authoritie antient lectures 
 or reading's upon statutes were, for that they had five ex- 
 cellent qualities. First, they declared what the com- 
 mon $QT law was before the making of the statute, as j~Q80.1 
 here it appeareth. Secondly, they opened the true [_ b. J 
 sense and meaning of the statute. Thirdly, their cases 
 were briefe, having at the most one poynt at the common law, 
 and another upon the statute. Fourthly, plaine and perspicuous, 
 for then the honour of the reader was to excel others in autho- 
 rities, arguments, and reasons for proofe of his opinion, and for 
 confutation of the objections against it. Fifthly, they read, to 
 suppresse subtill inventions to creepe out of the statute. But 
 now readings having lost the said former qualities, have lost also 
 their former authorities : for now the cases are long, obscure, and 
 intricate, full of new conceits, like rather to riddles than lectures, 
 which when they are opened they vanish away like smoke, and 
 the readings are like to lapwings, who seeme to bee neerest their 
 nests when they are farthest from them, and all their studie is to 
 find nice evasions out of the statute. By the authority of Little- 
 ton, ancient readings may be cited for proofe of the law ; but 
 
 new 
 
 * en added in L. and M. and Roh. % a un home— al tenant, L. and M. 
 f mesme not in L. cend 31. or and Roh. 
 Roh. § le tenant, not in L. and M. or Roh.
 
 L. 3. C. 8. Sect. 482. Of Keleases. [280. b. 281. a. 
 
 new readings have not that honour, for that they are so obscure 
 and darke. 
 
 " TJie statute of West. 2." Which is the third chapter. 
 
 " The remainder over in fee." Here is to be observed, that 
 although the statute speaketh of a reversion [a], yet by the autho- [„] 2-t E. 3. 35. 
 rity of Littleton a remainder is within the statute. 28 E. 3. yo. 
 
 See the statute of 14 Eliz. cap. 8, which provideth fully for xJ^iv'ri. 
 him in the remainder. 3 E. 2. Entric, 7. 
 
 6 E. 3. 2-4. 
 
 " Feigned action, (feint action)." Feint is a participle of the 7 E. 3. Eut. 62. 
 French word feindre, which is to feigne or falsely pretend, so L^'/i'k 55 ' 
 as a feint action is a false action (A). I\ x. B. 217. D. 
 
 " Had no remedie be/ore the statute." [If] Here it appeareth [6] w. 2. cap. ' b. 
 by Littleton, that if a man maketh a lease for life, the remainder Vido 34 E. 3. 
 in fee, and tenant for life sufireth a recovery by default, that he F, 01 ^®! 1 ^ f 1 ,". 
 
 i • i ii-i n ill II -b. O. 1D1U. 31. 
 
 in the remainder should not have a tormedon by the common g e. 3. 59, 
 law : for Littleton saith, that he hath not any remedy before the F. N. B. 217. D. 
 statute. Neither is there any such writ in that case in the ' u " '• lo - 
 Register, albeit in some bookes mention is made of such a writ. 
 
 Sect. 482. 
 
 ~Q UT if he in the remainder had entered upon the tenant for life, and 
 disseised him, and after the tenant enter upon him, and after the 
 tenant for life by such recoverie lose by default and die, now he in the 
 remainder may ivell have a writ of right against him which recovers, 
 because the mise shall be joyned only upon the mere right, $c. Yet in 
 this case the seisin of him in the remainder was defeated by the entry of 
 the tenant for life. But peradventure some will argue and say, that 
 hee shall not have a writ of right in this case, for that when the mise is 
 joyned, it is joyned in this manner (scilicet), if the tenant hath more 
 mere right in the land in the manner as he holdeth, than the demandant 
 hath in the manner as hee demandeth, and for that the seisin of the 
 demandant was defeated by the entry of the tenant for term of life, tfc. 
 then he hath no right in the manner as he demandeth. 
 
 II 
 
 EllE a disseisin (B) gotten by wrong, and defeated by the 38 E. 3. tit. 
 entrie of him that right hath, is sufficient to maintaine a Julus Utrum ' lm 
 
 writ of right against the recoveror in this case, for 
 >1. "] albeit JG®~ the seisin is defeated between the lessee for 
 l. J life and him in the remainder, yet having regard to the 
 
 recoveror, who is a meere stranger, and hath no title, ?>s -^ o_ .^_ 
 it is sufficient against him. But otherwise it is against the party tit. Jur. Utr. 1. 
 
 himselfe 
 
 (A) Vide Sect. 688 & 689; for Littleton there makes a distinction between a feint action and 
 a false action. 
 
 (B) disseisin seems to be here printed by mistake instead of seisin; as it teas the tortious seisin, 
 which the remainder-man acquired by his disseisin of the tenant for life, that enabled him to dt- 
 feat, in a writ of right, the recoveror by the default of the tenant for lift.
 
 281. a. 281. l>]. Of Releases. L. 3. C. 8. Sect. 483. 
 
 himselfe that defeated the seisin, and the law is prepense to give 
 
 (Post. 315. a.) remedie to him that right hath. And where some have thought, 
 
 that there is no authority in law to warrant Littleton s opinion 
 
 herein, they are greatly mistaken, for Littleton hath good warrant 
 
 for all that he hath written. 
 
 Lands are letten to A. for life, the remainder to B. for life, the 
 
 remainder to the right heirs of A; A. dieth, B. entreth and 
 
 dieth; a stranger iutrudeth, the heire of A. shall have a writ of 
 
 right of the seisin which A. had as tenant for life. 
 
 (Ant. 18-i. a.b.) Lands are letten to A. and B. and to the heirs of A. : A. 
 
 dyeth; a recovery is had against B. ; the heir of A. shall have 
 
 a writ of right to the whole, for every joy n tenant is seised _perwy 
 
 et per tout. 
 
 If lands he given in tayle, the remainer to A. in fee, the donee 
 
 dyeth without issue, his wife privement enseint, A. entreth, the 
 
 issue is borne and entreth upon him and dyeth without issue, 
 
 A. shall have a writ of right of the seisin which he had. 
 
 42 E. 3. 16, 17. If lands be given in tayle to A. the remainder to his right 
 
 heires, A. dieth without issue, the collaterall heire of A. shall 
 
 have a writ of right of the seisin of A. 
 
 (Ant. 14. b. And so note a diversity betweene a seisin to cause possessio 
 
 15. a.) frdtris, dec. for there is required a more actuall seisin, and a 
 
 40 E. 3. 8. seisin to maintaine a writ of right. And hereby also are the 
 
 42 E. 3. 20. ,. v . .,. a ,. i • i ° J 
 
 87 Ass. 4. (dee.) in this Section explained. 
 
 24 E. 4. 24. 7 H. 5. 4. 11 II. 4. 11. 
 
 (Yelv. 148. Qon-r AQ'Z 
 
 Hob. 73. 105.) OCOL. lOO. 
 
 (6 Rep. 24. ) 
 
 WO this it may bee said, that these words (rnodo et forma 
 
 prout, &c.) in many eases are tvords HSgg*' of forme of |~ 281.1 
 pleading, and not words of substance. For if a man bring a L b. J 
 writ of entrie in casu proviso, of the alienation made by the 
 tenant in dower to his disinheritance, and counteth of the alienation 
 made in fee, and the tenant saith, that he did not alien in manner as 
 the demandant hath declared, and upon this they are at issue, and it is 
 found by verdict that the tenant aliened in taile, or for tearme of another 
 mans life, the demandant shall recover : yet the alienation was not in 
 manner as the demandant hath declared, $c. 
 
 ATT HERE modo et forma are of the substance of the issue, and 
 « » where but words of forme, this diversity is to be observed. 
 [c]'9 H 6. 1. jyj Where the issue taken goeth to the point of the writ or action, 
 n E 4 22* there modo et forma are but words of forme, as here in the case 
 
 F. N. B. 206. G. of the writ of entrie in casu proviso, and so is the (dec.) well ex- 
 40 E. 3. 5. plained in this Section. But otherwise it is when a collaterall 
 
 Br^O 8 ' VicT' P omt in plying is traversed; as if a feoffment be alleadged bi- 
 sect, sequent. two, that this it traversed modo et forma, and it is found the feoff- 
 ment of one, there modo et forma is materiall. So if a feoffment 
 12 E. 4. 4. ^ be pleaded by deede, and it is traversed absque hoc quodfeoffaiit 
 W^'u^ils)' modo et f orm& i u P on tllis collaterall issue, modo et forma are so 
 essentiall as the jury cannot find a feoffment without deed. 
 
 Sect.
 
 L. 3. C. 8. Sect. 484. Of Releases. [281. b. 282. a. 
 
 Sect. 484. 
 
 A LSO, if there bee lord and tenant, arid the tenant hold of the lord by 
 fealty only, * and the lord distreine the tenant for rent, and the 
 tenant bringeth a writ of trespasse against his lord for his cattell so 
 taken, and the lord plead that the tenant holds of him by fealtie and cer- 
 taine rent, and for the rent behinde he came to distreine, $c. and demand 
 judgement of the writ brought against him, quare vi et armis, &c. and 
 the other saith that hee doth not hold of him in the manner as he suppose, 
 and upon this they are at issue, and it is found by verdict that he holdeth 
 of him by fealty onely ; in this case the writ shall abate, and yet hee doth 
 not hold of him in the manner as the lord hath said. For the matter of 
 the issue is, whether the tenant holdeth of him or no ; for if hee holdeth 
 of him, although that the lord distreine the tenant for other services 
 ivhich he ought not to have, yet such writ of trespasse quare vi et armis, 
 &c. doth not lie against the lord, but shall abate. 
 
 u TT is found by verdict (hat he holdeth of him by fealty onely." Vi. Sect, preced. 
 
 'Here is another diversitie to be observed: That albeit the (3 Co. 89. 
 issue bee upon a collaterall point, yet if by the finding of part of f^i/liV 
 the issue it shall appeare to the court that no such action lieth for g E. 4. 15! 
 the plaintife no more than if the whole had been found, there 20 E. 4. 3. 
 modo et forma are but words of forme, as here in the case which »J , , 4, 3 * 
 
 JVlerleor can S 
 
 Littleton putteth of the lord and tenant appeareth. (Doc. Pla. 191. 
 
 344.)' 
 
 " For the matter of the issue is, whether the tenant holdeth of 
 
 him or no, &c." (9 Rep. 33.) 
 
 r282."| Here it appeareth, that g^~ if the matter of the issue ^'^r' 19L 
 La. J be found it is sufficient. And this rule holds in criminall 2 Roll. Abr. 
 
 causes. For if A. be appealed, or indicted of murder, 704. 708. 
 viz. that hee of malice prepense killed I. A. pleadeththat he is ^ ld - 5 - 
 not guilty modo et forma, yet the jury may find the defendant Doc. Pla. 355. 
 guilty of manslaughter without malice prepensed, because the 344, 345.) 
 killing of I. is the matter, and malice prepensed is but a cir- ^, 1 " T > Com q?a 1 ' 
 cumstance. [ Cr ° p, 14> 5' 6 . 
 
 Haw. P. C. 266.) 
 
 In assise of darreine presentment, if the plaintife alleage the 6 E. 3. 41. b. 
 avoydance of the church by privation, and the jurie' find the 25 E. 3. 50. 
 voydance by death, the plaintife shall have judgment : for the L j Vj 4 
 mauner of voydance is not the title of the plaintife, but the voyd- 29 E.' 3'. 3s! 
 ance is the matter. (Sid. 21, 22.) 
 
 \(T\ If a gardeine of an hospitall bring an assise against the [~.°°" ^ la - 348# ) 
 ordinary, he pleadeth that in his visitation he deprived him as g ^ss. 29 & 39. 
 ordinary, whereupon issue is taken, and it is found that he de- 9 E. 3. 338. 
 prived him as patron, the ordinary shall have judgement, for the f^r?'?", 34 ' 
 deprivation is the substance of the matter. 7 j£ ^ i\ 
 
 PI. Com. 92. 3 Mar. Dier, 116. 40 E. 3. 35. Dier, 2 & 3 Ph. & Mar. 115. b. 
 Triii. 22. Eliz. Rot. 920. Wolman's case. 41 E. 3. 28. 34 Ass. 3. 30 Ass. 5. 33 
 E. 3. Verdict, 47. 22 E. 3. 1. b. 18 E. 3. 48. 31 E. 3. Account, 58. 28 Ass. 48. 
 (2 Roll. Abr. 704. 719.) 
 
 The 
 
 * and — if, L. and M. and Boh.
 
 282. a. 282. b.] Of Releases. L. 3. C. 8. Sect. 485. 
 
 The lessee covenant with the lessor not to cut downe any trees, 
 and bind himself in a bond of forty pounds for performance of 
 covenants, the lessee cut downe ten trees, the lessor bringeth an 
 action of debt upon the bond, and assigneth a breach that the 
 lessee cutteth down twenty trees, whereupon issue is joined, and 
 the' jury finde that the lessee cut downe ten, judgement shall be 
 given for the plaintife ; for sufficient matter of the issue is found 
 for the plaintife. 
 
 Sect, 485. 
 
 ALSO, in a tor it of trespasse for batterie, or for goods carried away, if 
 the defendant plead not guilty, in manner as the plaintife suppose, 
 and it is found that the defendant is guiltie in another toiune, or at 
 another day than the plaintife supposes, yet hee shall recover ( Auxy, * en 
 briefe de trespasse de batterie, ou des biens emports, si le defendant 
 plede de rien culpable, en le manner come le plaintife suppose, et trove 
 est que le defendant est culpable en auter ville, ou a auter jour que le 
 plaintife suppose, uncore il recovera). And f so in many other cases 
 (en X plusors auters cases) these words, viz. in manner as the demandant 
 or the plaintife hath supposed, do not make any § matter of substance 
 of the issue ; for in a writ of right, lohere the mise is joyned upon the 
 meere right, that is as much as to say, and to such effect, viz. whether 
 the tenant or demaundant hath more meere right to the thing in demand. 
 
 (11 Rep. 5.) " TN a writ of trespasse for batterie, or for goods carried 
 
 (7 Rep. 2. b. ^ J- away » & c . 
 
 l)oc. Pla. 9*3. Here Littleton speaketh of actions brought for things transi- 
 
 369. 38G.) tory. In which cases the wrong being done in one towne, the 
 
 plaintife may not only alledge it in another towne, as Littleton 
 here saith, but also in another county, and the jurors upon not 
 guilty pleaded are bound to find for the plaintife. 
 (1 Roll. Abr. 335. Neither can the assault, battery, or taking of goods, &c. al- 
 Hob. 103, 104. ledged in another county, be traversed without speciall 
 b Rep 77.) ' JB^'causeof justification which extendeth to some cer- rQ82.~| 
 (l Rep. 1. 396. taine place; as if a constable of a towne in another |_ b. 
 6 Rep. 65. b. county arrest the body of a man that breaketh the peace, 
 
 2 Cro 45 l 372 ' there he may traverse the county (but he must not rest there) 
 Noy, 57. but all other places saving in the towne whereof he is constable. 
 
 3 Cro. 353. And so it is of taking of goods, if the defendant iustifie for da- 
 /it o'o mage feasant in another county he must traverse as before. But 
 
 (1 Leo. 39. o J . . 
 
 Sid. 234. 294. where the cause ot the justification is not restrained to a certaine 
 3 Rep. 52. b. place, that is so locall as it cannot be alledged in any other towne, 
 Ant. 143. b. ag • ^ Q cases before alledged, and the like, then albeit the action 
 
 Doc. Pla. 43. , . . . & ' . > ,. , . . . .„ 
 
 2 Sid. 118. bee brought in a torraine countie, yet he must alledge nisjustin- 
 
 Cro. El. 99.) cation in the county where the action is brought. As if a man be 
 
 beaten in the county of Middlesex, and hee bringeth his action in 
 
 the county of Buck, the defendant cannot pleade that the plaintife 
 
 assaulted him in the county of Midd. &c. and traverse the county, 
 
 but 
 
 * en — un, L. and M. and Roh. § matter — manner L. and M. and 
 
 f so, not in L. and M. or Roh. Roh. 
 
 | moltes added in L. and M. and 
 Roh.
 
 L. 3. C. 8. Sect. 485. Of Eeleases. [282. b. 
 
 but he must pleade his justification in the county of Buck, for 
 
 that the cause of his justification is good in any place. And so 
 
 it is in case of bailement of goods, and other cases of transitory 
 
 things; as for example : 
 
 In an action upon the case the plaintife declared for speaking Trin. 30 Eliz. 
 
 of slanderous words, which is transitory, and laid the words to be ]^£ betweene 
 
 spoken in London, the defendant pleaded a concord for speaking ingiebert and 
 
 of words in all the counties of England, saving in London, and Jones. And 
 
 traversed the speaking of the words in London : the plaintife in herewith . 
 
 , . ,. • i • i to i ii xi i F i j agreeth a judge- 
 
 his replication denied the concord, whereupon the detendant de- ment ; n tbe 
 
 murred, and judgment was given for the plaintife. For the court court of common 
 
 said, that if the concord in that case should not be traversed, it Pj, e "J». p *! e ^ 
 
 ' „ „ , , , , ,., . .. /.it -5 s Eliz. Rot. 
 
 would billow, that by a new and subtile invention ot pleading, an lc5Ci 
 ancient principle in law (that for transitorie causes of action the 
 plaintife, might alledge the same in what place or county he 
 would) should be subverted, which ought not to be suffered ; 
 and therefore the judges of both courts allowed a traverse upon 
 a traverse in that case : and the wisdome of the judges and sages 
 of the law have alwayes suppressed new and subtile inventions in 
 derogation of the common law. And therefore the judges say in 
 one booke [e], We will not change the law which alwayes hath H 38 E. 3. 1. 
 been used. And another saith [/], It is better that it be Ant- r 72. 
 turned to a default, than the law should be changed, or any inno- Mo. 350. 
 vation made. 2 to'ita i« 
 
 31 E. 3. Gager deliver. 5. 
 
 A man did grant a rent, with a new invented clause of dis- 
 tresse, viz. that the grantee should hold the distresse against 
 gages and pledges ; and yet by the whole court he shall gage 
 deliverance, for otherwise by this new invention all replevyes 
 shall be taken away. 
 
 [*] See many other new inventions in derogation of the com- [*] 42 Ass. 12. 
 
 mon law disallowed by the judges, and by the court of parlia- 18 jj_ c ' a \ 
 
 ment. & ca. 6. 
 
 4 H. 4. ca. 2. 
 
 [h] "Where the jury is bound to finde as well locall things in [/,] Li. 6. fo. 46. 
 
 many cases as transitory in other counties, see at large in my 4 "- D ° w J? a ). e ' s 
 
 Keports. Ass< 4 46 . 
 
 27 E. 3. 86. 1 Ass. 16. 3 Ass. 4. 6 Ass. 4. 5 Ass. 7. 18 E. 3. 38. 21 Ass. 8. 
 29 Ass. 5. 44 E. 3. 6. b. 14 H. 4. 35. 5 II. 5. 2. 10 H. 6. 13. 21 II. 6. 51. 
 37 H. 6. 2. 7 E. 4. 45. 18 E. 4. 1. 22 E. 4. 19. 13 H. 7. 17. 2 Mar. Br. 
 Attaint. 104. 10 Eliz. Dicr, 171. 
 
 By this which hath becne said you shall know the law as it is 
 
 now in use in these cases and the better understand our [/] ['1 19 n - 6- 4S. 
 
 books, when you shall reade them concerning as well locall as 43 E ' 3 " 23 '_ b 
 
 transitory things, wherein you shall finde great variety of opinion 46 E. 3. 3. a. 
 
 in our bookes. LHv 6 ; 6 ^ 
 
 21 H. 6. 27. 
 
 14 H. 8. 24. 18 E. 4. 1. 20 H. 6. 2. 34 H. 6. 42. 14 H. 6. 21, 22. 4 H. 6. 13. 
 33 H. 6. 25. 12 E. 4. 12. 28 H. 8. Dier, 29. 21 E. 4. 19. 80. 27 II. 8. 19. 
 12 II. 8. 1. 1111. 4. 65. 19 II. 8. 6. (Hob. 134. 1 Leo. 301. Cro. Car. 514. 
 Cro. Ja. 366.) 25 II. 8. Br. (Doc. Pla. 197.) 22 II. 6. 33. (4 Rep. 33. 2 Roll. 
 Rep. 491. Post. 303. 1 Leo. 228.) 
 
 " If the defendant plead not guilty." This is a good issue, if 
 the defendant committed no battery all ; but regularly by the 
 common law if the defendant hath cause of justification or excuse, 
 
 then 
 
 Vol. II.— 27
 
 282. b. 283. a.] Of Releases. L. 3. C. 8. Sect. 485. 
 
 then can he not pleade not guilty, for then upon the evidence it 
 shall be found against him, for that he confesseth the battery, 
 and upon that issue cannot Justine it, but he must pleade the 
 speciall matter, and confesse and Justine the battery. 
 
 The like law is in other cases, and therefore this is a learning 
 necessary to be knowne, for that the losse of most causes depend- 
 eth thereupon. As if in battery the defendant may Justine the 
 same to be done of the plaintife's own assault, he must pleade 
 it specially, and must not pleade the generall issue, and so of the 
 like. In trespasse of breaking his close, upon not 
 guilty O^T" he cannot give in evidence, that the beasts rQ83.~] 
 came thorow the plaintife's hedge, which he ought to | a. 
 keep, nor upon the generall issue justifie by reason of 
 a rent charge, common, or the like. 
 
 In detinue the defendant pleadeth non detinet, he cannot give 
 in evidence that the goods were pawned to him for money, and 
 that it is not paid, but must pleade it ; but he may give in evi- 
 dence a gift from the plaintife, for that proveth he detaineth not 
 the plaintife's goods. 
 [(/] 12 H. 8. 1. \d~\ So in an action of waste, upon the plea nul wast fait, he 
 
 w E ' \n ma y &* ve * n cv id encc ;m y thing that proveth it no waste, as by 
 
 2o'e*3. ' tempest, by lightning, by enemies, and the like ; but he cannot 
 
 Wast. 32. give in evidence justifiable waste, as to repaire the house, or the 
 
 [e] 10 Ehz. \\\q. [e] If one doth waste, and before the action brought the 
 
 2 Mar Dier 212. l essee repaireth it, and after the lessor bringeth an action of 
 waste, and the lessee pleade, quod non fecit vastum, he cannot 
 give in evidence the especiall matter. 
 (1 Sid. 450. If two men be bound in a bond joyntly, and the one is sued 
 
 Doc. Pla. 19S.) a l one ue may plead this matter in abatement of the writ ; but 
 he cannot plead non est factum, for it is his deed, though it be 
 [/] Lib. 5. not his sole deed. [/] See in Whelpdale's case, where a man 
 l0 - i 19 - W^eip- may safely plead non est factum, and where not, and the former 
 7 E. 4 5. books that treat of that matter well reconciled. 
 
 7 E. 6'. Br. non est fact. 14. 1 H. 7. 15. 14 H. 8. 28. PL Cora. Dive and 
 Man case. 36 H. 8. Dier, 59. 2 Mar. Dier, 112. 1 Eliz. Di. 167. 
 
 [;/] Hill. 10. H. 8. [ ^] Upon plene administravit pleaded by an executour et issint 
 
 Rot. 323. in r iens inter maines, if it be proved that he hath p-oods in his hands 
 com. banc, et ... , , r , . . . P ., . , , ., 
 
 Mich. 6 E. 6. which were the testatour s, he may give in evidence that he hath 
 
 in com. banco, paid to that value of his owne mony, and need not plead it 
 ? e H d 5°9." specially (1). 
 
 6 H. 7. 10. 34 E. 3. Droit. 29. 9 E. 3. 32. 8 E. 3. 24. 33 E. 3. Verd. 
 18 H. 6. 24. 39 H. 6. 38. 18 E. 3. 19. PL Com. 81. 173. 21 H. 7. 76. 16 Kielw. 
 21 E. 4. 11. 22 E. 4. 45. 13 H. 7. 13. Staundf. PL Cor. 15. 22 Ass. 55. 37 H. 6. 21. 
 (Doc. Plac. 198. Ant. 227. a. Hob. 174. Post. 303. b.) 
 
 In an assise, if the tenant plead nul fort nul disseisin, he can- 
 not give in evidence a release after the disseisin ; but a release 
 before the disseisin he may, for then there is no disseisin upon 
 the matter. 
 
 In 
 
 (1) Yet if the matter he pleaded specially, that is not cause of demurrer, 
 though it amounts to the general issue, because it has no colour of matter t.i 
 law, as was adjudged by justice Walme&ley. Hob. 127. Lord Nott. MSS. — 
 [Note 245.]
 
 L. 3. C. 8, Sect. 485. Of Eeleases. [*283. a. 
 
 In a writ of right, if the tenant joyne the mise upon the meere 
 right, he cannot give in evidence a collateral warranty; for he 
 hath not any right by it, and therefore it ought to have been 
 pleaded. 
 
 Of this learning you shall reade plentifully in our bookes, and 
 in my Reports. This little taste shall here suffice to make the 
 reader capable of the rest. Regularly whensoever a man doth 
 any thing by force of a warrant or authority, he must plead it. 
 
 But all that hath beene said must be under two cautions : first, 
 that whensover a man cannot have advantage of the speciall 
 matter by way of pleading, there he shall take advantage of it 
 in the evidence. For example, the rule of law is, that a man 
 cannot justifie in the killing or death of a man ; and therefore in 
 that case he shall be received to give the especiall matter in 
 evidence, as that it was se de/endendo, or in the defence of his 
 house in the night against theeves and robbers, or the like. 
 
 Secondly, that in any action upon the case, trespasse, battery, 7 Ja. Ca. 5. 
 or of false imprisonment against any justice of the peace, maior, or 
 bailife of city or towne corporate, headborough, port-reve, con- 
 stable, tithingman, collector of subsidy or fifteen, in any his 
 majesty's courts in Westminster, or elsewhere, concerning any 
 thing by any of them done by reason of any of their ofhces 
 aforesaid, and all other in their aide or assistance, or by their 
 cpmmandement, &c. they may pleade the generall issue, and 
 give the speciall matter for their excuse or justification in evi- 
 dence. 
 
 In an action of trespasse or other suit against any person for 23 H. 8. ca. 5. 
 taking of any distresse or other act doing by force of the com- 
 mission of sewers, the defendant in any such action shall and 
 may make avowry, conusance, or justification generally, that it 
 was done by authority of the commission of sewers for lotte or 
 taxe assessed by that commission, &c. and the plaintife shall reply 
 he did it of his own wrong without such cause. And both 
 these acts were made for avoiding of prolixity and captiousnesse 
 of pleading, tending to the great charge and danger of officers 
 and ministers of justice, &c. Evidence, evidentia. This word in 
 legall understanding doth not only containe matters of record, 
 as letters patents, fines, recoveries, inrolments, and the like, and 
 writings under seale, as charters and deeds, and other writings 
 without seale, as court rolles, accounts, and the like, which are 
 called evidences, instrumenta, but in a larger sense it containeth 
 also testimonial, the testimony of witnesses, and other proofes to 
 be produced and given to a jury, for the finding of any issue 
 joined betweene the parties. And it is called evidence, because 
 thereby the point in issue is to be made evident to the jury. 
 Prohationes debent esse evidentes (id est) penpicuse et faciles 
 mtettigi. But now let us rcturnc to Littlelon. 
 
 " Or at another day than the plaintife supposes." [h] As if the [h] 19 II. 6. 47. 
 
 trespasse were done tlie fourth of May, and the plaintife allcdgeth 5 E ; 4, 5 - 
 
 the same to be done the fifth of May, or the first of May, when f Cro. Jac! 366. 
 
 no trespasse was done ; yet if upon the evidence it falleth out l Cro. .501. 514, 
 
 that the trespasse was done before the action brought, it suf- 515 - 228,229. 
 
 ficeth : and this is warranted by Littleton, who speaketh indefi- gi^'os \ ' 
 nitely, that the jury may find the defendant guilty at another 
 day than the plaintife supposeth. 
 
 "And
 
 283. b.] Of Eeleases. L. 3. C. 8. Sect. 486, 487. 
 
 " And to such effect." Here is to be observed, that 
 the law of England respecteth the figg"* effect and sub- rQ83. I 
 stance of the matter, and not every nicety of forme or |_ b. J 
 circumstance : Qui hseret in litera, hseret in cortice, et 
 apices juris non sunt jura. 
 
 Sect, 486. 
 
 ALSO, if a man be disseised, and the disseisor dyeth seised, $c. and 
 his sonne and heire is in by discent, and the disseisee enter upon the 
 heire of the disseisor, which entrie is a disseisin, $c. if the heire bring an 
 assise, or a writ * of entrie in nature of an assise, he shall recover. 
 
 AND the reason hereof is, for that in the writ of right men- 
 tioned in the next Section, the charge of the grand assise 
 upon their oath is upon the meere right, and not upon the pos- 
 session. 
 
 Sect. 487. 
 
 RUT if the hey re bring a writ of right against the disseisee, he shall 
 bee barred, for that when the grand assise is sworne, their oath is 
 upon the meere right, and not upon the possession. For if the hey re of 
 the disseisor sue an assise of novel disseisin, (car si l'heire le disseisor 
 f suist un assise de novel disseisin), or a writ of entrie in nature of an 
 assise, and recovers against the disseisee, and sueth execution, yet may 
 the disseisee have a writ of entrie in the per against him, for the disseisin 
 made to him by his father, or he may have against the heire a ivrit of 
 right. 
 
 (Ant. 266. a.) " jp OR if the heyre of the disseisor, &c." Here is a diversity to 
 
 be observed concerning that which hath beene said, when 
 
 the possession shall draw the right of the land to it, and when 
 
 C E. 3. 7. not. And therefore when the possession is first, and then a right 
 
 commeth thereunto, the entry of him that hath right to the pos- 
 session shall gaine also the right which, as before appeareth in 
 those cases there put, followeth the possession, and the right of 
 
 Vid. Sect. 447. possession draweth the right unto it; but when the right is first, 
 and then the possession commeth to the right, albeit the posses- 
 sion be defeated, (as here in Littleton's case it is by the heire of 
 the disseisor,) yet the right of the disseisee remaineth. 
 
 5 Ass. 1. " A writ of entry in the per." A. dyeth seised,, and the land 
 
 10 Ass. 16. descendeth to B. his sonne ; before he entreth an estranger 
 
 abateth and dyeth seised, B. entreth, against whom the heire of 
 
 the 
 
 f of entrie in nature of an assise, hee. in L. and M. or Roll, but in both 
 shall recover. But if the heyre bring MSS. 
 (the beginning of next Section) not f suist — porta, L. and M. and Roll.
 
 L. 3. C. 8. Sect. 488-89-90. Of Releases. [284. a. 284. b. 
 
 the abator recovereth in an assise, B. may have a writ 
 
 tQ84:.~| of mart JB®" d'ancester, and recover the laud against 
 a. J him. And if the disseisin had beene done to A. &c. 
 then after the recovery in the assise, B. should have 
 had a writ of entrie in the per, because the heyre that is in by 
 discent is in the per. 
 
 Sect. 488. 
 
 T) UT if the heire ought to recover against the disseisee in the case 
 
 aforesaid by a writ of right, then all his right should be cleerly 
 
 taken aivay,for that judgement final shall bee given against him, ivhich 
 
 should bee against reason where the disseisee hath the more meere rigid. 
 
 "JUDGEMENT finaM." The forme whereof you shall see 
 in the last Section of this chapter. 
 
 " Which should be against reason." Argumentum ab incon- Vid. Sec t- 87. 
 venientL ( & P°o S t. 295. b.) 
 
 Sect. 489. 
 
 AND know (my sonne) that in a writ of right, after the four e Jcnights 
 have chosen the grand assize, then he hath no greater delay than in 
 a writ of formedon, after the parties be at issue, $c. And if the mise 
 bee joyned upon battaile, then he hath lesser delay. 
 
 " T>ATTAILE." See for this word in the last Section of (Post. 294. b.) 
 this chapter. 
 
 "Issue, &c." Or demurrer, which is an issue in law. (5 Rep. 104.) 
 
 Soot 490 (2 Inst 244.) 
 
 lOl^L. ^tO\J. ( Ant- 266, 267.) 
 
 ALSO, a release of all the right, $c. in some case is good, made to 
 
 him which is supposed tenant in law, albeit he hath nothing in the 
 
 tenements. As in a praecipe quod redd.it, if the tenant alien 
 
 [28-4.1 the land hanging the writ, and after the demandant relcaseth 
 b. J id* to him all his right, §c. this release is good, for that he 
 is supposed to be tenant by the suit of the demandant, and yet 
 hee hath nothing in the land at the time of the release made. 
 
 Sect.
 
 284. b. j Of Releases. L. 3, C. 8. Sect. 491, 492. 
 
 Sect, 491. 
 
 TN the same manner it is if in a praecipe quod reddat the tenant vouch, 
 and the vouchee enters into warranty, if afterward the demandant 
 release to the vouchee all his rigid *, this is good enough, for that the 
 vouchee after he hath entred into warranty, is tenant in law to the de- 
 mandant, f $c> 
 
 HERE it doth appeare, that there is a tenant in deed and a 
 tenant in law, and Littleton in this and the next Section 
 
 [K] 10 E. 4. 13. putteth two examples of tenants in law, viz. [li] the tenant to a 
 
 12 Ass. 41. praecipe after alienation, and of the vouchee, whereof somewhat 
 
 23 E 3 21 ^ath beene sa ^ before. 
 
 25 e! 3'. 40*. And it is observable, that Littleton saith, that in both cases 
 
 38 E. 3. 10. 11. hee is tenant in law to the demandant, and yet he hath nothing 
 jq E ^ 3 o 6 * in the land. And therefore if after the vouchee hath entered 
 tit. Resceit. into warranty, and become tenant in law, an ancestor collaterall 
 34 E. 3. of the demandant releaseth to the vouchee with warranty, he 
 9 E 1 lfi*" shall not plead this against the demandant, for that the release 
 
 39 H. 6. 40. by the estranger is voide, which, besides the authorities before 
 17 Ass. 24, vouched, appearcth by Littleton himselfe*; for he saith, that he 
 5>o*a 2' * s ^ enaufc m l aw *° the demandant, whereby he excludeth that 
 14 E. 3. ' be is tenant in respect of any estranger. 
 
 Procedendo, 4. 9 E. 3. 17. 32 E. 3. Quare Imp. 2 Dyer. 17 Eliz. 341. Sect. 447. 
 * Vi. devant, Sect. 447. (Ante 265. b. 273. a.) 
 
 Sect. 492. 
 
 ALSO, as to releases of actions, realls and personals, it is thus. Some 
 actions are mixt in the realty and in the personalty : as an action 
 of ivast sued against, tenant for life; this action is in the realtie (cest 
 action est | en le realtie), because the place wasted shall be recovered ; 
 and also in the personaltie, because treble damages shall be recovered 
 for the lorongfull waste (pur le || tortious wast) done by the tenant ; and 
 therefore in this action a release of actions reals is a good plea in bar, 
 and so is a release of actions personals. 
 
 Glan. li. 1. ca. 1. 1UOTA, there be two kind of actions, viz. one that concern 
 Bract, li. 3. ^ c p] eas f the crowne, placita corona?, or placita crimina- 
 Brit. fo. 71. Hd'y another that concerne common pleas, placita communia, sen, 
 Flet. li. 1. civilia. Of that which concerneth pleas of the crowne, Littleton 
 ca. 15 & 16. speaketh hereafter in this chapter. Of actions concerning corn- 
 Bract, ub.'sup! mon pl eas > Littleton speaketh in this place. And these are 
 Flet. li. 1. ca. 1. three fold (that is to say), reall, personall, and mixt. Placitorum 
 
 alt ad 
 
 * &c. added L. and M. and Roh. || tortious wast — tort et wast, L. and 
 
 f dec. not in L. and M. or Roh. 31. and Roh. 
 
 | en not in L. and M. or Roh.
 
 L. 3. C. 8. Sect. 492. Of Eeleases. [284. b. 285. a. 
 
 alind personate, aliud rcale, aliud mixtum. Or, Ac- (Plo. 484.) 
 
 [Q85.~| tionum qucedam sunt in fig^ rem, qucedam in per- 
 a. | sonam, et qucedam mixtse. And generally, actio is [/] Vide Sect, 
 defined, [/] Actio nihil aliud est qudm jus prosequendi 444. Bract. 
 in judicio quod sibi debetur. Or, Actio nestauter chose que lot/all meta'lib 1 1' 
 demande de son droit. Mirror, c. 2. § l. 
 
 [/>■] And by the release of all actions, causes of actions be re- [k] Lib. 8. 151. 
 leased; but within a submission of all actions to arbitrament Altham's case. 
 causes of action are not contained. 5 Mar. 217/' 
 
 Vide 36 H. 6. 8. Vide 42 E. 3. 22, 23. (5 Rep. 8. a. 103. 77. b.) 
 
 " Tenant for life." And so it is if it be brought against 
 tenant for ycares, because it agreeth with the reason of Littleton 
 here rendered, viz. that the place wasted shall be recovered, and 
 therefore soundeth in the realty. (Cro. Car. 171.) 
 
 " Also in the personaltie, because treble damages shall be reco- 
 vered," which doe sound in the personaltie. Wherefore Littleton, 
 concludeth, that in an action mixt a release of all actions reals 
 is a good barre, and so is a release of all actions personals. 
 
 And here is to be observed a diversity betweene the act of the 
 party, and an act in law ; for a man by his owne act cannot alter 
 the nature of his action : and therefore if the lessee for life or 
 lessee for ycares doe waste, now is an action of waste given to 
 the lessor, wherein he shall recover two things, viz. the place 
 wasted, and treble damages : in this case if the lessor release all 
 actions realls, he shall not have an action of waste in the per- 
 sonalty only; and if he release all actions personals, he shall 
 not have an action of waste in the realty only. 
 
 \J] And so it is if the lessee doth waste, and after surrendreth m 19 H 6 66> 
 to the lessor his estate, and the lessor accept thereof, the lessor 14 H. 6. 14. 
 shall not have an action of waste. V* R2.Wast.99. 
 
 But by act in law the nature of the action may be changed ; as 9 „ H ' g " 
 if a man make a lease pur terme d'auter vie, and the lessee doth Br. Waste, 
 waste, and then cesty que vie dyeth, an action of waste shall lye (5 Rep. 75.) 
 for damages only because the other is determined by act in law. ( Noy ' ns ^ 
 
 And againe, hereupon is another diversity to be observed, that 
 in case when an action is well begun, and part of the action de- 
 terminnth by act in law, and yet the like action for the residue is 
 given, there the writ shall not abate, but proceed. But where n h. 6. 43. 
 by the determination of part the like action remaineth not for the 9 E. 4. 50. 
 residue, there the action well commenced shall abate. As if an ^ *;• **• ^. 
 action of waste be brought against tenant pur terme d'auter vie, 9 h. 6.*30." 
 and hanging the writ cesty que vie dyeth, the writ shall not abate, (7 Rep. 77. 
 but the plaintife shall recover damages only, because if cesty que ?^: 1 a "L Tr , 
 vie had died before any action brought, the lessor might have an 3 ' 2 2.) 
 action of waste for the damages. So if an ejectione firmas be 
 brought, and the terme incurreth hanging the action, yet the 
 action shall proceed for damages only, because an ejectione doth 
 lye after the terme for damages only. But if tenant pur water 
 vie bring an assise, and cesty que vie dyeth hanging the writ, 
 albeit the writ were well commenced, yet the writ shall abate, 
 because no assise can be maintainable for damages only. 
 
 So if an action of waste be brought by baron and fern in re- 2 H. 4. 22. 
 maindcr, in especiall tayle, and hanging the writ the wife dicth 6 E. 2. 
 
 ' x J co Bnefe,807. 
 
 (Ant. 53. b. Plo. 18. h.^ 34II.fi. 10. 9 E. 4. 39. 14 II. 7. 31. 18 E. 3. 
 Scire facias, 10. (Win. Jones, 215. Cro. Car. 171. 5 Rep. 48. 6.) 
 
 without
 
 285. a. 285. b.] Of Releases. L. 3. C. 8. Sect. 493. 
 
 without issue, the writ shall abate, because every kind of action 
 of waste must be ad exhceredationem. 
 
 If a writ of annuity be brought, and the annuity determineth 
 hanging the writ, the writ faileth for ever, because no like ac- 
 tion can be maintained for the arrerages only, but for the an- 
 nuity and arrerages. 
 
 But where damages only are to be recovered, there albeit by 
 
 act in law the like action lyeth not afterwards, yet the action 
 
 [m] 22 R. 2. well commenced shall proceed; [m] as if a conspiracy be brought 
 
 Briefe, SS8. against two, and one of them dyeth hanging the writ, it shall 
 
 i'l>oct Pla 47 ) P rocee( l- 
 
 (Ray. ISO, and And in an assise of novel disseisin, a writ of annuity, qua re 
 
 176. S. C.) impedit, and other mixt actions (1), a release of actions real is 
 
 (1 Saun. 228. a good plea, and so it is of a release of actions personal. 
 
 1 Vent. 12 & 13. 2 H. 4. 13. 9 H. 6. 57. Mo. 133. contra.) 30 H. 4. Barre, 59. 
 (2 Roll. Abr. 411. 2 Co. 6S. a. Ant. 197. b.) 
 
 But if three joyntenants be disseised, and they arraignc an 
 assise, and one of them release to the disseisor all actions perso- 
 nals, this shall barre him, but it shall not barre the other plaiu- 
 tife; for having regard to them the realty shall bee preferred, et 
 \n~\ 30 H. 6. ubi omne majus trahit ad se minus dignuni. [n] And in a writ of 
 supra. ward brought by two, the release of the one shall not grieve the 
 
 45 E. 3. fol. 6. other, but shall enure to his benefit, for he shall recover the 
 18 E. 3. fol. 06. , , ' , i i l i i • • i. 
 
 *>l H 6 18 a whole ward, and hold his companion out. 
 
 (Doe. Pla. 47. But here a diversity is to be observed betweene reall 
 
 301.) actions, wherein damages are to be JSQ?" recovered at r285.~| 
 
 ^ontraT 68 ' " * ne common kw> as m an assise, &c. and reall actions [ b. 
 
 where damages are not to be recovered by the common 
 
 [VI Merton ^ aw > ^ ut are foi ven Dv tDe [°] statute, for there a release of all 
 
 cap. l. in dower, actions personals is no barre, as in the writ of dower, entrie sur 
 
 Gloc. cap. l. disseisin in le per, &c. mord'anc', aid, &c. 
 
 (5 Rep. 97.) * g ect 493# 
 
 A ND in a quare impedit a release of actions personals is a good plea, 
 and so is a release of actions reals, per Martin, quod fuit concessuin. 
 Hill. 9 H. 6. fol. 57. 
 
 9 H. 6. 57. npHIS is an addition to Littleton, which although it be law, and 
 
 ' " -*- the booke truly cited, yet I passe it over. But yet note by 
 
 the way, that a release of actions personals is also a good barre 
 in a quare impedit, because it is au action mixt. 
 
 Sect. 
 
 * This section is not in L. and M. or Boh. 
 
 (1) 5 Car. B. R. Sir John Bod v ill's case. Resolved contra; scilicet, that 
 it was a mere personal action, and not mixt; et idco, annuity in Wales l>j/ bill 
 lies well; where, if it had /urn mixt, the action ought to Imve been brought by 
 original, per 34 H. 8. ca. 26. upon argument bt/ the court on error brought. 
 Cro. 170. L. Nott. MSS.— [Note 246.]
 
 L. 3. C. 8. Sect, 4<M, Of Eeleases. [285. b. 
 
 Sect. 494. 
 
 TN the same manner it is in an assise of novel disseisin, for that it is 
 mixt in the realtie and in the personaltie. But if such an assise bee 
 arraigned against the disseisor and the tenant, the disseisor may well 
 plead a release of actions personals to barre the assise, but not a release 
 of actions reals, for none shall plead a release of actions reals in an 
 assise but the tenant. 
 
 " HP IIE disseisor may well plead, &c." 
 
 Kota, every man shall plead such pleas as are proper for (* p*ji 30 p" b "^ 
 
 him, and apt for his defence to be pleaded, [a] As a disseisor o 6> 3 - j 
 
 that hath nothing in the land may pleade a release of actions (Ant. 180. b.) 
 
 personals, because damages are to be recovered against him, and |. Hob - j 03 *^ 
 
 therefore for his defence hee may plead it; but a release of is e. 3. 2.23 
 
 actions reals he cannot plead (1), because he hath no estate in 24. 31 E. 3. 
 
 the land, and none shall plead a release of actions reals in an Q"*™ im P- 161, 
 
 assise, but the tenant of the land. Et sic de cceteris. But the 9 E ' 3 ] 6 * 
 
 tenant in an assise shall plead a release of actions personals to 39 E. 3.30. 
 
 the disseisor, for ftiat plea proveth that the plaintife hath no 22 E - 3 - 2 - 
 
 cause of action against him. 3 " E ^ n u ' are 
 
 imp. 44. 38 E. 3. 30, 31. 5 E. 3. 26. 21 E. 3. 16, 17. 5 H. 7. 34. 8 II. 5. 14. 
 22 H. 6. 28, 29. 1 II. 7. 34. 27 E. 3. 81. 32 H. 6. 15. b. 17 Ass. 25. 2 II. 7. 14. 
 13 H. 8. 13, 14. 44 E. 3. 12. 46 E. 3. 13. 16 E. 4. 11. 24 E. 3. 34. 4 E. 4. 18. 
 7 II. 4. 34. 2 R. 2. Encumbent, 4. 33 E. 3. Quare imp. 194. (8 Rep. 151. b.) 
 (Sect. 27S.) 13 H. 4. 2. a. (7 Rep. 26. a.) 
 
 If the disseisee release to the disseisor all actions reals, and (Sect. 471.) 
 the disseisor maketh a feoffeinent in fee, and an assise is brought 
 against them, the feoffee shall not plead the release to the dis- 
 seisor, for that he is not privie to the release, for a release of (io Rep. 51. b.) 
 actions shall only extend to privies. 
 
 If a disseisor make a lease for life, the remainder in fee, and 
 the disseisee release all actions to the tenant for life, after the 
 death of tenant for life, he in the remainder shall not plead the 
 said release. 
 
 If the disseisee release all actions to the disseisor, and die, 
 this doth barre him but for his life, for after his decease his 
 heirc shall have an action, [/•] as some have said. And hereby r r ] 19 h. 6. 
 may appeare a manifest diversity between a release of a right, 23. a. 
 and a release of actions. ( 8 Rep- 152- ) 
 
 Sect. ' 
 
 (1) Hob. 163. accord, whether the action be brought against the disseisor 
 only, or against him and the tenant; but if the same person be disseisor and 
 tenant, then he may plead a release of actions real. L. Nott. MSS. — [Note 
 247.]
 
 286. a. 286. b.'J Of Releases. L. 3. C. 8. Sect. 495, 496. 
 
 ( 8 Rep. 140.) m~ Sect. 495. T^ 6 "] 
 
 A LSO, in such actions reals which ought to be sued against the tenant 
 of the freehold, if the tenant hath a release of actions reals from the 
 demandant made unto him before the ivrit purchased, and he plead this, 
 it is a good plea for the demandant to say, that hee ivhich plead the plea 
 had nothing in the freehold at the time of the release made, for then he 
 had no cause to have an action reall against him. 
 
 (8 Rep. 151. b.) r rHIS is evident enough by that which hath beene said, that 
 J- a release of all actions reals must bee made to him that is 
 tenant of the land, because a reall action must be brought 
 against such a tenant. 
 
 Sect. 496. 
 
 ALSO, in such case where a man may enter into lands or tenements, 
 and also may have an action reall for this, ivhich is given by the 
 law against the tenant * ; if in this case the demandant rcleaseth to the 
 tenant all manner of actions reals, yet this shall not take the demand- 
 ant from his entrie, but the demandant may well enter notwithstanding 
 such release, for that nothing is released but the action, §c. 
 
 (8 Rep. 152.) " Jif AY enter." Here it appeareth, that where a man may 
 
 enter, a release of all actions doth not barre him of his 
 right, because he hath auother remedy, viz. to enter. And this is 
 [«] 18 E. 3. 34. agreeable with the authoritie of our [s] bookes. But where his 
 19 E. 3. entry is not lawful, there a release of all actions is by conse- 
 
 litle, 35. quence a barre of his right, because he hath released the mean 
 
 whereby he might recover his right. As if the disseisee release 
 all actions to the heire of the disseisor, which is in by discent, 
 he hath no remedy to recover the land ; but yet the disseisee 
 hath a right, for that hee hath released his action, and not his 
 right, as shall be said hereafter in the chapter of Remitter in 
 his proper place. If the heire of the disseisor make a feoffment 
 in fee to two, and the disseisee releaseth to one of the feoffees 
 all actions, and he dieth, the survivour shall not plead this 
 release for the causes abovesaid. And hereby also again ap- 
 peareth another diversity between a release of a right, and a 
 release of actions. 
 (8 R 150 ) *^° ^ ' s to ^ e observed, when a man hath severall r286.~| 
 
 19 Ass." 3. remedies for one and the selfe same thing, be it reall, L h. J 
 
 30 E. 3. 19. 6. personall, or mixt, albeit he releaseth one of his re- 
 21 H 7 23 b taedies, he may use the other. 
 
 7u/e ' 6: " Sect, 
 
 * &c. added in L. and M. and Rob.
 
 L. 3. C. 8. Sect. 497,498,499. Of Releases. [286. b. 
 
 SeCt. 497. (9 Rep. 52.) 
 
 IN the same manner is it of things per sonall ; as if a man by wrong 
 take away my goods, if I release to him all actions personals, yet I 
 may by the law take my goods out of his possession. 
 
 This of it selfe is evident. 
 
 Sect. 498. 
 
 ALSO, if I have * any cause to have a writ of detinue of my goods 
 against another, albeit that 1 release to hipi all actions personals, yet 
 I may ~\by the law take my goods out of his possession, because no right 
 of the goods is released to him, but only the action, $c. 
 
 " A WRIT of detinue. Breve de detentione dkicilur a deti- (Coke's Ent. 
 
 , nendo, because detinet is the principall word in the writ. l ™'^ ng b 
 And it lyeth where any man comes to goods eyther by delivery, 2 cro^OSl.) 
 or by finding. In this writ the plaintife shall recover the thing Glanvil. lib. 10. 
 detained, and therefore it must bee so certaine as it may be j^P^ 13g a , 
 knowne, and for that cause it lyeth not for money out of a bagge, (x'ro'h. Abr." 
 or chest • and so of corne out of a sacke,and the like, these can- 606.) 
 not be knowne from other, p] A man shall have an action of ^. R ° 1L Abn 
 detinue of charters which concern the inheritance of his land if ^^ pia> 124> 
 bee know the certainty of them, and what land they concerne, 125.) 
 or if they be in bagge sealed, or chest locked, though he knoweth 41 E. 3. 2. 
 not the certainty of them: and it is good policie (if possibly he ^ ° • r< d 
 can) in that case to declare of one charter in especiall, [«] and ^ 41 E _ 3< 2 
 then the defendant shall not wage his law. [x] An action of s H. 6. 18. 28. 
 detinue for charters doth sound in the realty, for therein sum- g^g^'g 3 ' 28 " 
 muns and severance lyeth ; and in detinue, of goods a capias 30 ^ g 4 * 
 doth lye ; but for charters in speciall a capias lyeth not, and yet 9 II. 6. 18. 
 a release of actions personals in a writ of detinue of charters is ( 9 ^ e P- 18 - 
 
 11, 78 - b - 
 
 a good barre. p. n. b. 138.) 
 
 (10 Rep. 51. b.) [11] 10 H. 6. 20. 21 H. 6. 1. 14 H. 6. 4. 14 H. 4. 23, 24. 27. 
 (Post. 295.) [.r] 20 H. 6. 45. 19 E. 3. Severance, 14. 31 E. 3. ib. 32. 42 E. 
 3. 13. 40 E. 3. 25. (10 Rep. 135.) (Doc. Pla. 125.) 
 
 Sect. 499. 
 
 A LSO, if a man be disseised, and the disseisor, maketh a feoffment to 
 
 divers persons to his use, % and the disseisor continually taketh the 
 
 profits, $c. and the disseisee release to him all actions reals, and after hee 
 
 sueth 
 
 * any not in L. and M. or Rob. % &c. added in L. and M. and 
 
 f hy the law not in L. and M. or Koh. 
 
 Roh.
 
 286. b. 287. a.] Of Releases. L. 3. C. 8. Sect. 500. 
 
 sueth against him a writ of entrie in nature of an assise by reason of 
 the statute, because liee taketh the profits. $c. Quaere, how the disseisor 
 shall bee ayded by the sayd release ; for if hee will plead the release 
 generally, then the demandant may say, that hee had nothing in the 
 freehold at the time of the release made ; and if hee plead the release 
 specially, then he must acknoivledge a disseisin (donques il covient *con- 
 ustre un disseisin), and then may the demandant enter into the land, §c. 
 by his acknowledgment of the desseisin, 8rc. but peradventure by speciall 
 pleading he may barre him of the action f tvhich he sueth, $c. though 
 the demandant may enter. 
 
 " ~DY reason of the statute." That is to say, the statute of 4 
 ** H. 4. ca. 7. and 11 H. 6. ca. 4. 
 
 (5 Rep. 77.) « For if hee will plead the release generally." Here it ap- 
 
 '• ' peareth, that when the statute had given the action 
 
 reall OCT against the pernor of the profits, it enableth ["287.1 
 hiin to take and pleade a releas of all actions reals, and | a. 
 yet he hath neither jus in re, nor jus ad rem, which 
 point is worthy of observation for manifestation of the equity of 
 the law. 
 
 (8 Rep. 150.) " Then lie must acknowledge a disseisin, &c." In a writ of 
 
 (Doc Pla 343 ) dower l ' ie tenant pleaded that before the writ purchased A. was 
 seised of the land, &c. untill by the tenant himselfe hee was dis- 
 seised, and that hanging the writ A. recovered against him, &c. 
 judgment of the writ, and adjudged a good plea, in which plea 
 the tenant confessed a disseisin in himselfe. 
 
 " Then may the demandant enter." So might hee have done in 
 this case that Littleton putteth, albeit the tenant confessed no 
 disseisin. And therefore it is no prejudice to the tenant to con- 
 fesse a disseisin in himselfe, &c. and then, as Littleton here 
 holdeth, the action shall be barred. 
 28 H. 8. But the reader is to observe, that now by the statute of 27 
 
 9? e w s 2 '<. m H- %• cap. 10, which executes the possession to the use, all the 
 statutes against cesty que use, or pernor of the profits, have lost 
 their force. 
 
 27 H. 8. c. 10. 
 
 Sect. 500. 
 
 A LSO, if a man sue an appeale of felony of the death of his ancestor 
 
 against another, though the appellant release to the defendant all 
 
 manner of actions reall and per sonall, this shall not aide the defendant, 
 
 for that this appeale is not an action reall, in as much as the appellant 
 
 shall not recover any realtie in such appeale : neither is such appeale an 
 
 action personall, in as much as the wrong tuas done to his ancestor, and 
 
 not to him. But if he release to the defendant all manner of actions, 
 
 then it shall be a good barre in an appeale. And so a man may see that 
 
 a release of all manner of actions is better than a release of actions 
 
 reals and personals, &c. 
 
 OUR 
 
 * de added in L. and 31. and f icliich he sueth, dec. not in L. and 
 
 Roh. M. or Roh.
 
 L. 3. C. 8. Sect. 500. Of Eeleases. |287. a. 287. b. 
 
 OUR author having spoken of common pleas, now treateth of 
 certaine pleas criminall, or pleas of the crowne, whereof it 
 is said, [«~J Item, criminalium alia majora, alia minora, alia [«] Bract. lib. 3. 
 maxima, secundum criminum quantitatem ; sunt en im crimina *°- I 01 - *>• 
 majora et dictintur capitalia eo quod ultimum inducunt snppli- 
 cium, &c. Minora vera, quae fusticjationem inducunt, 
 
 [Q87'. - j velpcenam pilloralem, vol tumboralem, vel OC/^ carce- 
 b. I ris indmioncm, &c. 
 
 [&] Criminalium quzedam sentential iter mortem [b] Flet. lib. 1. 
 inducunt, qusedam vera minimi, [c] De peche est briefe divi- ca P- 15. (A) 
 sion, carest mortalou venial solonque ceo que appiert es paines. gi jjvjw ' 
 And that crime is called mortall or corporall : mortall, because cies paines en 
 it deserveth death ; and such crimes are called veniall, as may divers manners, 
 be redeemed or satisfied by some other punishment than by death. 
 
 " Appeale of felonie." [x] Appellum signifieth accusatio, an [ar] Mir. ca. 2. 
 
 accusation, and therefore to appeale a man is as much as to | ? 1 ?L act li- 3- 
 
 accuse him : and in [y] ancient bookes he that doth appeale is Brit.ca. 22 23. 
 
 called accusator, and is peculiarly in legall signification applyed Flet. li. 1. 
 
 to appealcs of three sorts. First, of wrong to his ancestor, ca - 31 » 3 o 2 ( » 33. 
 
 whose heire male he is, and that is onely of death, whereof our [ 3 inJt. 131.) 
 
 author here speaketh. The second is of wrong to the husband, [>] Glanv.lib. 7. 
 
 and is by the wife only of the death of her husband to be prose- ca P- 9 - et lib. 14. 
 
 cuted. The third is of wrongs done to the appellants themselves, ca ' ' et " 
 as robbery, rape, and mayhem. The word appellum is derived 
 of appellor, to call, because appellans vocat reum in judicium, he 
 called the defendant to judgement, and the plaintifc is called 
 the appellant. 
 
 " Appeale," Appcllatio, is a removing of a cause in any eccle- 24 II. 8. ca. 12. 
 sia^tical court to a superior; but of this there needeth no speech 1 E1 - ca - *■ 
 in this place. 
 
 " 0/ the death." Appeale of death is of two sorts, of murder (4 Rep. 40. 43. 
 and of homicide. Murder is when one is slaine with a man's 3 Ins *" 47.) 
 will, and with malice prepensed or forethought. Homicide, as 
 it is legally taken, is when one is slaine with man's will, but 
 not with malice prepensed. Chance-medly, or per infortunium, 
 is when one is slaine casually, and by misadventure, without the 
 will of him that doth the act, whereupon death insueth ; but of 
 this no appeale doth lye. Murder couimeth of the Saxon word 
 mordreu. 
 
 Were is an old Saxon word sometime written icera, and signi- Lamb. Expos, 
 fieth the price of the life of a man, estimatio capitis, that is, so verb. Estimatio. 
 much as one paid for the killing of a man ; by which it appeareth, Flet - lib - l - 
 that such government was in those dayes, as slaughters of men fo.'344. ° vec 
 were most rarely committed, as master Lombard collecteth. 
 And you shall not read of any insurrection or rebellion before 
 the Conquest, when the view of frankpledge and other ancient 
 lawes of this realme were iu their right use. 
 
 " But if he release to the defendant all manner of actions, &c." (4 Rep. 45. 47.) 
 And the reason is, for that then all actions, as well criminall ( Doc - Pla - 97 -) 
 as reall, personall and mixt, be released. But a release of all 
 actions reall and personall cannot barre an appeale of death, 
 because that release extendeth to common or civil actions, and 
 
 not 
 
 (A) The words quoted in the text under [6] are in Fleta, lib. 1. cap. 16.
 
 287. b. 288. a.] Of Releases. L. 3. C. 8. Sect. 501, 502. 
 
 not to actions crirninall : but releases of all actions criminall or 
 mortall, or concerning pleas of the crowne, are good barres in 
 an appeale of death, and so the (&c.) in the end of the Section is 
 well explained. 
 
 IC7- Sect. 501. 
 
 m 
 
 ALSO, in an appeale of robberie, if the defendant will pleade a release 
 of the appellant of all actions personals, this seemeth no plea ; for 
 an action of appeal where the appellee shall have judgment of death, $c, 
 is higher than an action per sonall is, and is not properly called an action 
 personall ; and there if the defendant will plead a release of the appellant 
 to barre him of the appeale, in this case he must have a release of all 
 manner of appeales (en cest case il covient d'aver un release de touts 
 manners * d'appeals), or all manner of actions, as it seemeth, $c. 
 
 22 Ass. 39. u T>OBBERIE." Roboria, properly is when there is a felo- 
 
 nious taking away of a man's goods from his person : and 
 
 it it is called robbery, because the goods are taken as it were de 
 W. 1. cap. 20. la robe, from the robe, that is from the person ; but sometimes it 
 
 is taken in a larger sense. 
 
 (3 Inst. 68. " Judgment of death, &c." By this (&c.) is implyed appeales 
 
 Dy. 39. a. of rape, of arson or burning, of felony or larceny, tor therein also 
 
 r0 ' ar " is judgment of death, and are within our author's reason. 
 
 Vid. Sect. 508. "As it seemeth, &c." It is to be understood, that, first, a 
 
 release of all actions criminall, mortall, or concerning pleas of 
 the crowne; secondly, a release of all actions generally ; thirdly, 
 
 (Post. 291. b.) a release of all appeales ; and lastly, a release of all demands, are 
 good barres in all these kinds of appeales. 
 
 Sect. 502. 
 
 * 
 
 ~DTJT in appeale of mayhem a release of all manner of actions personals 
 is a good plea in barre, for that in such an action hee shall recover 
 nothing but damages. 
 
 Mir. ca. 1. £ 9. " "MAYHEM" mahemium, memlri mutilatio, or obtruncatio, 
 
 Ulan. li. 14. commeth of the French word mehaigne, and signifieth a 
 
 vh \' T Bra 't t 2 cor P ora ll hurt, whereby hee loseth a member, by reason whereof 
 
 ca.*24. Brit, fo.' hee i s ^ esse a °le to fight; as by putting out his eye, beating out 
 
 48. ca. 25. Flet. his fore-teeth, breaking his skull, striking off his arine, hand, 
 
 hb. l. ca. 38. or fi n g er> cutting off his legge or foot, or whereby he loseth the 
 
 n taunt. ll.Oor. /» pi* *i i 
 
 fo. 38. b. use °* an y °f his said members. 
 
 (3 Inst. 118. 4 Rep. 43. 45. Ant. 120.) 28 E. 3. 91. 8 H. 4. 21. 
 
 " Duma gen, 
 
 * d'actions added in L. and M.
 
 L. 3. C. 8. Sect, 503. Of Releases. [288. a. 288. b. 
 
 " Damages, &c." Vide Sect. 194. 
 
 " A release of all manner of actions personals is a good plea, 21 H. 5. 16. 
 &c." And the reason is that for every action wherein damages [, ■£}' ^\' 
 only are recovered by the plaintife, is in law taken for an action 
 personall. 
 
 [ 3 b. 8 -] mr Sect. 503. 
 
 ALSO, if a man bee outlawed in an action personall by processe upon 
 the original!, and bringcth a writ of errour, if he at ivhose suit he 
 was outlawed will pleade against him, a release of all manner of actions 
 personals, this seemeth no plea ; for by the said action he shall recover 
 nothing in the personaltie, but only to reverse the outlawrie: but a release 
 of the writ of errour is a good plea. 
 
 "A WRIT of errour." This writ lyeth when a man is grieved V. li. ll.fo.39.^ 
 
 -^ bv an error in the foundation, proceeding, iudornent, or 41 ' in Metcalfe ' 3 
 . J , . . . n t 7 7 ° " ° . j case upon what 
 
 execution, and thereupon it is called breve de errore comgendo. judgements and 
 
 But without a judgment, or an award in nature of a judgment, no awards a writ of 
 
 writ of error doth lie ; for the words of the writ be, si judicium red- ?p rror p ot V fi ie { 
 
 ditum sit : and that judgement must regularly be given by judges (.3 R' ep _ { t 
 
 of record, and in a court of record, and not by any other inferiour Cro. Jae. 5,) 
 
 judges in base courts, for thereupon a writ of false judgment doth ^'- 5 - f ?- m - 
 
 lye. In this case of outlawry upon processe, the judgement is Li. 6.fb. 11 12. 
 
 given (in the county court, which is no court of record) by the Jentleman's 
 
 coroners, (saving in London judgement is given by the recorder, ^ase. 
 
 and not by the maior, who is coroner by the custome of the ^™' 68 M " 
 
 city) ; for after the defendant is quinto exactus, and maketh de- 1 Roll. 750. 
 
 fault, the judgment is, ideo utlagatur per judicium coronatorum ; V^ -^ e P- 38 - 
 
 and in London, per judicium recorclatoris : so as by the outlawry A ' nt '^ b ' 
 
 the plaintife recovers nothing but the king taketh the whole be- s Rep. 141.) 
 
 nefit thereof; for the law did intend, that the defendant would 15 Eliz - 
 
 rather appeare and answer the plaintife, &c. than to forfeit all his (An['l2s'b ) 
 
 goods and chattels, debts and duties to the king, by his default Lib. 9. foi. 119. 
 
 and contumacie. But Littleton is to be intended, that the sherife 8 Zanchar's 
 
 doe returne the exigent whereby the outlawry appeares of record, ?)| r" m ■> 
 
 or that the outlawry be removed by certiorari, for before that (Ant. 114.) 
 
 time that the outlawry appeare of record, the defendant doth 28 Ass. 49. 
 
 not forfeit his goods, nor the plaintife can be disabled, nor any g" ^ - S ' ^ ag- 3 * 
 
 writ of error doth lye in that case. And this is the cause that Mich. 4 & 5. El. 
 
 the goods of outlawcs cannot be claimed by prescription, be- Dyer, fo. 222. 
 
 cause they are not forfeited untill the outlawry appeare of re- ) 6 l Rf eC o- 197- 
 
 cord. Vide Sect. 197, where it appeareth by Littleton, that the y. N. B. 20. b. 
 
 plaintife cannot be disabled by outlawry, unlesse it appeareth of 22. b.) 
 
 record. 
 
 " For by the said action lice shall recover nothing in the per- 
 sonaltie." Hereupon is to be observed a diversity, when by the 
 writ of error the plaintife shall recover, or be restored to any 
 personall thing, as debt, damage, or the like ; for then by the rea- 
 son that Littleton hero yeeldeth, the release of all actions per- l H. 4. G. 
 sonals is a good plea, for that the plaintife is to recover, or to be 
 
 restored
 
 288. b. 289. a.] Of Releases. L. 3. C. 8. Sect. 503. 
 
 rostored to something in the personalty. And so likewise when 
 land is to be recovered or to be restored in a writ of error, a 
 (1 n. 4. 6. release of all actions reals is a good barre. But where by a writ 
 
 o S ei f 15 i'o ' of error the plaintife shall not bee restored to any personall or 
 :S2 ii. 8. *30. ' x*eall thing, then a release of all actions reall or personall is no 
 18 Eliz. 14. barre ; and therefore Littleton here putteth his case with great 
 
 Cro. Car. 272. cau tion. If a man (saith he) by processe upon the originall be 
 (5 Rep. 41, 42.) outlawed, there in deed he shall be restored to nothing in the 
 personalty against the plaintife. But where by the outlawry he 
 forfeited all his goods and chattels to the king, he shall be re- 
 stored to them ; also thereby he shall be restored to the law, and 
 to be of ability to sue, &c. But if the plaintife, in a personall 
 action, recover any debt, &c, or damages, and (A) bee outlawed 
 after judgment, there in a writ of error brought by the defendant 
 upon the principall judgment, a release of all actions personals 
 is a good plea. And so it is where a judgment is given in a reall 
 action, a release of all actions reals is a good barre in a writ of 
 error brought thereupon. 
 9 H. G. 47. (£/=■ If the tenant in a reall action release to the de- [289.1 
 
 mandant after recovery his right in the land, he shall | a. 
 not have a writ of error, for that he cannot be restored 
 to the land. 
 
 And so it is if debt, &c. or dammages be recovered in a per- 
 sonall action by false verdict, and the defendant bringeth a writ 
 of attaint, a [a] release of all actions personal is a good barre of 
 the attaint ; for thereby the plaintife is to be restored to the 
 debt, &c. or damages which he lost : the like law is if a judge- 
 ment be given upon a false verdict in a reall action, a release of 
 all actions reall is a good barre in an attaint. For both the writ 
 of error and the writ of attaint doe insue the nature of the for- 
 mer action, &c. 
 
 And so it is if a writ of audita querela be brought by the de- 
 fendant in the former action to discharge himselfe of an execu- 
 tion, a release of all actions personall is a good barre, because 
 he is to discharge himselfe of a personal execution. 
 
 (6 Rep. 25.) " But a release of the writ of errour is a good plea, &c." So as 
 
 in this speciall case here put by Littleton, wherein the plaintife is 
 to recover or to be restored to nothing against the party; yet for 
 that the plaintife in the former action is privy to the record, 
 a release of a writ of error to him is sufficient to barre the plain- 
 tife in the writ of error of the suit, and vexation by the writ of 
 error. And so note that an action real or personall doth imply 
 a recovery of something in the realty or personalty, or a restitu- 
 tion to the same, but a writ (1) implyeth neither of them, which 
 is worthy of observation. 
 
 Sect. 
 
 (A) It seems, that the text should be read as if the words, the defendant, had been inserted 
 in this place. See Mr. Ritso's Intr. p. 120. 
 
 [«] 26 H. 8. 3.b, 
 
 13 E. 4. 1, 2. 
 
 34 H. 6. 31. 
 
 35 H. 6. 19. 
 
 29 Ass. 35. 
 
 47 E. 3. 6. 
 
 24 E. 3. 37. 
 
 (5 Rep. 86.) 
 
 (1) That is a writ of error.
 
 L. 3. C. 8. Sect, 504. Of Eeleases. [289. a. 289. b. 
 
 Sect, 504. 
 
 A LSO, if a man recover debt or damages, and he releaseth to the de- 
 L fendant all manner of actions, yet hee may lawfully sue execution 
 by capias ad satisfaciendum, or by elegit, or fieri facias : for execution 
 upon such a writ cannot bee said an action. 
 
 HERE appeareth a diversity betweene an action and an exe- Vide Sect. 233. 
 cation. For regularly an action is said in its proper sense ( 5 Re P- 88 > 89 - 
 to continue until judgement bee given, and after judgement 8 B e |" g J " ' °"' 
 then doth processe of execution begin; and therefore a release 4 e. 3. 
 of all actions regularly is [b~\ no barre of execution, for the exe- Attorney, 18. 
 cution doth begione when the action doth end. And therefore ,? „' ?•*?• 
 the foundation of the first is an onginall writ, and doth deter- [&] 13 h. 4. 
 mine bv the iudgement; and writs of execution are called ju- Release,53. 
 diciall, because they are grounded upon the judgement. ™ j[' q 
 
 Execution, 7. 
 
 " By capias ad satisfaciendum." This is a judiciall writ for 
 the taking of the body in execution untill hee hath made satis- 
 faction; where a capias ad satisfaciendum lyeth at the common Sir William 
 law; and where it is given by statute you may reade at large in *?e r k erts ?? s % 
 my Reports. 
 
 I have read two ancient records touching the taking of the 
 body in execution, whereof, to my remembrance, I never read 
 any touch in our bookes, yet will I recite them, and leave them 
 to the judicious reader. William de Walton brought an action Pasch. 14 E. 3. 
 of trespasse of breaking his close against John Martin, and upon ^ ot - 106. coram 
 not guilty pleaded, hee was found guilty and damages assessed : gu^. e y^ 
 whereupon judgement was given that the plaintife should reco- (Cro. Jac. 356.) 
 ver his damages, et quod prccdictus Johannes capiatur. And 
 the record saith, Quod prsed ictus Johannes venit coram domino 
 rege et reddidit se prisonce, et quia constat cur ice per inspectionem 
 corporis ipsius Johannis, quod idem Johannes est talis setatis 
 quod pa nam imprisonamenti subire non potest, ideo dictum est 
 ei, quod eat inde sine die. The other record is, That Ellen Allot Mich. 41 E. 3. 
 brought an appeale of robbery against John Boskiseleke clerk, ™j* • 2 A^ 07 ^ 
 Richard Charta and others, who pleaded not guilty, and were \ n Thesaur. 
 not found guilty: whereupon judgement was given that they 
 should goc quite, et prcedicta Elena pro falso appello stio com- 
 mittatur prisonce, &c. (for [&] by the statute she ought to be im- [b] [W. 2. cap. 12. 
 prisoned in that case for a yeare.) But the record saith, Quia ' 1 i : l< f erf- ??f\ 
 
 r J .' . . }. .... Hutton, 118.) 
 
 cadem Elena pregnans juit, et tn pericuio mortis, ipsa dimttti- 
 
 tur per manucaptionem, &c. ad habendum corpus 
 
 t 389.1 usque quind. Michaelis, &c. (2). JEt®" There be cer- 
 b. J taine maximes in the law concerning executions, as 
 taking some instead of many. Ea quae in curia nos- 
 tra rile acta sunt, debited execution i demandari debent. Parum 
 est latum esse sententiam nisi mandetur ixecutioni. Exccutio 
 juris non habct injuriam. Exccutio est fructus et finis legis. 
 Juris effectus in executione consist it. Prosecutio lr<ji* est gravis 
 vexatio, executio legis coronat opus. Boni judlcis est judicium 
 sine dilatione mandare executioni. Favorabiliores sunt executi- 
 ons 
 
 (2) The record at large is stated in 12 Rep. fol. 126. 
 Vol. II.— 28
 
 289. b.] 
 
 Of Releases. 
 
 L. 3. C. 8. Sect. 504. 
 
 ones aliis processions quibuscunque. But now let us hearewhat 
 Littleton saith. 
 
 (5 Rep. SS. a.) 
 
 [c]TV. 2. cap. 18. 
 (Plowd. ITS. b.) 
 
 [,/] 11 E. 1. 
 Stat, de Acton. 
 Burncll. 13 E. 1. 
 de mercatoribus, 
 27 E. 3. cap. 22. 
 Vide Fleta, li. 2. 
 cap. 57. 
 25 E. 3. 53. 
 (6 Rep. 44.) 
 [*] 23 H. 8. 
 cap. 6. 
 [e] 32 H. 8. 
 cap. 5. 
 
 (5 Rep. 86. b. 
 2 Inst. 677.) 
 
 Lib. 4. fol. 66. 
 Fulwood's case. 
 
 (4 Rep. 81. 
 2 Tnst. 678.) 
 
 (Cro. 338.) 
 
 "By elegit." This is also a judiciall writ, and is given by 
 the statute eyther upon a recovery for debt or damages, or upon 
 a recognizance in any court. And it is called a writ of elegit, 
 for that according to the statute that saith, [r] Sit de csetero in 
 electione illius, &c. sequi breve quod vicecomes fieri faceat, &c. 
 vel quod liberet ei, &c. the words of the writ bee, Elegit sibi libr- 
 rori, &c. And thereupon it is called an elegit. By this writ 
 the sherife shall deliver to the plaintife omnia catalla debitorix 
 {exceptis bobus & afris carucce) et medietatem terrse. And this 
 must be done by an inquest to be taken by the sherife. 
 
 When Littleton wrote, by force of certaine acts [d] of parlia- 
 ment, execution might bee had of lands (besides by force of the 
 elegit) upon statutes merchant, statutes staple, and recognizances 
 taken in some court of record; and since he wrote, upon a re- 
 cognizance or bond taken by force of the statute [*] of 23 II 8, 
 before one of the chief justices, or the maior of the staple, and 
 recorder of London out of terme, which hath the effect of a 
 statute staple. The manner of the executions upon body, lands, 
 and goods, appeareth in the statutes quoted in the margent. 
 
 Since Littleton wrote, a profitable statute hath been made [<?] 
 concerning executions of lands, tenements, and hereditaments, 
 whereby it is provided, that if after such lands, &c. be had and 
 delivered in execution upon a just or lawful title, wherewithall 
 the said lands, &c. were liable, tied, or bound at such time, as 
 they were delivered or taken into execution, shall be recovered, 
 devested, taken, or evicted out of, or from the possession of any 
 such person, &c. before such times, as the said tenants by exe- 
 cution, their executors or assignes, shall have fully levied their 
 debt and damages, for the which the said lands, &c. were taken 
 in execution ; then every such recoveror, obligee, and recog- 
 nizee, shall have a scire facias out of the same court from whence 
 the former execution did proceed, against such person or persons 
 as the former execution was pursued, their heires, executors or 
 assignes, to have execution of other lands, &c. liable and to be 
 ♦aken in execution for the residue of the debt or damages. Sed 
 cpus est interprete. 
 
 Therefore, first, it is to be knowne, that where the tenant by 
 execution hath remedy given to him by law after eviction, there 
 the statute extendeth not to it ; for the act saith, by reason 
 whereof the said recoverors, obligees, and recognizees, have been 
 cleerly set without remedy, &c. and the body referreth to the 
 preamble, and the party ought not to have double satisfaction, 
 one by the former lawes, and another by this statute. 
 
 And therefore if part of the land, &c. be evicted from the 
 tenant by execution, this statute extendeth not to it; because he 
 should hold the residue, till he be fully satisfied, and he must be 
 contented if all be evicted saving one acre to hold that, though 
 it be but a poore remedy; for no new execution in that case hee 
 can have upon this statute. Therefore if the conusee hath 
 remedy in prcesenti for part, or in fiitnro for all, or part, this 
 statute extendeth not to it. 
 
 Secondly, if a man be bound to A. in a statute of a thousand 
 pounds, and by a latter statute to B. in a hundred pounds, and 
 B. first extendeth, and then A. extendeth and taketh the land 
 
 from
 
 L. 3. C. 8. Sect. 504. Of Releases. [289. b. 290. a. 
 
 from B. yet B. shall have no aide of the statute, because after 
 the extent of A., B. shall re-enjoy the land by force of his 
 former execution. 
 
 Thirdly, If the wife of the conusor recover dower against 
 the tenant by execution, he shall hold over, and shall have no 
 aide of this statute. 
 
 Fourthly, If a man put out his lessee for yeares, or disseise 
 his lessee for life, and after knowledge a statute and execution 
 is sued against him, and the lessees re-enter, the tenant by 
 execution after the leases ended, shall hold over, and have no 
 aide of this statute. 
 
 Fifthly, This statute must not be taken literally, but accord- 
 ing to the meaning; therefore where the letter is untill he, kc. 
 or his assignees shall fully and wholly have levied the whole debt 
 or damages ; if he hath assigned severall parcells to severall 
 assignees, yet all they shall have the land but till the whole 
 debt be paid. 
 
 Sixthly, Where the words be, for the which the said lands, &c. 
 
 were delivered into execution. A disseisor conveys lands to the 
 
 king, who granteth the same over to A. and his heires to hold 
 
 by fealty and twenty pound rent, and after granteth 
 
 t390.~| the seigniory to B. B. knowledgeth a JB@f statute, and 
 a. J execution is sued of the seigniory. A. dieth without 
 heire, and the conusee entereth, and is evicted by the 
 disseisee ; he shall have the aide of this statute ; and yet it is 
 out of the letter of the law, for the seigniory was delivered in 
 execution and not the tenancy ; but he was tenant by execution 
 of those lands, and therefore within the statute. But the per- 
 quisite of a villeine being evicted is out of the statute, for he is 
 tenant in fee simple thereof, and not tenant by execution. 
 
 Seventhly, Where the words be (delivered and taken in exe- 
 cution), yet if after the liberate, the conusee entereth (as he 
 may) so as the land is never delivered, yet he is within the re- 
 medy of this statute, for he is tenant by execution. 
 
 Eighthly, Where the statute saith, then every such recoveror, 
 obligee, and recognizee shall, &c. and saith not, their executors, 
 administrators, orassignes, but they arc omitted in this materiall 
 place, yet by a benigne interpretation this statute shall extend 
 to them, because they are mentioned in the next precedent 
 clause of the eviction, and the remedy must by construction be ( Ant - 268 - ''•) 
 extended to all the persons that appeare by the act to be 
 grieved ; a point worthy the observation. 
 
 Ninthly, Where the statute giveth a scire foe' out of the same (F.N. B. 265. d.) 
 court, &.c. if the record be removed by writ of error into another 
 court, and there affirmed, the tenant by execution that is evicted 
 shal have a scire far' by the equity of this statute out of that 
 court, because the scirefad must be grounded upon the record. 
 El sic de similibus. 
 
 Tenthly, Where the statute giveth the scire fac against such 
 person or persons. &c. that were parties to the first execution,, 
 their heires, executors, or assignes, &c. this must not be taken, 
 so generally as the letter is ; for if the first execution were had 
 against a purchaser, &c. so as nothing was liable in his hands 
 but the land recovered ; if this land be evicted from tenant by 
 execution, no scire fac shall be awarded against him, his heires, 
 executors, or assignes. 13ut if he hath other lands subject to 
 the execution, then a scire fac lyeth against him or his assignes, 
 
 but
 
 290. a. Of Releases. L. 3. C. 8. Sect, 504. 
 
 but not against his executors ; neither in that ease can he have 
 a scire fac upon this statute against the first debtor or re- 
 cognizor, because it giveth it onely against him, &c. that was 
 party to the first execution, his heires, executors, or assignes. 
 13ut if there be severall assignes of severall parcels of lands 
 subject to the execution, one scire fac' upon this statute shall 
 lye against all the assignes. Sedest modus in rebus. This little 
 taste shall give a light to the diligent reader, not only to see into 
 the secrets of this statute, but to others also of like nature. 
 
 And by the statute of "23 II. 8. cop. 6, it is provided, that the 
 
 obligee, kc. shall have in every point against such recognisor, 
 
 cY.c. like proces, execution, commodity and advantage in every 
 
 behalfe, as hath been had or made upon the statute staple, and 
 
 tinder such manner and forme, as is for the same statute staple 
 
 provided : by force of which branch, if the tenant by execution 
 
 by force of the act of 23 H. 8, be evicted, he shall have the remedy 
 
 provided for tenants by execution upon a statute staple by the 
 
 40 E. 3. 26. b. act of 32 II. 8. In like manner by force of that clause of 23 H. 8, 
 
 ■44 E. 3. fol. 10. jf {kg ex tendors upon a statute staple, &c. doe extend the lands, 
 
 15 H. 7. 15. & c " a * t0 ° ^£ Q a rate > tue obligee may pray that the extendors 
 
 themselves may take the lands, &c. at that rate, &c. by force of 
 
 the said statutes of Acton Burnel and Be Mcrcatoribus. Also 
 
 no execution shall be sued against the heire within age. 
 
 But note, that upon a writ of elegit the plaintife cannot make 
 
 any such prayer, because those ancient statutes doe extend to 
 
 a statute merchant, or a statute staple only, and neither to a 
 
 recovery of debt or damages, not to a recognizance in court ; 
 
 [/] Mich. 4 & and so hath it been resolved [/]■ 
 
 5 Ph. and Mar. 
 
 Bendloes, 8, by all the justices of the common pleas. (Plowd. 82. b. 205. b.) 
 
 Nota, it appeareth by the preamble of the said act of 32 //. 8, 
 [g] 15 E. 3. and by divers [g] bookes, that after a full and perfect execution 
 
 Extent, 7. had by extent returned and of record, there shall never be any 
 
 ?> 2 E ' 3- . re-extent upon any eviction ; but if the extent be insufficient in 
 
 Recovery in . * J 
 
 value, 22. law, there may go out a new extent. 
 
 31 B. 3. ' 
 
 Exten. 13. 17 E. 3. 76. 15 E. 3. Scire fae. 115. 7 H. 4. 19. 22 Ass. 44. 22 E. 3 
 
 fol. ult. 44 E. 3. 10. 9 H. 7. 9. 15 H. 7. 15. 13 Eliz. Dier, 299. 29 H. 8. Stat. 
 
 Merchant, Br. 40. (2 Cro. 13.) 
 
 \]i\ If a man have a judgement given against him for debt or 
 [h~\ ll E. 3. damages, or be bound in a recognizance, and dieth his heire 
 \" .' q- 10 E- 3 ' within age, or having two daughters, and the one within age ; 
 24° E. 3. 28. do execution shall be sued of the lands by elegit during the 
 29 Ass. 37. minority, albeit the heire is not specially bound, but charged 
 
 29 E. 3. 50. as i erre t enan t \i~\ • and so against an heire within ace no execu- 
 
 47 E. 3. 7. tion shall be sued upon a statute merchant or staple, nor upon 
 
 Lib. 3. fol. 13. the obligation or recognizance upon the statute of 23 H. 8, for 
 sir William ^ j s excepted in the process against the heire. Neither if the 
 
 Brooke A°^ 33. heire within age indow his mother shall execution be sued 
 (2 Cro. 338. 694. against her during her minority (1). 
 Siderf. 184.) 
 
 [i'] Temps E. 1. Ass. 402. 417. 16 H. 7. 6. Livre d'entr. 545. Brooke, Age, 33. 
 (1 Cro. 295.) 
 
 Note, 
 
 (1) B. R. Grevill and Bracebridge's case. Kota,V. 1656, the point of a 
 special verdict was as follows : The conusor leased for i/eares, and died, his heir 
 
 within
 
 L. 3. C. 8. Sect. 501. Of Releases. [290. a - 29 °- b - 
 
 Note, that by the statute [7^] of 27 E. 3. the execution of lands \k] 27 E. 3. 
 upon a statute staple is referred to the statute merchant, and cap. 22. 
 by the statute De Mercatoribus no execution shall be had against 
 the heire so long as he is within age. 
 
 Also since Littleton wrote, there is a right profitable statute [7] [7] 13 Eliz, 
 made against fraudulent feoffments, gifts, grants, <fcc. cap. 5. 
 
 t390."| judgements and executions, aswell of lands andjgQT'te- &c> " i W y ne «a 
 b. | nements as of goods and chattels, to delay, hinder, or case. 
 
 defraud creditors and others of their just and lawfull Ll - 5.fo.fl0. 
 
 i i . j i.. n e •. l • . Gooche s case, 
 
 actions, suits, debts, damages, penalties, forfeitures, lieriots, Lih i; fi) ^ 
 mortuaries, and releases (A), for the exposition of which and Pakeman's case, 
 other statutes, see the authorities quoted in the margeut(l). Lib. 10. fo. 56. 
 
 " L =» \ t j )e chanc. of 
 
 Oxford's case. See the Statutes of 3 II. 7. cap. 4. & 50 E. 3. cap. 6. Mich. 12 
 & 13 Eiiz. Dier, 295. 18 Eliz. Dier, 351. (8 Kep. 132.) 
 
 And 
 
 (A) "releases" appears to be here printed hij mistake instead of reliefs. 
 
 within age, whether the execution (which was admitted on cdl sides to he void 
 a /ainst the infant), was good to hind the term for years. Glyn, chief justice, and 
 thecourf, and also Windham, at the bar, denied peremptorily the caseo/lord Coke 
 to be law, unless it is understood that the marriage ivas held before the statute; 
 for then it is true that if shall not be extended, sed non quia est privilege for 
 t'i infancy of the heir; but because the wife is in by her husband, and therefore 
 has the better possession, and thus comes in paramount to the statute ; but if the 
 statu''' was before the marriage, then clearly the dower of the wife is extendible ; 
 for the endowment breaks the descent, and she is in by her husband of a possession 
 charg </, and there is no prejudice to the infant heir ; so that the freehold is out 
 of him, without any rent being incident to his reversion. Nota, the possibility 
 that the wife might die during the minority, and before the extent was satisfied, 
 was not regarded. And nota, M. 6, 7 Eliz. C. B. in Egertoris Reports (cited 
 by Noy in his lecture in Lincoln s-Inn), a like case was adjudged. Feme tenant 
 in tail confessed a judgment ; took husband and died. The baron was tenant 
 by the curtesy, awl the statute was extended, and then he surrendered to the heir, 
 and was extended still, and well, per curiam, for the reversion was not preju- 
 diced. And afterwards, Trin. 1656, resolved, that an extent lay well against 
 the lessee, because the infancy of the heir is a personal privilege. ( Qua re, if the 
 ■rent is gone. It seems so; but the rent was not regarded.) Lord Nott. MSS. 
 —[Note 248.] 
 
 (L) In a former note, an attempt was made, to give the reader an Ele- 
 mentary Outline of the Doctrine of Uses ; an att unpt will now be undo, to give 
 him a like ELEMENT AR Y OUTLINE OF SOME LEADING POINTS 
 IN THE DOCTRINE OF TRUSTS AFECT1NG REAL PROPERTY. 
 
 I. It may not be disagreeable to the reader, that it should be preceded by a 
 short historical view of the Introduction of Trusts into English JURIS- 
 PRUDENCE. 
 
 I. 1. Two circumstances, in particular, gave them rise. The first was, the 
 want, in many insf,ine< is, of a indie!,, I pro less to enforce the performance, or to 
 recover satisfaction for the non performance, of 'sev rat Obligations arising in cases 
 of trust, which were supposed, (and certainly in - im oases with reason), to be 
 founlel on thecom:n m rules of natural morality and justice; but which, being 
 unassisted by the common law, often depended for their effect on the conscience, 
 or honour ouly of a person, whose interest it was to leave them unperformed. 
 Thus, in the case of real property, (to which these annotations are naturally 
 confined), the transfer of Ian 1, in the simplicity of the common law, commenced 
 
 and
 
 290. b.] Of Eeleases. L. 3. C. 8. Sect, 504 
 
 And it is to be observed, that the words of the said act of 13 
 Eliz. are, Be it therefore declared, ordained and enacted: and 
 therefore like cases in semblable mischiefe shall be taken within 
 the remedy of this act, by reason of this word [declared) ; where- 
 by it appeareth what the law was before the making of this act. 
 But let us now returne to Littleton. 
 
 " Fieri 
 
 and terminated in the single fact of the transfer. Of the contract to make it, 
 of an agreement to hold the lands, or apply the profits of them, for a particular 
 purpose, the law took no notice. The parties, therefore, beneficially interestir 
 in the performance of any such contract or agreement, were either without any, 
 or without an adequate remedy. Yet, in all these cases, a duty was considered 
 to arise, which, though either wholly unnoticed, or, at most, imperfectly noticed, 
 by law, was felt, and admitted by all, to be honourable, a moral, and a con- 
 scientious obligation. Cases of a similar description frequently arose. In all 
 of them a right was thought to exist, for which the courts of law had provided, 
 and for which, the feudal policy could from its nature provide no sufficient 
 remedy. — For this grievance, the courts of common law affording either no 
 redress, or an insufficient redress, a remedy was necessarily sought from an- 
 other hand, and a resort to the chancellor, was, from the peculiar nature of his 
 office, his character and habits, extremely natural. 
 
 I. 2. This natural resort to chancery for redress in cases of trusts, may be 
 considered, as the other principal circumstance, to which they owe their rise. 
 — A description of persons, probably in a subordinate rank of life, was known 
 in the Roman law, by the appellation of Cancellarii, as early as the period of 
 the first Caesars. — In the Byzantine court, the chancellor was an officer of the 
 highest distinction. In the courts of the emperors of the West, and almost in 
 all the sovereignties, into which that empire broke, upon its fall, mention is 
 made of an officer of the same name and character. An officer, of the same 
 description, (but in the early times, often found under the appellation of the 
 Referendary,) occurs in the historical monuments of almost every country in 
 Europe, where the feudal polity has prevailed. It was so much considered 
 an appendage of sovereignty, that, after the usurpation of the vassals, every 
 noble who pretended to sovereign power, appears to have had his chancellor. 
 To this, the actual chancellors of bishops and palatines probably owe their 
 origin. See Gothof red's Notes ad Leg. 3. de Asses, of the Codex Theodosianus, 
 and the edition, by the Maurist monks of Du Cange, art. Cancellarius. With 
 respect to our own country, — in Hob. G3. it is observed, that the court of 
 chancery is as ancient as the kingdom itselfe. Lord Coke, 4 Inst. 78. maintains, 
 that the British and Saxon kings had their chancellors and courts of chancery. 
 — Mr. Selden, Off. Can. sect. 1. says, the first authentic mention of a chan- 
 cellor is of the year 920, and that, many of the Saxon lineage, before the 
 Conquest, had their chancellors. With us, as in almost every other country, 
 whose jurisprudence is of feudal extraction, the office of chancellor originally 
 was, to supervise all public instruments, which had the king's signature, to 
 keep them in his custody, and, after the custom of sealing deeds came in use, 
 to have the charge of the king's official seal. 3 Blackst. Com. c. 4. s. 8. — To 
 administer justice has always been an appendage of royalty. This was the 
 case in the feudal system, on principles peculiar to itself. There, the military 
 command, and the administration of justice in the feud, were always united 
 in the same person, and extended over the same territory. But subordination 
 and habits of obedience were often wanting in the feud. From the boisterous 
 spirit of that government, it must frequently have happened, that the judicial 
 sentences of the courts would fail of effect, if they were not actually executed 
 by the military power : — the military power was under the direction of the 
 
 chief:
 
 L. 3. C. 8. Sect. 504. Of Releases. [290. b. 
 
 " Fieri facias." This is a writ mentioned in the said statute, w - 2. Cap. 18. 
 but is a writ of execution at the common law. And it is called 
 •a fieri facias, because the words of the writ directed to the sherife 
 be, quod fieri facias de bonis & catqJUs, dx. and of those words 
 the writ taketh its denomination. 
 
 But note, that a capias ad satisfaciendum is not mentioned in 
 
 the 
 
 chief: — to him, therefore, for his military aid, wherever the party had to con- 
 tend with a powerful adversary, it was necessary to recur, in order to secure 
 the effect of a judicial sentence. This was actually purchased by fines, and 
 became one of the most splendid and lucrative prerogatives of sovereignty. 
 The crown was always attentive to secure to itself the exclusive use of it. 
 This was principally affected by its assuming an exclusive right of issuing the 
 writ, which, from its being the beginning or foundation of the suit, is called 
 the original writ. This answered the double purpose of showing, that all 
 power of judicature originated with the king, and of securing to him the proper 
 fines. See Gilbert's Forum Komanum, p. 10, and Phillips on Fines for Ori- 
 ginal Writs. This original writ is a mandatory letter from the king on parch- 
 ment, sealed with his great seal, directed to the sheriff* of the county where 
 the injury is committed or supposed to be committed requiring him to com- 
 mand the wrong-doer or party accused, either to do justice to the complainant, 
 or else to appear in court, and answer the acquisition against him. 3 Blackst. 
 Com'. 8th ed. p. 273. In the early period of our law, injuries, which were the 
 subject of judiciall process, were few, and being few, were well known. In 
 the course of time, the forms of injuries were multiplied, and new writs, of 
 course, became necessary. Where this was the case, it was usual to petition 
 parliament, and proper remedies were given for the peculiar cases ; but these 
 petitions multiplying, it was enacted, by the statute of Westminster 2, 13 Edw. 
 1. c. 24, that, where, in one case, a writ should be found in the chancery, and 
 in a like case, falling under the same right, and requiring like remedy, no pre- 
 cedent of a writ could be produced, the clerks in chancery should form a new 
 one. This act, undoubtedly, gave the chancellor a great degree of power, and 
 in the exercise of it he usurped such an extent of remedial authority, that, to 
 use Mr. Ileeve's expression (History of the Engl. Law, 8vo. edit. fo. 191.) 
 every sort of relief seemed within his jurisdiction. It must be added, that, as 
 the chancellor was generally an ecclesiastic, every species of injury arising 
 from a supposed breach of a religious, a moral, or a conscientious obligation, 
 seemed properly to fall within his cognizance. — Such was the office of chancel- 
 lor, and such the character of the persons, by whom it was generally filled, 
 about that period of time, when the injuries Ave have been speaking of may 
 be supposed to have become frequent. To the chancellor, therefore, in cases of 
 this description, it was natural to have recourse. 
 
 I. 3. Still, however, while he confined himself to the forming of new writs, 
 his proceedings must fail of effect, as the utmost he could do, was to send the 
 parties to the courts of law, where, as those courts could not take cognizance 
 of the supposed injury, it was vain to send them. He did not, therefore, rest 
 here; but introduced a new judicial power into the jurisprudence <f England, 
 by the invention, or rather by a new application, of the writ of subpoena. This 
 writ compelled the party to appear in court; a petition was, thereupon, lodged, 
 in chancery, containing the articles, to which he was obliged to answer upon 
 oath. In the case, therefore, of a trust, the party was obliged to disclose it, 
 and the court then decreed him to carry it into execution. This gave rise, or 
 at least, stability, to equitable estates. Nothing could be more contrary than 
 estates of this description to the genius of the feudal law. Hence they fre- 
 quently were a subject of complaint; and the statute of uses, evidently, was 
 
 intended
 
 290. b.J Of Keleases. L. 3. C. 8. Sect. 504. 
 
 the said statute, because no capias ad satisfac' did lye at the 
 common law upon a judgement for debt, &c. or damages, but 
 only when the originall action was qua re vi & armis, &c. But 
 latter statutes have given a capias ad satisfac' where debt, &c. 
 [m] Lib. 3. fol. or damages are recovered ; as it appeareth at large [wi] in Sir 
 ll. Sir William William Herbert's case, whereunto I referre the reader. 
 
 Ili'i-bert s case. 
 
 (Hob. 283.) (F. N. B. 104.) 
 
 And 
 
 intended to extirpate them entirely. They have, however, been preserved. 
 The consequence has been, that, though they were, originally, a fraud upon 
 tenure; though, in every stage of their progress, they were a subject of alarm 
 and jealousy ; though their existence is a direct violation of the statute of 
 uses, and though the courts of law profess, in most eases, (if the expression may 
 be allowed), legal ignorance even of their existence, still they form a con- 
 siderable part of the jurisprudence of the country; they affect and regulate, 
 directly or indirectly, almost all the real, and a great portion of the personal 
 property of the kingdom ; they have a j udieature, and a forme of process, of 
 their own ; and these, in many instances, control even the courts of law. 
 
 II. The 27 Hen. 8. cap. 10. provided, that the use and possession should 
 always be united; by declaring, that, "When any person shall be seised of 
 " lands, &c. to the use, confidence, or trust, of any other person or body politic, 
 " the person or corporation entitled to the use in fee simple, fee tail, for life, 
 " or years, or otherwise, shall from thenceforth stand and be seised or pos- 
 " sessed of the land, &c. of and in the like estates as they have in the use, 
 " trust, or confidence ; and that the estate of the person so seised to uses shall 
 " be deemed to be in him or them that have the use, in such quality, manner, 
 "form, and condition, as they had before in the use." But, notwithstanding 
 this statute, there are three ways of creating a use or trust, which still remain 
 as at common law ; and this use or trust is a creature of the courts of equity, 
 and subject only to their direction. First, where a man seised in fee, raises 
 a term of years, and limits it in trust for A. &c. this the statute cannot exe- 
 cute, the termor not being seised. 2dly. Where lands are limited to' the use 
 of A. in trust to permit B. to receive the rents and profits, for the statute can 
 only execute the first use. Sdly, Where lands are limited to trustees, to 
 receive and pay over the rents and profits to such and such persons, for here 
 the lands must remain in them to answer those purposes ; and these points 
 were agreed to in Trinity term 1700, per curiam, in Simpson v. Turner, 1 Eq. 
 Ca. Abr. 220. 
 
 III. The best definition of a trust in equity is that which is given by the 
 old writers, of an use at common law; viz. "A confidence which is not 
 " issuing out of the land, but a thing collateral, annexed in privity to the estate 
 "and to the person touching the land, scil. that cestui/ que use shall take the 
 " profits, and that the terre tenant shall make estates according to his direction." 
 These are the words used in Chudleigh's case, 1st Hep 121. a. b. for the defi- 
 nition of an use. Thus he, who hath a trust, hath neither jus in re nor jus 
 ad rem; but only a confidence and trust, for which he hath no remedy at the 
 common law, but only a remedy by a subpoena in chancery. This is the import- 
 ant distinction between trusts and commons, rents, ami such like hereditaments. 
 These follow the lands, into all the hands to which they come ; so that, if a person 
 is deforced, still the land in the hands of the deforceoris subject to the nut, or 
 common, with which the land is charged. But, generally speaking, it is other- 
 wise with respect to a trust, unless the estate of the deforceor, from his having 
 
 notice
 
 L. 3. C. 8. Sect. 504:. Of Releases. [290. b. 
 
 And it is to be observed, that these three writs of execution 
 ought to be sued out within the yeare and the day after judge- 
 ment; but if the plaintife sueth out any of them within the yeare, 
 he may continue the same after the yeare until he hath execu- 
 tion. And to none of these writs of executions the defendant 
 can pleade ; but if he hath any matter since the judgement to 
 
 discharge 
 
 notice of the trust, or upon some other ground, is, in the consideration of a 
 court of equity, considered as charged with the trust. 
 
 IV. This doctrine is considered as particularly important, in its influence 
 on limitations to Trustee* for preserving Contingent Remainders, and as it is 
 the foundation of the doctrines of equity on cases arising from the destruc- 
 tion of those remainders by the trustees. This was discussed at great length 
 iu Chudleigh's case, 1 Rep. 120. a. The doctrine laid down in that case, with 
 respect to the destruction of contingent uses at common law, appears to be, that, 
 to the standing seised of an use at common law, two things were necessary; 
 one, that the estate upon which the uses were declared should subsist; this 
 was called privity of estate : the other, that the party so standing seised should 
 have notice of the use ; this was called privity to the person. If either of these 
 failed, the use was gone. Whenever, therefore, a person seised of a life estate 
 in possession, in trust for another, conveyed by fine, feoffment, or recovery,_tke 
 person taking under that conveyance, acquired, in consequence of the forcible 
 nature of those modes of conveyance, a new estate, and thereby the privity of 
 estate was necessarily lost. But, if a person having a fee, conveyed that fee, 
 then the privity of estate remained. Still, if the grantee had not notice of the 
 trust, the privity to the person was gone. In the latter instance, however, this 
 important distinction was made, that, if the grantee was not a purchaser for a 
 valuable consideration, the law implied notice ; that is, presumed him to be 
 acquainted with the use ; this continued the privity to the person. Thus stood 
 the doctrine of the destruction of contingent remainders at the common law. 
 The statute of uses made no difference, as to the legal consequences of this 
 doctrine, in those cases where the trustee had an estate for life only. If he 
 conveyed by fine, feoffment, or recovery, the grantee necessarily took an estate 
 in fee simple. This, as was observed before, was a new estate. Privity in 
 estate therefore failed. But in those cases, where the whole fee was conveyed 
 to the trustees to several uses in strict settlement, it was executed in the 
 cestuys que use ; and then, where no use was limited to the trustees themselves, 
 nothing remained in them, so that, in this respect, there was no difference 
 between them and strangers to the deed. An actual estate might, however, 
 be limited to them. Of this practitioners availed themselves, to support con- 
 tingent remainders, and prevent their being destroyed. This gave rise to the 
 limitation, now so frequently inserted in wills and settlements, of an estate to 
 trustees for preserving contingent remainders. 
 
 V. To present this pointedly to the reader's observation, it may be useful 
 to state succinctly THE GRADUA L PROGRESS OF SETTLEMENTS. 
 
 V. 1. The first attempt at a settlement appears to be the creation of an estate 
 in fee simple conditional. This had two effects, that of suspending the absolute 
 power of alienation, till the birth of issue, and that of preserving the inheritance 
 in a particular line of succession, so as to make it devolve through a particular 
 line of heirs, in exclusion of others. Bracton mentions, lib. 18. that, by this 
 mode of limitation, the estate might be settled by a person, on his eldest son 
 and the heirs of his body, — and if he had no heirs, or haying heirs, if they 
 afterwards failed, then to his second son and the heirs of his body, with like 
 
 limitations
 
 290. b.J Of Releases. L. 3. C. 8. Sect, 504. 
 
 discharge him of execution, he may have an audita querela, and 
 relieve himselfe that way, but pleade he cannot. As if the 
 plaintife after release unto the defendant all executions, yet in 
 none of these three writs he shall pleade it, but is driven to his 
 audita querela, as hath been said. 
 
 limitations to his other sons successively and their respective issue; and in 
 default of all these, to the party himself and his heirs. This appears the most 
 extended and complicated plan of settlement, which could be effected through 
 the medium of this mode of limitations. 
 
 V. 2. Then came the statute ele donis conditionalibw. That statute took 
 away the power of alienation of the tenants in fee simple conditional, and 
 thereby preserved the fee to the issue, and the reversion to the donor. This 
 naturally gave rise to the complex modification of property, to which the rever- 
 sion of an estate, out of which an estate tail is first carved, is now subject. 
 By this mode of settlement land was at once completely taken out of commerce 
 and involved in the intricate fetters of multiplied entails. This may be consi- 
 dered as the second stage of settlements. 
 
 V. 3. But entails were again subjected to the alienation of the tenant in tail 
 by the introduction of common recoveries, about the reign of Ed. 4. and the 
 introduction of fines by the statute of 4 H. 7. To prevent this, in some mea- 
 sure, women seised of estates tail of the gift of their husbands, were prohibited 
 by the 11 H. 7. c. 20. from alienating these estates. To bring their estates 
 within the protection of this statute, it became usual to limit the husband's 
 estates, to the husband and wife, and the heirs of the body of the wife by the 
 husband. The consequence of this was, that the estate was secured to the 
 parents during their lives, and was secured to the issue against the act of either 
 parent. Nothing short of the concurrent act of both parents could deprive the 
 issue of the estate. A more rational system of settlement, (particularly after 
 the statute of the 32 H. 8. c. 27. had enabled tenants in tail to lease), could 
 not perhaps be devised. The estate might be limited to the male or the female 
 line, at the pleasure of the parties. It was protected against the caprice or 
 extravagance of one of the parties, so long as the other refused to co-operate 
 in unfettering the entail, while there was a provision for unforeseen events, by 
 their co-operation during their joint lives ; and during the life of the surviving 
 parent, the same effects might be produced by the co-operation of that parent 
 and the issue; and after the decease of both parents the estate was restored to 
 the issue, with a complete power of alienatiug it. It may be a question whe- 
 ther, even now, this mode of settlement be not the most proper for all those 
 cases, where, by reason of the smallness of the property, or any other circum- 
 stance, the intricate system of settlement, now in use, is not proper. This 
 may be described as the third staye of settlements. 
 
 V. 4. A fourth was effected by limiting life estates to the parents, with 
 remainders to their unborn children by purchase. This was introduced, soon 
 after it was discovered how completely estates tail of every description were 
 subject to the alienation of the tenant in tail by fine or recovery. But it did 
 not soon become general. It was obvious, that, in every case, where the parent 
 was himselfe the immediate reversioner, and in every case, where the parent 
 not being the immediate reversioner, could procure the concurrence of the 
 immediate reversioner, the unborn children were at the mercy of the parent. 
 This gave rise to the introduction of trustees for preserving contingent remain- 
 ders. This limitation is supposed to have been first discovered and introduced 
 into practice by sir Orland Bridgman, during the time of the Usurpation. 
 Whatever doubts may formerly have been entertained on this head, it is 
 now settled beyond the reach of controversy, that, under a limitation of this 
 
 description,
 
 L. 3. C. 8. Sect, 504. Of Releases. [290b. 
 
 description, the trustees take a vested estate of freehold. The interposition of 
 this estate prevents the tenant for life from surrendering to him in the revi- 
 sion, and if he aliens his estate by any of those modes of conveyance, which 
 would otherwise destroy the contingent remainders, and by a neceesary conse- 
 quence, be a forfeiture of the estate, it authorizes the trustees to enter for the 
 forfeiture. This, to use oue of the explanatory expressions inserted in these 
 limitations, " prevents the contingent remainders from being defeated or 
 destroyed." — Such are the circumstances which appear to have given rise to 
 this most frequent and important limitation, and the effects it produced; and 
 thus it stands with respect to the alienation of the tenant for life without the 
 concurrence or co-operation of the trustees. With respect to those cases, 
 where the trustees co-operate in the alienation, it is obvious the estate of these 
 trustees is that which we have before mentioned, of a person seised of a life 
 estate in trust for another; and conformably to what we have before observed 
 upon the alienation of a person so seised, his fine, feoffment, or common reco- 
 very acquires him an estate by disseisin, and vests the estate so acquired by 
 him in the purchaser. Here then the privity of estate fails: but courts of 
 equity again interfere. This alienation of the trustees is evidently a breach of 
 their trust. If, therefore, the conveyance be without consideration, and with- 
 out express notice, the court implies notice. If it be with notice, then, whether 
 with or without consideration, the courts make the purchaser hold the lands 
 upon the trusts to which they were subject in the hands of the trustees. But 
 if the conveyance is for a valuable consideration, and without notice, then the. 
 courts punish the breach of trust, by decreeing them to purchase lands of equal 
 value to those, of which, by their breach of trust, they have deprived the par- 
 ties, and to settle them to the uses and upon the trusts of the lands conveyed. 
 See Mansel v. Mansel, 2 Peere Will. G78. Pye v. Gorge, 1 P. Wms. 128. 
 Moody v. Walters, 16 Ves. 283. and Mr. Fearne's Essay on Contingent 
 Remainders, 6 ed. 326, &c. It only remains to observe, that, though 
 the destruction of contingent remainders by the trustee is punished in the 
 manuer we have mentioned; still, where there is a bare tenant for life for his 
 own benefit, with remainders over in contingency, if he destroy the contingent 
 remainders, it is no breach of trust, for where there is no trust there cannot 
 be a breach of trust; there is no ground consequently for a court of equity to 
 interfere in that case. It is therefore left to its legal consequences. Titles 
 however depending on the validity of an act of this nature can never be recom- 
 mended. The power of tenant for life to destroy contingent remainders is 
 strictissimi juris. It certainly therefore can never expect favour, — or any 
 thing beyond mere support. In Roake v. Kidd, 5 Ves. 647. lord Eldon 
 appears to have intimated a doubt, whether a court would compel a purchaser 
 to accept a title depending on the destruction of contingent remainders. It is 
 to be observed, that it has not yet been decided, whether a legal estate of 
 freehold created by one deed, will support contingent remainders created by 
 another. The prevailing opinion appears to be, that, if ever this point should 
 come before a court, the decision will be for the affirmative. It sometimes 
 happens that contingent remainders are limited to the sons of a person who has 
 himself no life estate. When this is done, it is proper to direct in what man- 
 ner the rent shall be applied, during the suspense of a contingent remainder, 
 and the vacancy of a person beneficially entitled. This may be done by 
 directing the trustees, during the vacancy or suspense, to pay the rents to the 
 porsons°next entitled for the time being, under the uses or trusts of the instru- 
 ment, to a vested remainder in the estates, but without prejudice to the estate 
 of the children afterwards coming in existence. If no such direction is given, 
 the settler and his heirs would probably be considered as entitled to the then 
 intermediate profits, as an undisposed part of the inheritance. 
 
 V. 5. The fifth and ultimate stage of settlements appears to have been effected, 
 by the introduction of powers under the statute of uses. By these, as complete a 
 
 dominion
 
 290. b.] Of Releases. L. 3. C. 8. Sect. 504. 
 
 dominion over the property which is the subject of the settlement is given, to 
 the party and his trustees, as if it were not the subject of settlement; at the 
 simc time that the property or its value is completely secured to the parties, 
 to their issue, and to all other claimants. Considered in this point of view, the 
 plan and effects of a marriage settlement, as such settlements are now usually 
 framed in England, are very striking; and will bear a comparison with the 
 marriage contracts of any other country. These, generally speaking, either 
 fetter the property so much as to take it entirely out of commerce, as is done 
 by the tailzies of Scotland with irritant am/ resolutive clauses, or like their 
 settlements of what is called, simple destination, leave it so much under the 
 control and direction of the parents, as to give little security for its safe trans- 
 mission to the issue. 
 
 VI. TRUSTEES EITHER ARE SUCH, BY THE EXPRESS OR 
 IMPLIED DECLARATION OF THE PARTY, OR ARE MADE 
 SUCH BY A COURT OF EQUITY.— In a court of equity it is sufficient 
 that the trust appears; and if the party creating the trust has not appointed his 
 own trustee, the court of equity will follow the legal estate, and decree the per- 
 son in whom it is vested to execute the trust. See ant. 113, note 2, it being a 
 rule which admits of no exception, that a court of equity never wants a trustee. 
 
 VII. ANOTHER RILE WHICH ADMITS OF NO EXCEPTION IS 
 Til A T EQ UITYA CTS UPON THE PERSON AND NO T UPON THE 
 THING. The consequence is, that, if the estate, of which the party is actually 
 seised, is not commensurate to the trust, equity cannot enlarge it. Supposing 
 therefore A. to be seised of an estate in fee simple, in trust for B. and his heirs, 
 and that A. conveys the legal estate to the use of C. for life, with remainders 
 over; C. and the remainder-men would be trustees for B. ; and B. being entitled 
 to the whole equitable fee, would be entitled to a conveyance of it to him. If, 
 therefore, the modifications of the legal estate be such, as enable parties to con- 
 vey the fee, a conveyance must be made by the same means as if it were a con- 
 veyance for a valuable consideration. Consequently, if any of the parties should 
 be seised in tail, a fine, or recovery, as the case happens, would be necessary; 
 and if the tenant in tail should happen to be an infant, the infant cannot convey 
 without levying a fine or suffering a recovery. The stat. 7 Ann. chap. 19. au- 
 thorizes infants to convey in the manner therein mentioned, under the direction 
 of the court of chancery. This has been held to extend to the levying fines 
 and suffering recoveries, where the nature of their estates have required these 
 assurances, to perfect the conveyances. See 3 Atkyns, 164. 479. and 559. 
 Com. Rep. G15. Barnes, 217. But sometimes the modifications of the legal 
 estate ara such, that even fines and recoveries are not sufficient to convey a 
 fee. Iu this case application to parliament is necessary. In the case, sug- 
 gested in the preceding part of this annotation, the whole fee simple, on which 
 the trust was supposed to be ingrafted, is considered to have been originally 
 vested in the trustees, and to have been modified by them into uses in strict 
 settlement: but, it sometimes happens, that the laud is originally limited to the 
 use of trustees, in tail, or even for life, with remainders over iu strict settlement, 
 and trusts are declared of these uses. As where land is limited to the use of 
 A. and the heirs of his body, in trust for I. S. and the heirs of his body; or, 
 where land is limited to the use of A. B. during their joint lives, and after 
 the decease of such one of them as shall first depart this life, to the use of the 
 survivor and his heirs, in trust for I. S. and the heirs of his body. Instances of 
 such limitations and trusts have occurred in practice. As, in these cases, the 
 legal estate is not commensurate with the trust charged upon it, practitioners 
 have doubted whether I. S. has, in such, that kind of actual equitable estate 
 tail, which enables him to acquire the fee simple of the land by a recovery. 
 The case is evidently near, when the seisin to the uses is more limited, than the 
 
 uses
 
 L. 3. C. 8. Sect. 504. Of Releases. [290. b. 
 
 uses declared of it. As, where a feoffment is made to A. and the heirs of his 
 body, to the use of I. S. and the heirs of his body, or to A. and B. during 
 their joint lives, and after the decease of such one of them as shall first depart 
 this life, to the survivor of them and the heirs of the survivor, to the use of 7". 
 S. and the heirs of his body. On all these cases, a judicial determination is 
 wanting. 
 
 VIII. It is sometimes doubtful, WHETHER AN ESTATE BE LEGAL 
 OR EQUITABLE. The leading authorities upon this point, are, Burchett 
 v. Durdant, 2 Vent, 312. Broughton v. Langley, 2 Sulk. 679. Simson v. 
 Turner, 1st Equity Cas. Abr. 383. Lady Jones v. Lord Say and Sele, 8 Vin. 
 2(52, Silvester d. Law v. Wilson, 2 Term Hep. 444. and Thong r. Bedford, 1 
 Bro. Cha. Cases, 313. The result of these cases seems to be, 1st, That a de- 
 vise to A. and his heirs, in trust for B. and his heirs, without auy ulterior 
 words, is an use executed by the statute in B. — 2dly, That the construction 
 would be the same, if lands were devised to A. and his heirs, in trust to permit 
 B. and his heirs to receive the rents and profits. — 3dly, That a devise to A. 
 and his heirs, with directions to dispose of the estate, or of the rents in such a 
 manner as necessarily requires the legal estate should reside in him, will of 
 course vest the legal estate in him. — 4thly, That a mere devise to A. and his 
 heirs, upon trust to receive the rents and pay them over to B. should give the 
 legal estate to A. To this the case of Silvester v. Wilson nearly approaches. 
 — 5thly, That, where an estate is given to A. and his heirs, upon trust to dis- 
 pose of the rents in a particular manner during the life of B. and after the 
 decease of B. to stand seised of the lands to the uses therein mentioned; there, 
 as the nature of the trust docs not require that the legal estate shall reside in 
 A. for a longer term than the life of B. the court will not consider the use to 
 be executed in him for a longer term than the life of B. ; but will consider the 
 use as executed in the trustee during the life of B. and afterwards in the cestui/ 
 que use. Lord Say and Sele v. Lady Jones, 3 Bro. Par. Ca. 458. Pincke v. 
 Curteis, 4 Bro. Ch. Ca. 329. — 6thly, And that, where there is a limitation to 
 one for life, remainder to trustees and their heirs for preserving contingent 
 remainders, and the estate of the trustees is not restrained to the life of the 
 tenant for life : in a deed the trustees would certainly be considered as taking 
 the whole fee: but that, in a will as the nature of their trust requires that they 
 should take the legal estate only during the life of the tenant for life, and the 
 subsequent devise is generally introduced by the words, " and after the death 
 " of the tenant for life," there seems reason to contend, they should be con- 
 sidered as taking the legal estate for the period of his life only ; that being evi- 
 dently the testator's intention, which in wills has so powerful an operation in 
 controlling the legal operation of the words. See Shapland v. Smith, 1 Bro. 
 Ch. Ca. 75. and Boteler v. Allington, ibid. 72. 
 
 IX. There is a distinction bet ween powers and trusts. Devises are sometimes 
 framed in such a manner, as to make it uncertain whether the legal estate is 
 vested by them, in the trustees, upon trust to dispose of it according to the 
 directions of the testator, or whether the legal estate is suffered to descend 
 upon the heir at law, or is devised to others, with a power to the persons men- 
 tioned for that purpose by the testator, to dispose of it. This is very import- 
 ant, and sometimes not clearly to be ascertained. See ante, fo. 113. a. 
 note 2. on the devise of an estate to be sold by executors where it vests the 
 estate in the executors, and where it merely gives a power to sell it. It is 
 observable that where there is a devise to executors to sell, the statute of 
 21 H. 8. makes it lawful for one of the executors to sell without the other ; 
 and in Bonifaut v. Greenfield, Cro. Eliz. 80. it was decided, that, this statute 
 extends equally to those cases, where the legal estate is devised to the exe- 
 cutors, as to those, where a mere power is given to sell. But the taking of the 
 
 conveyance
 
 290. 1).] Of Releases. L. 3. C. 8. Sect. 504. 
 
 conveyance from one executor only, is liable to objections. One is, that the 
 other executor may have previously sold ; in which case the first vendee would 
 be preferred. The other arises, where the will expressly requires that all the 
 trustees should join in the receipt for the purchase money. 
 
 X. By the stat 29 Cha. 2. cap. 3. sect. 8. it is provided, " That all declara- 
 11 tions and creations of trust in lands or hereditaments must be in writing, 
 11 signed by the party, or by his last will in writing, or else void, except trusts 
 " arising by implication of law, and transferred and extinguished byacts of law." 
 A person purchasing land in the name of another, has always been held to be 
 within this description But it has also been held, that this implied trust may 
 be rebutted by circumstances in evidence; and therefore, where a father has 
 purchased in the naino of a son, or a grandfather in the name of a grandson, it 
 has often been held to be intended as an advancement for the son or grandson, 
 and not as a trust for the purchaser. This construction of trusts by a court of 
 equity, is conformable to the construction of uses by the courts of law. There, 
 a feoffment without consideration, when no use was declared, was always held 
 to operate to the use of the feoffor. But when it was to a son or grandson, 
 the consideration of blood intervened, and it was held to operate to the use of 
 the son or grandson. This doctrine is often resorted to in the case of grants 
 of copyholds where the son of a grantee is a nominee. There the implication 
 in favour of the son is not so strong, as there is a necessity of mentioning some 
 life, for the purpose of filling up the estate. Yet in these cases, with some excep- 
 tions, (see particularly Lane v. Dighton, Amb. 409.) it is considered so far an 
 advancement for the child, that it is incumbent on the person claiming against 
 the child to show that it was not so intended. In the case of Dyer and Dyer, 
 heard in the exchequer, Nov. 20, 21, and 27, 1788, this doctrine was very fully 
 entered into, and explained with the greatest learning and perspicuity, by the 
 then chief baron Eyre. Watkins on Copyholds, 210. 
 
 XI. The favour which is shown to old tenants, by granting them a renewal 
 of their leases, preferably to a stranger, has given them, in the eye of the law, 
 an interest beyond their subsisting term; and this interest is generally termed 
 their tenant right of renewal. This is particularly applicable to leases from the 
 crown, from the church, from colleges, or from other corporations. In these 
 cases, it often happens, that the situation of the parties is such, that there are 
 successive renewals of the lease, or successive enlargements of it by reversionary 
 grants. On one hand, the property is more valuable to tire actual tenant than 
 any other person ; he can therefore afford to pay more for the renewal than 
 another. On the other hand, there is a natural partiality in the lessors to the 
 present tenants, particularly if they, or the persons under whom they claim, 
 have long been tenants of the land in question. These circumstances have 
 produced what is called tenant right. Attempts have been made to establish 
 an obligation in landlords to renew, but they have not succeeded. The renewal, 
 therefore, is still a matter of favour and of chance ; but is so far valuable, that 
 it enhances the price of the property on sales ; provisions for renewal are in- 
 serted in mortgages and settlements ; and the right of parties to this chance of 
 renewal is guarded by courts of equity. In mortgages of this species of pro- 
 perty, where this chance of renewal exists, there should always be inserted in 
 the mortgage deed a covenant from the mortgagor for the renewal of the lease, 
 and for vesting such new lease in the mortgagee : with an agreement, that, if the 
 mortgagor neglects to renew, it shall be lawful for the mortgagee to renew, and 
 that the fine and expenses of renewal shall be a charge upon the premises, and 
 bear interest. In settlements also, there should be a power authorizing the 
 trustees, from time to time, to renew the leases, and for that purpose to raise 
 money by mortgage. But particular care should be taken to insert, in all settle- 
 ments of this nature, such provisions, as will free the trustees from personal 
 
 liability,
 
 L. 3. C. 8. Sect, 504. Of Releases. [290. h. 
 
 liability, for an omission to renew, unlesse it happens by a denned neglect or 
 default; as, without such a provision, the trustees will be considered answer- 
 able for it, as for a breach of trust. Lord Montfort v. Lord Cadogan, 17 Ves. 
 485. 
 
 Where such provisions are not introduced, an opinion prevailed, in conse- 
 quence of what was reported to have been said by Lord Hardwicke, in Verney 
 n. Verney, Amb. 88. that the tenant for life should pay one third of the fine 
 and the other charges attending the renewal, or keep down the interest of them, 
 and the residue paid by the person in remainder : but it now appears to be set- 
 tled that the tenant for life must contribute beyond the interest, in the propor- 
 tion to the benefit he takes. Nightingale v. Lawson, 1 Bro. Ch. C. 440. and 
 White v. White, 4 Ves. 33. 9 Ves. 554. 
 
 As to the protection afforded by the courts of equity to persons entitled to 
 this tenant right, courts of equity have so far recognized the tenant right to be 
 a real benefit, and as such entitled to their protection, as to decree, that, new 
 or reversionary leases (gained by undue means or suppression of the tenant 
 right of renewal), should be for the benefit of the persons interested in the 
 ancient leases ; and consequently, that those, who obtain such new leases, and 
 were thereby legally possessed of them, should be trustees for that purpose. 
 The cases on this head may be divided into three classes. The first, — where 
 the renewal has been obtained by persons having no beneficial interest in the 
 old lease, and no connection with the lessee, and has been obtained by a sug- 
 gestion of what was false, or a suppression of what was true. The second, — 
 where the parties obtaining the renewal have no beneficial interest, but are 
 connected with the old lessee, as guardians, trustees, or executors. The third, — 
 where the persons renewing have only partial and limited interests, as tenants 
 for life, mortgagors or mortgagees. In all these cases, the parties renewing 
 have been uniformly declared trustees for the persons beneficially interested, in 
 the ancient lease, either wholly or in part, according to the particular circum- 
 stances of. the case ; the court pi-esuming that the new lease was obtained by 
 means of the connection with or reference to the interest in the ancient lease. 
 The cases on the doctrine of the tenant right of renewal are numerous. One 
 of the most important of them is that of Rawe v. Chichester, Amb. 715. 
 Another very important case on this learning, is that of Lee v . lord Vernon, 
 heard on appeal to the house of lords, 11 May 1776, 7 Bro. Par. Ca. 432. 
 
 XII. It frequently happens, that, where a real estate is limited in strict settle- 
 ment, and a leasehold for years or other personal estate is intended to be settled 
 upon corresponding trusts, — the settlement is made by assigning the leasehold 
 estate to trustees, and declaring they shall stand possessed of it, upon such 
 trusts as are previously declared of the real estate, or as near thereto as may 
 be, or as the rules of law and equity will permit. This should never be done. 
 The nature of real and personal estate is so different, as to make it almost im- 
 practicable to frame such a set of trusts as will in every possible event, or even 
 in the common contingencies, carry the personal estate in the same course of 
 devolution as that, in which a real estate, proposed to be strictly entailed, is 
 usually settled ; and the modes of doing it are so various, that hardly two pro- 
 fessional men would agree upon the same plan. The best method, therefore, 
 is, to insert a complete set of limitations for the personal estate. If, however, 
 from the smallness of the property, it is thought advisable to do it by way of 
 reference to the limitations of the real estate, a declaration may be inserted, 
 expressing that the leasehold or personal estate shall not vest absolutely in any 
 tenant in tail taking by purchase, who shall not attain the age of 21 years; 
 with a proviso, that, after the decease of the preceding tenant for life, such 
 infant tenant in tail for the time being shall during his minority be entitled to 
 the rents and interest. The nature of leasehold for lives is much more analo- 
 gous to that of estates of inheritance; and therefore, generally speaking, may 
 
 be
 
 290. b.] Of Releases. L. 3. C. 8. Sect. 504. 
 
 be settled by reference to previous limitations of the fee simple estate. The 
 short mode of reference may be used in the power of sale usually inserted in 
 settlements, where the parties are authorized by it to purchase leaseholds for 
 years. See Foley v. Burnell, 1 Bro. Cha. Cases, '274 ; — and D. of Newcastle 
 v. Lady Lincoln, 3 Ves. jun. 387. 
 
 XIII. It was observed before, that one of the principal objects of the legis- 
 lature, in passing the statute of uses, was to restore, in some measure, the no- 
 toriety of the old common law conveyances; but that their views, in this 
 respect, were almost totally defeated, by the introduction of conveyances by 
 lease and release, and by the preservation of uses, under the appellation of 
 trusts The legislature has, at different times, made attempts to remedy the 
 mischief arising from the secret transfer of property to which this statute has 
 given rise. 
 
 Among these attempts may be reckoned the statutes against fraudulent con- 
 veyances and devises, 13 Eliz. c. 5. 27 Eliz. c. 4. and 3 W. & M. c. 14. but 
 particularly the statute of 29 Car. 2. c. 3. commonly called the Statute of 
 Frauds and Perjuries, which provides against conveying any lands or heredita- 
 ments for more than three years, or declaring trusts of them, otherwise than 
 by writing. See ant. 48. a. note 3. 
 
 With the same views have been passed the acts for registering deeds respect- 
 ing lands in the West, East, and North Ridings of the county of York, and in 
 the county of Middlesex. — 2 & 3 Ann. c. 4. 6 Ann. c. 35. 7 Ann. c. 20. and 
 8 Geo. 2. c. 6. 
 
 In the construction of the 29 Cha. 2. c. 9. the courts have decided, that it 
 was made with a design to prevent, either in marriage or in any other treaties, 
 uncertainty, perjury, and contrariety of evidence; the cases not liable to these 
 inconveniencies are not within it. See 1 Eq. Ca. Ab. 19. The courts seem to 
 have favoured a like equitable construction of the statutes for the registration 
 of deeds. Thus in the case of Le Neve v. Le Neve, 1 Ves. 64. lord Hard- 
 wicke decreed, that, if a deed respecting lands in any of the register counties 
 is not registered, and afterwards the same lands are sold or mortgaged, by a 
 deed properly registered; if the person claiming under the second deed has 
 notice of the first deed, the person claiming under the first deed, though it is 
 not registered, shall be preferred to him. 
 
 The general doctrine of these decisions is founded on principles both just 
 and equitable, when applied to particular cases ; yet it may be doubted, whether 
 a more rigid adherence to the letter of these statutes, particularly that of the 
 29 Car. 2. c. 3. would have been more beneficial to the public. The French 
 showed a much more rigid and pertinacious adherence to the letter of their laws 
 respecting the registration of deeds and wills. By laws of that kingdom, as 
 ancient as the 16th century, particularly an ordonnance of Henry II. of the 
 year 1553, it was ordered, that all wills and deeds, containing substitutions of 
 estates,, should be registered within a particular period of time. If they were 
 not registered within that time, the courts seem to have doubted whether they 
 were binding even on the parties, in whose favour the substitutions were made ; 
 but, it was always settled, that the substitutions were of no force against credi- 
 tors or purchasers. Several points of the laws respecting substitutions being 
 unsettled, and the laws respecting them being different in different parts of the 
 kino-dom, they were all reduced into one law, by the celebrated ordonnance of 
 August 1747. That ordonnance was framed by the chancellor DAguesseau, 
 after taking the sentiments of every parliament in the kingdomupon^ forty-five 
 different questions proposed to them upon the subject. The thirty-ninth ques- 
 tion is, " Whether a creditor or purchaser, having notice of the substitution 
 " before his contract or purchase, is to be admitted to plead the want of 
 "registration?" All the parliaments, except the parliament of Flanders, 
 agreed, that he was; that, to admit the contrary doctrine would make it always 
 
 open
 
 L. 3. C. 8. Sect. 504. Of Releases. [290. b. 
 
 open to argument, whether the party had or had not notice of the substitution; 
 
 that this would lead to endless uncertainty, confusion and perjury ; and that it 
 
 was much better that the right of the subject should depend upon certain and 
 
 fixed principles of law, than upon rules and constructions of equity, which must 
 
 be arbitrary, and consequently uncertain. The ordonnance of August 1747 was 
 
 framed accordingly. Those who have commented upon that ordonnance lay it 
 
 down as a fixed and undeniable principle, that nothing, not even the most 
 
 actual and direct notice, countervails the want of registration ; so that if a 
 
 person be a witness, or even a party to the deed of substitution, still, if it be 
 
 not registered, he may safely purchase the property substituted, or lend money 
 
 upon a mortgage of it. See Questions concernant les Substitutions. Toulouse, 
 
 1770; and Commentaire de V Ordonnance de Louis XV. sur les Substitutions par 
 
 Mr. Furgole, d Paris, 1767. — The same principle has been received into the 
 
 Code Civil Napoleon. The article 1060 provides that "dispositions by gift or 
 
 " will, under charge of restitution," — (that is, disposition by may of mortgage 
 
 or pledge) — " shall, at the instance either of the party charged, or of the 
 
 " trustee appointed for the execution, be made public; viz. as to immovables, 
 
 " by transcription of the instrument on the register of the office of mortgages, 
 
 " of the place where they are situate ; and as to sums placed out, with privi- 
 
 " leges over immovables," — certain legal liens on land to which the law of France 
 
 allows a privilege of priority — " by inscription upon the property, charged with 
 
 " the security." — The article 1071, provides that "the want of transcription 
 
 " on the register of any such instrument, cannot he supplied, or excused by 
 
 " any notice, which creditors or subsequent purchasers may have of its contents 
 
 "by other means than that of transcription :" and the article 1072 provides 
 
 that " neither donees, or legatees, or even the lawful heirs of him, who makes 
 
 " the disposition contained in the instrument, neglected to be transcribed, nor 
 
 " the donees, legatees, or heirs of these, can enforce their titles against the per- 
 
 " sons entitled in default of transcription." 
 
 XIV. The courts have in part remedied the mischief arising from the admission 
 of trusts with respect to the cestui/ que trust, by making persons paying money to 
 trustees, with notice of the trust, answerable, in some cases, for the proper appli- 
 cation of it. Lord Mansfield in his very distinguished argument in the great 
 case of Burgess v. Wheate, 1 Black. Bep. 123. observes "that the cestuy que 
 " trust is actually and absolutely seised of the freehold, in the consideration of 
 " a court of equity; that the trust is the land, in that court; and that the 
 "declaration of the trust is the disposition of the land." It is perhaps to be 
 wished, that the operation and consequences of trusts had been confined to the 
 trustee and cestuy que trust. There is no doubt but the doctrine in question is, 
 in many instances, of great service to the cestuy que trust, as it preserves his 
 property from the peculations and other disasters to which, if it were left solely 
 to the discretion of the trustee, it would necessarily be subject; yet it may be 
 questioned, whether the admission of it be not, in general, productive of more 
 inconvenience than real good. To prevent this inconvenience, it is become 
 usual to insert a clause in deeds or wills, that the receipts of the trustees shall 
 of themselves discharge the persons to whom they are given, from the obliga- 
 tion of seeing to the application of the money paid by them. In some instances, 
 without any clause of this nature, a person paying money to a trustee is not 
 answerable for the misapplication of it, though he has notice of the trust. Per- 
 haps the following distinctions and observations will be found of use towards ob- 
 taining an accurate knowledge of the rules of equity upon this complex subject. 
 
 XIV. 1. With regard to personal estate, it is every where admitted, that if a 
 testator, possessed of personal estate, dies indebted, having by his will directed 
 his estates to be sold for the payment of his debts whether he specifies them or 
 not, the mortgagee or purchaser of any part of his personal assets is not bound 
 to see to the aplication of his mortgage, or purchase money. See Elliott 
 
 Vol. II.— 29 and
 
 290. b.] Of Releases. L. 3. C. 8. Sect. 504. 
 
 and Merryinan, Barnardis ton's Bep. in Cha. page 78. But if he charges a 
 specific part of his personalty with the payment of a specific debt or legacy, it 
 seems to have been a matter of doubt how far the purchaser of that specific 
 part was answerable. In the case of Humble v. Bill, 2 Vern. 444. the master 
 of the rolls decreed that a mortgagee of a term of years from an executor 
 (which term of years was specifically bequeathed) was not answerable for the 
 misapplication of the mortgage-money. — This decree was reversed in the house 
 of lords in 1703-4, 1 Bro. Par. Cas. 71; but from the account given in Viner, 
 7 vol. 43. pi. 13. and 18 Vin. 121. pi. 11. there is reason to suppose the reversal 
 was founded on particular proof of fraud. Two cases in Peere William, Ewer 
 v. Corbett, and Burting v. Stonard, vol. 2. p. 148. and 150. coincide with the 
 master of the Bolls against the house of lords ; and see Gilbert's Reports, 113. 
 Mead v. lord Orrery, 3 Atk. 235. Ithell v. Beane, 1 Ves. 215. It should how- 
 ever, be observed, that the principle on which the courts have founded their 
 opinion, that the purchaser or mortgagee of any part of the testator's assets 
 specifically bequeathed is not answerable for the misapplication of his pur- 
 chase or mortgage money, is, that the whole of the personal estate being- 
 bound to pay the debts of the testator, that specific part, (though specificall\- 
 bequeathed,) is liable with the rest; it has therefore been held, that the pur- 
 chaser must not have notice that there are no debts, or that the debts are paid. 
 With the latter doctrine the modern practice of the profession accords. The 
 reason of those eases is, that, the property of the testator vests absolutely in 
 the executor, both at law and in equity; so that the demand of the creditors 
 and legatees are personal upon the executor ; they are no lien upon the pro- 
 perty in his hands, or in the hands of the assiguees, from him ; the executor is 
 intrusted with the disposition of the property; and no third person, therefore, 
 should be implicated in it. It seems clear from Ewer v. Corbett, that though, 
 by such notice of there being no debts, or of the debts being paid, the pur- 
 chaser makes himself answerable for his purchase or mortgage money; yet he 
 is not bound, previously, to inquire and satisfy himself, that there are debts 
 unpaid, or that the parts of the assets not specifically bequeathed are sufficient 
 to pay the debts and legacies. 
 
 XIV. 2. With respect to the devise of a real estate for the payment of debts ; 
 It must first be observed, on the authority of the cases of Cutler and Coxeter, 
 2 Vern. 302. French and Chichester, 2 Vern. 508. and 2. Ves. 590. that if a 
 person charges both his real and personal estates with the payment of his 
 debts, the personal estate must be first applied : and that it is therefore im- 
 material whether the testator charges the personal estate in the first instance, 
 or not. Now, if a person devises a real estate to trustees to sell for the pay- 
 ment of his debts, all the books agree, (see particularly the cases above cited 
 of Elliott v. Merryman, Spalding and Shalmer, 1 Vern. 301. Culpepper v. 
 Aston, 2 Chan. Cases, 115. 221. 1 Ves. 173. and 215. Cotterel v. llampson, 
 2 Vern. 5. Smith v. Guyon, 1 Bro. Ca. in Cha. 180.) that if the debts are 
 specified or scheduled, the purchaser or mortgagee is bound to see to the ap- 
 plication of his money ; but that if they are not specified or scheduled, he is 
 not bound to see to such application. 
 
 XIV. 3. As to legacies — these, from their nature, must be considered as speci- 
 fied or scheduled debts; how far, in those cases, where the trust does not extend 
 to the payment of debts, the purchaser of a real estate is bound to see the 
 money applied in discharge of the legacies, is often a subject of discussion and 
 doubt even with the most experienced practitioners. But, if the trust is, to 
 sell for the payment both of debts and legacies, then, the trust to pay the debts, 
 intercepts the trust to pay the legacies, and as the purchaser is not bound to 
 see to the payment of the former, he necessarily is not bound to see to the 
 payment of the latter. Thus in Jebb v. Abbott, heard in chancery on the 9th 
 February 1782, lord chancellor Thurlow said, that where debts and legacies 
 are charged on lands, the purchaser will hold free from the claims of the 
 legatees; for not being bound to see to the discharge of debts, he cannot be 
 
 expected
 
 L. 3. C. 8. Sect. 504. Of Eeleases. [290. b. 
 
 expected to see the discharge of legacies, which cannot be paid till after the 
 debts. Lord Kenyon, chief justice of the king's bench, who was counsel in the 
 cause, assented to this position, and said it had been so determined by lord 
 Hardwicke. Probably the case alluded to by him was that of Rogers v. Skilli- 
 corne, since reported by Mr. Ambler; and see his Rep. fol. 188. — In Benyon v. 
 Gollins, in the sittings after Hilary term, 1788, the testator had charged his 
 estate with the payment of his just debts generally, and with a legacy of 800/. 
 for his daughter for life, and after her death for her children. The trustee had 
 joined in a conveyance of part of the estate to a purchaser, and permitted the 
 800/. to come into the hands of the daughter's husband, audit was wasted. The 
 bill was brought by the wife and children, to have the legacy made good by the 
 purchasers of the estate, and against the trustee. It was dismissed against the 
 purchasers. Upon the hearing for further directions, it was pressed by Mr. 
 Ambler, that the trustee should pay the costs of the purchasers. But lord 
 Thurlow refused this, saying, that, as there was a general charge of debts, the 
 purchasers were not liable to see to the application of the purchase money in 
 payment of the 800/. and that, if the plaintiff thought fit to make unnecessar}' 
 parties, the trustees ought not to pay the costs of such parties, but that they 
 must receive them from the plaintiff. 
 
 XIV. 4. Lands are sometimes devised to trustees, upon trust to raise as much 
 money as the personal estate shall fall deficient, in paying the testator' s debts and 
 legacies. — It seems to be the general opinion, that a purchaser or mortgagee 
 is not bound, in this case, to inquire whether the real estate is wanted or not. 
 It is a nicer case where the lands are not devised to the trustees, but a mere 
 power is given them to sell for the purpose of raising as much money as the 
 personal estate shall fall short in paying. To the valid execution of such a 
 power, the deficiency of the personal estate seems to be a requisite circum- 
 stance. It may, therefore, be contended, that, if there be not the deficiency 
 in question, the power is not well executed, and a necessary consequence of 
 this appears to be, that, if the purchaser cannot give legal evidence of this 
 deficiency, he cannot make out his title under the power. To prevent questions 
 of this nature from arising, it is usual to insert in all instruments declaring 
 trusts of personal estate, and in all instruments by which real or personal 
 estates are vested in trustees, upon trust to raise money by sale or mortgage, 
 or a power to raise money for any purposes is given them, a clause expressly 
 discharging the purchasers or mortgagees, from the obligation of ascertaining 
 that the money advanced by them is wanted for the purposes of the trust or 
 power. A clause of this nature should seldom be omitted. Where the trust 
 or power is to raise, by sale or mortgage of the real estate, so much money 
 as the personal estate is deficient in producing, it seems advisable to extend 
 this clause a degree farther, by expressly discharging the purchaser or mort- 
 gagee from the obligation of inquiring whether the personal estate has been 
 got in and applied, and by expressly authorizing the trustees to raise any 
 money they think proper by sale or mortgage, though the personal estate be 
 not actually got in or applied. For it frequently happens, that, the getting in 
 of the personal estate is attended with great delay and difficulty ; during which 
 the real estate cannot, perhaps, be resorted to. This will be obviated effcctually 
 by inserting a clause to the above effect. It should, however, be accompanied 
 with a further direction, that so much of the personal estate, and of the money 
 raised under the trust or power as shall remain after answering the purposes of 
 the trust, shall be laid out in land, to be settled on the devisees of the real 
 estates. 
 
 XIV. 5. It frequently happens, that money secured vp>on mortgages ismadethe 
 subject of marriage settlements, and assigned upon various trusts. In this case, 
 there should always be a separate deed, by which the mortgage money and the 
 estate in mortgage should be assigned to the trustees of the settlement, with a 
 declaration that their receipt for the mortgage money shall be a discharge to the 
 
 parties
 
 290. b.] Of Releases. L. 3. C. 8. Sect. 504:. 
 
 parties paying it. la making the assignment by a separate deed, an advan- 
 tage is given to the mortgagor, by his being kept from being implicated with 
 the trusts of the settlement, and by having that deed in his custody, which 
 preserves the chain of the title, and which he probably otherwise would not 
 have : an advantage also is given to the persons interested in the settlement, 
 from having the contents and operation of the settlement kept from the know- 
 ledge of the mortgagor and those claiming under him. — In all these cases it 
 should be observed, that the doctrines of equity, with respect to the obligation 
 of seeing to the application of money, are involved in many nice distinctions. 
 Great care therefore should be taken to prevent any questions arising upon 
 them, by inserting the clauses above mentioned, and by such other precautions 
 as the circumstances of the case require. On the general doctrine of seeing to 
 the application of purchase money, see Mr. Sugden's chapter on that subject, 
 in his Practical Treatise of the Law of Vendors* and Purchasers. 
 
 XV. As to the manner in which courts of equity have attempted to prevent the 
 mischiefs arising from the admission of trusts, with respect to the public at 
 large. — This has been effected in some measure, by its having been laid down 
 as a general rule, that in any competition of claims, where the equity of the 
 parties is equal, he who has the law shall prevail. See Francis's Maxims of 
 Equity, 61. If a person has the legal estate or interest of the subject matter 
 in contest, he must necessarily prevail at law over him whose right is only 
 equitable, and therefore not even noticed by the courts of law. This advantage 
 he carries with him, so far, even into a court of equity, that if the equitable 
 claims of the parties are of equal force, equity will leave him who has the legal 
 right in full possession of it, and not do any thing to reduce him to an equality 
 with the other, who has the equitable right only. Perhaps the following illus- 
 tration of this very important rule of equity, by an inquiry into the doctrines of 
 courts of equity respecting terms of years attendant upon the inheritance, will 
 
 not be unacceptable to the reader. At common law, leases for years were 
 
 not supposed to transfer any property to the lessee, and were generally of very 
 short duration ; for, as they tended to deprive the crown of forfeitures, and 
 the lord of the fruits of his tenures, they were viewed with a very jealous eye. 
 Besides, the possession of the lessee was considered as the possession of the 
 freeholder ; and if his lease was defeated or disturbed, though he could recover 
 for damages, he had no means to recover the possession. Moreover, leases 
 for years were subject to be absolutely defeated, either by a real or fictitious 
 recovery against the freeholder ; but in the reign of Henry IV. or, at least, in 
 that of Henry VII. the courts resolved, that the lessee should not only recover 
 damages, as recompense for the loss of the possession, but should also recover 
 the possession itself. Afterwards the 21st Hen. 8. c. 15, protected the lessee 
 against the effect of fictitious recoveries. These alterations of the common 
 law gave the lessee for years an interest and stability which he had not before. 
 (Still, in the eye of the law, particularly before the demolition of the military 
 tenures, terms of years were in every respect, except pecuniary emolument, 
 far inferior to estates of freehold. This stability on the one hand, and subor- 
 dinate state of property on the other, made them very proper and convenient 
 njodifications of property, for securing money or any other charges upon the 
 fee, or for giving a partial or temporary right to the profits or beneficial pro- 
 perty of the land, in those cases, where the owner wished to have not only the 
 remainder or reversion, but the actual freehold. Hence we find mortgages 
 for long terms of years very frequent in the reign of queen Elizabeth. Now, 
 according to our notions of mortgages, if the mortgage debt is not paid at the 
 time appointed, the estate mortgaged is absolutely forfeited to, and becomes 
 the property of, the mortgagee, at law ; but courts of equity permit the mort- 
 gagor to redeem, on payment to the mortgagee of his principal, interest and 
 posts. Still, this is merely a right in equity, the legal estate continuing in the 
 
 mortgagee.
 
 L. 3. C. 8. Sect. 504. Of Releases. [290. b. 
 
 mortgagee. Thus, if an estate be demised for a term of years, with a proviso 
 making the term void on payment of a sum of money with interest, before or 
 upon a certain day, the condition is not considered, at law, as complied with, 
 unless the money is paid on or before that very day; if it is not then paid, the 
 estate belongs at law to the mortgagee, for the remainder of the term. A 
 court of equity allows the mortgagor to redeem it, by paying the principal, 
 interest, and costs, after that time. But this subsequent payment, though it 
 give the mortgagor the equitable right to the estate, does not affect the legal 
 continuance of the term. In this respect, our law differs from the civil law; 
 in which a mortgage is considered only as an accessary of the debt ; and pay- 
 ment at any time, by annulling the debt, extinguishes the mortgage. To 
 apply this doctrine to terms of years. After payment of the mortgage debt, 
 the term of years, for which the mortgage is made, is, at law, in the mort- 
 gagee : but, in equity, the mortgagor is entitled to the benefit of it. By an 
 analogy to the case of mortgages, when terms of years are created for securing 
 the payment of jointures, portions for children, or for any other purpose, they 
 do not determine, without a special provision for this purpose, by the perform- 
 ance of the trusts for which they are raised. Thus, in all these cases, the 
 legal interest during the coutinuanee of the term, is in the trustee ; but the 
 owner of the fee is entitled to the equitable interest, or rather to all the benefit 
 or advantage which can be made of the term during its continuance. As the 
 courts of common law held, that the possession of the lessee for years was the 
 possession of the owner of the freehold, courts of equity held, that where the 
 tenaut for years was but a trustee for the owner of the inheritance, he should 
 not oust his cestui/ que trust, or obstruct him in doing any act of ownership, or 
 in making any assurances of his estate. In these respects, therefore, the term 
 is consolidated with the inheritance. It follows the descent to the heir, and 
 all the alienations made of the inheritance, or of any partial estate or interest 
 carved out of it by deed, by will, or by act of law. Whitchurch v. Whitchurch, 
 2 P. W. 236. 9 Mod. 124. Gilb. Kep. 168. Yilliers & Villiers, 2 Atk. 71. 
 Hoole v. Sales, 2 Wils. 329. Groodtitle on the demises of Norris and others 
 v. Morgan and David, 1 Term Rep. 755. Still, though the trust or benefit of 
 the term is annexed to the inheritance, the legal interest of the term remains 
 distinct and separate from it at law, and the whole benefit and advantage to be 
 made of the term arises from this separation. For, if two persons, or more, 
 have claims upon the inheritance under different titles, a term of years attend- 
 ant upon it is still so distinct from it, that, if any one of them obtains an 
 assignment of it, then, (unless he is affected by any of the circumstances which 
 equity considers as fraudulent), he will be entitled, both at law and in equity, 
 to the estate for the whole continuance of the term, to the utter exclusion of 
 all the other claimants. This, if the term is of long duration, absolutely 
 deprives all the other claimants of every kind of benefit «in the laud. Sup- 
 posing, therefore, A. purchases an estate, which, previous to his purchase, had 
 been sold, mortgaged, leased, and charged with every kind of incumbrance to 
 which real property is subject; in this case A. and the other purchasers, and 
 all the incumbrancers, have equal claims upon the estate. This is the mean- 
 ing of the expression, that their equity is equal. But, if there is a term of 
 years subsisting in the estate, which was created prior to the purchases, mort- 
 gages, or other incumbrances, and A. procures an assignment of it in trust for 
 himself, this gives him the legal interest in the lands during the continuance 
 of the term, absolutely discharged from, and unaffected by, any of the pur- 
 chases, mortgages, and other incumbrances, subsequent to the creation of the 
 term, but prior to his purchase. This is the meaning of the expression in 
 assignments of terms, that they are to protect the purchaser from all mesne 
 incumbrances. But it is to be observed, that A. to be entitled in equity to the 
 benefit of the term, must have all the following requisites: he must be a pur- 
 chaser for a valuable consideration; his purchase must in all respects be a fair 
 
 purchase
 
 290. b.] Of Releases. L. 3. C. 8. Sect. 504. 
 
 purchase, and free from every kind of fraud ; and, at the time of his purchase 
 he must have no notice of the prior conveyance, mortgage, charge, or other 
 incumbrance. It is to be observed, that mortgagees, lessees, &c. are purcha- 
 sers in this sense, to the amount of their several charges, interests, or rights. 
 If any person of this description, unaffected by notice or fraud, takes a defec- 
 tive conveyance or assignment of the fee, or of any estate carved out of it, 
 defective either by reason of some prior conveyance, or of some prior charge 
 or incumbrance ; and if he also takes an assignment of a term to a trustee for 
 himself, or to himself, where he takes the conveyance of the inheritance to his 
 trustee ; in each of these cases he is entitled to the full benefit of the term ; 
 that is, he may use the legal estate of the term to defend his possession during 
 the continuance of the term, or, if he has lost the possession, to recover it at 
 common law, in preference to all claimants prior to his purchase, but subsequent 
 to his term. All this was laid down and explained by lord Hardwicke, in the 
 case of Willoughby and Willoughby, in Cha. Trim 30 Geo. 2. 1756. 1 Term 
 Rep. 763. Upon the same principles was decided the case of Stanhope v. earl 
 Verney, before lord Northington, in chancery, July 27, 1761. The case there 
 was, that Henry Sayer, being seised in fee of certain estates subject to an out- 
 standing term of years, in Rigby and Eyre, by indentures of lease and release, 
 bearing date the 4th and 5th days of June 1732, conveyed them to lady Dy- 
 sart and her heirs, for securing the payment of 1,000/. and interest, and cove- 
 nanted to produce the deeds respecting the term of years. Afterwards Higby 
 and Eyre assigned the term to Cunningham and Clayton in trust for Sayer, his 
 heirs and assigns; and then Sayer, by indenture dated the 19th day of Dec. 
 1732, conveyed the same estates to Mrs. Nash (under whom lord Verney 
 claimed) by way of mortgage, for securing to her 3,000/. and interest, with a 
 declaration that Cunningham and Clayton should stand possessed of the term 
 in trust for her, and the deeds respecting it were delivered to her, and neither 
 she nor the trustees had notice of the mortgage to lady Dysart. Lady Dysart 
 brought an ejectment; lord Verney defended, and set up the term, with a 
 declaration of the trust of it in favour of Mrs. Nash, under whom he claimed. 
 Upon this lady Dysart brought her bill in equity. The question was, which 
 should be preferred ? Lady Dysart, who had the first declaration of the trust 
 of the term, or lord Verney, who had the subsequent declaration of the trust, 
 but had the custody of the deed. — Lord Northington held, that a declaration 
 of trust in favour of an incumbrancer, was tantamount to an actual assignment, 
 unless a subsequent incumbrancer, bond fide, and without notice, procured an 
 assignment; and that the custody of the deeds respecting the term, with a 
 declaration of the trust of it in favour of a second incumbrancer, was equiva- 
 lent to an actual assignment; and therefore gave him an advantage over the 
 first idcumbrancer, which equity would not take from him. — The protection 
 afforded by terms of years, against what are called mesne incumbrances, makes 
 it safe, in some cases, to dispense with a search for judf/ments. But this is 
 seldom prudent; and never practised where there is the slightest reason to 
 apprehend that notice of them will be proved, or attempted to be proved, on 
 the party or any of his agents in the business. Besides, no term or other out- 
 standing estate should be relied on, unless proof can be obtained easily and at 
 a small expense, of the instruments and acts in law, which must be proved to 
 establish the creation and deduction of the term. It must be added, that, 
 since the case of the King v. Smith, Exc. 2d March 1804, Siiffdeu's Law of 
 Vendors and Purchasers, Appendix, No. 15, no outstanding estate or interest 
 can be considered a protection against debts due to the crown. 
 
 When in the acceptance of a title an outstanding estate or interest is relied 
 on for its security, it should be ascertained that the estate or interest is such 
 as will enable the party to enforce or support his title by it, in ejectment. 
 This does not always appear sufficiently attended to. Generally speaking, it is 
 
 true,
 
 L. 3. C. 8. Sect. 504. Of Releases. [290. b. 
 
 true, that the possession of the cestui/ que trust is the possession of the trustee. 
 But it is equally true, that the extent and application of this rule are by n' 
 means settled. Great care, therefore, should be taken, in these cases, whei 
 the outstanding estate is relied on as a protection against mesne incumbrances, 
 that the possession of the actual terre-tenants has not been such as to deprive 
 the persons, in whom the outstanding estate or interest is vested, of their entry. 
 — Great care also should be taken to ascertain, that the party seeking the 
 benefit of the outstanding estate or interest is furnished with satisfactory evi- 
 dence to show that it comprises the property for the defence of which he 
 wants it. 
 
 The advantages to be derived from terms of years, being so considerable, it 
 is an object of great consequence to ascertain, when it is safe for the purchaser 
 to leave them in the trustee in whom he finds them, and when it is necessary or 
 prudential to require them to be assigned to a trustee of his own. — But it is 
 more easy to say where it is unsafe, than to say where it is safe, for him to be 
 satisfied without such an assignment of it. — 1st, It may be laid down, as a 
 general rule, that whenever a term has been raised for securing the payment 
 of money, as the assignment of it by the trustee for the person entitled to 
 receive, to a trustee for the person obliged to pay, the money, is the best 
 possible evidence of the payment of the money, it may be reasonably required 
 as such. — Idly, In case a term of years has been assigned to attend the inhe- 
 ritance, if, upon a purchase (taking it in the above extensive sense) all the 
 deeds (as well originals as counterparts) by which the term was created or 
 Assigned, are delivered to the purchaser, and he is satisfied, that the trustee, 
 in whom it is then said to be vested, has made no prior assignment of it, and 
 that the vendor has not charged the estate with any intermediate incumbrance; 
 it is difficult to say what possible use can be made of the term against him, or 
 what good can be answered by requiring the assignment of it to a trustee of his 
 own, unless it be to satisfy the requisitions of those to whom he may after- 
 wards have occasion to mortgage or sell the estate. — Sdh/, But if any of the 
 deeds respecting the terme are not delivered to the purchaser, or if he is not 
 satisfied of the trustee's not having previously assigned it, or of the vendor's 
 having made no intermediate incumbrance ; it seems prudent to require an 
 actual assignment of it to a trustee for him. — Few general rules, besides these, 
 can be laid down upon this subject : — and these must from their nature be 
 subject to an endless variety of modifications. In all cases of this description, 
 it is infinitely better to err by an excess of care, than to trust any thing to 
 hazard. There is no doubt but the precautions used for the security of pur- 
 chasers appear sometimes to be excessive; and satisfactory reasons cannot 
 always be given for requiring some of them ; yet the more a person's expe- 
 rience increases, the more he feels the reason and the real utility of them ; and 
 the more he will be convinced that very few of the precautions required by the 
 general practice of the Profession are without their use, or can be safely dis- 
 pensed with. — On the protection afforded to purchasers by terms for years 
 and other outstanding estates, see 16th chapter of Mr. Sugden's Treatise of 
 the Law of Vendors and Purchasers. 
 
 XVI. It is to be observed, that, in most cases, particularly those which 
 relate to real property, courts of equity have generally endeavoured, that their 
 decisions should bear the strictest possible analogy to the decision of courts 
 of law, in cases of a similar or corresponding impression. All the canons of 
 law respecting the descent or inheritance of legal estates in lands, have been 
 applied to trust or equitable estates. Some of these, as the exclusion of the 
 half blood, of the ascending line, of the paternal line from the maternal inhe- 
 ritance, and the maternal line from the paternal inheritance, are, evidently, 
 of feudal extraction, and are generally supposed to be contrary to reason and 
 equity : yet they have been admitted, without any limitation, in the equitable 
 
 code
 
 290. b.] Of Releases. L. 3. C. 8. Sect. 504. 
 
 code of England. There is the game division in equity, as there is at law, of 
 estates of freehold and inheritance, of estates of freehold only, and of estates 
 less than freehold j of estates in possession, remainder or reversion, and of 
 estates several and estates undivided. It has been observed before, that every 
 species of property is in substance equally capable of being settled in the way 
 of entail ; and that the utmost term allowed for the suspense either of real 
 or personal property from vesting absolutely, is that of a life or lives in being, 
 and twenty-one yeares after, and perhaps in the case of a posthumous child a 
 few months more. The analogy between law and equity is, in this instance, 
 complete. It may be laid down, without any qualification, that, no nearer 
 approach to a perpetuity, can be made through the medium of a trust, or will 
 be supported by a court of equity, than can be made by legal conveyances of 
 le^al estates or interests, or will be admitted in a court of law. — In these 
 leading rules, we find the analogy holds. In some instances, it fails. Curtesy 
 has been admitted, — Dower, though a more favoured claim, has been refused, 
 in equitable estates. An equitable estate is, by its nature, incapable of livery 
 of seisin, and of every form of conveyance which operates by the statutes of 
 uses. In the transfer, therefore, of equitable estates, these forms of con- 
 veyance has been dispensed with, and a mere declaration of trust in favour 
 of another, has been held sufficient to transfer to him the equitable fee. — On 
 the other hand, trust estates, are, by their nature, equally incapable of the 
 process of fines or recoveries. Yet fines are levied and recoveries are suffered 
 of them ; and fines and recoveries are as necessary to bar entails of equitable 
 estates, as they are to bar entails of legal estates. In the case of a feme 
 inheretrix, law and equity agree in vesting the fee in the husband in her right, 
 during their joint lives, and subject to that, in preserving it to the wife : where 
 the feme is possessed of personal property, the law, speaking generally, vests 
 it absolutely in the husband, or, at least, gives him the power of acquiring the 
 absolute property of it. Courts of equity have, in many cases, abridged the 
 right of the husband to the personal property of the wife, and qualified his 
 power of it. — In fixing the term for the redemption of mortgages, and in 
 man}' other cases, an analogy to the term for bringing ejectments, has, fre- 
 quently influenced the decisions of the courts ; in other cases, an analogy to 
 the term for bringing ejectments, or the terms for bringing other writs, has not 
 been attended to ; and in some instances, the courts have not considered them- 
 selves bound, even by the statutes of limitation. Smith v. Clay, Ambl. 645.8Bro. 
 Cha. Rep. 630. note. — But the cases, where the analogy fails, are not numerous ; 
 and there scarcely is a rule of law or equity, of a more ancient origin, or which 
 admits of fewer exceptions, than the rule, that equity followeth the law. 
 
 XVII. In one instance, however, and that of a remarkable nature, this 
 analogy has been altogether abandoned. In the English law of tenure, it is a 
 fundamental rule, and a rule which admits of no exception, that the freehold 
 shall never be in abeyance. In all the innovations, introduced into the law of 
 real properly by the statute of uses, this rule has been retained: so that, at 
 this day, it still is an invariable rule, that under every legal modification of 
 landed property, an actual legal estate of freehold must subsist in some person. 
 By the introduction of trusts of accumulation, this rule, in respect to trust or 
 equitable estates, has been wholly rejected. When such a trust came first 
 under the consideration of courts of equity, it might perhaps have been thought 
 to deserve consideration, whether, both in theory and practice, it would not 
 be advisable to apply this rule to the equitable estates ; and, on this ground to 
 consider it essential to a modification of equitable property, that there should 
 always be some person actually entitled, either during his own life, or the life 
 of another, or for a larger estate, to the rents and income, or enjoyment of 
 the estate, for his own benefit. A contrary rule was admitted into the equit- 
 able code ; and, in consequence of it, the courts held, that during the term, 
 
 which
 
 L. 3 *C. 8. Sect. 505. Of Releases. [290. b. 291. a. 
 
 Sect. 505. 
 
 J£ UT if after the yeare and day the plaintife will sue a scire facias, to 
 know if the defendant can say any thing why the plaintife should not 
 have execution (Mes si apres l'an ct jour le plaintife voit suer un scire 
 facias, * a sacher si le defendant poit rien dire pur que le plaintife 
 n'avera execution), then it seemeth that such release of all actions shall be 
 a good plea in barre. But to some seems the contrary, in as much as the 
 writ of scire facias is a ivrit of execution, and is to have execution, ftc. 
 But yet in as much as upon the same writ the defendant may plead divers 
 matters after judgment given to oust him of execution, as outlawry, $e. 
 and divers other matters, this may bee well said an action (Mes uncore 
 entant que sur mesrae le briefe le defendant poit pleader divers matters 
 puis le judgement rendue de luy ouster d'execution, come utlagary, 
 t &c. et divers auters matters, % ceo bien poit estre dit action), £c. 
 
 il £fCIRE facias." This is a judiciall writ, and properly lyeth 
 after the yeare and day after judgement given, and is so 
 called, because the words of the writ to the sherife bee, quod 
 scire facias prcefat' T. (being the defendant) quod sit coram, &c. (Cro Car 2i0 
 ostensurussi quid pro se habeat ant discere sciat, quare &c. So as 255. 328.) 
 by the writ it appeareth, that the defendant is to be warned to 
 plead any matter in barre of execution; and therefore albeit it 
 be a judiciall writ, yet because the defendant may thereupon 
 pleade this scire f actus is accounted in law to bee in nature of an 
 action; and therefore [>i] a release of all actions is a good barre 
 
 of the same, and likewise a release of executions is a {j^'Fr*' 3 ' 
 [" 291.1 good barre in a scire facias. This writ was B^» given (8 Rep.' 152.) 
 L a. J in this case by the statute of W. 2, for at the com- (Doc. Pla. 330.) 
 
 man law, if the plaintife had surceased to sue execu- (£ r ° - Jac - ? 64 r) 
 
 .' 1 /• _« /■ • 7 . .. , , , . W. 2. ca. 45. 
 
 Hon by Jxeri Jucias, or Levari facias, a yeare and a day, hee had s. E. 3.297. 298. 
 been driven to his new originall. 18 E. 3. 33. 
 
 Lib. 3. fol. 12. 
 sir William Herbert's case. Fleta, li. 2. cap 12. 
 
 "This 
 
 * a sacher si le defendant poit rien f &c. not in L. M. or Roh. 
 dire pur que le plaintifs n'avera,— j et pur added in L. and M. ami 
 d'aver, L. and M. and Roh. Roh. 
 
 which the law allows for the estate to be suspended from vesting absolutely, 
 iu some person, a dry accumulation might be carried on, either for the benefit 
 of the person in whom the estate is to vest at the expiration of the term of 
 suspense, or for the benefit of some person, answering, at that time, a par- 
 ticular description. The discussions on the will of the late Mr. Thcllusson 
 showed the inconvenience of the rule, and the enormous lengths to which it 
 might be carried. They gave rise to the 39 and 40 of h?s late majesty, 
 "for restraining all trusts and directions in deeds or wills, whereby the profits 
 "or produce of real or personal estate shall be accumulated, and the bene- 
 "fioial enjoyment of it protracted beyond the time therein limited." See 
 
 Mr. Fearne's Essay on Contingent Remainders, p. 434, note 2 : p. 537, n 1 
 
 [Note 249.] V
 
 291. a.] 
 
 Of Keleases. 
 
 L. 3. C. 8. Sect. 506, 507. 
 
 " This may bee xcell said an action." Here is to be observed, 
 that every writ whereunto the defendant may plead, be it ori- 
 giuall or judicially is in law an action. 
 
 Sect. 506. 
 
 A JVD I take it that, in a scire facias upon a fine, a release of all man- 
 ner of actions is a good plea in a barre. 
 
 This upon that which hath been said, is evident of it selfe. 
 
 Sect. 507. 
 
 J^UT where a man recovereth debt or damages, and it is agreed be- 
 tween them that the plaintife shall not sue execution (et est accorde 
 perenter eux que le plaintife f ne suera execution), then it behoveth 
 that the plaintife make a release to him of all maimer of executions J. 
 
 " TT behoveth." Albeit Littleton here said, bee ought or must, 
 &c. yet there bee other words which will release an execu- 
 tion without express words of a release of execution. 
 
 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 releaseth all suits, it is no barre 
 of his execution, because in the king's case the judges ought to 
 award execution ex officio without any suit; but a release of 
 executions doth barre the king in that case. And so note a 
 diversity between a release of all actions, and a release of all 
 suites. 
 
 So if the body of a man be taken in execution, and the plain- 
 tife releaseth all actions, yet shall he remaine in execution; but 
 if he release all debts or duties, he is to be discharged of the 
 execution, because the debt or duty it selfe is discharged. 
 
 In the same manner if execution be sued upon a recognizance 
 by elegit and the conusee by deed make a defeasance, that if the 
 conusor doth such an act, that then the recognizance shall be 
 voide; by this the execution is discharged. 
 
 So it is if judgment be given in an action of debt, and the 
 body of the defendant is taken in execution by a capias ad satis- 
 faciendum, and after the plaintife releaseth the judgment, by 
 this the body shall be discharged of the execution. 
 
 If the plaintife after judgement release all demands, the exe- 
 cution is discharged, as shall appeare by that which next here- 
 after shall be said. 
 
 If A. be accountable to B. and B. releaseth him all his duties, 
 20 H. 6. 6. this is no barre in an action of account, for duties extend to 
 
 per Pastor. things 
 
 19 II. 6. 4. 
 
 26 H. 6. Execu- 
 tion, 7. Li. 8. 
 fo. 153. Ed. 
 Altham's case. 
 Vid. Brooke, tit. 
 Releases, 87. 
 
 26 II. 6. tit. 
 Execution, 7. 
 
 20 Ass. p. 7. 
 (6 Rep. 13. b.) 
 (10 Rep. 47.) 
 
 26 H. 6. ubi 
 supra. 
 
 f ne suera execution — serroit ouste 
 d'action, L. and M. and Roh. 
 
 \ &c. added in L. and M.
 
 L. 3. C. 8. Sect. 508. Of Releases. [291. a. 291. b. 
 
 things ccrtaine, and what shall fall out upon the account is 
 incertaine; and albeit the Latine word is debita, yet duties doe 
 extend to all things due that are certaine, and therefore dis- 
 chargeth judgements in pcrsonall actions, and executions also. 
 
 pel.-] m» Sect. 508. 
 
 A LSO, if a man release to another all maner of demands, this is the 
 best release to him to whom the release is made, that he can have, 
 and shall enure most to his advantage (si home relessa a un auter touts 
 manners * de demands, ceo est le plus melior release f a luy a que le 
 release est fait, % que il poet aver, ut plus urera a son avantage). For 
 by such release of all manner of demands (per tiel release de touts man- 
 ners § de demands), all maner of actions reals, personals, and actions of 
 appeale, are taken away and extinct, and all manner of executions are 
 taken away and extinct. 
 
 " A LL manner of demands." (5 Rep. 56. a.) 
 
 -£L (Cro. Jac. 623.) 
 
 " Demand," Demandum, is a word of art, and in the under- ' ' '' 
 standing of the common law is of so large an extent, as no other 
 one word in the law is, unlesse it be clameum, whereof Littleton Lit. Sect. 445. 
 maketh mention, Seel. 445. And here it is to be observed, that Bractli. Leap, 
 there bee two kinde of demands or claimes, viz. a demand or st e iir 8 case " 
 claime in deed, and a demand or claime in law : or an expresse, 359, &c 
 and an implied demand or claime. Littleton here putteth ex- (8Rep. Alt- 
 amples of both : and first he speaketh of reall actions, wherein {^ikj/) 6 ' 
 hee that bringeth his action maketh his demand, and therefore 
 hee is properly called a demandant ; and hee that defendeth is 
 called tenant, because hee is tenant of the freehold of the land. 
 
 Of demands implied, or in law, Littleton putteth examples : (2 Cro. 48?.) 
 
 First, of all actions personals : Secondly, of appeales : for in both 38 H. 8. tit. 
 
 those cases he that bringeth the suit is called plaintife, and not 6 j^'^'js r ' 
 
 demandant, and he that defendeth is called defendant. Thirdly, 19 h. 6. 3, 4. 
 
 of executions. Fourthly, of title or right of entry, eyther by 2f) AiiS - P1 - 5 - 
 
 force of a condition, or by any former right, which meercly is a 49 £ '.^' » ' b 
 
 demand or claime in law ; but otherwise it is in the king's case. 50 Ass. Pi. 6. 
 
 Fifthly, of a rent service, rent charge, common of pasture, &c. 14 H. 4 s. 
 
 which also are mecre demands or claimes in law (\). All which * 3 2 " , tlt- 
 
 ^ J Avow. 89. 
 
 Lib. 8. fo. 153. Eil. Altbam's case. Lit. 170. Sect. 748. Dyer, 5 El. 217. (Yelv. 
 
 214.) (Cro. Jac. 170, 171.) (10 Rep. 51. b.) 
 
 Littleton 
 
 * de not in L. and 31. or Roll. J que il not in L. and 31. or Roh. 
 
 ■f" a luy — que celuy, L. and 31. and § de not in L. and 31. or Roh. 
 Roh. 
 
 (1) Nota the diversify. If A. releases to li.all his demands generally, or all 
 his demands out of the manor ofD. there, rent and common is released, whether 
 present or future : but if he releases to 13. all demands which he has upon him, 
 there, no rent or common, present or future, is released, quia release est tantum 
 personel. Trin. 5 Ja. Hancock v. Field. — Adjudged contra, that a release of 
 all demands is not a bar to a covenant before breach ; — but it is agreed, that it 
 
 bars
 
 291. b. 292. a.] Of Releases. L. 3. C. 8. Sect, 509, 510. 
 
 Littleton here, and in the two next Sections following, puttetli 
 but for examples ; for by the release of all demands, other things 
 also be released, as rents seek, all mixt actions, a warranty which 
 is a covenant reall, and all other covenants reall and personall, 
 estovers, all manner of commons and profits appreuder, condi- 
 tions before they be broken or performed, or after, annuities, 
 recognizances, statutes merchant or of the staple, obligations, 
 contracts, &c. are released and discharged (2). 
 
 (10 Rep. 47.) 
 
 (3 Lev. 274.) beCl. OU J. 
 
 A ND if a man hath title of entry into any lands or tenements, by such 
 a release his title is taken away. 
 IJSed quaere de hoc ;for Fitz- James chief e justice of England holdeth the 
 contrary, because an entrie cannot bee 'properly said.a demand, P. 19 H. 8. 
 
 34 H. 8. tit. «B&-miTLE." Here title is taken in the largest ["292.1 
 
 Sfl?' 8 " ?; 9 ' a sense, including right also. a. 
 
 Cnauncey s case. > o a u _i 
 
 Lib. 8. fo. 153. 
 
 Ed. Altham's " Sed quaere, &c." This is an addition, and no part of 
 
 Littleton, and the opinion here cited cleerely against law. 
 
 Sect. 510. 
 
 A ND 
 
 if a man hath a rent service or rent charge, or common of pas- 
 ture, 8fc. by such a release of all manner of demands made to the 
 tenants of the land out of which the service or the rent is issuing, or in 
 ivhich the common is (per tiel release de touts manners de demaunds 
 fait al tenaunts de la terre dont le service ou le rent est issuant, ou en 
 t que le common est), the service, the rent, and the common, is taken 
 away and extinct, §c. 
 
 This upon tLat which hath been said, needeth no further explication. 
 
 Sect, 
 
 |i This paragraph not in L. and M. f que — quelle terre, L. and M. 
 or Roh. and Roll. 
 
 bars warranty, for that lies properly on demand, because he may have warrantia 
 chartae. So also reservation of rent, by indenture, is a covenant in law, viz. 
 covenant real ; for it runs with the land, and does not lie, after a duration, but 
 against the tenant of the land: and it is agreed that by a release of all demands 
 a covenant real is released ; for the rent itself, upon which the covenant in 
 law rises, is released. So 14 IT. 8, 9. But however the law may be of 
 covenants real, it seems to be contrary of covenants personal ; — and so there is 
 good difference. Sed forsan, these passages are not to be understood of covenants 
 Ik fore the breach, though covenants before the breach are expressive. Ld. Nott. 
 MSS.— [Xote 250.] 
 
 (2) But a release of all demands does not discharge rent before it is due, 
 if it be a rent incident to the' reversion ; for the rent at the time was not only 
 not due, but the consideration, viz. the future enjoyment of the lands, for 
 which the rent was to be given, was not executed. 1 Sid. 141. 1 Lev. 99. 
 3 Lev. 274. Note to the 12th edition.— [Xote 251.]
 
 L. 3. C. 8. Sect. 511-12. Of Eeleases. [292. a. 292. h. 
 
 Sect. oil. 
 
 J^LSO, if a man releaseth to another all manner of quarrels, or all 
 controversies or debates betweene them, §c. quaere, to what matter 
 and to what effect such worde shall extend themselves, §c. 
 
 " C\ UARRELS," Querela a querendo. This properly concern- 40 E. 3- 47. b. 
 5*5 cerneth personall actions, or mixt, at the highest ; for the Ed< A1 j ham ' s 
 
 i . ,./. • ,i • ii i i • „ fc , ; . . . case, ubi supra. 
 
 plamtile in them is called querens and in most of the writs it is 35 h. s.Dier, 57. 
 said, queritur. And yet if a man release all quarrels (a man's 9E.4. 44. 
 deed being taken most strongly against himself) it is as beneficiall ( 9 Rep> 52- ) 
 as all actions ; for by it all actions, reall and personall, are re- 39 H. 6. 9. 
 leased. And by the release of all quarrels, all causes of actions are 
 released thereby, albeit no action be then depending for the same. 
 
 " Quai-rels." Controversies and debates are synonima, and of Lib. 8. fol. 153. 
 one signification. Litis nomcn omnem actionem significat, sive Alt bam's case. 
 in rem, sive in personam sit. If a man release omnes loquelas, j? N _" 3' 23 " jj 
 it is as large as omnes actiones ; for omnis actio est loquela, and 
 it extendeth as well to actions in courts of record, as base courts ; 
 for the wiit of error saith, in recordo et processu, &c. loquela quce 
 fuit inter, &c. And so the writ of false judgement saith, ricor- 
 dari facias loquelam, w 'here the judgement was given in the 
 county court. Omnes exactiones seeme to be large words ; 50 Ass - 6 - 
 for exactio derivatur ah exigendo, and exigere signifieth to en- ^ ^'|" 22, 
 quire or demand. Avowrie, 89. 
 
 Sect. 512. 
 
 J^LSO, if a man by his deede bee bound to another in a certaine summe 
 of money, to pay at the feast of Saint Michael next ensuing* if the 
 obligee before the said feast release to the obligor all actions, he shall be 
 barred of the duety for ever, and yet he could not have an action at the 
 time of the release made. 
 
 "T>ELEASE to the obligor all actions, dec." The (Dyer, 307. a.) 
 ["292.1 reason B@"of this case is, for that the debt is a ^Roy'^il) 26 ' 
 
 L b. 1 thing consisting meerely in action ; and thefore albeit 412.)° 
 
 no action lyeth for the debt, because it is debitum in 11 H. 4. 41. 43. 
 
 prsesenti, quamvis sit solvcndum in futuro, yet because the right o^^'oqK 38 ' 
 
 of action is in him, the release of all actions is a discharge of the 
 
 debt it selfe. [o] And so may an executor before probate release [ ] Trin. 2 Ja. 
 
 an action; and yet before probate he can have no action, because "> Com. Banco, 
 
 the right of the action is in him, and so it was adjudged. And f?^ Middleton 
 
 .,.. .. , J ,° , & Rinnot. 
 
 some say, that an ordinary may release an action, and yet he can is H. 6. 23. b. 
 
 have none. But if a man by deed doth covenant to build an Pi- Com. 277, 
 
 house or make au estate, and before the covenant broken, the 278 : J ? Gras " 
 
 7 broke a case, per 
 
 Weston. 5 Eliz. Dier, 217. Altbam's case, ubi supra. (10 Rep. 51. b.) 1 Rep. 112. b. 
 (2 Cro. 222. 571. Sid. 85. Hob. 216. 
 
 covenantee 
 
 * &c. added in L. and M . and Rob.
 
 292. b. 293. a.] Of Releases. L. 3. C. 8. Sect. 513-14. 
 
 covenantee releaseth to him all actions, suits, and quarrels, this 
 doth not discharge the covenant it selfe, because at the time of 
 the release, nihil fuit debitum, there was no debt, or duty, or 
 cause of action in being. Hut in that case a release of all cove- 
 nants is a good discharge of the covenant before it be broken. 
 
 Sect. 513. 
 
 T> UT if a man letteth land to another for a yeare, to yeeld to him at 
 the feast of S. Mich, next insuing 40s. and afterwards before the 
 same feast hee releaseth to the lessee all actions, yet after the same feast 
 hee shall have an action of debt for the non payment of the 40s. not- 
 withstanding the said release. Stude causain diversitatis between these 
 tivo cases. 
 
 9 H. 7. 5. a. 
 (8 Rep. 153.) 
 45 E. 3. 8. 
 17 H. 6. 26. 
 13 H. 4. 
 Avowrio, 240 
 
 u 
 
 "RELEASE Til all actions." This release shall not barre 
 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 become due, the rent is 
 avoynen ; for it is to be paid out of the profits of the land, and 
 it is a thing not meerely in action, because it may be granted 
 over. But the lessor before the day may acquite or release the 
 rent. But if a man be bound in a bond or by contract to an- 
 other to pay a hundred pounds at five several daies, he shall not 
 have an action of debt before the last day be past ; and so note 
 a diversity betweene duties which touch the realty, and themeere 
 personalty. But if a man be bound in a recognizance to pay a 
 hundred pound at five scverall dayes, presently after the first day 
 of payment he shall have execution upon the recognizance for 
 that summe, and shall not tarry till the last bee past, for that it 
 is in the nature of severall 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 doth lie, 
 for they are severall in their nature. Lastly, note a diversity 
 between debts and covenants, or promises. 
 
 If a man hath an annuity for terme of yeares, or for life, or in 
 
 fee, and he before it be behind doth release all actions, this shall 
 
 not release the annuity, for it is not meerely in action, because 
 
 it may be granted over. 
 
 See Mo. 13. Bend. 57. Cro. Eliz. 807. Cro. Car. 241. 
 2 Leo. 107. 2 Cro. 504, Cro. El. 776. 4 Rep. 94. Litt. Rep. 
 
 (Ant. 47. b. 
 Yelv. 67. 
 F. N. B. 131. a. 
 Cro. Jac. 505.) 
 30 E. 3, 13. b. 
 47 E. 3. 24. 
 10 H. 2. Execu- 
 tion, 137. 
 10 E. 2 ib. 138. 
 16 E. 3. Scire 
 lac. 4. P. N. B. 
 267. 9 E. 3. 7. 
 (5 Rep. 18.) 
 5 Mar. Action 
 sur le case. 
 Br. 108. 
 
 3 Mar. Dier,113, 
 Lib. 4. fol. 94. 
 Slade's case. 
 Lib. 5. fo. 81. b. 
 Forde's case. 
 39 H. 6. 28. b. 
 5E.4.45. 
 2 H. 4. 13. 
 12 It. 2 
 Release; 29. 
 Cro. El. 118 
 61 S. C. 2 Saund. 337. 3 Mod. 153. S. C. Salk. 65. 
 
 w Sect. 514. 
 
 [ 3 ? 3 -] 
 
 A LSO, where a man will sue a writ of right, it behoveth that he 
 
 counteth of the seisin of himself e, or of his ancestors, and also that the 
 
 seisin was in the same king's time, as hepleadeth in his plea. For this is 
 
 an ancient law used, as appear eth by the report of a plea in the eire of 
 
 Nottingham, * tit. Droit in Fitz.herbert, cap. 26, in this forme following. 
 
 John 
 
 * tit. Droit in Fitzherbert, cap. 26, not in L. and M. or Roll.
 
 L. 3. C. 8. Sect. 5U. Of Releases. [293. a, 
 
 John Barre brought his writ of right against Reynold of Assington, and 
 demanded certaine lands, cfc. f where the mise is joyned in banke, and 
 the originall and the processe were sent before the justices errants, where 
 the parties came, and the % twelve knights were sworne without challenge 
 of the parties, to be allowed, because that choice was made by assent of the 
 parties, ivith the four e knights, and the oath was this : That I shall say 
 the truth, eye. whether 11. of A. hath more meere right to hold the tenements 
 which John Barre demanded against him by his writ of right, or John 
 to have them, as lie demandeth, and for nothing to let to say the truth 
 (et pur rien dirra que le verity || ne dirra), so helpe mee Grod, <j-e. without 
 saying to their knowledge. And the like oath shall bee made in an attaint, 
 and in battaile, and in wager of law. (Et tiel serement serra fait en 
 attaint, et en battaile, et § en ley gager),/or these doe bring every thing 
 to an end. But John Barre counted of the seisin of one Ralfe his ancestor 
 in the time of king Henry, and Reynold upon the mise joyned tendered 
 halfe a mar ke for the time, cfc. And hereupon Herle, justice, said to the 
 grand assise after that they were charged upon the meere right, You good 
 men, Reynold gave halfe a marke to the king for the time, to the intent 
 that if you find that the ancestor of John ivas not seised in the time that 
 the demandant hath pleaded, you shall enquire no further upon the right 
 (Vous gentes, Reynold donast demy marke al roy pur le temps, "|[ al 
 entent qui si \. vous troves que l'auncester ** John ne fuit pas seisie en 
 le temps que le demaundant ad count, 44 vous n'enquires plus avant 
 del droit) ; and for this, you shal tell us, whether the ancestor of John 
 (Ralfe by name) were seised in kirg Henries time, as he hath pleaded, or 
 not. And if you find that he ivas not seised in this time, you shall enquire 
 no more; and if you find that he ivas seised, then you shall enquire fur- 
 ther of the writ (donques enquires ouster del %% briefe). And after the 
 grand assise came in with their verdict, and said, that Ralfe was not seised 
 (que Rafe §§ ne fuit pas seisie) in the time of king Henry, whereby it was 
 aivarded that Reynold should hold the tenements demanded against him, 
 to him and his heires quite of John Barre and his heires to the remnant. 
 And John in mercy (A), cfc. And the reason why I have shewed to thee, 
 my son, this plea, is, to prove the matter precedent which is said in a writ 
 of right; for it seemeth by this plea, that if Reynold had not tendered the 
 halfe marke to enquire of the time, cfc. then the grand assise ought to be 
 charged onely to enquire of the meere right, and not of the possession, cfc. 
 |ij| And so alwayes inawrit of right, if the possession whereof the demand- 
 ant counteth bee in the king's time, as hee hath pleaded, then the charge 
 of the grand assise shall be only upon the meere right, although that the 
 possession were against the law, as it is said before in this chapter, Sec. 
 
 "IT 
 
 (A) Part of the **** judgment in this case teas, that the demandant xhoidd be in mercy, 
 dec. i. e. that he should he at the king's mercy, with regard to the pecuniary fine to be imposed 
 on him as a punishment for his having made a false or groundless complaint. By tne old 
 law, the plaintiff teas liable to amercement in every suit or action at lair, in rase he tailed in 
 it. The amercement is now disused, but the form still continues. See 3 Black. Comm. p. Zlb. 
 and the Appendix there, p. vi. & xxv. Archbold's ed. 
 
 ■j" where not in L. and M. or Roll. ** John not in L. and M. or Roh. 
 
 \ twelve not iu L. and M. or Roh. .|_|. vous — home, L. and M. and Roh. 
 
 || ne — jeo, L. and M. and Roh. and in MSS. 
 
 § en — le, L. and M. and Roh. ^ briefe — droit, L. and M. and 
 
 ^[ al entent — et ceo sert, L. and M. Roh. 
 
 and Roh. and in MSS. §§ ne not in L. and M. or Roh. 
 
 \. vous — home, L. and 31. and Roh. \\ And not in L. and M. or Roh.
 
 293. a. 293. b. 294. a.] Of Releases. L. 3. C. 8. Sect, 514. 
 
 (Ant. 279. a.) " TT behoveth that hecounteth of the seisin of himsclfe, or of his 
 For the time of ancestors." For if neyther hee nor any of his ancestors 
 
 thTsfanue of 6 were seised of tne land ' &c * wituin tue time of limitation, he 
 32 H. 8. cap. 2. cannot maintaine a writ of right : for the seisin of him of whom 
 Vide Sect. 170. the demaundant himselfe purchased the land, &c. availeth not. 
 
 Hob^iin ^ nd so ** * s * D a w "* 0I r 'S nt °f advowson. 
 
 2 E 3 27 a "Also that the seisin u-as in the same king's time, as he plcad- 
 
 Litt. 112. a. eth." Hereby it appeareth, that not onely a seisin (as hath 
 beene said) is requisite, but also that the seisin be had in the 
 time of the same king, according to his count. 
 
 " Report" commeth of the Latine word Reportare, a re ct 
 porto, id est, referre, a re et fero. And in the common law it 
 signifieth a publike relation, or a bringing againe to memory 
 cases judicially argued, debated, resolved, or adjudged in any of 
 the king's courts of justice, together with such causes and rea- 
 sons as were delivered by the judges of the same; and in this 
 sense Littleton useth the word in this place. 
 
 (4 Inst. 184.) "In the eire of Nottingham." Eire, Iter. And it signifieth 
 
 the court of the justices in eire, and thereupon they were called 
 justitiarii itinerantes, in respect that the justices re- 
 siding at S^° Westminster were called justiciarii ["293. 1 
 residentes, and were much like in this respect to the | b. 
 justices of assise at this day, although for authority 
 and manner of proceeding (whereof you shall reade [p~\ in the 
 [>] Mirror, cap. anc j en t authors of the law) farre different. And as the power of 
 sect. 15." 'and tue justices of assises by many acts of parliament and other corn- 
 ea. 4, le office des missions increased, so these justices itinerant by little and little 
 Justices in Eire. vail ished away. And it is certaine, that the authority of justices 
 cap. ll ' * 0I " ass i ses itinerant through the whole realme, and the institution 
 
 Li. 8.cap.primo. of justices of peace in every county being duely performed, are 
 Britt. fol. 1. b. the most excellent meanes for the preservation of the king's 
 lib 3 tlliLAc P eace > an( l quiet of the realme, of any other in the Christian world. 
 Flet. li. i. ca. 15, &o. 4 E. 3. 32. 6 E. 3. 35. 23 E. 3. 21. 15 H. 7. 5. 
 Vide Sect. 442. 233, 234. 
 
 " Of Nottingham." This should bee Northampton, accord- 
 ing to the originall. 
 
 This report whereof Littleton here maketh mention, you shall 
 
 3 E. 3. tit. finde an abstract of it in 3 E. 3, since Littleton's time, put in 
 Droit. F. 26. print by Fitzherbcrt when he was Serjeant in 11 //. 8, and is not 
 
 in the Reports or bookes at large. And yet here it appeareth, 
 that they be of great authority, and vouched by Littleton him- 
 selfe for the proofe of a maine point in law. And hereby it also 
 appeareth how necessary it is to reade records and pleas reported 
 or recorded, though they were never printed. For those and 
 the like records are veritatis et vetustatis vestigia. 
 
 "Tit. Droit in Fitzherbert, 26," is fi®» of a new r294."| 
 addition, and therefore though it bee true, yet not to L a - J 
 bee allowed. 
 
 4 E. 3. 41. "And the originall and the processe were sent before the justices 
 Peverel's case, er rants." For it is to be understood that all pleas either in the 
 iT.act , on UlanVi1 ' ^Ity or personalty that were begunne and not determined 
 
 Britton/Fleta, ubi supra. before
 
 L. 3. C. 8. Sect. 514. Of Keleases. [294. a. 294. b. 
 
 before justices in eire, were adjourned by them into the court of 
 common pleas. 
 
 " The twelve knights toere sworne without challenge, &c. because 
 that choice was made by assent of the parties, with the four knights." 
 
 Here are foure things to be observed. 30 e. 1. tit 
 
 First, that omnis consensus tollit errorem, and against his owne Challenge, 172. 
 consent he cannot challenge the twelve. %l ™ i' V' 
 
 o\) '■- o. 1. 
 
 44 E. 3. 6. 11 H. 6. 13. (Cro. El. 664.) 
 
 Secondly, that the foure knights electors of the grand assise 4 E. 3. 13. 
 are not to be challenged, for that in law they be judges to that 
 purpose, and judges or justices cannot bee challenged. And that 
 is the reason that noblemen, that in case of high treason are to 
 passe upon a peere of the realme, cannot be challenged, because 
 they are judges of the fact, and the Magna Charta saith, per Magna Charta, 
 judicium parium suorum. ca P- 29 * 
 
 Thirdly, that the twelve before any assent may be challenged 
 before the foure knights electors, but after assent or return of 39 E. 3. 2. 
 the pannell before the justices, there shall be no challenge to the 7H.4.20. 
 pannell nor the polles. 
 
 Fourthly, if there be not foure knights for electors in that 7 H - 4 - 20 - 
 county, the next to them in that county shall be taken ; ne curia 
 regis deficeret in justitia exhibendd. 
 
 " Without saying to their knowledge." And here it appeareth 
 
 that where the judgment is fiuall, there the oath of the grand 
 
 assise or jury is absolute, and not to their knowledge, 
 
 t£9-4.~| as 5^" here in the writ of right, in the attaint, and in 
 b. J wager of law, for the judgment in every of these three 
 is finall. 
 
 " The mise isjoyned," Mise is a word of art appropriated only vide Sect 193. 
 to a writ of right, so called because both parties have put them- 
 selves upon the meere right to be tryed by grand assise or by 
 battaile ; so as that which in all other actions is called an issue, Registrum. 
 in a writ of right in that case is called a mise. And in this 
 sense Littleton taketh it here. But in a writ of right if a col- 
 laterall point is to be tryed, there it is called an issue ; and is de- 
 rived of this word (missum), because the whole cause is put upon 33 H. 8. ca. 13. 
 this point. It is also taken for expences, as misee & custagia. 3 E * 6 - ca# 36, 
 And sometimes it signifieth a customary grant to the king, or 
 lords marchers of Wales by their tenants at their first comming 
 to their lands. 
 
 " Tendred halfeamarkefor the time." Master Lambard 10 E. 3. 20. 
 saith, that mancusa & marca Saxonice Mancup. 7. Mearc' Num- 31 *?. 3 - 
 mus 30 valens denarios. And this mearc, is now called a marke, 22 ^.3 17. 
 being an old Saxon word, is the cause that England most com- is H. 3. 
 monly reckoned by markes. Libra Saxonice is a pund, dpondo, Droit, 62. 
 which is called so untill this day. Solidus, qui apudnos est pars Lamb exp 'ij ca ' t 
 librae vicesima, denarios per id tcmporis continebat quinque, nunc Terborum verbo 
 duodecim ; and scilling in a Saxon word, and with us used to Mancusa. 
 this day. Pennye, Saxonice pennig, Latine denarius ; but the 
 value of these have not been alwayes one. 
 
 In a writ of right of advowson brought by the king, the tenant F- N - B. 31. 
 shall not tender the c?t-marke, because nullum tempus occurrit j" E ' 3 D ro itl5 
 
 regi 6 e! 3! ibid. 24. ' 
 
 Vol. II.— 30
 
 294. b. ] 
 
 Mirror, ca. 1. 
 § 17. ca. 3. de 
 Attaint, ca. 5. 
 § 1. Bract, fo. 
 288, 289, Ac. 
 292. Brit. fol. 
 241. 245, 246, 
 Ac. Flet. li. 5. 
 ca. 21 & 34. 
 Fortescue, 
 ca. 26. 
 (3 Inst. 163. 
 222.) 
 
 Of Releases. 
 
 L. 3. C. 8. Sect. 514. 
 
 [a] 23 H, 8, 
 ca. 3. 3 Eliz. 
 Dyer, 201. 
 7 E. 6. ibidem, 
 81. 3 Mar. 
 ibidem, 129. 
 7 Eliz. ibidem, 
 235. 24 H. 8. 
 Br. Attaint. 96. 
 4 Mar. ib. 127. 
 20 H. 7. 5. 
 42 E. 3, 26. 
 F. N. B. 107. D. 
 Mirror, ca. 1, § 3. 
 ca. 3. |1. ca. 
 5. # 1. Bracton, 
 Lib. 8. ca. 9. Li 
 ca. 32. and lib. 2 
 
 3.41. 
 
 i-egi(A); and therefore the king shall alledge, that he or his 
 progenitor was seised, without shewing any time. 
 
 " In an attaint." Attincla is a writ that lyeth where a false 
 verdict in court of record upon an issue joyned by the parties is 
 given. And of ancient writers it is called breve de convictione ; 
 and is derived of the participle tinctus, or attinctus, for that if 
 the petty jury be attainted of a false oath, they are stained with 
 perjury, and become infamous for ever; for the judgment at the 
 common law in the attaint importeth eight great and grievous 
 punishments. 1. Quod admittant liberam legem in perpetuum, 
 that is, he shall be so infamous as he shall never be received to 
 be a witness, or of any jury. 2. Quod f oris faciant omnia bona, 
 & catalla sua. 3. Quod terrse et tenementa in manus domini 
 regis capiantur. 4. Quod uxores & liberi extra domus suas ejiee- 
 rentur. 5. Quod domus suae prostrentur. 6. Quod arbores suse 
 extirpentur. 7 . Quod prata sua arentur \ UtS. Quod corpora sua 
 carceri mancipentur. So odious is perjury in this case in the eye 
 of the common law, and the severity of this punishment is to this 
 end, ut poena ad paucos, metus ad omnes perveniat ; for there is 
 misericordia puniens, and there is crudelitas parcens. And seeing 
 all tryals of reall, personall, and mixt actions depend upon the 
 oath of 12 men, prudent antiquity inflicted a strange and severe 
 punishment upon them, if they were attainted of perjury. 
 
 But since Littleton wrote, a statute hath beene made in miti- 
 gation of the severity of the common law, in case when the 
 petite jury is attainted, and therefore it is taken by equity. For 
 where the statute saith, that the party grieved shall have an 
 attaint against the party which shall have judgment upon the 
 verdict, yet an attaint shall be maintained upon that statute 
 against the executors of the party. Et sic de similibus. [a] But 
 see the statutes and authorities quoted in the margent. Only I 
 thought good to preserve three things. 
 
 First, tbat no attaint can be maintained upon this statute but 
 between party and party. 
 
 Secondly, that no conusance can be granted upon any attaint, 
 because all attaints are to be taken either before the king in his 
 bench, or before the justices of the common place, and in no 
 other courts, &c. 
 
 Thirdly, consider what pleas may bee pleaded in an attaint 
 by force of this act, and what not. 
 
 lib. 3. 141. b. & fo. 320. 331. Glanvil. lib. 2. cap. 3, 4, 5. 
 b. 4, ca. 1. Brit.fo. 40. 42, 43,81. 175. 190. Fleta, lib. 1. 
 cap. 48. 
 
 11 In battaile." Duellum, monomacia, and it signifieth in the 
 common law a tryall by single fight, by battaile or combate, 
 monomachia (1). [b~\ And in the writ of right neither the tenant 
 
 [i]4E 
 
 17 E. 3 
 
 19 H. 6. 35. 1 H. 4. 3. 30 E. 3. 20. 29 E. 3. 12 
 
 17 Eliz. Dier, 9 E. 4. 35. 1 H. 6. 6. 
 
 Mirror, ca. 4. del. offices des justices, <fec. 
 
 cap. 5. Bract, li. 3. tract. 2. ca. 37. <fc li 
 
 ca. 56. 63. 
 
 13 H. 4. 4. Staundf. 174. 178. 
 
 3 H. 6. 55. Vid. li. 9. fo. 32. b. & 33. b. 
 
 Glanvil. li. 1. cap. 9. Lib. 8. cap. 8. Lib. 10. 
 
 5. fol. 410. Britton, fol. 56. Fleta, lib. 2. 
 
 or 
 
 (A) This rule is, however, subject to various exceptions. See ante 119. a. note 1. 
 
 (l)Upon this subject, see 3 Black, ch. 22, 
 
 sect. 5 and 6. and the notes to 
 
 the
 
 L. 3. C. 8. Sect. 514. Of Releases. [294. b. 295. a. 
 
 or demandant shall fight for themselves, but finde a champion to 
 fight for them : because if either the demandant or tenant should 
 be slaine, no judgement could be given for the lands or tene- 
 ments in question. But in an appeale the defendant shall fight 
 for himselfe, and so shall the plaintife also ; for there if the de- 
 fendant be slaine, the plaintife hath the effect of his suite, that 
 is, the death of the defendant ; the order and solemnity whereof 
 you may reade in our ancient and latter bookes. And this the 
 law did institute when the tenant failed of his witnesses, or evi- 
 dences, or other proofes ; and the presumption of law is, that 
 God will give victory to him that hath right. 
 
 " Wager of law," Vadiare legem, : and there is also facere 
 
 legem, by making of his law. That is, to take an oath (for 
 
 example) that hee oweth not the debt demanded of him upon 
 
 a simple contract, nor any penny thereof. And it is 
 
 [295.1 called wager of law, because of ancient fi@°* time he 
 a. J put in surety to make his law at such a day ; and it 
 is called making of his law, because the law doth give 
 such a speciall benefit to the defendant to barre the plaintife for 
 ever in that case, [r] But he ought to bring with him eleven [>•] Magna 
 persons of his neighbours that will avow upon their oath, that Carta, ca. ,28. 
 
 r , . . & , ... , ., i i • ir i. l „ Bracton, lib. o. 
 
 m their consciences he saith truth, so as he himselte must bee fol 410 Fleta> 
 sworne de fidelitate, and the eleven de credulitate. lib. 2. ca. 63. 
 
 ' And wager of law lieth not when there is a specialty, or deed Diversities des 
 to charge the defendant, but when it groweth by word, so as he 33^ s 6 8< 
 may pay or satisfie the party in secret, whereof the defendant (4 R ep . siade's 
 having no testimony of witnesses may wage his law, and thereby case, 93.) 
 the plaintife is perpetually barred, as Littleton here saith ; for 
 the law presumeth that no man will forsweare himselfe for any 
 worldly thing; but men's consciences doe grow so large (speci- 
 ally in this case passing with impunity) as they choose rather 
 to bring an action upon the case upon his promise, wherein 
 (because it is trespasse sur le case) hee cannot wage his law, than 
 an action of debt. 
 
 A man outlawed or attainted in an attaint, or upon an indite- 33 II. 6. 32. 
 ment of conspiracy, or of perjury, or otherwise, whereby he 
 become infamous, shall not wage his law. 
 
 A man under the age of 21 yeares shall not wage his law; but 11 II. 6. 40. 
 a feme covert, together with her husband, shall wage her law. Jcro.'Eliz.' 161.) 
 
 When the suite is for the king, or for his benefit, as in a quo 32 H c 24 . 
 
 minus, the defendant shall not wage his law. 8 H. 5. Ley, 66. 
 
 ; 35 H. 8. Ley, Br. 102. 
 
 If an infant be plaintife, the defendant shall not wage his law. 26 E. 3. 63. b. 
 An alien shall wage his law in that language he can speake. 
 
 In no case where a contempt, trespasse, deceit, or injury is 44 E. 3. 32. 
 supposed in the defendant, he shall wage his law, because the 24 £ 8 * 3 ' 9 
 law will not trust him with an oath to discharge himselfe in (4 Rep. 95. b.) 
 those cases ; only in some cases in dett, detinue, accompt, the 
 defendant is allowed by law to wage his law. 
 
 In 
 
 the 1st vol. of Dr. Robertson's History of Charles the Vth.— The reader will 
 also find some curious and interesting particulars upon this head, in Pcre le 
 Brim, Traiti de quelques pratiques superstitieuscs qui ont seduit le peuple, et 
 cmbarrasse les scavants.
 
 295. a. J Of Releases. L. 3. C. 8. Sect. 514. 
 
 15 E. 4. 16. In an action of account against a receiver, upon a receipt of 
 
 10 E. 4. 5. money by the band of another person for account render (un- 
 
 {.in " l esse it be by the hands of his wife, or of his commoigne) the 
 
 defendant shall not wage his law, because the receipt is the 
 
 ground of the action, which lyeth not in privity betweene the 
 
 plaintife and defendant, but in the notice of a third person, and 
 
 Trfl 33 H. 6. 24. sucn a rece ipt i s traversable, [d] But in an action of debt upon 
 
 13 H. 7. 3. a. an arbitrament, or in an action of detinue by the bailement of 
 
 22 II. 6. 41. another's hand, the defendant shall wage his law, because the 
 
 8 H 6 li ' debet and the detinet is the ground of those actions, and the 
 18 H. 8. 3. contract or bailement, though it be by another hand, is but the 
 3 E. 3. 28. conveyance, and not traversable. In an action of account against 
 SHS 13 a bailife of a mannor, the defendant cannot wage his law, be- 
 
 21 H. 6. 30. cause it soundeth in the realty. In an action of debt which 
 24 E. 3. Ley 63. concerns the realty, as for debt for a rent upon a lease for yeares, 
 a E 4. l or an action of detinue for detaining an indenture of a lease for 
 34 H. 8. Ley, yeares, the defendant shall not wage his law, much lesse for 
 Gager, Br. 97. charters or deedes which concerne inheritance. 
 
 10 H. 6. 7. In an action of debt for a fine or americament in a leete, the 
 
 6 EH • B " d defendant shall not wage his law, because the leete is a court of 
 l oeSi ' record ; but in an action of debt for an amerciament in a court 
 
 baron the defendant shall wage his law, for that it is no court of 
 
 record. 
 
 9 H. 5. 3. In debt upon an account, before auditors, the defendant shall 
 ^■mi^Vv) not wa § e bis * aw > anc * tu ' s by construction of the statute of W. 
 38 111 6. 6. ' 2. cap. 11, which giveth them great authority, and saith, coram 
 
 auditoribus, and therefore of an account before one auditor the 
 
 law lyeth. So if the lord before auditors be found in surplus- 
 
 14 H. 6. 62. age, in an action of debt brought by the accomptant, the lord 
 
 38 H. 6. 6. shall not wage his law by construction also upon this statute, as 
 
 an incident arising upon the account. 
 28 II. 6. 4. j n an action of debt by a gaoler against the prisoner for his 
 
 22 \i q 13" victuals, the defendant shall not wage his law, for he cannot re- 
 
 39 11. 6. 12. fuse the prisoner, and ought not to suffer him to die for default 
 
 of sustenance otherwise it is for tabling of a man at large. 
 21 II. 6. 4. In an action of debt brought by an attorney for his fees, the 
 
 defendant shall not wage his law, because he is compellable to 
 
 38 H. 6. 22. be his attorney. And so if a servant be retained according to 
 
 39 H. 6. 18. the statute of labourers in an action of debt for his salary, his 
 
 master shall not wage his law, because he was compellable 
 to serve ; otherwise it is, if he be not retained according to the 
 statute (1). 
 
 Wheresoever 
 
 (1) Otherwise of a counsellor at laio, for he cannot bring any action for 
 he is not compellable to be counsellor, and his fee is honorarium, not a debt. 
 
 Ammianus, lib. 3. — Lord Nott. MSS. At Rome the functions of the bar 
 
 were divided between, I. The Patrons, or Orators ; II. The Advocates, who 
 attended to inform or instruct the patrons upon the points of law, which arose 
 in the cause ; III. The Procurators : And, IV. The Cognitors. The two last 
 nearly resembled the Attornies of our courts. Besides these, were the Juris 
 consulti, who gave their opinions and advice upon matters of law. Till the 
 time of Augustus every person had his liberty; but he confined it to some 
 particular individuals selected by him, and made a regulation, that in future no 
 one should enjoy that privilege but under the authority of the prince. The 
 opinions of the Juris consulti, called the Rcsponsa Prudentum, were of great 
 
 weight ;
 
 L. 3. C. 8. Sect. 514. Of Releases. [295. a. 
 
 Wheresoever a man is charged as executor or administrator, 5 n. 6. 38. 
 he shall not wage his law, for no man shall wage his law of 1 II - 7 - 26 » 
 another man's deed, but in case of a successor of an abbot, for 
 that the house never dyeth. 
 
 In 
 
 weight ; and a considerable part of the Roman law is founded upon them. 
 See Gravina de Ortu et Progressu Juris Civilis, lib. 1, sect. 42, 43, 44. In the 
 summary of the Roman Law, taken from Dr. Taylor's Elements of the Civil 
 Law, page 26, it is observed, that the Responsa Prudentum seem to amount 
 to what we call Precedents, or Reports ; that it is common to them both to be 
 the determinations of lawyers to explain law : but that there is this difference 
 between them, that our precedents owe their authority to their being the 
 judgment of the court ; but the Responsa Prudentum, though admitted as law, 
 were nothing more than the private opinions of lawyers. See Cod. lib. 1. tit. 17. 
 and the Cod. Theo. lib. 1. tit. 4. with the notes of Gothofred. It is supposed, 
 that, in the early days of the Roman Empire, the practice of the law was merely 
 honorary ; but it soon became an object of gain. The Cincian law, which 
 was passed about the time of the second Punic war, was intended to revive 
 the primitive custom of honorary advocation. But it was so often evaded, 
 that the Emperor Claudius thought it more advisable to moderate, than to 
 attempt to destroy entirely, the salaries or emoluments of advocates. He 
 accordingly inhibited them from taking a larger fee than ten sesterces, about 
 80/. 14s. Id. English. The advocates, however, thought it an indignity, that 
 their fees should be considered as wages, and therefore dignified them by the 
 honourable title of presents, or gratuities ; but as they might demand, and 
 even maintain an action for their fees, this distinction was merely nominal. 
 See Grothofred de Salario, and Dr. Beevor's History of the Civil Law, page 444. 
 In England the fees of counsel are honorary, in the strict acceptation of the 
 word. Thus in Moor v. Row, Cha. Rep. 38. a counsellor brought a bill for 
 fees due to him from the defendant, a solicitor. The defendant demurred ; 
 the demurrer was allowed, and the bill dismissed. Sir John Davies thus 
 expresses himself upon this subject, in his preface to his Reports, page 22, 23. 
 " The fees to counsellors are not in nature of wages, or pay, or that which we 
 " call salary, or hire, which are duties certain, and grow due by contract, for 
 " labour or service, but what is given him is honorarium, not merccs ; being a 
 " gift which gives honour as well to the taker as the giver : nor is it certain or 
 " contracted ; for no price, or rate, can be set upon counsel, which is invalu- 
 "able and inestimable, so as it is more or less, according to the circum- 
 stances, namely, the ability of the client, the worthiness of the counsellor, 
 " the weightiness of the cause, and the custom of the country. It is a gift of 
 " such a nature, that the able client may not neglect to give it without inora- 
 "titude, for it is but a gratuity, or taking of thankfulness; yet the worthy 
 "counsellor may not demand it without doing wrong to his reputation, according 
 " to that moral rule, multa honesta accipi possunt qua; tamcn peti non possunt." 
 In France the Roman law respecting the fees of advocates formerly prevailed. 
 Many instances are found in their law books, of advocates bringing actions 
 for their fees, and recovering upon them : but this has long fallen into disuse. 
 In the contest, in 1775, between Mr. Linguet and the Order of Advocates, 
 one of the charges against him was, that he had written to the duke d'Aiguillon, 
 to demand his fees ; and threatened him with an action for them ; and that his 
 demands upon the duke had been referred to arbitration. See Journal His- 
 torique du Retablissement de la Magistrature, torn. 7. p. 190. Ordonnances 
 have been made at different times enjoining the advocates to subscribe, at 
 the foot of their pleadings, a receipt for their fees ; but the advocates never 
 
 would
 
 295. a. 295. b.] Of Releases. L. 3. C. 8. Sect. 514. 
 
 10 H. 7. IS. In debt upon a penalty given by statute, the defendant shall 
 
 not wage his law. There is another kind of wager of law in 
 a reall action, of non summons, but thereof Littleton speaketh 
 not. 
 
 "And hereupon Herle justice said, &c." Hereby, it 
 appeareth, that it is the office B^ of the judges to ["295.1 
 instruct the grand assise or jury in points of law ; for | b. 
 as the grand assise or other jurors are triers of the 
 matters of fact, ad questionem facti non respondent judices, so 
 ad questionem juris non respondent juratores. And accordingly 
 the judge in this case directed the grand assise, viz. if they 
 found that, &c. 
 
 " Whereby it was awarded." Here are two things to be ob- 
 served. First, the form of a judgment finall. Secondly, that a 
 judgement finall is to bee given in this particular case. For the 
 forme of the finall judgement for the tenant is here expressed, 
 that the tenant shall hold the tenements demanded against him, 
 to him and his heires quite of the demandant and his heires for 
 ever, and the demandant in the mercy. Quod tenens teneat 
 terrain illam sibi et hseredibus suis in pace versus petentem & 
 hseredes suos in perpetuum. 
 
 For the second point, seeing the mise is joyned upon the 
 meer right, albeit the verdict of the grand assise be given upon 
 another point, yet judgement finall shall be given. And so it is 
 if the tenant after the mise joyned make default, or confesse the 
 action, or if the demandant be non-suite ; and yet in none of 
 these cases they of the grand assise gave their verdict upon the 
 meere right. 
 
 Glanv. li. 12. 
 cap. 1, &c. 
 Bracton, li. 5. 
 fo. 328. 
 
 Lib. 5. fol. 85. 
 Penrin's case. 
 
 34 E. 3. Judgm. 
 256. adjudge 
 accord. 13 H. 4. 
 Judgui. 245. 
 10 H. 6. 8. 
 
 20 H. 6. 38. b. 
 
 21 H. 6.34 b. 
 26 H. 8. 8. b. 
 
 1 Mar. Dy. 98. 
 Li. 5. fo. 85. 
 Penrin's case. 
 F.N.B.5.11.31. 
 
 " As it is said be/ore." Vid. Sect. 478. 
 
 Chap. 
 
 would obey them. The leading ordonnance upon this head is that of Blois. 
 In 1602, the parliament of Paris gave an arret, enforcing the observance of 
 that ordonnance. This gave the advocates so much offence, that three hun- 
 dred of them renounced their profession upon it, with the usual formalities. 
 This put an entire stop to the proceedings of the courts of justice. The matter 
 was afterwards settled; and the ordonnance of Blois, in this respect, and the 
 subsequent ordonnances enforcing it, are now considered as virtually repealed. 
 See Loysel, Dialogue des Avocats ; and Menayii Juris Civilis Amxnitates, 
 cap. 18.— [Note 252.]
 
 L. 3. C. 9. Sect. 515. Of Confirmation. [295. b. 
 
 Chap. 9. Of Confirmation. Sect. 515. 
 
 A 
 
 DEEDE of confirmation is commonly in this forme, or to this 
 effect : Know all men, gc. that I, A. of B. have ratified, approved, 
 and confirmed to C. of D. the estate and possession which (A) I have, of, 
 and in one messuage, §c. with the appurtenances in F. $c. (Noverint 
 universi, &c.me A. de B. ratificasse, approbasse, et confirmasse C. de D. 
 statum & possessionem, quos habeo, de, & in uno messuagio, &c. cum 
 pertinentibus in F. &c.) 
 
 HERE first our author shewes what a confirmation is : Bract li. 2. fbl. 
 
 32. b. & 58, 59. 
 
 I /• 1 L r*T Brit - 235 - 
 
 " Confirmation." Confirmatio commeth of the verbe [• J con- [*] Lit.pag. 
 firmare, quod est fir mum facer e : and therefore it is said, that sequen. 
 confirmatio omnes supplet defectus licet id quod actum est ab in- Bract "■ 2 - 58 - 
 itio, non valuit. A confirmation is a conveyance of an estate or 
 right in esse, whereby a voidable estate is made sure and unavoid- 
 able, or whereby a particular estate is encreased. 
 
 -A confirmation doth not strengthen a voide estate. Con- Bract, li. 2. 
 firmatio est nulla ubi donum prsecedens est invalidum, & ubi ^'"j^g ^ 37 
 donatio nulla omnino nee valebit confirmatio : for a confirmation ' pi c ' om> 
 may make a voidable or defeasible estate good, but it cannot Count de 
 worke upon an estate that is voide in law. Non valet confirmatio ^ ei Jr ester ^f e , ase - 
 nisi Me qui confirmat sit in possessione rei, vel juris unde fieri \ Q E ®^ 
 debet confirmatio, & eodem modo nisi Me cut confirmatio sit, sit Confirm. 24. 
 in possessione. And another saith, [c] Confirmare est id quod 32 E 3. 9. 
 prius infirmum fuit firmare. Et donationum alia incepta, & de- W j^jj^ \ 
 fectiva, & post tempus confirmata, confirmatio enim omnem sup- cap | 3. 
 plet defectum, poterit enim esse inpendenti donee per ratihabitio- 
 ntm haeredis ciim ad setat em pervenerit roboretur (1). 
 
 " Ratificasse." Ratificare est ratum facere, and is sequipollent 44 Ass. 3. 
 to confirmare, which, as hath been said, is firmum facere. 
 
 « Approbasse" commeth of ad and probo, which is to make 
 perfect and good. 
 
 " Confirmasse." Here it is to be observed, that there be two 
 kinds of confirmations, viz. confirmations expresse or in deed, 
 
 whereof 
 
 (A) It seems, that the text should be read as if Littleton had in this place used the words 
 " he hath," instead of " I have." See Mr. Ititso's Intr. 
 
 (1) A confirmation is an approbation of, or assent to, an estate already 
 created ; by which the confirmor strengthens and gives validity to it, as far as 
 it is in his power. It has this operation only, with respect to estates voidable 
 or defeasible : but it has no operation upon estates which are absolutely void. 
 Such words may be used in a confirmation as may increase or enlarge the 
 estate; but that, as lord chief baron Gilbert observes, is by the force of those 
 words, and, strictly speaking, is foreign to the confirmation. Gilb. Ten. 75. 
 —[Note 253.]
 
 295. b. 296. a.] Of Confirmation. L. 3. C. 9. Sect. 516. 
 
 whereof Littleton hath here put these three examples, and con- 
 firmations implied, or in law, whereof Littleton hereafter speaketh 
 Li. 9. fo. 142. in this chapter. Quselibet conjirmatio, aut est perficiens, cresens, 
 Beaumond's au t diminuens } and of all these, Littleton putteth examples in 
 case - this chapter. And hereof Fleta saith carta autem de confirma- 
 
 Flet. li. 3. tione est ilia quse alter ius factum consolidat & confirmat, & nihil 
 
 cap. 14. novi attribuit, quandoque tamen confirmat & addit (2). 
 
 Sect. 516. [**L 6 '] 
 
 A ND in some case a deede of confirmation is good and available, 
 where in the same case a deede of release is not good or availeable. 
 As if I let land to a man for terme of his life, who letteth the same to 
 another for terme of 'forty yeares, by force of which he is in possession ; if 
 I by my deed confirme the estate of the tenant for yeares, and after the 
 tenant for life dieth during the terme of * yeares, 1 cannot enter into the 
 land during the said terme. 
 
 49 E. 3. 32. T ITTLETON in this chapter putteth eight diversities be- 
 
 tweene a confirmation and a release (1); and thereof for 
 illustration here hee putteth two cases in this and the next Sec- 
 tion, which upon that which hath beene said in the precedent 
 chapters, is sufficiently explained. Onely in both these cases 
 ( T RoU - Abr - this is to be observed, that where a confirmation shall enlarge 
 an estate, there privity is required, as well as in the case of the 
 9 H. 6. 22. tit. release, as by many examples which Littleton puts in this chap- 
 Kelease, 44. ter appeareth. And note, here is the first case wherein a re- 
 lease and a confirmation doe differ : 
 (Cro. Car. 284. Lessee for life made a lease for thirty yeares, and after the 
 1 Roll. Abr. 483. lessor and lessee for life made a lease of sixty yeares to another, 
 500. Mo. 67. w hich lease for sixty yeares the lessor did first confirme, and 
 Hokl65. ' after the lessor confirmed the lease for thirty yeares, and after 
 Post. 310. a.) tenant for life dyed within the thirty yeares ; and it was ad- 
 [d] Inter Unwel j u( jged [d], that the lease for thirty yeares was determined by 
 Reg?EHz. temP * the & death of lessee for life, and that the lessee for sixty yeares 
 (Hob. 7.)' might enter 5 for that albeit the lease for sixty yeares was the 
 
 latter in time, yet was it of greater force in law, for that the 
 lessor who had power to confirme which of them he would, did 
 first confirme the second lease. 
 
 In this chapter is also to be observed eight cases, wherein a 
 release and confirmation have the like operation in law. 
 
 Sect. 
 
 * forty added in L. and M. and Roh. 
 
 (2) See 9 Rep. 142. where Sir Edward Coke brings examples of these dif- 
 ferent operations of a confirmation. 
 
 (1) He also mentions eight instances in which they agree.
 
 L. 3. C. 9.S. 517-18-19. Of Confirmation [296. a. 296. b. 
 
 Sect. 517. 
 
 VET if I by my deed of release had released to the tenant for yeares 
 in the life time of the tenant for life, this release shall be voide, for 
 that then there was not any privity between me and the tenant for yeares 
 (pur ceo que adonques ne fuit ascun privity perenter f moy et le tenant 
 a terme d'ans) : for a release is not available to the tenant for yeares y 
 but where there is a privitie between him and him that releaseth (2). 
 
 This belongeth to the first diversity between a release and a confirmation. 
 
 [ 2 ? 6 '] m- Sect. 518. 
 
 TN the same manner it is if I be disseised, and the disseisor make a lease 
 to another for term of yeares, if I release to the termor, this is void; 
 but if I confirme % the estate of the termor, this is good and effectuall. 
 
 HERE is the second diversitie betweene a release and a con- 
 firmation. But if the disseisor make a lease for yeares to 
 begin at Michaelmasse, and the disseisee, confirme his estate, this 4 H. 7. 10. 
 is voide, because he hath but interessc termini, and no estate in ^ E °^ je. 
 him, whereupon a confirmation may enure. 
 
 Sect. 519. (5Kep. 81.) 
 
 ALSO, if I be disseised, and I confirme the estate of the disseisor, hee 
 
 hath a good and rightful estate in fee simple, albeit in the deede of 
 
 confirmation no mention be made of his heires, because hee had fee simple 
 
 at 
 
 fnoy et le tenant a term d'ans, — \the estate of the termor, — his estate, 
 luy et moy, L. and M. and Roh. L. and M. and Rob.. 
 
 (2) For in this case, if the lessor release to the lessee for years, without 
 using any further words, the operation of the release would be to enlarge the 
 estate of the lessee by giving him an estate of freehold for his life. Now to 
 ma,ke releases operate in this manner, it is necessary not only that the releasee, 
 at the time the release is made, should be in the actual possession of, or have a 
 vested interest in, the lands intended to be released, but that there should be a 
 privity between him and the releasor. In the case mentioned by Littleton, 
 there is no privity between the donor and the lessee of the donee for life. A 
 release therefore from the donor to the lessee would be void. But a confirma- 
 tion by the donor is good, and gives a stability and permanency to the estate 
 of the lessee during the whole term, which would otherwise determine by the 
 decease of the donee. Ant. 272. a. 273. b.— [Note 254.]
 
 296. b. 297. a.] Of Confirmation. L. 3. C. 9. Sect. 520. 
 
 at the time of the confirmation. For in such case if the disseisee confirme 
 the state of the disseisor, to have and to hold to him and his heires of his 
 body engendered, or to have and to hold to him for term of his life, yet the 
 disseisor hath a fee simple, and is seised in his demesne as of fee, because 
 when his estate was confirmed, he had then a fee simple, and such deed 
 cannot change his estate, without entry \\ made upon him, §c. 
 
 HERE is the first case wherein the release and confirmation 
 doth agree viz. a confirmation to a disseisor in taile, or for 
 19 H. 6. 22. any particular estate, is of the like force as a release to a disseisor, 
 Confirm 4 during such estate which in both cases is good for ever. In the 
 
 same manner it is, if the disseisor make a gift in taile, and the 
 disseissee confirme the estate of the donee for the life of the donee 
 this confirmation enures to the whole estate taile ; for a confir- 
 mation can make no fraction of any estate, to extend but to part 
 of the estate only. Et sic de cceteris (1). 
 
 s^ Sect. 520. [ 9 ® 7 -] 
 
 TN the same manner it is, if his estate bee confirmed for terme of a day 
 
 or for terme of an houre, he hath a good estate in fee simple, for 
 
 this, that his estate in fee simple was once confirmed (pur ceo que * son 
 
 estate en fee simple fuits un foits confirme.) Quia confirmare idem est, 
 
 quod firmum facere, &c. 
 
 HERE is the second case wherein the release and confirma- 
 tion doe agree. The reason of this is, for that the disseisor 
 hath a fee simple ; and therefore if his estate be confirmed but 
 for an houre, it is good for ever, because (saith Littleton) confir- 
 mare idem est, quod firmum facere. 
 
 JVbta, a diversity betweene a bare assent without any right or 
 
 interest, and an assent coupled with a right or interest : and 
 
 Lit.5. fol. 81. therefore an attornement cannot be made for a time nor upon 
 
 (Ant m^ 6 ') condition; but if the person make a lease for a hundred yeares, 
 
 (Post.*300. b.) the patron and the ordinary may confirme fifty of the yeares, 
 
 for they have an interest, and may charge in time of vacation. 
 
 And so if a disseisor make a lease, for an hundred yeares, the 
 
 disseisee may confirme parcel of those yeares ; but then it must 
 
 be by apt words, for he must not confirme the lease, or demise, 
 
 or the estate of the lessee, for then the addition of parcell of the 
 
 terme should be repugnant when the whole was confirmed before, 
 
 (1 Roll. Abr. but the confirmation must be of the land for part of the terme. 
 
 412 -) So may the confirmation be of part of the land ; as if it be of 
 
 forty 
 
 || made not in L. and M. or Roh. * son not in L. and 31. or Boh. 
 
 (1) It is to be observed, that a disseisor acquires by the disseisin a tor- 
 tious fee simple, notwithstanding at the time he makes the disseisin he claims 
 a less estate ; it being a rule, that a disseisor cannot qualify his own wrong. — 
 [Note 255.]
 
 L. 3. C. 9. Sect. 521. Of Confirmation. [297. a. 
 
 forty acres, he may confirme twenty, &c. So if tenant for life 
 make a lease for an hundred yeares, the lessor may confirme 
 eyther for part of the terme, or for part of the land. But an 
 estate of free-hold cannot bee confirmed for part of the estate, 
 for that the estate is intire, and not severall, as yeares be (1). 
 
 Sect. 521. 
 
 ALSO, if my disseisor maketh a lease for life, the remainder over in 
 fee, if I release to the tenant for life, this shall enure to him in the 
 remainder. But if I confirme the estate of the tenant for tearme of life, 
 yet after Ms decease I may well enter, because nothing is confirmed but 
 the estate of the tenant for life (pur ceo que * riens est confirme forsque 
 Testate le tenant a terme de vie), so that after his decease I may enter. 
 But when I release all my right to the tenant for life, this shall enure 
 to him in the remainder or in the reversion, because all my right is gone 
 by such release. But in this case, if the disseisee confirme the estate and 
 title of him in the remainder without any confirmation made to tenant 
 for life, the disseisee cannot enter upon the tenant for terme of life, for 
 that the remainder is depending upon the state for life; and if his estate 
 should be defeated, the remainder should be defeated by the entry of the 
 disseisee, and it is no reason that he by his entry should defeat the re- 
 mainder against his confirmation, §c. 
 
 HERE is the third case wherein the release and confirmation 
 differ, for the confirmation to the tenant for life doth not 
 enure to him in the remainder. 
 
 And so it is when the severall estates be in one person ; as 
 if the disseisor make a gift in taile, the remaynder to the right 
 heires of tenant in taile, if the disseisee confirme the estate in 
 
 taile, 
 
 * nul added in L. and M. and Roh. 
 
 (1) The distinctions taken here by sir Edw. Coke are, that a confirmation 
 to a tenant of freehold or inheritance, cannot be so worded as to have a less 
 operation than that of confirming his whole estate; consequently a confirma- 
 tion to such a tenant, either of the lands, or of his estate in them, for any 
 term or period, is a confirmation of his whole fee. A disseisor always acquires 
 by the disseisin a tortious fee simple ; a confirmation therefore to him, however 
 qualified, is a confirmation of his whole fee. It is otherwise in the case of a 
 term of years. A confirmation may be made of part of the term only. The 
 reason of this difference is, that an estate of freehold or of inheritance is con- 
 sidered as integral and indivisible. But as years are several, the term which 
 is composed of them is necessarily fractional and divisible, and may consequently 
 be confirmed in part only, by using proper expressions for this purpose. If a 
 person confirms the estate of the tenant for years for part of the term, as the 
 word estate signifies all the interest or term of years which the tenant has, the 
 subsequent words are not considered as qualifications of the former words, but 
 as absolutely repugnant to them ; and as both cannot stand together, the law 
 prefers the first, which are the principal, to the other, which are only second- 
 ary.— [Note 256.]
 
 297. a. 297. b.] Of Confirmation. L. 3. C. 9. Sect. 521. 
 
 taile, it shall not extend to the fee simple, no more than if the 
 disseisor had made a gift in taile, the remainder for life, the 
 remainder to the right heires of tenant in taile; this 
 (Ant. 52. a.) extendeth onely to the estate taile, and not B@f to the r297'.~j 
 (Post. 310. a. remainder for life, nor to the remainder in fee. But if L D - J 
 fl Roll 3 Abr. tue disseisor make a lease for life to A. and B. and the 
 302.) disseisee confirme the estate of A., B. shall take advantage 
 
 thereof; for the estate of A. which was confirmed was joynt with 
 B. and in that case the disseisee shall not enter into the land, 
 and divest the moity of B. 
 (Sid. 83.) If the disseisor infeoffs A. and B. and the heires of B. if the 
 
 disseisee confirme the estate of B. for his life, this shall not 
 only extend to his companion, as hath beene said, but to his 
 whole fee simple, because to many purposes hee had the whole 
 (1 Cro. 321.) fee simple in him, and the confirmation shall bee taken most 
 (Ant. 182.) strong against him that made it. 
 
 Tenant in tayle discontinueth in fee and dyeth, the discon- 
 tinuee make a lease for life, and granteth the reversion to the 
 issue, he shall not have a formedon against tenant for life ; for 
 by his formedon he must recover the estate of inheritance, and 
 the lessee for life hath not the inheritance, but the issue in taile 
 himselfe hath it. 
 (Ant. 202. a.) If feoffee upon condition make a lease for life, or a gift in 
 
 taile, and the feoffor release the condition to the feoffee, he 
 shall not enter upon the lessee or donee, because he cannot 
 regaine his ancient estate. 
 
 If the feoffee upon condition make a lease for life, the re- 
 mainder in fee, if the feoffor release the condition to the lessee 
 for life, it shall enure to him in the remainder; as well as in the 
 case of the right, or of a rent, &c. 
 
 If a feme disseisoresse make a feoffment in fee to the use of 
 
 A. for life, and after to the use of herselfe in taile, and the 
 remainder to the use of B. in fee, and then taketh husband the 
 disseisee, and he releaseth to A. all his right, this shall enure to 
 
 B. and to his own wife also ; for by the rule of Littleton it must 
 enure to all in the remainder (1). 
 
 But if A. letteth to B. for life, and B. niaketh a lease to C. 
 
 for his life, the remainder to A. in fee, A. releaseth to C. all his 
 
 right, this is good to perfect the estate of C. for his life. But 
 
 when C. dyeth, A. shall be in of his old estate, for his release 
 
 could not enure to himselfe to perfect his defeasible remainder, 
 
 but his ancient right remaineth. And note, that in these two 
 
 cases the fee is divested and vested all at one instant ; in the 
 
 same manner as if tenant in taile make a lease for life, at the 
 
 same instant the estate taile is devested out of the donee, and 
 
 the reversion in fee out of the donor, and a new fee vested in 
 
 tenant in taile. And so if the husband make a lease for life of 
 
 his wife's land, he devesteth his owne estate, that he hath in her 
 
 right, and the inheritance of his wife, and at the same instant 
 
 vesteth a new reversion in fee in himselfe. 
 
 " But 
 
 (1) For though a man cannot contract with his wife, or transfer any inte- 
 rest to her, yet she may, by construction of law, take benefit of a release made 
 by him to a third person, and enuring by way of extinguishment. Hawk. 
 Abr.— [Note 257.]
 
 L. 3. C. 9. Sect. 521. Of Confirmation. [297. 1). 298. a. 
 
 " But in this case, if the disseisee confirme the estate and title v 'd. 29 Ass. 17. 
 of him in the remainder." Here is the third case Be " en value 
 
 [Q98.1 wherein the release and confirmation doe agree, fteST for Br. 30. 13 E. 3. 
 a. J the continuation made to him in the remainder shall Eutr. Cong. 
 
 availe the tenant for life, as much as the release shall. p[' ^J^ Dela _ 
 
 mere's case. Vid. Sect. 374. 
 
 "For that the remainder is depending, &c." By this some (Mo. 91.) 
 have gathered, that if a desseisor make a lease for life, reserving 
 the reversion to himselfe, and the disseisee confirmeth the state 
 of the disseisor, that he may enter upon the lessee, because the 
 estate of him in the reversion dependeth not upon the state for 
 life as the remainder : but all is one, for by the confirmation 
 made to him in the reversion, all the right of him that con- 
 firmeth is gone, as well as when he maketh it to him in remainder; 
 and he cannot by his entry avoide the estate of the lessee for Reported by sir 
 life, but he must avoide the state of the lessor, which against J °!"l Po Ph am > 
 is own confirmation he cannot doe; and it hath been adjudged, (p ost . 302. a.) 
 that if a disseisor make a lease for life, and after levie a fine of (6 Rep. 40.) 
 the reversion with proclamations, and the five years passe, so as (°™ 360 ■) 
 the disseisee is for the reversion barred, he shall not enter upon 150. Ant. 224. 
 the lessee for life. a.) 
 
 " The remainder shoidd he defeated." It is regularly true, 
 that when the particular estate is defeated, that the remainder 
 thereby shall be also defeated, but it faileth in divers cases. 
 
 For where the particular estate and the remainder depend vid. PI. Com. 
 upon one title, there the defeating of the particular estate is Colthirst's case. 
 a defeating of the remainder. But where the particular estate ( Post - 333, a# b ^ 
 is defeasible, and the remainder by good title, there though the 
 particular estate be defeated, the remainder is good. As if the 
 lessor disseise A. lessee for life, and make a lease to B. for 
 the life of A. the remainder t» C. in fee, albeit A. re-enter, and 
 defeate the estate for life, yet the remainder to C. being once 
 vested by good title shall not be avoided : for it were against 
 reason that the lessor should have the remainder againe, against 
 his own liverie; and this is well warranted by the reason of 
 Littleton in this case. So it is if a lease be made to an infant 
 for life, the remainder in fee, the infant at his full age disagree 
 to the estate for life, yet the remainder is good, for that i^was 
 once vested by good title; for in both these cases there was 
 a particular estate at the time of the remainder created. 
 
 If a lease be made to A. for the life of B. the remainder to O. 17 E. 3. 48. 
 in fee, A. dyeth (A) before an occupant entreth, here is a re- 
 mainder without a particular estate, and yet the remainder con- 
 tinueth good (1). 
 
 A rent is granted to the tenant of the land for life, the re- 8 3B. 3. Abb. Ass. 
 mainder in fee, this is a good remainder, albeit the particular y a °' ^ 200. 
 
 Moore, 664. Yelv. 9. 2 Roll. Abr. 415. 7 H. 4. 6. 1. Rep. 66. Noy, 47°.) 7 II.' 4. 6. 
 
 estate 
 
 (A) Here the sense of the text appears to require a semicolon. See Mr. Ritso's Intr. 
 p. 116, 117. 
 
 (1) But since the stat. 29 Car. 2. c. 3. § 12. and 14 Geo. 2. c. 20. § 9. no such 
 vacancy can happen. Vid. ante, n. 5. 41. b, and Atkinson v. Baker, 4 T. II. 230.
 
 298. a.] Of Confirmation. L. 3. C. 9. Sect. 521. 
 
 estate continued not; for eo instante that he tooke the particular 
 estate, eo instante the remainder vested, and the suspension 
 in judgement of law grew after the taking of the particular 
 estate (2). 
 
 If 
 
 (2) A rent is an incorporeal hereditament, and susceptible of the same limi- 
 tations as other hereditaments. Hence it may be granted, or devised, for life, 
 or in tail, with remainders or limitations over. But there is this difference be- 
 tween an entail of lands and an entail of rent; that the tenant in tail of lands, 
 with the immediate reversion in fee in the donor, may, by a common recovery, 
 bar the entail and the reversion; whereas the grantee in tail of a rent de novo, 
 without a subsequent limitation of it in fee, acquires, by a common recovery, 
 only a base fee, determinable upon his decease, and failure of the issues in tail; 
 but if there is a limitation of it in fee, after the limitation in tail, the recovery 
 of the tenant in tail gives him the fee simple. This was resolved in the cases of 
 Smith v. Farnaby, Carter, 52. Sid. 285. and 2 Kib. 29. 55. 84. Weekes 
 v. Peach, 2 Lutw. 1218. 1224. and Chaplin v. Chaplin, 3 P. Wms. 229. 
 The reason of this difference is, that it would be unjust that the conveyance 
 of a grantee of a rent should give a longer duration or existence to the rent, 
 than it had in its original creation. It is true, that the barring of an estate 
 tail in land is equally contrary to the intention of the grantor. But a rent 
 differs materially from land. The old principles of the feudal law looked 
 upon every modification of landed property, which was considered to be against 
 common right, with a very jealous eye. Now, a rent-charge was supposed to 
 be against common right, the grantee of the rent-charge being subject to no 
 feudal services, and being a burthen upon the tenant who was to perform them. 
 Upon this principle, the law, in every instance, avoided giving by implication a 
 continuation to the rent beyond the period expressly fixed for its continuance. 
 Thus if a tenant in tail of land die without issue, his wife is entitled to dower 
 for her life out of the land, notwithstanding the failure of the issue; but the 
 widow of a tenant in tail of rent is not entitled to her dower against the donor. 
 So if a rent is granted to a man and its heirs generally, and he dies without an 
 heir, the rent does not escheat, but sinks into the land. It is upon this principle, 
 that when there is not a limitation over in fee, a tenant in tail of rent acquires, 
 by his recovery, no more than a base fee. But if there is a limitation in fee, 
 after the particular limitation in tail, the grantor has substantially limited the 
 rent in fee; and therefore, it is doing him no injustice that the recovery should 
 give the donee, who suffers it, an estate in fee simple. The case of Chaplin 
 v. Chaplin was, thart lady Handy, the grandmother of Porter Chaplin, being 
 seised in fee, conveyed divers lands to the use and intent that the trustees 
 named in the deed, should receive and enjoy a rent-charge of SOL per ann. to 
 them and their heirs, with power to distrain for it, and to enter and hold the 
 land on non-payment for forty days; and then the rent was declared to be to 
 the use of Porter Chaplin in tail; remainder to the use of the same person who 
 had the land in fee. It is stated to have been afterwards disclosed to the court, 
 that the legal estate of the rent in fee was in the trustees. But it is worthy of 
 the attention of the reader, that it was not necessary that any new matter should 
 be adduced to disclose this to the court, as it appears on the face of the deed; 
 for a conveyance to A. and his heirs to the use and intent that B. and his 
 heirs may receive a rent out of the estate, gives B. the legal fee of the rent; 
 so that if it is afterwards declared, that B. and his heirs, are to stand seised 
 of the rent to uses, the intended cesiuys que ttse take only trust or equitable 
 estates. If, therefore, it is intended to limit a rent in strict settlement, it 
 is necessary to do it by way of grant at common law, to some person and 
 his heirs, to the uses intended to be limited. This gives the grantee the mere 
 
 seisin
 
 L. 3. C. 9. Sect. 522. Of Confirmation. [298. a. 
 
 If a man grant a rent to B. for the life of Alice, the remainder 
 to the heires of the body of Alice, this is a good remainder, and 
 yet it must vest upon an instant (3). 
 
 Sect. 522. 
 
 ALSO, if there bee two disseisors, and the disseisee releaseth to one of 
 them, he shall hold his companion out of the land. But if the 
 disseisee confirm the estate of the one, without more saying in the deede 
 (sans pluis* dire en le fait), some say that hee shall not hold his com- 
 panion out, but shall hold joyntly with him, for that nothing was con- 
 firmed but his estate which was joynt (pur ceo que f riens fuit confirme 
 forsque son estate que fuit joynt), ftc. 
 
 THIS is the fourth case wherein the release and the con- 
 firmation seeme to differ, being made unto one of the dis- 
 seisors. 
 
 " Confirmed but his estate, &c." Hereby it appeareth, that if 
 the disseisee confirme the estate of the one disseisor in the lands, 
 to have and to hold the lands or tenements, or the right of the 
 disseisee, to him and his heires, hee shall hold out the other 
 disseisor; and that appeareth by Littleton, first, upon these words 
 
 (confirme 
 
 * dire — parlance L. and 31. and f nul added in L. and 31. and Roh. 
 
 Ron. 
 
 seisin to the uses, and the uses declared upon it will be executed by the statute. 
 See note on Uses, 272. a. VII. 3.— [Note 258.] 
 
 (3) Formerly the doctrine of the necessity that the remainder should vest at 
 the very instant of the determination of the particular estate at farthest, was 
 extended to the case of a posthumous son. In the case of Reeve v. Long, 1 
 Salk. 227. an estate was limited to A. for life, remainder to his eldest son in tail; 
 A. died, leaving his wife enseint. She afterwards had a son. It was adjudged 
 that the son, not being in esse at the time of the determination of the particu- 
 lar estate, could not take under the limitation. This judgment was afterwards 
 affirmed in the court of king's bench; but it was reversed in the house of lords, 
 against the opinion of all the judges. To obviate all doubts respecting the law 
 in this case, the statute of 10 Will. III. c. 16. was passed, by which it was 
 enacted, that where any estate is, by marriage, or any other settlement, settled 
 in remainder to children, with* remainders over, any posthumous child may take 
 in the same manner as if born in the father's life-time. It is singular that this 
 statute docs not expressly mention limitations or devises made by wills. There 
 is a tradition, that, as the case of Reeve v. Long arose upon a will, the lords 
 considered the law to be settled by their determination in that case ; and were 
 unwilling to make any express mention of limitations or devises made in wills, 
 lest it should appear to call in question the authority or propriety of their 
 determination. Besides, in the above case of Reeve v. Long, the words of 
 the act may be construed, without much violence, to comprise settlements of 
 estates made by will, as well as si ttlements of estates made by deed. — [Note 
 259.]
 
 298. b.] Of Confirmation. L. 3. C. 8. Sect. 523. 
 
 {confirme tlie state of one) "without more saying in the 
 
 jaggr deede, viz. to have and to hold the lauds, &c. Se- ["298.1 
 
 condly, the reason of Littleton in expresse words is, for |_ b. 
 
 that nothing was confirmed but his estate which was 
 
 joynt. Thirdly, the next two Sections make it plaine where 
 
 the habendum is added. 
 
 Hereby also it appeareth, that a release is more forcible in law 
 than a confirmation. If the disseisee and a stranger disseise the 
 heire of the disseisor, and the disseisee confirme the estate of his 
 companion, this shall not extinguish his right that was sus- 
 pended : so as if the heire (B) or the disseisor re-enter, the right 
 of the disseisee is revived. And so it is if the grantee of a rent- 
 charge and an estranger disseise the tenant of the land, and the 
 grantee confirme the estate of his companion, the tenant of the 
 land re-enter, the rent is revived ; for the confirmation extended 
 not to the rent suspended, otherwise it is of a release in both 
 cases. 
 
 Sect. 523. 
 
 A ND for this some have said, that if two joyntenants bee, and the one 
 confirme the estate of the other, that he hath but a joynt estate, as 
 he had before. But if hee hath such words in the deede of confirma- 
 tion, to have and to hold to him and to his heires all the tenements 
 ivhereof mention is made in the confirmation, then he hath a sole estate 
 in the tenements, * §c. And therefore it is a good and sure thing in 
 every confirmation to have these words ; to have and to hold the tene- 
 ments, §c. in fee, or in fee taile, or for terme of life, or for terme of 
 yeares, according as the case is or the matter lyeth (solonque ceo que le 
 cas f est, ou le matter gist.) 
 
 AND this confirmation leaveth the state as it was, and doth 
 not amount to any severance of the joynture, as some have 
 said. 
 
 34 E. 3. tit "But if hee hath stich words in the deede, &c." This is 
 
 Confirm, pi. 15. plaine and evident enough. 
 
 " And therefore it is a good and sure thing, &c." This is good 
 counsell, and worthy to be observed. 
 
 Sect. 
 
 * &c. not in L. and M. or Koh. f est not in L. and M. or Roh. 
 
 (B) Here, it seems, the text should be read as if lord Coke had said, "bo as if the heir of 
 the disseisor re-enter, instead of, " so as if the heir or the disseisor re-enter," See ace. 
 the 7th &• 12th editions.
 
 L. 3. C. 9. Sect. 524-5. Of Confirmation. [298. b. 299. a. 
 
 
 Sect. 524. 
 
 TpOR to the intent of some, if a man letteth land to another for life, 
 and after confirme his estate which hee hath in the same land, to 
 have and to hold his estate to him and to his heires, this confirmation as 
 to his heires is voide,for his heires cannot have his estate, which was not 
 hut for terme of his life (car ses heires ne poient aver son estate que * 
 ne fait forsque pur terme de son vie). But if he confirme his estate hy 
 these words, to have the same land to him and to his heires, this confirma- 
 tion maketh a fee simple in this case to him in the land, for that the 
 words to have and to hold, <f <?. goeth to the land, and not to the estate 
 which hee hath (pur ceo que f les parolx a aver et tener, &c. va a le terre, 
 et nemy al estate que il ad), $c. 
 
 HERE the diversity is apparent betweene a confirmation of the 
 estate for life in the land to have and to hold the said state 
 
 in the land to hiin and his heires, this cannot 6@ Q " (1 Roll. Abr. 
 
 t299.~l enlarge his estate, for his estate beingbut for life, that jg 2 ^ 3 . 
 a. J estate cannot bee extended to his heires. But in that (Pi . 158. a.) 
 case if he confirme the state for life in the land in 
 the premisses of the deed, and the habendum is in this sort, to 
 have and to hold the land to him and his heires, this shall en- 
 large his estate, and create in him a fee simple. 
 
 Wherein is to bee noted, [ej that the habendum and the pre- [e] Vid. PI. Com. 
 misses doe in substance well agree together, and that the ha- in Throgmor- 
 bendum shall enlarge the premisses, but not abridge the same (1). £°j D 147 "a 
 
 And seeing that in conveyances, limitations of remainders Wrottesleye's 
 are usual! and common assurances, it is dangerous by conceipts case » 197 - 
 or nice distinctions to bring them in question, as have in latter ^ 2 Rep " 23- ^ 
 time beene attempted. 
 
 " His estate:' Vide Sect. 650. 
 
 Sect. 525. 
 
 ALSO, if I let certaine land to a feme sole for terme of her life, who 
 taketh husband, and after I confirme the estate of the husband and 
 wife, to have and to hold X for terme of their two lives ; in this case the 
 husband doth not hold joy ntly with his wife, but holdeth in right of his 
 wife for terme of her life. But this confimation shall enure to the husband 
 by way of remainder for terme of his life, if he surviveth his wife- 
 
 HERE 
 
 * ne not in L. and M. or Roll. | the land added in L. and M. 
 
 ■j" les parolx — le, L. and 31. and Roll, and Roh. 
 
 (1) On the operation of an habendum in a deed, see ant. 21. a. Vin. Abr. 
 Grant, J. K. L. and M. 
 
 Vol. II.— 31
 
 299. a. 299. b.] Of Confirmation. L. 3. C. 9. Sect. 525. 
 
 Vide Sect. 573. TTERE is the fourth case wherein the release and confirmation 
 
 f*> l R iLAb 1 '^ "^ r ^ oe a S ree 5 &n ^ m tn ^ s case i* * s to be observed, that the 
 829.) baron hath such an estate in the land in the right of his wife as 
 
 hee is capable of a confirmation to enlarge his estate ; and there- 
 fore if the confirmation had been made of his estate to him alone, 
 (Ant. 273. b.) to have and to hold the land to him and to his heires, this had 
 tm H ' 6 ' 45 been good to have conveyed the fee simple to him after the de- 
 
 22 e. 3.' tit! cease of his wife : for if in this case a release be made to the 
 Release. husband and his heirs, this is sufficient to convey the inheritance 
 
 Statham. of the ]and to tlie husband (2). 
 
 " Doth not holdjoyntly with his wife. For two causes. 
 (4 Rep. 29.) First, because OCT* the wife hath the whole for her life. [~Q99. ~| 
 Secondly, joyntenants must (as hath beene before said | b. 
 in the chapter of Joyntenants) come in by one title. 
 But in this case if the confirmation had been made to the husband 
 18 E. 3. 20. aQ d wife, to have and to hold the land to them two and to their 
 (1 Roll. Rep. heires, they had been joyntenants of the fee simple, and the hus- 
 230. 317. 438. band seised in the right of his wife for her life ; for the husband 
 Ant U °l84 a. an( * tQe w ^ e cannot take by moities during the coverture. 
 187. a. If a man letteth land to the husband and wife, to have and to 
 
 Post. 351. a. hold tbe one moity to the husband for terme of his life, and the 
 other moiety to the wife for her life, and the lessor confirme the 
 estate of them both in the land, to have aud to hold to them and 
 to their heires ; by this confirmation as to the moity of the hus- 
 band, it enureth only to the husband and his heires, for the wife 
 18 Ass. p. 3. had nothing in that moiety: but as to the moity of the wife, 
 is E. 3. they are joyntenants, as bath bin said; for the husband hath such 
 
 h'e^ 1 ^ an estate ln n ' s wife's moiety, in her right, as is capable of a 
 
 28 E. 3.' 94." confirmation. But if such a lease for life be made to two men 
 40 E. 3. by severall moities, and the lessor confirme their estates in the 
 
 land, to have and to hold to them and to their heires, they are 
 tenants in common of the inheritance ; for regularly the con- 
 firmation shall enure according to the quality and nature of the 
 estate which it doth enlarge and increase. 
 
 If a lease for life be made to A. the remainder to B. for life, 
 and the lessor confirme their estates in the land, to have and to 
 hold to them and their heires, A. taketh one moity to him and 
 his heires, and therefore of the one moity he is seised for life, 
 the remainder to B. for life, and then to him and his heires : of 
 the other moiety A. is seised for life, the immediate inheritance 
 to B. and his heires : because as to the moity which B. takes, 
 39 H. 6. 9. the same is executed : as if the reversion be granted to tenant 
 
 Ant. 182. b.) for life, and to a stranger, it is executed for one moity, (as hath 
 
 been 
 
 (2) The nature of the estate which the husband acquires by marriage in his 
 wife's real property, will be explained in a note to fol. 325. b, With respect to 
 his interest in her chattels real and choses in action, an accurate, and, so far 
 as it goes, a masterly explanation of it is given in Bacon's Abridgment, Baron 
 and Feme, (B). It is much to be lamented, that the author did not go more 
 fully into the subject. Mr. Viner has collected most of the cases respecting 
 it with his usual industry. — But since the publication of that useful compila- 
 tion, several cases have been determined, by which the law upon it has been 
 greatly illustrated and explained, and, in some instances, altered. An attempt 
 will be made to give a succient view of it, in a note to fol. 351. — [Note 2G0.] 
 
 8 Ass. 20. 
 
 /•
 
 L. 3. C. 9. Sect. 525. Of Confirmation. [299. b, 
 
 been said before) and therefore in this case they are tenants in 
 common. 
 
 If lands be given to two men, and to the heires of their two 
 bodies begotten, and the donor confirmeth their two estates in 
 the land, to have and to hold the land to them two and to their 
 heires; in this case some are of opinion that they shall be joyn- 
 tenants of the fee simple, because the donees were joyntenants 
 for life, and (say they) the conflrmatiou must enure according 
 to the estate which they have in possession, and that was joynt. 
 But others hold the contrary. For, first, they say, that the 
 donees have to some purposes severall inheritances executed, 
 though between the donees survivor shall hold for their lives. 
 Secondly, they say, that when the whole estate, which compre- 
 hendeth severall inheritances, is confirmed, the confirmation 
 must enure according to the severall inheritances, which is the 
 greater and most perdurable estate, and therefore that the donees Vid. Sect. 573. 
 shall be tenants in common of the inheritance in this case. 
 
 "By way of remainder, &c." Here some question hath been 
 made of this terine remainder, without any cause at all, because 
 in law it is in nature of a remainder. For in case of a fine, when pi. Com. Col- 
 a reversion expectant upon an estate for life in A. is granted to thirst's case. 
 B. et quae, ad ipsum reverti debent post mortem A. prafato B. & Do( ^- & Stud - 
 haircdibus suis remaneant, &c. and a more colourable exception 
 might be taken against this word remaneant there, than in the 
 case of Littleton. 
 
 It is true, that in * 16 II. 6. it is called a reversion : in [o] r*j 16 n. 6 . 
 9 E. 4. it is called a remainder : in [p] 6 E. 3. it is said, that tit. Release, 45. 
 by the confirmation an estate accrued to the husband for terme \°\ 9 *?• *• * 8 - 
 of his life. In [j] 17 E. 3. the husband, living the wife, shall [jj n E 3 
 have nothing but in abeyance after the death of his wife. But 68. b. 
 lest there should bee pugna verborum, which learned and wise 
 men ever avoide, all do resolve, that the estate of the husband 
 is good, and that it doth enure by way of increase and inlarge- 
 ment of his estate. And albeit in this case of Littleton, the 17 E. 3. 68. b. 
 husband by the confirmation gaineth an estate for life in remain- Y L Paget's case, 
 der, (as Littleton termeth it) yet if the husband doth waste, an f^J^ ™y 
 action of waste shall lie against him and his wife, notwithstand- 
 ing the meane remainder, because the husband himselfe com- 
 mitteth the waste, and doth the wrong; and therefore shall not 
 excuse himselfe for his committing of waste, in respect he him- 
 selfe hath the remainder; no more than if a man lesseth to A. 
 during the life of B. the remainder to him during the life of C. 
 if he commit waste, an action of waste shall lie against him (1). 
 
 Sect. 
 
 (1) It is necessary to distinguish between the cases mentioned by Littleton 
 and Sir Edward Coke, in this and the preceding chapter, where an estate for' 
 life is enlarged to an estate in fee, by the release, or confirmation of the rever- 
 sioner, or remainder-man, and those cases where a person, being seised of am 
 estate for life, the inheritance is afterwards conveyed or devised to his right; 
 heirs, by a subsequent deed, or will. It appears by the case of Moore v.- 
 Parker, 1 Lord Rayni. 37. 4 Mod. 316. Skin. 558. and Fonnereau v. Fon- 
 nereau, Doug. Bep. 1 vol. 470. that the estate of the ancestor is not affected by" 
 
 the
 
 299. b.J Of Confirmation. L. 3. C 9. Sect. 526. 
 
 Sect. 526. 
 
 J)UT if Ilet land to a feme sole for terme of year -es, who taketh hus- 
 band, after I confirm the estate of the husband and his wife, to 
 have and to hold the land for term of their two lives : in this case they 
 have a joynt estate in the freehold of the land, for that the ivife had no 
 freehold before, &c. 
 
 THIS 
 
 the subsequent conveyance or devise to his right heirs. For though it is a rule 
 that, where the ancestor by any gift or conveyance takes an estate of freehold, 
 and in the same gift, or conveyance, an estate is limited, either mediately or 
 immediately, to his heirs in fee, or in tail, " the heirs/' in such cases, are words 
 of limitation of the estate, and not words of purchase ; yet this applies only to 
 those cases where both the limitations are by the same instrument. In some 
 cases, the freehold of the ancestor has resulted to him by implication ; but still 
 the deed from which that implication resulted was the deed in which the limi- 
 tation to his heirs was expressed ; so that the implied estate of freehold, and 
 the expressed estate of inheritance, arose at the same time, and under the same 
 deed, which brings it within the general rule. But suppose an estate is limited 
 to A. for life ; remainder to such uses as B. shall appoint, and afterwards B. in 
 the life-time of A. appoints the estate to ^4.'s right heirs; it is difficult to say 
 whether, in that case, the estates will unite or not. This case has sometimes 
 occurred in practice, but has not yet been the subject of any judicial determi- 
 nation. To prove the union of the two estates, it may be contented, that the 
 deed by which the power is executed, must be considered as a part of the deed 
 by which the power is given ; that the use limited by the execution of the 
 power derives its effect, and is fed, by the seisin of the releasees or feoffees of 
 the deed containing the power ; that the uses limited in the original deed, to 
 take effect in default of an execution of the power, are subject to that power; 
 that the uses limited under, or by virtue of the power, precede and take place 
 of them, in the same manner as if in the original deed, not the power, but the 
 use executed by virtue of the power, had been inserted ; and that though the 
 uses vest at different times, yet they may be considered as virtually created at 
 the same time. On these grounds, the proposed case may be contended to 
 resemble the case put, post. 378. b. that if lands be given to two, during their 
 joint lives, with the immediate remainder to the right heirs of him who shall 
 die first, there, both the estates are created at the same time, but the inherit- 
 ance does not vest till a subsequent period ; yet sir Edward Coke expressly 
 says, that the heir, in that case, takes by descent. Between th< cases, however, 
 there is this difference, and it may be thought important, that in the case put 
 by lord Coke, the limitation of the inheritance was confined to the heirs of the 
 predeceasing tenant for life, so that there never was an instant when it was not 
 certain that the remainder in fee would, in the contemplation of law, attach in 
 one or other of them so far as to make his heir take by descent ; and thus each 
 tenant for life had a contingent remainder or possibility in fee. But, in the case 
 proposed in this annotation, no such contingent remainder or possibility existed 
 in A. the tenant for life — See ant. 271. b. note 1. VII. Since the publica- 
 tion of this note in the former editions of this work, the subject has received a 
 masterly investigation by Mr. Fearne. See his essay on Contingent Remain- 
 ders, 6th edit, page 74. — [Note 261.]
 
 L. 3. C. 9. Sect. 527. Of Confirmation. [299. b. 300. a. 
 
 r THIS is the fifth case wherein the release and confirmation 5 E. 3. 17. b. 
 
 ' doe agree : and it is to be observed, that chattels P1 - Com - 418 - *>• 
 
 [300.1 reals, as leases for yeares, B^g"* wardships, and the like, 14 h 4. 12 
 
 a. J are not given to the husband absolutely (as all chattels 38 E. 3. 35. 
 
 personals are), by the intermarriage, but conditionally P1 - Com - Dame 
 
 if the husband happen to survive her, and he hath power to alien ^Ass^Ti) 
 
 them, at his pleasure; but in the mean time the husband ispos- 4 n. 6.5. 
 
 sessed of the chattels reall in her right. 7 H. 6. 1. 
 
 b 9 H. 6. 52. 
 
 37 Li. Ass. 21 II. 7.29. 21 E. 4. 40. 26 II. S. 7. (Ant. 46. b. Post. 351. a.) 
 
 Secondly, that the husband hath such a possession in her right (Ant. 273. b. 
 of the chattell, as is capable of a confirmation or of a release. Ant - 2 " 6 - a - 
 
 Thirdly, that the confirmation in this case to the husband and n ' " a '^ 
 wife for their lives, maketh them joyntenants for life, because 
 a chattell of a feme covert may be drowned ; and so note a diver- 
 sity betweene a lease for life and aleaseforyeares made to a feme 
 covert ; for her estate of freehold cannot be altered by the con- 
 firmation made to her husband and her, as the terme for yeares 
 may, whereof her husband may make disposition at his plea- 
 sure (1). 
 
 Sect. 527. 
 
 J^LSO, if my disseisor granteth to one a rent charge out of the land 
 
 whereof he disseised mee, and I rehearsing the sayde grant confirme 
 
 the same grant, and all that which is comprised within the same grant, 
 
 and after I enter upon the disseisor ; quaere, in this case, if the land be 
 
 discharged of the rent or no* 
 
 ^PHIS is the fifth case wherein the release and confirmation doe 
 
 -L differ ; for a release to the grantee in this case [«] were voide. [a] 11 h. 7. 28. 
 
 It is holden by some authority since Littleton wrote, that the Lib - *• fo1 - 147 - 
 
 disseisee after his re-entry shall not avoide the rent charge Anne May° w 's 
 ,,. „ . J ,, 111.,° case. 3 H. 4. 10. 
 
 against his own continuation ; and there a generall rule is taken, 
 
 that such a thing as I may defeate by my entry, I may make 
 
 good by my confirmation. 
 
 If the feoffee upon condition grant a rent charge in fee, and Li. 1. fo. 147, 
 
 the feoffor confirmeth it, and after the condition is broken, and 148 - Anne 
 
 the feoffor enter, he shall not avoide the rent charge. And so ?d 13 ?^' s T 18 :™ . 
 . . .« . , ; ■ » .1 t • ° 1 , ,. (rost. ooct. 529.) 
 
 it is it the heire ot the disseisor grant a rent charge, and the dis- 
 seisee confirmeth it, and after recover the land, he shall not 
 avoide the rent ; and yet in neither of these cases his entry was 
 congeable at the time of the confirmation (2). 
 
 Sect. 
 
 * &c. added in L. and M. and Roh. 
 
 (1) If a man seised of a rent-charge in fee grants it over to a feme sole for 
 a term of years, and the tenant attorns, and she marries during the term, and 
 the grantor confirms the rent to the husband and wife for their lives, or in fee, 
 they become joint tenants for life or in fee of the rent, and need no new attorn- 
 ment. Vaugh. 46.— [Note 262.] 
 
 (2) Tenant in tail makes a lease for life, now he hath gained a new fee by 
 wrong, and afterwards he grants a rent-charge, or makes a lease for years, and 
 afterwards tenant for life dies, he shall not avoid his charge or lease, although 
 
 he
 
 300. a. 300. b.] Of Confirmation. L. 3. C. 9. Sect. 528. 
 
 Sect. 528. 
 
 A LSO, if a parson of a church charge the glebe land of his church 
 by his deed (si uu parson d'un esglise charge * le glebe de son 
 esglise per son fait), and after the patron and ordinary confirme the 
 same grant, f and all that is comprised in the same grant, then the grant 
 shall stand in his force, according to the purport of the same graunt. 
 But in this case it behoveth that the patron hath a fee simple in the ad- 
 vowson ; for if he hath but an estate for life, or in taile, in the advowson, 
 then the graunt shall not stand, but during his life, and the life of the 
 parson which granted (Car s'il \. n'ad estate en l'avowson forsque pur 
 terme devie, ou en le taile, donquele grant |ne estoyera forsque durant 
 sa vie, et la vie le person que grantast), &c. 
 
 (llanv. li. 13. 
 ea. 23, 24. 25. 
 Bract, li. 4. 
 ca. 285, &e. 
 Brit. fo. 234. b. 
 Ac. Fleta. li. 5 
 ca. 19, 20. & 
 lib. 6. ca. 18. 
 Reg. F. N. B. 
 48. 49. 
 Brit, ubi supra. 
 
 8 E. 3. 26. 43. 
 
 moo. 
 
 L b. . 
 
 "8 E. 3. 4. 
 
 " p ARSON," Persona. In thelegall signification it is taken 
 for the rector of a church parochiall, and is called persona 
 ecclesise, because he assumeth and taketh upon him the 
 parson of the church, and is (£r said to be seised in 
 jure eccfesi'a?, and the law had an excellent end therein, 
 viz. that in his person the church might sue for and de- 
 fend her right ; and also be sued by any that had an elder and 
 better right; and when the church is full, it is said to be plena & 
 consulta of such a one parson thereof, that is, full and provided 
 of a parson, that may vicem seu j>ersonam ejus gerere. 
 
 Persona impersonata, parson impersonee, is the rector, that 
 is in possession of the church parochiall, be it presentative, or 
 
 " - M:ir - D y- 123 - impropriate, of whom the church is full. 
 
 7 H. 4. 
 
 (Mo. 65 
 
 15. 
 
 •) 
 
 ( 1 Roll. Abr. 
 47.9.481.; 
 [b] 19 El. 
 Dy. 350. 357. 
 1 1 H. 6. 9. 
 3.3 H. 8. tit. 
 Charge, Br. 58. 
 , Post, 329. a.) 
 
 Here are divers things to bee noted. First, that the confirma- 
 tion is of the grant, which indeed is but a meere assent by 
 deed to the grant ; and therefore it is holden, that if there be a 
 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 granteth the rent charge accordingly, this 
 is good, and shall binde the successor; and yet here is no con- 
 firmation subsequent, but a licence precedent. 
 
 Secondly, the ordinary alone, without the deane and chapter, 
 may agree thereunto, either by licence precedent, or confirma- 
 tion subsequent ; for that the deane and chapter hath nothing to 
 doe with that which the bishop doth as ordinary, in the life-time 
 of the bishop. 
 
 Thirdly, [/;] but if the bishop be patron, there the bishop can- 
 not confirme alone, but the deane and chapter must confirme 
 also; for the advowson or patronage is parcell of the possession 
 of the bishopricke ; and therefore the bishop, without the deane 
 
 and 
 
 * l e — UI1) L. and M. and Roh. | n'ad — ads, L. and M. and Roll. 
 
 f and all that is comprised in the J ne not in L. and 31. or Roh 
 
 same grant, not in L. and M. or Roh. 
 he be in of another estate, because he had a defeasible pqesession and ancient 
 right, the which, if they be in several hands, should be good, as the lease of 
 one, and the confirmation of the other; and being in one hand, shall be as 
 much in judgment of law. 7 Rep. 14. a. in Englefield's case. — [Note 263.]
 
 L. 3. C. 9. Sect. 528. Of Confirmation. [300. b. 301. a. 
 
 and chapter, cannot make the grant good, but only during his 
 owne life, after the decease of the incumbent, either by licence 
 precedent, or confirmation subsequent. 
 
 A. parson of D. is patron of the church of S. as belonging 
 to his church, and presents B. who by consent of A. and of the See more of 
 ordinary, grants a rent charge out of the glebe ; this is not good these kinds of 
 to make the rent charge perpetuall, without the assent of the jn^y^p ,,",.,. 
 patron of A. no more than the assent of the bishop who is (Li. 2. 24 &, 39. 
 patron, without the deane and chapter, or no more than the L j- 1- W3. 
 assent of the patron, being tenant in taile or for life, as Littleton j^'g f Lai si 
 saith. And Littleton here saith, that the patron that confirmes Lib. 10. 6. 
 must have a fee simple, meaning to make the charge perpetuall Lib. 11. 19. 
 (1). And Littlefbn after saith, that in the case of the parson ^ta^A b 
 the fee is in abeyance, and seeing the consent of the patron is 297. a. Sid. 75.) 
 in respect of his interest (B) as heire, it appeareth by Littleton, 
 he may consent upon condition ; otherwise it is of an attorne- 
 ment, because that is a bare assent. Also if the estate of the 
 patron be conditional!, and he confirmeth, and after the condi- 
 tion is broken, his confirmation is voide. 
 
 Fourthly, he that is patron must be patron in fee simple ; for 31 E. 8. Grant, 
 
 if hee be tenant in taile, or tenant for life, his confirmation or o 1 ™ 26 ,^ 88 ".,^" 
 
 . . ' , . , , , 8 Eliz. Dv. 252. 
 
 agreement is not good to bind any successor, but such as come vid. lib.*3. fol. 
 
 into the church during his life. But if the patron be tenant in 73. Le case de 
 taile, and discontinue the estate in taile, the lease shall stand 'J ea ne <fc chapter 
 good during the discontinuance; or if the estate taile be barred, ^ Lev 112 ' 
 it shall stand good for ever. 1 Roll. Ab. 482. 
 
 But here is to be observed a diversity betweene a sole corpo- 2 RoU - Ae- 
 ration, as parson, prebend, vicar, and the like, that have not the 12 H 4 11 
 absolute fee in them, for to their grants the patron must give 19 E. 3. 7. 
 his consent. But if there be a corporation aggregate of many, 7 Eliz - Dy. 23S. 
 as dean and chapter, master, fellowes, and schollars of a colledge, 10 euzDv 
 abbot or prior, and covent, and the like, or any sole corporation 6 E. 3. 10. 
 that hath the absolute fee, as a bishop with consent of the dean 2 E. 3. 29. 
 and chapter, they may by the common law make any grant of ' 9 „" *• y, 
 or out of their possessions, without their founder or patron, ^g e. 3. 19. 
 albeit the abbot or prior, &c. were presentable : and so it is of a 25 E. 3. 54. 
 bishop, because the whole estate and right of the land was in 
 
 them, and they may respectively maintaine a writ of 
 T301.] right. 
 
 a. S^° If a bishop hath two chapters, and he maketh Temps, R. 2. 
 
 a grant, both chapters must continue it, or else the tit Grant, 104. 
 successor shall avoide it. But if one of the chapters be dis- a ■ e *gta!tii 
 solved, then the confirmation of the other sufficcth; but it n Eliz. 
 needeth not the confirmation of the king, who is founder and Dyer, 282. 
 patron of all bishopricks (1*). 
 
 And 
 
 (B) Here the serine of the text seem* to require n comma, rathir than after "heire," ichich 
 word appears to l>e printed by mistake instead of •• here j" for, the content of the patron was 
 in respect of his interest simply, and it teas immaterial whether he had acquired such interest 
 Ity descent or purchase. 
 
 (1) A prebendary after admission and institution, and before induction, or 
 instalment, granted an annuity for him and his successors, and the bishop 
 confirmed it; it was resolved, that a writ of annuity lay not in that case, 
 because the confirmation being made before the induction, was void. Plow. 528. 
 a.— [Note 264.] 
 
 (1*) For the confirmation of leases made by ecclesiastical persons, see 
 Bacon's Abr. tit. Leases.
 
 301. a.] Of Confirmation. L. 3. C. 9. Sect. 529. 
 
 And note a diversity between a confirmation of an estate, and 
 a confirmation of a deed ; for if the disseisor make a charter of 
 feoffment to A. with a letter of attorney, and before livery the 
 disseisee confirme the estate of A. or the deed made to A. this 
 is cleerly voide, though livery be made after. But if a bishop 
 had made a charter of feoffment with a letter of attorney, and 
 the deane and chapter before livery confirme the deed, this is a 
 good confirmation, and livery made afterwards is good. And so 
 it hath been adjudged. 
 
 The like law is of a confirmation of a deed of grant of a re- 
 version before attornment. 
 
 In the same manner it is if a bishop at the common law had 
 granted lands to the king in fee by deed, and the deane and 
 chapter by their deed confirme the deed of the bishop, and after 
 the deed of the bishop is inrolled, this is good, albeit the con- 
 firmation of the deene and chapter he not inrolled ; for the 
 assent upon the matter is made to the bishop. 
 33 E. 3. But this confirmation that Littleton here speaketh of must be 
 
 Confirm. 22. made in the life, and during the incumbency of the person ; 
 21 H 7 1 an ^ so ^ n * ne ^ e °f tne bishop, or of any other sole corpora- 
 
 VVl. Sect. 393, tion. But it is to be knowne that grants made by parsons, pre- 
 <fc 643. bends, vicars, bishops, master and fellowes of any colledge, 
 
 deane and chapter, master or gardeine of any hospital!, or any 
 having any spirituall or ecclesiasticall living, are restrained by 
 [e] 13 Eliz. j- f ] divers acts of parliament, so as they cannot grant any rent 
 
 "TeHz cap 19 charge, or to make any alienation, or to make any leases other 
 18 Eliz. ca. ll. than such as are mentioned in those acts, which you may reade 
 
 1 Jac. cap. 3. a t large, and the expositions upon the same, in my [*] Coui- 
 Vid. Sect. 593. ___-,♦-_:-«, 
 k 648. mentanes. 
 
 [*] Li. 2. fo. 46. lib. 4. 76 & 120. li. 5. 9. 6. 14. li. 6. 37. lib. 7, 8. lib. 11. 67. 
 
 Sect. 529. 
 
 A LSO, if a man letteth land for term of life, the which tenant for 
 life charge the land with a rent in fee, and he in the reversion con- 
 firme the same grant, the charge is good enough and effectuall. 
 
 26 Ass. pi. 38. Tl ERE is a diversity to bee observed, where the determina- 
 45 Ass. pi. 13. 1 1 tion of the rent is expressed in the deed, and when it is 
 Anne Mayowe's i m ply e d m ^ aw> F° r when tenant for life granteth a rent in 
 case. fee, this by law is determined by his death; and yet a confirma- 
 
 (1 Roll. Abr. tion of the grant by him in the reversion makes that grant good 
 14 Asa t>l 14 ^ or ever > without words of inlargement, or clause of distresse, 
 which would amount to a new grant. And yet if the tenant for 
 life had granted a rent to another and his heires by expresse 
 words, during the life of the grantor, and the lessor had con- 
 firmed that grant, that grant should determine by the death of 
 tenant for life. 
 
 Tenant for life upon a condition grant a rent in fee, the lessor 
 confirme the grant, and after the condition is broken, the lessor 
 re-enter, he shall not avoide the grant. 
 
 Sect.
 
 L. 3. C. 9, S. 530, 531. Of Confirmation. [301. a. 301. b. 
 
 Sect. 530. 
 
 J^LSO if there bee a perpetuall chanterie, wherewith the ordinary 
 hath nothing to doe or meddle; quaere, if the patron of the chantery, 
 and the chapleine of the same chantery may charge the chantery with a 
 rent charge in perpetuitie. 
 
 n"HIS is meant of a chauntery donative wherewith the ordi- Vid. Sect. 648. 
 -»• nary hath not to deale, and hy this grant, when. Littleton if^f*!^ 
 wrote, the chauntery should have been charged for ever, be- pet's case.) 
 cause no other had any interest in this chantery (Post. 344.) 
 
 t301. ~j 0^7" save only the patron and chauntry priest, and the 
 b. J gra.ntismadeconcurrentibushiisquae injure requirun- 
 tur. But since Littleton wrote, all, and all manner of 
 free chappels and chaunteries perpetuall, whereof Littleton here 
 speakes, are by [«] acts of parliament given to the crowne, and 
 the bodies politike thereof dissolved. See hereafter, Section 648, \"}* 7 H " 8- 
 more at large of this present Section. 1 e. 6,c. 14. 
 
 Sect. 531. 
 
 J^LSO, in some case this verbe dedi,* or this verbe concessi, hath the 
 same effect in substance, and shall enure to the same intent, as this 
 verbe confirmavi. As if I bee disseised of a carueof land, and I make 
 such a deed (sicome jeo sue disseisie d'un carue de terre, et f jeo face 
 tiel fait) ; Sciant pnesentes, &c. quod dedi to the disseisor, % frc. or quod 
 concessi to the said disseisor, the said carue, $c. and I deliver onely the 
 deed to him without any liverie of seisin of the land, this is a good con- 
 firmation, and as strong in law, as if there had beene in the deede thi* 
 verbe confirmavi, &c. 
 
 HERE Littlton procedeth, according to the former division, to 
 shew words that in law do amount to a confirmation. And 
 here is to be observed, that some words are large, and have a 
 generall extent, and some have a proper and particular applica- 
 tion. The former sort may contain the latter; as dedi or con- Bra u 2 f . 59* 
 cessi may amount to a grant, a feoffment, a gift, a lease, a release, b. 21 li. 6. 
 a confirmation, a surrender, &c. and it is in the election of the Feoffments & 
 party to use which of these purposes he will. g" h g 42 
 
 14 II. 4. 36. 19 II. 6. 44. 7 II. 7. 1(5. 32 E. 3 Briefe, 291. Brooke, tit. Confirm. 20. 
 14 H. 7. 2. 37 11.6.17. Dyer, 8 Eliz. 4 H. 7. 10. 22 E. 4. 36. 40 E. 3. 41. 
 (Sid. 452. Plo. 196. 5 Rep. 17. a. 1 Roll. Abr. 4S2. Noy, 66.) 
 
 Est autemconfirmatio quasi quaedam ratihabitio, sufficit tamen Bracton, lib. 2. 
 quandoque per se, sietiam in se continent donationcm, ut si dicat fo1 * 59 ' b ' 
 
 quis 
 
 *or — and,L. and M. and Roh. \&c. or quod concessi to the dis- 
 
 "j" puis added in L. and M. and Roll, seisor, &c. not in L. and M. or Roh.
 
 301. 1). 302. a.] Of Confirmation. L. 3. C. 9. Sect. 532. 
 
 quis, dedi et confirmavi, licit juvari jiossit ex alt qua donatione 
 prseccdente. 
 
 But a release, confirmation, or surrender, &c. cannot amount 
 to a grant, &c. nor a surrender to a confirmation, or to a release, 
 &c. because these bee proper and peculiar manner of convey- 
 ances, and are destined to a speciall end(l). 
 
 " Dedi et concessi, &c." Here is itnplyed that there be more 
 words than dedi and concessi, that will amount to a confirmation, 
 as dimisi. [Y] In ancient statutes and in originall writs, as in 
 the writ of entry in casuproviso, in consimili casu adcommunem 
 legem, and many others, this word dimisi is not applied only to a 
 lease for life, but to a gift in taile, and to a state in fee. [/*] Also 
 if a man make a lease to A. foryeares, and after by his deed the 
 lessor voluit quod haberet et tenerct terrain pro termino vitae suse ; 
 this is adjudged by this verbe {void) to bee a good confirmation 
 for terme of his life. Bcuiyne cnim faciendse sunt interpreta- 
 tiones cartarum propter simpdicitatem laicorum ut res mat/is 
 valeat quam pereat. 
 
 And he to whom such a deed comprehending dedi, &c. is 
 made, may pleade it as a grant, as a release, or as a confirmation, 
 at his election (2). 
 
 If a parson and ordinary make a lease for yeares of 
 the glebe to the patron, and the 5®°* patron by his |~302. 
 deede granteth it over, or if the disseisor granteth a | a. 
 rent to the disseisee, and he by his deed granteth it 
 over, and after re-enter; in both these cases one and the same 
 words doe amount both to a grant, and to a confirmation in 
 judgement of law of one and the same thing, ne res pereat. And 
 so it is if a disseisor make a lease for life, or a gift in taile, the 
 remainder to the disseisee in fee, the disseisee by his deed granteth 
 over the remainder, the particular tenant attorneth, the disseisee 
 shall not enter upon the tenant for life, or in taile, for then lie 
 should avoide his owne grant, which amounted to a grant of the 
 estate, and a confirmation also. 
 
 (4 Rep. 80. b. 
 2 Cro. 169. 
 Mo. 34. 
 Plo. 397, 39S.) 
 
 0] 32 E. 3. 
 Briefe, 291. 
 Brooke, tit. 
 Confirm. 20. 
 Yid. le stat. de 
 (iloc. ca. 4, 
 [/]7 E. 3. 9. 
 Brae ton. 
 (Plo. 159.) 
 
 14 H. 4. 36. 
 
 Lib. 5. fol. 15. 
 in Neweomen's 
 case. 
 
 ] 
 
 (Ant. 280. 298. 
 b Rep. 15, 16.) 
 
 (Sid. 453.) 
 
 Sect. 532. 
 
 A LSO, if I let land to a man for terme of yeares, by force whereof he 
 is in possession, Sj-c. (si jeo lessa terre a un home pur terme d'ans, 
 per force de quel il est * en possession), and after I make a deede to 
 him, $c. quod, dedi & concessi, &c. the said land to have for terme of his 
 life, and I deliver to him the deed, $e. then presently he hath an estate 
 in the land for terme of f his life. 
 
 HERE 
 
 * en possession, &c. 
 L. and M. and Roh. 
 
 -possessione, j" his not in L. and M. or Roh. 
 
 (1) The effect of the word grant, in implying a warranty, will be considered 
 in a note on the chapter of Warranty. 
 
 (2) But a lease and release cannot be pleaded as a grant of the reversion. 
 Noy, 66.— [Note 265.]
 
 L. 3. C. 9. Sect, 533, 534. Of Confirmation. [302. a. 302. b. 
 
 HERE 
 relea 
 plication. 
 
 HERE is the sixth case wherein the confirmation and the 
 release doe agree, and is evident, and needeth no ex- 
 
 Sect. 533. 
 
 A N P. 
 
 if I say in the deede, to have and to hold to him, and to his 
 heires of his body engendred, hee hath an estate in fee taile. And if 
 1 say in the deed, to have and to hold to him and to his heires, he hath an 
 estate in fee simple. For this shall enure to him by force of the confir- 
 mation (per force de * confirmation) to inlarge his estate. 
 
 T'HIS also is evident, and needeth no explication, saving that 
 -A whensoever a confirmation doth inlarge and give an estate 
 of inheritance, there ought to be apt words (as Littleton here 
 expresseth them) used for the same. 
 
 Sect. 534. 
 
 A LSO if a man be disseised, and the disseisor die seised, andhisheire 
 is in by discent, and after the disseisee and the heire of the disseisor 
 ■make joyntly a deede to another in fee (et puis le disseisee et l'heire \ le 
 disseisor font jointment un fait aim auter en fee), and livery of seisin is 
 made upon this, (as to the heire of the disseisor that sealed the deed) the 
 tenements doe passe ^ and enure by the same deed by way of feoffment ; 
 and as to the disseisee who sealed the same deed, this shall enure but by way 
 of confirmation (ceo ne urera § sinon per voy de confirmation). But if the 
 disseisee in this case brings a ivrit of entrie in the per and cui against the 
 alienee of the heire of the disseisor (envers l'alienee || del heire le disseisor) ; 
 quaere, how he shall pleade this deede against the demandant by way of 
 confirmation, ** $c. And know, my son, that it is one of the most honor- 
 able, laudable, and profitable things in our laiv, to have the science of 
 well pleading in actions reals and personals ; and therefore I counsaile 
 thee especially to imploy f thy courage and care to learne this %%. 
 
 11 A S to the heire of the disseisor, &c. the tenements doe 
 
 t302."| passe by way of feoffment" For ^T the land 
 
 b. | shall ever passe from him that hath the state of the land 21 H. 7. 34. b. 
 in him. As if cestui/ que use and his feoffees after the W- Com. 59. a. 
 statute of 1 R. 3. and before the statute of 27 II. 8. cup. 10, had j."^ Viuabishe ' a 
 
 joyned (6 Rep. 15. a.) 
 
 * confirmation — confirmament, L. § sinon — mes, L. and M. and Roh. 
 
 and M. and Roh. \\ del — le, L. and M. and Roh. 
 
 \ le disseisor, not in L. and M. or ** <l>c. not in L. and M. or Roh. 
 
 Roh. f all added in L. and M. and Roh. 
 
 \. and enure, not in L. and M. or j| &c. added in L. and M. and 
 
 Roh. Roh.
 
 302. b. 303. a.] Of Confirmation. L. 3. C. 9. Sect. 534. 
 
 joyned in a feoffment, it shall be the feoffment of the feoffees, 
 because the state of the land was in (A) him. 
 PI. Com. 59. a. So it is if the tenant for life, and hee in the remainder or re- 
 
 Pi. i> >m. no. version in fee, joyne in a feoffment by deede. The livery of the 
 "L a rc freehold shall move from the lessee, and the inheritance from 
 
 2 H. 5. 7. him in the reversion or remainder, from each of them according 
 
 13 H. 7. 14. t ijj s estate. For it cannot bee adjudged by law, that the feoff- 
 27 H 8 IsT" nient of tenant for life doth draw the reversion or remainder 
 M. 16 &, 17 El. out of the lessor or him in remainder, or doth worke a wrong 
 33 p- because they joyned together (1). 
 
 (1 Roll. Abr. 633.) (Ant. 45. a.) (1 Rep. 76, 77.) 
 
 Lib. 1. fo. 76. If there bee tenant for life, the remaynder in tayle, &c. and 
 
 Bredon's case. tenant fjr life and he in the remainder in tayle levie a fine, this 
 is no discontinuance or devesting of any estate in remainder, 
 but each of them passe that which they have power and autho- 
 rity to passe. 
 17 Eliz. A. tenant for life, the remainder to B. for life, the remainder 
 
 Dyer, 339. in tayle, the remainder to the right heires of B., A. and B. joyne 
 
 (1 Leo. 31.) j Q a feoffment by deede, albeit it may be said that this is the 
 feoffment of A. and the confirmation of B. and consequently hee 
 (I Leo. 37. 262.) in the remainder in tayle cannot enter for the forfeiture during 
 the life of B. but because B. joyned in the feoffment, which was 
 torcious to him in the remainder in taile, and isparticeps criminis, 
 therefore they forfeited both their estates, and he in the re- 
 mainder in tayle might enter for the forfeiture. But if he in the 
 reversion in fee and tenant for life joyne in a feoffment by paroll, 
 this shall be (as some hold) first a surrender of the estate of 
 tenant for life, and then the feoffment of him in the reversion : 
 for, otherwise, if the whole should passe from the lessee, then 
 he in the reversion might enter for the forfeiture, and every 
 man's act (ut res mag is valeat) shall be construed most strongly 
 against himselfe. 
 
 And it is to be observed that Littleton here putteth a discent, 
 so as the entry of the disseisee is not lawfull ; for if the disseisor 
 and disseisee joyne in a charter of feoffment, and enter into the 
 land, and make livery, it shall be accounted the feoffment of the 
 disseisee, and the confirmation of the disseisor. 
 
 Lib. 1. fo. 146, 15®°*" Quaere how he shall plead this deede, &c." Hee r303.1 
 147. Majowe's may pleade the feoffment of the heire of the disseisor, [ a. 
 case - and the confirmation of the disseisee as it hath been 
 
 pleaded and allowed. . 
 
 " And 
 
 (A) Here the word "him," seems to be printed by mistake instead o/""them." See 
 Mr. llitso's Intr.p. 120. 
 
 (1) Tenant for life, and he in the remainder in fee, make a lease for years by 
 deed indented; the lessee, being ejected, declared upon the demise made by 
 the tenant for life, and the remainder-man ; and adjudged against the plaintiff ; 
 for, living the tenant for life, it is only the lease of the tenant for life, and the 
 confirmation of the remainder-man; and he ought to have so declared, 1 Inst. 
 45. a. So if two joint-tenants, two tenants in common, or tenant for life and 
 he in the remainder, join in the grant of a copyhold, one fine only is due, and 
 it shall enure as one grant only : so if a remainder be made, and after a common 
 recovery is had by plaint, in the nature of a writ of entry, for better assurance 
 —one fine only shall be paid. Co. Copyholder, 162, 163.— [Note 266.]
 
 L. 3. C. 9. Sect. 534 Of Confirmation. [303. a. 
 
 " And know, my son, that it is one of the most honourable, &e." See m y Preface 
 Here is to bee observed the excellency of good pleading, and ^ x ™ p ie ^'^ s e 
 Littleton's grave advice, that the student should irnploy his cou- (Ant. l*. a. 
 rage and care for the attaining thereof; which he shall attaine 126 b. 1S1 a. 
 unto by three means: first, by reading; secondly, by observa- |?|" |l_ . 
 tion; and thirdly, by use and exercise. For in ancient time the 
 Serjeants and apprentices of law did draw their owne pleadings, 
 which made them good pleaders. And in this sense placitttm 
 may be derived dplacendo, quia omnibus placet. 
 
 Now seeing good pleading is so honourable and excellent, 
 and that many a good cause is daily lost for want of good and 
 orderly pleading, it is necessary to set downe some few rules 
 (araougst many) of the same, to facilitate this learning, that is 
 so highly commended to the studious reader. For when I dili- 
 gently consider the course of our bookes of years and termes 
 from the beginning of the raigne of Edw. 3. I observe, that 
 more jangling and questions grow upon the matter of pleading, 
 and exceptions to forme, than upon the matter it selfe, and 
 infinite causes lost or delayed for want of good pleading. There- 
 fore it is a necessary part of a good common lawyer to be a good 
 prothonotary. And now we will perform our promise. 
 
 The order of good pleading is to be observed, which being 
 inverted, great prejudice may grow to the party, tending to the 
 subversion of law. Online placitandi servato, servatur & jus, &c. 
 
 First, in good order of pleading a man must pleade to the 
 jurisdiction of the court. Secondly, to the person; and therein 
 first to the person of tMb plaintife, and then to the person of the 
 defendant. Thirdly, to the court. Fourthly, to the writ. 
 Fifthly, to the action, &c. [a~\ which order and forme of pleading 
 you shall reade in the ancient authors agreeable to the law at M B»etpn>li.5. 
 this day ; and if the defendant misorder any of these he loseth f " 4J ' a ^ ^2' 
 the benefit of the former. Fleta, li. 6. 
 
 The count must be agreeable and conforme to the writ, the «».35, 36, <fcc. 
 barre to the count, &c. and the iudinnent to the court: for 17 -p' a -\ ' 
 
 » 1 1 11 1 i ' 17 Js. 6. 74. 
 
 none 01 them must be narrower or broader than the other. 8 E. 3. 5. & 9. 
 
 A count or declaration, which anciently and yet is called 35 H. 6. 12. 
 
 narratio, ought to containe two things [b] viz. certainty and 
 
 verity, for that it is the foundation of the suite, whereunto the f 121 122*" 
 
 adverse party must answer, and whereupon the court is to give 3 E. 4. 21. 
 
 his iudcement : [Vl Certa debet esse intentio et narratio, et certum Vid - ,ib - 5 - 
 
 fund amentum, et certa res qua 'deducitur in judicium. But it must r°i j{ \ t ~ ' 
 
 be understood that thsre be three kinde of certainties; first, to a jib. 2. fo. lio. 
 
 common intent, and that is sufficient in a barre which is to 
 
 defend the party and to excuse him. % [d] Secondly, a certaine rrf] Lib. 5. 120, 
 
 intent in generall, as in courts, replications, and other pleadings 121 - Long's ca. 
 
 of the plaintife, that is to convince the defendant, and so in w : v°"V '•''■ 
 . , . r o mi • 11 • • • -i t\ imbisne s 
 
 inaitements, &c. lhirdly, a certaine intent in every particular, case. 
 
 as in estoppels (B). 
 
 He 
 
 (B) Ace. pout. 352. b. as to the third kind of certainty. Yet, in 5 Rep. 121. lord Coke 
 says, that certainty to a certain intent in every particular is rejected in law, for that iiimia 
 subtilitas in jure reprobntur, & talis certitudo certitudinum confundit. On the three 
 kinds of certainty mentioned in the text, and particularly irith respect to the certainty ichich 
 is required in a charge or accusation, see the judgment delivered by Do Grey, Chief 
 Justice, in the case of Hex. v. Home, in Dora. Proc. 11 May 18 Geo. 3. Coup. G72. 682. 
 See also The King v. The Mayor and Burgesses of Lyme Regie, Doug. 149. 158. In 
 Comyn's Digest various instances of certainty are mentioned, for which see the references 
 there tinder the head Certainty.
 
 303. a.] Of Confirmation. L. 3. C. 9. Sect. 534. 
 
 [e] 7 H. 6. 17. f e ] He pleadeth a plea in abatement of the writ (which of 
 
 id! n. 09 k ancient times was, and yet is called breve) or a plea after the 
 
 1*1. Com. 33. b. . . ill- . , * 
 
 latter continuance, ought to plead it certainly. 
 [/"] 34 H. 6. 48. [/] The ancient formes of courts are to be duly observed, as 
 
 8 H. 5. 4. b. cum dimisit, cum dedit, and not to say, that he was seised and 
 H^ltzib' demised, &e. (And yet if he say so, it maketh not the count 
 39 H. 6. 3. vicious) [ff] but in a barre replication or other kinde of pleading, 
 
 10 H. 6. 2. the party must alledge a seisin in the lessor or donor, and ancient 
 
 r 1 ^^ ™ 2 o 6 'o formes of pleading are also to be observed. 
 [<y] 48 E. 3. 8. r o 
 
 2 H. 4. 13. 6 H. 4. 2. b. 10 E. 4. 2. F. N. B. 156. C. 11. E. 3. Aide, 32. 
 
 9 H. 6. 59. 10 E. 4. 4. 
 
 [h] PL Com. [/*] Counts, or such as be in nature of counts, (as an avowry, 
 
 Bret's case, 342. wherein the defendant is an actor) need not to be averred, but all 
 27 H 6 9 H 7 otDer pleas in the affirmative ought to be averred, et hocparatum 
 est verrftcare, &c. but pleas meerly in the negative ought not to 
 be averred, because a negative cannot be proved, 
 n 40 E 3 31 W Where there is but one tenant or one defendant, he canuot 
 
 32, 33. have two such pleas, as each of them doe go to the whole : but 
 
 41 E. 3. 11. where there are divers, each of them may pleade several pleas 
 2 7 ^ 6 o 4 oi which extend to the whole (1). 
 
 44 E. 3. 23. 45 E. 3. Double plea, 39. 43 E. 3. 21. 36 H. 6. 29. 37 H. 6. 23. 
 33 H. 6. 51. 15 E. 4. 25. 7 H. 4. 12. 41 E. 3. Double plea, 78. 
 
 [k] PI. Com. 81. P 1 '] That which is alledged by way of conveyance or induce- 
 
 11 H. 4. 89. nient to the substance of the matter need not to be so certainly 
 ?n t?'* 6 ' a 48 '- alledged, as that which is the substance itfsdfe. 
 
 19 R. 2. Action & ' 
 
 sur le case. 52. 22 E. 3. 19. 30 E. 3. 9. 
 
 [7] 5 H. 7. 8. [?] Every plea must be direct, and not by way of argument or 
 
 6 E. 4. 2. rehearsall. 
 
 21 E. 4. 44. 
 
 27 H. S. 4. 22 H. 6. 17 E. 4. 7. 22 E. 4. 8. 
 
 [m] PL Com. [ m j Where a matter of record is the foundation or ground of 
 
 376*4 410 10 °" ^ e su * te °f tQe pl a i nt if e > or of the substance of the plea, there it 
 
 22 H. 6. 38. ought to be certainly and truly alleged; otherwise it is, where 
 19 H. 6. 49. it is but conveyance. But the proceedings and sentences in the 
 ■A u a I ecclesiasticall courts may be alleeded summarily : as that a 
 
 3o H. 6. 5. ,. ill i • r> i 
 
 21 E. 4. 54. divorce was had between such parties, tor such a cause, and 
 
 11 H. 6. 15. before such a judge, and concur re ntibus hits quce in jure requi- 
 
 38 H. 6. 23. 
 
 42 Ass. 3. 48 E. 3. 11. 4 E. 4. 12. 9 E. 3. 46. 21 E. 4. 52. 35 H. 6. 35. 
 10 H. 7. 9. 15. 11 H. 7. 8. 22 E. 3. 2. 34 H. 6. 27. 12 H. 8. 5. 6. 7 E. 
 4. 32. 9 E. 4. 24. 8 E. 4. 31. 8 Ass. 29. 5 E. 4. 70. 3 E. 4. 1. 
 
 runtur ; 
 
 (1) This is altered by 4 Ann. cap. 16. sect. 4 & 5. by which it is enacted, 
 that it shall be lawful for any defendant or tenant, in any action or suit, or for 
 any plaintiff in replevin, in any court of record, with the leave of the same 
 court, to pleade as many several matters thereto as he shall think necessary for 
 his defence; but it is thereby also provided, that if any such matter, upon a 
 demurrer joined, be judged insufficient, costs shall be given at the discretion of 
 the court; or if a verdict shall be found upon any issue in the said cause for 
 plaintiff, or the defendant, costs shall be also given in like manner, unless the 
 judge, who tried the said issue, shall certify that the defendant, tenant, or 
 plaintiff in replevin, had a probable cause to plead such matter, which upon the 
 said issue shall be found against him. — Note to the 11th edition. — [Note 267.]
 
 L. 3. C. 9. Sect. 534. Of Confirmation. [303. a. 303. b. 
 
 runtur ; for the judge must be alleclged, to the intent the court 
 may write to him if it be denied. 
 
 Good matter must be pleaded in good forme, in apt time, and 
 in due order or otherwise great advantages may be lost. 
 
 [3 03. "I [n\ ^T General estates in fee simple may be gene- [»] 35 n. 6. 35. 
 b. J rally alledged, but the commencement of estates tayle, l\f'f\ 51 ' 
 and other particular estates regularly must be shewed, 19 ^ 6. 73. 
 unlesse in some cases where they are alledged by way of induce- 5 E. 4. 12. 
 ment, and the life of tenant in taile, or for life ought to be 10 E. 4. 18. 
 
 averred. VI \\- '* ™" , 
 
 36 H. 8. Plead- 
 ing, Br. 160. 
 [o] When any speciall and substantiall matter is alledged by [o] V. Sect. 193. 
 either party, that ought to be especially answered, and not to be 3 H - 6 - 47 - 
 passed over by a generall pleading. g 1 ^ 3 g ' 22 ' 
 
 22 Ass. 45. 2 E. 3. 42. 13 E. 3. Anc. Demesne, 15. 20 E. 3. ib. 45. 7 H. 7. 8. 
 Lib. 10. fo. 91. Li. 11. fo. 10. 
 
 [p] the plea of every man shall be construed strongly against [pi 3 H. 7. 3. 
 him that pleadeth it, for everie man is presumed to make the 2 ?^ ss : 1 ?', 
 
 i « ,. 1 ' , . , f . . , , 14 H. 4. 4. b. 
 
 best ot nis owne case : ambiguum placitum mterpreturi debet 27 H. 6. 8. b. 
 contra proferentem. 21 II. 6. 
 
 Debt, 43. 
 
 7 H. 6. 24 31. 35 H. 6. 48. 47 E. 3. 14. PL Com. 46. a. Li. 3. fb. 59. 
 
 Line. Col. case. 
 
 [q ] Every plea that a man pleadeth ought to be triable, for [?1 22 E. 4. 
 without triall the cause can receive no end : et expedit rei pub- f„"J' ?' in 
 luse ut sit Jims titium. 21 E. 4. 36. 
 
 22 H. 6. 50*. 
 
 [/•] The tenant before his default saved, may plead all pleas W 4 j! E - 3 - 40 - 
 which prove the writ abated, as death, &c. or matters apparent 41E. 3. 2. 
 in the writ ; but no plea, which proves it abateable, as taking of 18 E. 3. 16. 
 husbands, &c. 26 E - 3 - 6S - 
 
 ' 42 E. 3.3. 10.46, 
 
 6 E. 3. 37. 8 E. 3. 20. 10 E. 3. 60. M H. 4. 15. 12 E. 4. 1. 38 E. 3. 28. 
 
 7 H. 7. 3. 
 
 [s] When a man is authorised to doe anything by the com- W 1° E - 4 - 3 - 
 mou law, by grant, commission, act of parliament, or by cus- g 7 ^'* 6 '^' 
 tome, he ought to pursue the substance and effect of the same 9 h." 7.' 26." 
 accordingly. 37 H. 6. 1. 
 
 27 H 8 13 
 21 H. 7. 25. 11 II. 4. 33. PI. Com. 79. 16 E. 4. 10. 1 K. 7. 33 
 20 H. 7.1. 6E.4.4.5. 21 E. 4. 54. 22 II. 6. 47. 11H.6.8. 25E.3. 50'.b. 
 23 Ass. 7. 2 Eliz. Dyer, 184. 
 
 [/] All necessary circumstances implied by law in the plea [<] Pi. Com. 149. 
 
 need not to be expressed, as in the plea of a feoffment of a man- ol^ 105 ' a ' 
 nor, livery and attornement are implied. ' ' ' 
 
 [«,] When a count, barre, replication, &c. is defective in respect ["] l 8E - 4 - 16. b, 
 
 of omission of some circumstance, as time, place, &c. there it Pi?'/ 'i 2 ,' 76 ' 
 
 may be made good by the plea of the adverse party ; but if it be 38 H. 6. 17, 
 
 insufficient in matter, it cannot be salved. 18, 19. 
 
 18 E. 3. 34. 
 
 PI. Com. 229. b. Lib. 8. 133. Turner's case. 
 
 [to] Every man shall plead such pleas as are pertinent for him l>] 5 II. 7. 34. 
 according to the quality of his case, estate, or interest, as dis- o'Mr'Voa 
 seisors, tenants, incumbents, crJinaries, and the like. 
 
 Surplusage
 
 303. b.] Of Confirmation. L. 3. C. 9. Sect. 534. 
 
 [.<•] 19 II 6. r>] Surplusage shall »ever make the plea vicious, but where 
 
 Pi c; 2 2.32 b *' * s contral 'i ent t0 tne matter before (1). 
 
 & fo. 502, per Dyer, <fc 503. 
 
 [,v] 13 II. 4. 17. [_y] That which is apparent to the court by necessary collec- 
 
 33 H 6 54 ^ on out °^ t ' ie recor d need not be averred. 
 
 36 H. 6. 30. 21 H. 7 32. Bract, li. 3. fo. 154. PI. Com. 87. b. 26 H. 6. Gard. 53. 
 
 [a] 2 II. 7. 15. [ a ~\ A man is bound to perform all the covenants in an inden- 
 
 ii/h 7 " 12 ^ ture : ^ a ^ tae covenants De i n tne affirmative, he may generally 
 
 13 h! 7. 19. plead performance of all ; but if any be in the negative, to so 
 26 H. 8. 5. b. many he must plead specially (for a negative cannot be per- 
 
 [b] Li. 8. fo. 133. formed), and to the rest generally, [b] So if any be in the dis- 
 Tu f rn n r 9 f case ' junctive, he must show which of them he hath performed. So if 
 Bonham's case an y are to De & one °^ recor d, he must shew that specially, and 
 Li. 9. 25. 61. cannot involve that in generall pleading. 
 
 Li. 10. 100. j-,_.j T a many cases the law doth allow generall pleading, for 
 
 2R 3 17. ' ' avoyding of prolixity and tediousnesse, and that the particular 
 
 14 E. 4. 7. shall come on the other side. 
 
 9 E. 4. 19. ryf] Pleadings which amount to the generall issue are not to 
 
 34 H 4 6 5 ' ^e allowed ; but the generall issue is to be entred. Vid. Sect. 
 ioH.Ye.&n. 10.485.499. 
 
 12 E. 4. 11. 14. 
 
 14 H. 8. 24. 7 E. 3 12. 17 E. 3. 44. 
 
 [e] 18 H. 6. 33. (Y) Every plea ought to have his proper conclusion, as a plea 
 
 22 II. 6. 53. to the writ to conclude to the writ, a plea in barre to conclude 
 
 38 H 6 18 25 to tne act i° n > aa estoppell to relie upon the estoppells : et sic de 
 
 5 E. 3. 15. 16. similibus. 
 
 22 Ass. 33. 
 
 2 Eliz. Dyer, 184. 
 
 [/] PL Com. 14, [/] "When the conclusion of a plea, et issint, et sic, is in the 
 
 15. 2 E. 4. 18. affirmative, it shall not wave the speciall matter, for there the 
 
 33 8 E 3* 57' specia.ll matter is the substance and foundation of the conclusion, 
 
 Qii. Imp. 25. and affirmed by the same. But where the conclusion is in the 
 
 18 H. 6. 30. negative, there the speciall matter regularly is waived. 
 
 38 Ass.14. 24 E. 3. 48. 22 E. 3. 13. 38 H. 6. 25. 32 H. 6. 14. 
 
 19 H. 8. 7. 27 H. 8. 12. b. 
 
 [g] 7 E. 4. 26. \jf\ Whensoever speciall matter is pleaded, and the conclu- 
 
 11 H. 7. 4. sion (et sic) is to the point of the writ or action, the speciall mat- 
 
 36 H 6 9 37 * er ^ S wa i ve( ^- 
 
 43. The names of legall records are, a writ, a count, a barre, a 
 
 replication, a rejoynder, a rebutter, a surrebutter, &c. 
 [h] V. Sect. 485. [A] New and subtill devices and inventions of pleadings ought 
 not to alter any principle of law, whereof you have heard plenti- 
 fully before. 
 
 The count or declaration is an exposition of the writ, and 
 addeth time, place, and other necessary circumstances, that the 
 same may be triable ; and any imperfection in the count doth 
 abate the writ. 
 
 Pleadings are divided into barres, replications, rejoynders, sur- 
 rejoynders, rebutters, and surrebutters, &c. They are words of 
 
 art, 
 
 (1) And then it does, because the plaintiff cannot discern what to answer to 
 in his replication. — Note to the 11th edition.
 
 L. 3. C. 9. Sect. 534. Of Confirmation. [303. b. 304. a. 
 
 art, and are called barres, barrse, so called, because it barreth 
 tbe plaintife of this action. Replicationes, a replicando ; re- 
 junctiones, a rejwngendo ; rebutter, of the French word rebouter, 
 i. e. a repellendo, to put backe or avoide, and,so of surrebutter. 
 
 But each party must take heed of the ordering of the matter 
 of his pleading, lest his replication depart from his count, or his 
 rejoynderfrom his barre; et sic tie cseteris. 
 
 [{] In ancient writers a barre is called exceptio pcrenxptoria ; [/] Bract, li. 5. 
 a replication was then called replicatio, as now it is; a rejoinder fo. 400. 
 triplicatio ; a surrejoinder, quadriplicatio ; et sic ulterius in Flet * h - 6 * ca " 37 * 
 
 infinitum. 
 r304."| S^ A departure in pleading is said to be when the (Sid. 10. 77. 
 a. | second plea containeth matter not pursuant to his for- 176. 277. 
 mer, and which fortifieth not the same, and thereupon J 1 ^- 1^- 
 is called decessus, because he departeth from his former plea ; 39 u/ 3< 13i b# 
 and therefore whensoever the rejoynder (taking one example for 39 H.6. 15. 
 all) containeth matter subsequent to the matter of the barre, and g/nVb 
 not fortifying the same, this is regularly a departure, because it P1 Com ' 10 * 5> 
 leaveth the former, and goeth to another matter. As if in an 1 Mar. 
 assise the tenant plead a discent from his father, and giveth a Dyer, J 5 ;. 
 colour, the demandant intituleth himselfe by a feoffeinent from (Doc'.pia. 119*. 
 the tenant himselfe, the plaintife cannot say, that that feoffement l Cro. 228. 
 was upon condition, and to shew the condition broken; for that 229. 257.) 
 should be a cleare departure from his barre, because it contain- 3 H ; 6 ' ' 
 eth matter subsequent. But in an assise, if the tenant pleadeth Departure, 2. 
 in barre, that I. S. was seised and infeoffed in him, &c. and the 
 plaintife sheweth, that he himsefe was seised in fee, until by I. S. 
 disseised, who infeoffed the tenant, and he re-entred, the defend- 
 ant may plead a release of the plaintife to I. S. for this doth 
 fortifie the barre. 
 
 If a man plead performance of covenants, and the plaintife (Sid. 10. 77. 
 reply, that he did not such an act according to his covenant, the 180. 404.) 
 defendant saith, that he offered to do it, and the plaintife refused Ism, Dy.m". 
 it ; this is a departure, because the matter is not pursuant : for 6E.3.3." 
 it is one thing to doe a thing, and another to offer to doe it, and 40 E. 3. 32. 
 the other refused to doe it : therefore that should have been * 3 ^ 3 * ^' 
 pleaded in the former plea. Vide & cave in a quare impedit, \ e. 4. 4. 
 what plea shall be safely pleaded in primo placito. 18 E. 4. 24. 
 
 When a man in his former plea pleadeth an estate made by jj g* '' ?J- 
 the common law, in the second plea regularly he shall not make 33 y, 6- {^ 
 it good by act of parliament. So when in his former plea he (Cro. Car. 257. 
 intituleth himselfe generally by the common law, in his second j^' 1 !" 1 ' 1, 83- 
 plea he shall not enable himselfe by a custome, but should have PL * Com# 105 b> 
 
 pleaded it first. Fulmerston's 
 
 If a man plead an estate generally, (as for example a feoffe- ®"^ 
 
 ment in fee), he in his second plea shall not maintain it by other 2 7 h'. s* 3 , ' 
 
 matter tantajnount in law, as by a disseisin and release, or by a 21 II. 7. 17. 
 
 lease and release, or a gift in taile in barre, and in the second ^ **. 6. 5. 
 
 plea a recovery in value; for this is a departure; but he in that (s aU nd'i42. 
 
 case shall count of a gift, and maintaine it in his replication by s. C. 1 Leo. 81. 
 
 a recoverv in value, because he could have no other count. S. C. Raym. 60. 
 
 ^ ' Sid. 142.) 
 
 21 H. 7. 25. 1 E. 4. 4. 3 H. 7. 5. 7 H. 7. 2. 
 
 See more of this matter, where the plaintife varying from Vid. Sect. 485. 
 time or place alledged in the count of actions transitory, shall 
 commit no departure. 
 
 The 
 
 Vol. II.— 32
 
 304. a.] 
 
 PI. Com. 139. 
 142. 
 
 *Fleta,li. 6. 
 ca. 35 (A.) 
 Bracton, li. 5. 
 fol. 400. 
 
 17 E. 3. 73. 
 (Doc. Pla. 135.) 
 
 39 H. 6. 27. 
 
 (Ante, 139. a.) 
 
 Hil. 32 E. 1. 
 
 Cor. Reg. in fine 
 rotul. 
 
 Of Confirmation. L. 3. C. 9. Sect. 534. 
 
 The plea that containes duplicity or multiplicity of distinct 
 matter to one and the same thing, whereunto severall answers 
 (admitting each of them to be good) are recpuired, is not allow- 
 able in law. And this rule you see extendeth to pleas perpetuall 
 or peremptory, and not to pleas dilatory ; for in their time and 
 place a man may use divers of them ; and hereof ancient writers 
 * speake notably : Sicut acta und actione debet experiri saltern 
 ilia durante, sic oportet tenentem %ina exceptione dum tamen pe- 
 remptorid (quoit ' de dilator iis non est tenendum) ; quia si liceret 
 pluribus uti exceptionibus pcremptoriis simul & semel, sicut fieri 
 poterit in dilatoriis, sic sequerehtr, quod si in purbatione unius 
 defecerit, ad aliam probandum possit habere reeursum, quod non 
 est permissibile, non magis qudm aliquem se defendere duobus 
 baculis in duello, cum units tantiim sufficiat. 
 
 But where the tenant or defendant may pleade a general 
 issue, thereupon the generall issue pleaded, he may give in evi- 
 dence as many distinct matters to barre the action or right of 
 the demandant or plaintife, as he can (1). 
 
 A speciall verdict may containe double or treble matter; and 
 therefore in those cases the tenant or defendant may eyther make 
 choice of one matter, and to plead it to barre the demandant or 
 plaintife, or to plead the general issue, and to take advantage of 
 all ; or he may plead to part one of the pleas in barre, and to 
 another part another plea ; and his conclusion of his plea shall 
 avoide doublenesse, and hereby neither the court nor the jury 
 is so much inveigled, as if one plea should containe divers dis- 
 tinct matters. And if the tenant make choice of one plea in 
 barre, and that be found against him, yet he may resort to an 
 action of an higher nature, and take advantage of any other 
 matter. And the law in this point is by them that understand 
 not the reason thereof misliked, saying, Nemo prohibetur pluri- 
 bus defensionibus uti. 
 
 Audit is worthy of observation, that in the raignes of Edward 
 the second, Edward the first, and upwards, the pleadings were 
 plain and sensible, but nothing curious, evermore having chiefe 
 respect to matter, and not to formes of words, and were often 
 holpen with a qusesitum est, and then the questions moved by the 
 court, and the answers by the parties were also entred into the 
 rolle. But even in those dayes the formes of the register of 
 originall writs were then punctually observed, and matters in law 
 excellently debated and resolved ; and where any great difficulty 
 was, then it was resolved by all the judges and sages of the law 
 (who were for matters in law called concilium regis) and their 
 
 assembly 
 
 (A) For the Latin quotation in the text, see Fleta, li. 6. ca. 36. £ 12. 
 
 (1) It is natural to plead first to the jurisdiction, and afterwards to the writ of 
 the count. Nota, The brief ranked before the count, 17 Edw. 3. 74. Nota, Upon 
 default in the count, the judgment shall be that the brief shall abate. 3 Hen. 6. 
 41. 9 Hen. 6. 10. Brooke, Count, 78. Vide BOB. b. Therefore, as it seems, 
 it is more proper to reserve the exception to the tor it for the last place, if the first 
 fails. In special cases the order of pleading is not observed; as for example, a 
 defendant in debt, in the custody of the sheriff, was permitted to plead a plea m 
 abatement of the writ before any count was made, and before any other of the 
 defendants came in. 3 Hen. 6. Fitz. Debt, 20. Lord Willoughby and other 
 defendants in assise against Wimbish, pleaded in abatement of the writ before 
 any count icas made. Flowd. Com. 73.— LordNott. MSS.— [Note 268.]
 
 L. 3. C. 9. Sect. 534. Of Confirmation. [304. a. 304. b. 
 
 assembly and resolution was entred into the rolle. As for 
 
 example, in the great case in a quart imped it, between the king 
 
 and the prior of Worchester, concerning an appropriation, whether 
 
 it where a mortmaine, the record saith, ad quern diem 
 
 [3 04."] prsedistus prior per at torn o turn mum, &c. Et O^F* ex- 
 b. J aminatis et intellectis recordo etprocessu coram toto con- 
 cilio tarn thesaurario tt haronibus de scaccario qudm 
 cancellario, ac etiam justiciariis deutroque banco inspicta causa. 
 pro qua, pro domino rcge dicunt, quod adipsum regem pertinet 
 prsesentare, &c. consideratum est, &c. For in those days though 
 the chancellor and treasurer were for the most part men of the 
 church, yet where they expert and learned in the lawes of the 
 realme. 
 
 As for example, in the time of the Conqueror, Egelricus epis- 
 copus Cicestrensis vir antiquissimus, et in legibus sajnentissimus, 
 as elsewhere I have said. 
 
 [a~\ Nigellus episcopus Eliensis Hen. 1. thesaurarius in tempo- [a] Ockham, 
 ribus suisincomparabilem habuit scaccariiscientiam, etdteadem fo * *■'• 
 scripsit optime. 
 
 [Z>] Henricus cant, episcopus, H. Dunelm' episcopus, Williel- [6] Pasc. 5. R. 1. 
 mus Eliensis episcopus, G. Roffens. episcopus. cor - R e S e - 
 
 [c - ] Martinus de Pateshul clericus decanus Divi Paidi London' M 1 H. 3 - Rot- 
 const itutus fuit capitalis justic de banco, quia in legibus hujus p ract,sa; P e - 
 regn i peritiss im us. 
 
 [d] Will' us de Raleigh clericus justiciar ius domini regis. [d] Bract, saepe.' 
 
 [e] Johannes episcopus Carliensis tempore H. 3. L e J 8 &. 3. si, 
 Roberlus Passelewe episcopus Cicestrensis tempore II. 3. 
 
 [f] Robertusde Lexintonio clericus constitutus capitalis justic' y. L 2 P 
 de banco. 
 
 [g~\ Johannes Britton episcopus Hereford. [g] Liberejus 
 
 [A] Henricus de Stanton clericus constitutus fuit capitalis jus- de lopous extat. 
 ticiarius ad placita ; with many others. And so were divers and n^ r ^ p^ 
 many of the nobility, who when matters of great difficultie were 17 E. 2. 
 brought into the upper house of parliament by writ of error, 
 adjournement, or other parliamentary course, did by the assistance 
 of the reverend judges, who ever attended in that court, judge 
 and determine the same, as by former and ancient record, and 
 specially by the said record of 5 R. 1, doe manifestly appeare; 
 and therefore the lords of parliament were called for those pur- 
 poses, concilium reges ; and like to the aforementioned record 
 there be very many. 
 
 In the reigne of Edward the third pleadings grew to perfection 
 both without lamenesse and curiosity; for then the judges and 
 professors of the law were excellently learned, and then know- 
 ledge of the law nourished, the Serjeants of the law, &c. drew 
 their owne pleadings ; and therefore truly said that reverend 
 justice Thirning, in the raigneof //. 4, that in the time of Edw. 3. 12 H. 4. 3. 
 the law was in a higher degree than it had been any time before ; 
 for (saith he) before that time the manner of pleading was but - 
 feeble in comparison of that it was afterward in the raigne of 
 the same king. 
 
 In the time of Henrie the Sixth the judges gave a quicker eare 
 to exceptions to pleadings, than either their predecessors did, 
 or the judges in the raigne of Edw. the fourth, when our author 
 flourished, or since that time have done, giving no way to nice 
 exceptions, so long as the substance of the matter were sufli- (Hob. 332. 
 ciently shewed. And as in the raigne of king Edward the third, Ante » 72, a -) 
 
 by
 
 304. b. 305. a.] Of Confirmation. L. 3. C. 9. S. 535-6-7. 
 
 [*]36E.3.ca.l5. by an act of parliament [*] it is provided, that counts or de- 
 
 tf E -2q 3 Q clarations should not abate so long as the matter of the action 
 
 LL 8. fo. 161. De fuMy shewed in the declaration and writ; so since our author 
 
 Lib. 10. fo. 131. wrote in the raigne of queen Elizabeth, provision is made, that 
 
 (Doc.pla. 116.) a ft er demurrer the judges shall give judgement according to 
 
 Pi. Com. 42L the right of the cause and matter in law, without regarding any 
 
 imperfection, defect, or want of forme in any writ, retorne, 
 
 plaint declaration, or other pleading or course of proceeding 
 
 whatsoever, except such as the party demurring shall specially 
 
 shew. In which acts appeales and indictments of felony, murder, 
 
 or treason concerning man's life, and the forfeiture of his lands 
 
 and goods, are excepted. An excellent and a profitable law, 
 
 concurring with the wisedome and judgement of ancient and 
 
 latter times, that have disallowed curious and nice exceptions 
 
 tending to the overthrow or delay of justice ; ajrices juris non 
 
 sunt jura: yet it it is good for a learned professor to make all 
 
 things plain and perfect, and not to trust to the after aide or 
 
 amendment by force of any statute, lest his client's cause 
 
 matcheth not therewith ; and as it is in physicke for the health 
 
 of a man's body, so it is in remedies for the safety of a man's 
 
 cause. In law prsestat cautela quam medela. 
 
 But now let us returne to our author. 
 
 (Sid. 175, 176.) 
 
 (Doc. Pla.. 70. g 
 
 118. 136. 138. 254.) (11 Rep. 52. a.) 
 
 Sect. 535, 536, 537. 
 
 ALSO, if there be lord and tenant, * albeit the lord conjirme the 
 estate which the tenaunt hath in the tenements, yet the 
 seigniorie remaineth intire to the Ipgi"' lord as it ivas before. [305. 
 
 [ 8 ° 5 -] 
 
 Sect. 536. 
 
 TN the same manner is it, if a man hath a rent charge out ofcertaine 
 land, and he conjirme the estate which the tenant hath in the land, 
 get the rent charge remayneth to the confirmor. 
 
 Sect. 537. 
 
 TN the same manner it is, if a man hath common of pasture in other 
 
 land (si un home ad common de pasture f en auter terre), if he 
 
 conjirme the estate of the tenant of the land, nothing shall passe from 
 
 him of his common ; but notwithstanding this, the common shall remayne 
 
 to him, as it was before. 
 
 HERE 
 * albeit — and, L. and M. and Roh. f en — ou, L. and 31. and Roh.
 
 L. 3. C. 9. Sect. 538. Of Confirmation. [305 a. 305. b. 
 
 HERE is the sixth case wherein the release and confirmation 
 doe differ; for by the release (A) of the seigniory, rent 
 charge or common are extinct. And so these three Sections be 
 evident, and need no explication, saving that some doe gather 
 upon these last two Sections and the next ensuing, that a man 
 cannot abridge a rent charge or common pasture by a confirma- 
 tion, as he may doe a rent service in respect of the privitie 
 betweene the lord and tenant, so as (say they) a tenure may be 
 abridged by a confirmation, but not a rent charge or common : 
 and therefore Littleton begiuneth the next Section with an ad- 
 verbe adversative, viz. (but) &c. But a man may release part of 
 his rent charge, or common, &c. 
 
 Sect. 538. 
 
 72 UT if there be lord and tenant, which tenant holdeth of his lord by 
 the service of fealtie and 20 shillings rent, if the lord by his deed 
 confirme the estate of the tenant, to hold by 12 pence, or by a penny, or 
 by a halfe peny : in this case the tenant is discharged of all the other 
 services, and shall render nothing to the lord, but that which is com- 
 prised in the same confirmation. 
 
 A 
 
 ND the reason wherefore no service of another (B) cannot 28 E. 3. 92, 93. 
 be reserved upon the confirmation is, because as long as the 26 Ass. 37. 
 state of the land continueth, it cannot by the confirmation of 230. b. ? ' 
 the lord be charged with any new service. So as it is evident 7 e. 4. 25. a. 
 that the lord by his confirmation may diminish and abridge the 21 E. 4. 62. 
 services, but to reserve upon the confirmation new services he lo'jf™"'^ 
 
 cannot, so long as the former estate in the tenancie Avowrie, 100. 
 
 [ 30 5. ~| continueth. And as where a confirmation doth (9 Rep. 33.) 
 b. J 0^7" inlarge an estate in land, there ought to be pri- 
 vitie, as hath beene said ; so regularly where a confir- 
 mation doth abridge services, there ought to be privitie also. 
 
 And therefore here Littleton putteth his case of lord and ten- 7 e. 3. 19. 
 ant betweene whom there is privitie. And therefore if there be 22 E. 3. 18. b. 
 lord, mesne and tenant, the lord cannot confirme the estate of 
 the tenant to hold of him by lesser services, but this is void, 
 for that there is no privitie betweene them, and a confirmation 
 cannot make such an alteration of tenures. 
 
 And the case in 4 E. 3, maketh nothing against this opinion; 4 e. 3, 19. 
 for there the case in substance is this : John de Bonvile held 
 certaine lands of Ralfe Vernon, and before the statute of quia 
 emptores terrarum, levied a fine of the same lands to the abbot 
 of Coijsall and his successors, to hold of the chiefe lord (which 
 was Ralfe Vernon) by the services due and accustomed. Ralfe 
 Vernon made a charter to the said abbot in these words: Concessi 
 etiam eidem abbati et successoribus stcis relaxavi et quietum cla- 
 mavi totum jus, &c. quod habeo, vel potero habere in omnibus 
 tenementis quce idem abbas habet de do no Johannis de Bonvile, 
 
 tenendum 
 
 (A) Here the word "of," seems printed by mistake. See Mr. Bitso's Intr. p. 120. 
 
 (B) Here " cannot" seems printed by mistake instead of " can." See Mr. Eitso'a 
 Intr. p. 120.
 
 305. b.] 
 
 4 E. 3. 19. 
 9 E. 3. 1. 
 12 E. 4. 11. 
 16E. 3. Fines, 4. 
 6 Eliz. Dier. 230. 
 
 ( Ant. 47. a.) 
 (Plo. 563. b.) 
 Britton, f. 57. 
 177. 40 E. 3. 
 21. 47, 48. 
 18 E. 3. 26. 
 50 Ass. 6. 
 14 H. 4. 8. 
 
 (Ant. 76. a.) 
 
 13 R. 2. tit. 
 Avowrie, 89. 
 Nota dictum 
 Fitzh. 
 
 (Ant. 23. a.) 
 
 Of Confirmation. L. 3. C. 9. Sect. 538. 
 
 tenendum de me et haeredibus meis in puram in perpetuam elee- 
 mosinam ; and adjudged, that it was a good tenure in frankal- 
 moigne : which case proveth nothing that the lord paramount 
 may by his confirmation to the tenant peravaile extinct the mes- 
 naltie (as it is abridged by master Fitzhcrbert in the title of 
 Confirmation, pi. 21.) for the immediate lord did there make 
 the said charter, and not any lord paramount (And therefore it 
 is ever good to relie upon the booke at large, for many times 
 compendia sunt dispendia, and melius est petere fontes, qudm 
 sectari rividos.) And of this opinion was master Plowden upon 
 good advisement and consideration. 
 
 And here is the seventh case wherein the release and confir- 
 mation doth Tgree; for if there be lord and tenant by fealty and 
 twenty shillings rent, the lord may release all his right in the 
 seigniorie or in the tenancie, saving fealtie and ten shillings 
 rent; but he cannot save a new kinde of service, for he may as 
 well abridge his services upon a release as upon a confirmation. 
 And as there is required privitie when the lord abridgeth the 
 services of his tenant by his confirmation ; so must there be 
 also, when the lord by his release abridgeth the services of his 
 tenant. And therefore the lord paramount cannot release to the 
 tenant peravaile saving to him part of his services, but the 
 saving in that case is void (1). 
 
 11 And shall render nothing to the lord, but that which is com- 
 prised, &c." Which words are thus to be understood; that the 
 tenant shall not render any more rent or annuall service to the 
 lo-d than is contained in thed^ed; but other things notwith- 
 standing the said confirmation the tenant shall yeeld to the lord, 
 as releefe, ayde pur file marier, and ayde pur /aire fitz chivaler, 
 because these are incidents to the tenure that remaine, and shall 
 not be discharged without speciall words, by the generall words 
 of all other actions, services and demands. And so if a man 
 hold of me by knight's service, rent, suit, &c. and I release to 
 him all my right in the seigniorie, excepting the tenure by 
 knight's service, or continue his estate to hold of me by knight's 
 service only for all manner of services, exactions, and demands; 
 yet shall the lord have ward, marriage, releefe, ayde pur file 
 marier, et pur fiaire fitz chivaler, for these be incidents to the 
 tenure that remaine. But it is holden, that if a man make a 
 gift in taile by deed, reserving two shillings rent a luy et ses 
 heires pro omnibus et omnimodis servitiis, exactionibus seculari- 
 bus et cunctis demandis, if the donee die his heire of full age, 
 the donor shall have no releefe, because in the originall deed of 
 the gift in taile it is expressly limited, that by the service of 
 two shillings rent he shall be quite of all demands (and releefe 
 lieth in demand) ; and by reason of those words, say they, there 
 cannot any releefe become due ; but some doe hold the contrary 
 in that case. 
 
 Sect. 
 
 (1) 3 Inst. 47. A saving will serve for any thing that is implied in the 
 judgment, as in case of felony to save the wife's dower; but a saving will not 
 serve against the express judgment, for that should be repugnant, as saving 
 the life of the offender should be void.— [Note 2G9.]
 
 L.3.C.9.S.539-40. Of Confirmation. [30o.b.306.a.&b. 
 
 Sect. 539. 
 
 J) UT if the lord will by his deed of confirmation, that the 
 
 t 306.1 tenant in this case shall yeeld jt^r to him a hawhe or a 
 
 a- J rose yearly at such a feast, $c. this confirmation is void (cest 
 * confirmation est voide), because hee reserveth to him a new 
 thing which was not par cell of his services before the confirmation : and 
 so the lord may well by such confirmation abridge the services f by which 
 the tenant holdeth of him, but hee cannot reserve to him new services. 
 
 THIS upon that which hath beene said before in the next 
 preceding Section is evident, and needeth no further 
 explication. 
 
 Sect. 540. 
 
 A LSO, if there be lord, mesne, and tenant (si soit seignior J mesne 
 et tenant), and the tenant is an abbot, that holdeth of the mesne by 
 cettaine services yearly, the which hath no cause to have acquitance 
 against his mesne (le quel n'ad ascun cause § d'aver acquitance envers 
 son mesne,) for to bring a writ of mesne, \\ §c. in this case, if the mesne 
 confirme the estate that the abbot hath in the land, to have and to hold 
 the land unto him and his successors in frankalmoigne, or free almes, 
 cfc. in this case this confirmation is good, and then the abbot holdeth of 
 the mesne in frankalmoigne. And the cause is, for that no new service 
 is reset ved, for all the services specially specified bee extinct, and no 
 rent is reserved 1 to the mesne, but the abbot shall hold the land of him 
 as it was before the confirmation (forsque ** que l'abbe tient de luy la 
 terre, et ceo fist ft il devant la confirmation) ; for he that holdeth in 
 frankalmoigne ought to doe no bodily service ; so that (issint %% que) by 
 such confirmation it appeareth, the mesne shall not reserve unto him (A) 
 no new service (le mesne ne reserva a luy ascun novel service), 
 
 t306."| but that the lands shall bee holden of him as it toas before. And 
 b. J in this Jg@ =B case the abbot shall have a writ of mesne, if hee 
 bee distrained in his defaidt, by force of the said confirmation, 
 wJiere per case hee might not have such a writ before (lou per case il ne 
 puissoit aver |||| un briefe adevant, cj-c.) 
 
 HERE 
 
 * confirmation — rcservacion, L. and \\ &c. not in L. and M. or Roh. 
 
 M. and Roh. 1 to the mesne, not in L. and M. 
 
 -}■ by which the tenant holdeth of him, or Roh. 
 
 not in L. and M. or Roh. ** que not in L. and M. 
 
 I mesne — mesine, L. and M. but not ft il — a lui, L. and 31. and Roh. 
 
 in Roh. XX I 110 n °t * TO ^' an, d- M- or Roh. 
 
 § per cas, added in L. and M. and \\\\ un — tiel, L. and M. and Roh. 
 Roh. 
 
 (A) Here " no" seems printed by mistake, instead of " any" or " some." See Mr. Ritsos Intr. 
 p. 110.
 
 306. b.J Of Confirmation. L. 3. C. 9. Sect. 541. 
 
 4 E. 3. 19. TTERE our author having seene the former bookes putteth his 
 
 22 E. 3. 15. b. ( XI case, that the mesne maketh the confirmation to hold in 
 Sse!° rd Wak6S frankalmoigne, and not the lord paramount. 
 
 10 E. 3. 5. 15 E. 3. Confirmat. S. 
 
 4 E. 3. 19, 20. "And -in this case the abbot shall have a writ of mesne." 
 
 H & Q ' ' -^ ere * s *° ^ ee no^d, that upon a confirmation to hold in freeal- 
 
 4 E. 4. 35. moigne there lyetk a writ of mesne, albeit the cause of acquittal 
 
 31 E. 1. Mesne, beginue after the seignior. And so upon such a confirmation 
 
 re 1 1 "K 1 ^ i y ^ 
 
 Avowrie 100 e tenan * ; shall have, contra formam feoff anient i. 
 
 22 E. 3.18. b. 30 E. 3. 13. 16 H. 3. Avowrie, 243. (9 Rep. 130.) 
 
 Sect. 541. 
 
 ALSO, if I be seised of a villeine as of a villeine in grosse, and an- 
 other tdkeih him out of my possession, clayming Mm to bee his 
 villein f there where hee hath no right to have him as his villeine, and 
 after I confirme to him the estate which hee hath in my villeine, this 
 confirmation seemeth to be voide, for that none may have possession of a 
 man as of a villeine in grosse, but he which hath right to have him as 
 his villeine in grosse. And so inasmuch as hee to tvhom the confirma- 
 tion was made, was not seised of him as of his villein at the time of the 
 confirmation made, such confirmation is void. 
 
 HERE is to be observed a diversitie betweene the custodie of 
 the body of a ward within age, and a right of inheritance 
 45 E 3 10 * n tne bc-dv of a villein in grosse ; for a man may bee put out 
 
 30 H. 6. of possession of the custodie of his ward, but not of his villeine 
 
 tit. Barre, 59. i n grosse, no more than a man can bee of his prisoner which he 
 
 Registruni, 102. v„ t u *„%^». ;., «,..«.« 
 
 i if « „ n J. *. natn taken in warre. 
 
 J. 11. D. Cap. O. » » a i • l • ll 
 
 (Post. 323. a.) Also of things that are in grant, as rents, commons, ana the 
 Brooke, tit. li^ke, it is at the election of the party whether hee will be dis- 
 Propertie, 28. se j sse( j f them or no, as shall bee said after in his proper place (1). 
 591,)' ' But of a villeine in grosse he cannot at all be disseised, [a] Non 
 
 [a] Bract, lib. 2. valet confirmatio nisi ille qui confirmat sit in possessione rei vel 
 t> t>' 24 E f ifi j ur i s un-de fieri debet confirmatio, & eodem modo nisi ille cut 
 42 E. 3. 18.' ' confirmatio fit, sit in possessione. 
 40 E. 3. 17. 43 E. 3. 4. 9 E. 4. Dier, 38. 10 Eliz. Growche's case. 
 
 And materially doth Littleton put his case of a villeine in 
 grosse ; for of a villeine regardant to a mannor, the lord may be 
 put out of possession ; for by putting him out of possession of the 
 mannor, which is the principall, hee may likewise bee put out of 
 possession of the villeine regardant, which is but accessory. And 
 by the recovery of the mannor the villeine is recovered. But if 
 another doth take away my villeine in grosse or regardant, he 
 
 gaineth 
 
 f there where hee hath no right to have him as his villeine, not in L. and M. 
 or Roh. 
 
 (1) See ant. 239. a. note 1.
 
 L. 3. C. 9. Sect. 542. Of Confirmation [306. b. 307. a. 
 
 gaineth no possession of him. And thi s doth well appeare by the (Ant. 303. a.) 
 writ of nativo habendo, for that writ is not brought 
 
 [3 07. "I against any person in certaine (because no man IfeST" 
 a. | can gaine the possession of him.) But the writ is to 
 this effect : Rex vie' salutem. Prsecipimus tibi, quod 
 juste et sine dilatione habere facias A. B. nativum et fugitivum 
 suum, &c. ubicunque inventus fuerit, &c. et prohibemus super fo- 
 risfacturam nostrum ne quis eum injuste detineat ; so as to detaine 
 him one may, but to possesse himselfe of him, and dispossesse 
 the lord, he cannot. 
 
 And if a man might have been dispossessed of a villeine in 
 grosse, or of a villeine regardant (unlesse he be dispossessed of 
 the mannor also, as hath beene said), the law would have given 
 a remedie against the wrong doer, as the law doth in the case of 
 a ward. 
 
 Now, seeing it doth appeare by our bookes [a] (and by Lit- [a] Bracton, 
 tleton himselfe by implication speaking only of a villeine in grosse) ^ 24 3- 
 that if a man be disseised of the mannor whereunto the villeine t™-& Q n.i\. b.' 
 is regardant, he is out of possession of his villeine, and so an Ant. 77. a. 
 advowson appendant and the like. Hereby {Littleton putting 121. b.) 
 his case of a villeine in grosse) and by divers authorities a point 
 controverted in our bookes [*] is resolved, viz. that by the grant r#] g e. 4. 38. 
 of the mannor, without saying cum pertinentiis, the villeine re- 3 H. 4. 15. 
 gardant, advowson appendant, and the like, doe passe : for if the |® ^ *• * 4- 
 disseisor shall gaine them as incidents to the mannor, whose i mp . 146. 
 estate is wrongfull, a multd fortiori the feoffee, who commethto 19 R. 2. 
 his estate by lawfull conveyance, shall have them as incidents. ^q 6 ^',, 2 ™' 
 But where the entrie of the disseisee is lawfull, he may seise the 21 H * ^ 9/ 
 villeine regardant, or present to the advowson, &c. before he 33 H. 6. 33. 
 enter into the mannor : otherwise it is where his entrie is not 5 n H 1 V 7 lr 3 q' 38 ' 
 lawfull; and so are the ancient authors [6] to be intended (1). F N ' B ' 3 " 3> 9 
 
 22 H. 6. 33. per Moyle. 30 E. 3. 31. 39 E. 3. 21. 43 E. 3. 12. (Plowd. 258. a. 
 Ant. 122. b. Post. 349. b. 363. b.) \b] Bracton, fol. 242, 243. Britton, fol. 
 126. Fleta, ace. 
 
 Sect. 542. 
 
 72 UT in this case, if these ivords were in the deed, * §c. Sciatis me 
 dedisse et concessissef tali, &c. talem villanum meum, this is good ; 
 but this shall enure by force and way of grant, and not by way of con- 
 fvrmation, Sfc. 
 
 HERE it is to be observed, that a man hath an inheritance in 2 H; 6 - 
 a villeine, whereof the wife of the lord shall be endowed, as a ' ' 
 
 hath beene said; for in him a man may have an estate in fee or 
 fee taile for life or yceres. And therefore Littleton is here to be 24 E. 3. 
 understood, that in the grant there were these words {his heires) Discont. 16. 
 or else nothing passed but for life, as of other things that lie in 
 grant. 
 
 Sect. 
 
 tfce. not in L. and M. or Roh. f tali not in L. and 3L or Roh. 
 
 (1) See the Chapter on Villenage.
 
 307. a. &b.l Of Confirmation. L. 3.C.9. S. 543-44-45-46. 
 
 Sect, 543. 
 
 A ND sometimes (Et % ascun foits) these verbes dedi et concessi shall 
 
 enure by way of extinguishment of the thing given or granted ; as 
 
 if a tenant hold of his lord, by eertaine rent, and the lord grant by his 
 
 deed to the tenant and his heires the rent, S?c. this shall enure to the 
 
 tenant by ivay of extinguishment, for by this grant the rent is extinct, §c. 
 
 3 E. 3. 12. And this grant of the rent shall enure by way of release. 
 
 & 3 Ass. 7. 
 
 (2 Roll. 405.) 
 
 ^ Sect. 544. [ 3 b 7 *] 
 
 JN the same manner it is ivhere one hath a rent charge out of eertaine 
 land (En mesme le manner est lou * un ad un rent charge hors de 
 eertaine terre), and hee grant to the tenant of the land the rent charge, SfC. 
 And the reason is, for that it appeareih, by the loords of the grant, that 
 the will of the donor is, that the tenant shall have the rent, $c. And 
 inasmuch as hee cannot have or perceive any rent out of his owne land, 
 therefore the deed shall be intended and taken for the most advantage 
 and availe for the tenant that it may be taken, and this is by way of 
 extinguishment. 
 
 34 H. 6. fol. 41. T)UT if the grantee of the rent-charge granteth it to the tenant 
 (Ante, 280. a.) Jj f t j ie j an( j aa( j a stranger, it shall be extinguished but for 
 the nioietie : and so it is of a seigniorie. 
 
 Sect. 545. 
 
 A LSO, if I let land to a man for terme of yeares, and after I con- 
 fir me his estate without putting more tvords in the deed, by this he 
 hath no greater estate than for terme of yeares, as hee had before. 
 
 Sect. 546. 
 
 T> UT if I release to him all my right which I have in the land without 
 putting more words in the deed (sans plus | parols mitter en le fait,) 
 he hath an estate of freehold (1). § So thou maist understand (my sonne) 
 divers great diversities between releases and confirmations. 
 
 % Et — item, L. and M. and Roh. f parols not in L. and 31. or Roll. 
 * un— r horae, L. and M. and Roll. § And added in L. and M. and Roh. 
 
 (1) To give a confirmation this effect, in the case of a lease at common law, 
 
 the
 
 L. 3. C. 9. S. 547, 548. Of Confirmation. [307. b. 308. a. 
 
 IN these two Sections it is the seventh case wherein a release 
 and confirmation doe differ. 
 
 [ 8 ? a ] »" Sect. 547. 
 
 (Ant. 296.) 
 
 ALSO, if I being within age let land to another for termeof xx. yeares, 
 and after he granteth the land tc another for term of x. gears, so 
 hee granteth but parcell of his terme : in this ease when I am of full age, 
 if I release to the grantee of my lessee, $c. this release is void, because 
 there is no privitie betweene him and me, $c. But if I confirme his estate, 
 then this confirmation is good. But if my lessee grant all his estate to 
 another, then my release made to the grantee is good and effectuall (1). 
 
 HERE are two things to he observed : First, that the lease of 7 E. 4. 6. b. 
 an enfant in this case is not void but voidable. Secondly, 18 E - 4 - 2 > 
 this is the eighth case put by Littleton wherein the release and , Crf j j ae ' 32 o 
 
 confirmation doe differ. Sid. 42. 1 Roll. 
 
 729, 730.) 
 
 Sect. 548. |£»J> 
 
 ALSO, if a man grant a rent-charge issuing out of his land to another 
 for terme of his life, and after hee confirmeth his estate in the said 
 rent, to have and to hold to him in fee taile or in fee simple; this con- 
 firmation is void as to inlarge his estate, because hee that confirmeth hath 
 not any reversion in the rent. 
 
 HERE the diversitie is apparent betweene a rent newly (2 Roil. 415.) 
 created and a rent in esse : which needeth no explication. ^1 E. 3. 47. 
 Only this is to be observed, that Littleton intendeth his deed of p'j Com. 35." 
 
 8 H. 4. 19. (Ant. 148. a. Post. 317. a.) 
 
 confirmation 
 
 the lessee must have previously made an actual entry. But no entry is neces- 
 sary for the purpose, if the lease is a bargain and sale under tbe statute. — 
 [Note 270.] 
 
 (1) So Crusoe d. Blencowe v. Bugby, 3d Wilson, 234. Henry Blencowe 
 and Mary his wife, seised in fee, demised to William Alder for 21 years, with 
 a proviso for re-entry on default of payment of the rent, or breach of any of 
 the covenants. Among other covenants, tbere was one from William Alder, — 
 " that he should not assign, transfer, or set over, or otherwise do or put away 
 " the indenture of demise, or the premises thereby demised, or any part thereof, 
 " to any person or persons whomsoever, without the consent of the said Henry 
 " Blencowe and Mary his wife, their heirs and assigns, in writing, under his, 
 " her, or their hands and seals, first had and obtained for doing thereof." — 
 William Alder, without any licence, demised to John Bugby for 14 years. — 
 It was held, that there was no privity of contract between the original lessor 
 and Bugby, the under-lessee. So that it was an under-lease, and not au as- 
 signment ; and therefore no breach of the covenant. And sec 1 Strange, 405. 
 See also Gregson v. Harrison, 2 Term Rep. p. 425. Kinnersley v. Orpe and 
 others, Dougl. 56. — [Note 271.]
 
 308. a. 308. b.] Of Confirmation. L. 3. C. 9. S. 549, 550. 
 
 confirmation not to containe any clause of distresse ; for other- 
 wise, as to the confirmation the deed is void, but the clause of 
 distresse doth amount to a new grant, as in the Chapter of Rents 
 hath beene said. 
 
 (Post. 366. a. Q pp | KJQ 
 
 Finch, 234.) OCOL. 0~±V. 
 
 ~& TIT if a mar, be seised in fee of rent service or rent charge, 
 
 %Cj°" and he grant the rent to another for life, and the tenant ["308.1 
 attorneth, and after hee confirmeth the estate of the grantee in L D - J 
 fee taile, or in fee simple, this confirmation is good, as to enlarge 
 his estate according to the words of the confirmation, for that he which 
 confirmed * at the time of confirmation had a reversion of the rent. 
 
 HERE is the eighth case wherein the release and confirma- 
 tion doth agree : and it is here to be observed, that to the 
 grant of the estate for life, Littleton doth put an attornement, 
 because it is recpuisite ; but to the confirmation to the grantee of 
 the rent to enlarge his estate, there is none necessary, and there- 
 fore he putteth none : but of this more shall be said in the 
 Chapter of Attornement, Sect. 556, 557. 
 
 Sect, 550. 
 
 7) TIT in the case aforesaid where a man grants a rent charge to another 
 for terme of life, if he will that the grantee should have an estate in 
 taile, or in fee, it behoveth that the deed of grant of the rent charge for 
 terme of life be surrendred or cancelled, and then to make a new deed of 
 the like rent charge, to have and perceive to the grantee in tayle or in fee, 
 Src. Ex paucis f plurima concipit ingenium. 
 
 Yid. Sect. 630. " O URRENDRED or cancelled (1)." Note by cancellation 
 
 A Cr °'iiQ r- 3 "' °^ ^ e ^ eec ^ tue rent WU ^ C ^ ^ et ^ 0Q ly m g rant ceaseth (as 
 
 225.' b. ' ^ere ** a ppeareth) as well as by the surreuder. And the reason 
 
 10 Rep. 66. wherefore (if the grantor make a new grant of the rent, and not 
 
 Plowd. 237. a. enlarge it by way of confirmation, as Littleton must be intended) 
 
 1 Vent°297 ) * ne deed should be surrendred or cancelled, is lest the grantor 
 
 should be doubly charged, viz. with the old grant for life, and 
 
 with the new grant in fee; or, as hath beene said, the grantor 
 
 may grant to the grantee for life and his heires, that he and his 
 
 heires shall distreine for the rent, &c. and this shall amount to 
 
 a new grant, and yet amount to no double charge, whereof you 
 
 may see before in the Chapter of Rents. 
 
 Chap. 
 
 * the estate added in L. and M. fplurima concipit ingenium — dictis, 
 
 &c. L. and M. 
 
 (1) See ant. 225. b. note 1.
 
 • 
 
 L. 3. C. 10. Sect, 551. Of Attornenient. [309. a. 
 
 [ 3 ° 9 -] 
 
 b^-Chap. 10. Of Attornenient. Sect, 551. 
 
 J^TTORNEMENT is, as if there bee lord and tenant, and the 
 lord will grant by his deed the services of his tenant to another for 
 terme of yeares, or for terme of life, or in taile, or in fee, the tenant 
 must attorne to the grantee in the life of the grantor, by force and vertue 
 of the grant, or otherwise the grant is void. And attornenient is no 
 other in effect, but when the tenant hath heard of the grant made by his 
 lord, that the same tenant do agree by word to the said grant, as to say 
 to the grantee, I agree to the grant made to you,* $c. or 1 am\ well 
 content with the grant made to you; but the most common attornment 
 is, to say, % Sir, I attorne to you by force of the said grant, or I become 
 your tenant, fyc. or to deliver to the grantee (ou || liverer al grantee) a 
 pennie, or a halfe-pennie, or a farthing, by way of attornement. 
 
 "A TTORNEMENT' is an agreement of the tenant to the Bracton, lib. 2. 
 grant of the seigniorie, or of a rent, or of the donee in tayle, SJl? 1 * 105 b 
 or tenant for life or yeeres, to a grant of a reversion or remainder 176. et 177.' 
 made to another. It is an ancient word of art, and in the com- Fleta, lib. 3. 
 mon law signifieth a torning or attorning from one to another. ^\\ Ab 
 Wee use also attornamentum as a Latine word, and attornare to 293.) 
 attorne. And so Bracton [a] useth it : Item videndum est si do- (l Rep. 68.) 
 minus attornare possit alicui homagium et servithim tenentis sui fll™^*" ^' 
 contra voluntatem ipsius tenentis, et videtur quod non. Fleta.' Brit- 
 
 ton, ubi supra. 
 
 And the reason why an attornment is requisite, is yeelded in old 
 
 bookes to be, Si dominus attornare j)ossit servitium tenentis contra Bracton, lib. 2. 
 
 voluntatem tenentis, tale sequeretur inconveniens. quod possit eum fo - 81, *>• 
 
 1 • • .; • • . . * . 7 . ; . 2 r . Britton ubi 
 
 subjugare capitali inimico sno, etper quod teneretur sacramcntum gu ,, ra 
 
 fidditatis facere ei que eum damnificare intenderet (1). 
 
 "The 
 
 * &c. not in L. and M. or Roh. | liverer — deliverer, L. and M. and 
 
 f xcell not in L. and M. or Roh. Roh. 
 
 I &c. added in L. and M. and Roh. 
 
 (1) Sir Martin Wright and many other writers have laid it down as a general 
 rule, that by the old feudal law the feudatory could not alien the feud without 
 the consent of the lord; nor the lord alien or transfer his seigniory without 
 the consent of his feudatory; for the obligations of the lord and his feudatory 
 being reciprocal, the feudatory was as much interested in the conduct and 
 ability of the lord, as the lord in the conduct and ability of his feudatory; and 
 that as the lord could not alien, so neither could he exchange, mortgage, or 
 otherwise dispose of his seigniory, without the consent of his vassel. See Sir 
 Martin Wright's Introduction to the Law of Tenures, 30, 31. — It is certain 
 
 that
 
 309. a. J Of Attornement. L. 3. C. 10. Sect 551. 
 
 case. 
 
 Vid. Litt. " The tenant must attorne to the grantee in the life of the. grantor, 
 
 11 H - 19 ^ c '" ^ nc * so must ne a ^ so m tne ^ c °f ^ e grantee ; and this is 
 
 Lib. 1. fol. 104. understood of a grant by deed. And the reason hereof is, for that 
 105. Shelley's every grant must take effect as to the substance thereof in the life 
 both of the grantor and the grantee. And in this case if the 
 grantor dieth before attornement, the seigniorie, rent, reversion, 
 40 Ass. 19. or remainder descend to his heire; and therefore after his decease 
 
 O A TT f* ft * 
 
 20 fi 6 7 * ne a t to rnement cometh too late : so likewise if the grantee 
 
 (Doc. and Stud. 86. a.) (9 Rep. S4. Sect. 564.) 
 
 dieth 
 
 that this doctrine formerly prevailed in England. But, in general, it does not 
 appear to have prevailed (at least in an equal extent) in other countries. It 
 seems there to have been admitted, that the lord might transfer the whole fee, 
 without the consent of the vassel, and that the vassel immediately, by such a 
 transfer, became the tenant of the new lord. — It seems also to have been ad- 
 mitted, that the lord might transfer to another the beneficial fruits of the tenure, 
 without the consent of the vassal. But is was a great question whether the 
 lord could transfer his vassal to another, without the vassal's consent, unless 
 by transferring the u-hole fee. — See Basnage Commentaire tie la Coutume de 
 Normandie, des Fiefs et Droits fetdaux, art. 204. — This necessity, which 
 subsisted in our old law, that the tenant should consent to the aliena- 
 tion of the lord, gave rise to the doctrine of attornment. — At the common 
 law, attornment signified only the consent of the tenant to the grant of the 
 seigniory; or, in other words, his consent to become the tenant of the new 
 lord. — The necessity of attornment was, in some measure, avoided by the 
 statute of uses; as by that statute the possession was immediately executed 
 to the use; — and by the statute of wills, by which the legal estate is imme- 
 diately vested in the devisee. — Yet attornment continued after this to be 
 necessary in many cases. But both the necessity and efficacy of attorn- 
 ments have been almost totally taken away by the statutes of 4 Ann., c. 16. 
 and 11 Geo. 2. c. 19. By the former of these statutes, sect. 9. it was 
 enacted, "That all grants and conveyances of any manors, or rents, or of the 
 reversion or remainder of any messuages or lands, should be good without 
 attornments of the tenants; provided that no such tenant should be damaged 
 by payment of rent to any such grantor or conusor, or by breach of any con- 
 dition for non-payment of rent before notice given him of such grant by the 
 conusee or grantee." By the latter statute it was enacted, "That the attorn- 
 ments of tenants to strangers claiming title to the estate of their landlords, 
 should be absolutely null and void to all intents and purposes whatsoever, and 
 that the possession of their respective landlord or landlords, lessor or lessors, 
 should not be deemed or construed to be any wise changed, altered, or affected, 
 by any such attornment or attornments; provided that nothing therein con- 
 tamed should extend to vacate or affect any attornment made pursuant to, and 
 in consequence of, some judgment at law, or decree, or order of a court of 
 equity, or made with the privity and consent of the landlord or landlords, 
 lessor or lessors, or to any mortgage, after the mortgage is become forfeited." 
 — Till the passing of these statutes, the doctrine of attornment was one of the 
 most copious and obstruse points of the law. But these statutes having made 
 attornment both unnecessary and inoperative, the learning upon it is so useless, 
 that Mr. Viner has inserted nothing respecting it in his voluminous compilation 
 but an extract from lord chief baron Gilbert. — Mr. Bacon has not the article 
 Attornment in his work; and the learning and industry of lord chief baron 
 Comyn have furnished him with little material upon it, that is not to be found 
 either in Littleton or Sir Edward Coke. — [Note 272.]
 
 L. 3. C. 10. Sect. 551. Of Attornement. 
 
 [309. b. 
 
 dieth before attornement, an attornement to the heire 
 
 [309. 1 JDSS^is void, for nothing descended to him : and if he 
 b. J should take, he should take it as a purchasor, where 
 the heires were added but as words of limitation of 
 the estate, and not to take as purchasors. 
 
 But if the grant were by fine, then albeit the conusor or conu- 
 see dieth, yet the grant is good. For by fine levied the state doth 
 passe to the conusee and his heires ; and the attornment to the 
 conusee or his heires at any time to make privitie to distraine is 
 sufficient. But all this is to be taken as Littleton understood it, 
 viz. of such grants as have their operation by the common law. 
 For since Littleton wrote, if a fine be levied of a seigniorie, &c. to 
 another to the use of a third person and his heires, he and his 
 heires shall distraine without any attornment, because he is in 
 by the statute of 27 H. 8. cap. 10. by transferring of the state 
 to the use, and so he is in by act in law. 
 
 And so it is, and for the same cause, if a man at this day by 
 deed indented and inrolled according to the statute, bargaineth 
 and selleth a seigniorie, &c. to another, the seigniorie shall passe 
 to him without any attornement ; and so it is of a rent, a rever- 
 sion, and a remainder. So as the law is much changed, and the 
 ancient privilege of tenants, donees, and lessees much altered 
 concerning attornement since Littleton wrote. 
 
 But if the conusee of a fine before any attornement by deed 
 indented and inrolled, bargaineth and selleth the seigniorie to 
 another the bargainee shall not distraine, because the bargainor 
 could not distraine. Et sic de similibus; for nemo potest plus 
 juris ad alium transferre quam ipse habet. Vide Sect. 149, where 
 upon a recovery, the recoverer shall distraine and avow without 
 attornement. 
 
 A grant to the king, or by the king to another, is good with- 
 out attornement by his prerogative. 
 
 " Attornement is no other in effect, d-c." It is to be understood 
 that there be two kinde of attornements, viz. an attornement in 
 deed or expresse, and an attornement in law or implicite. Of at- 
 tornement expresse or in deed Littleton speaketh here, and of 
 attornement in law he speaketh after in this chapter. And to 
 both these kinds of attornements there is an incident inseparable, 
 that is that the tenant hath notice of the grant; for (an attorne- 
 ment being an agreement or consent to the grant, &c.) he cannot 
 agree or consent to that which he knoweth not. And the usuall 
 pleading is, to which grant the tenant attorned. And therefore 
 if a bayly of a mannor who used to receive the rents of the 
 tenants, purchase the mannor, and the tenants having no notice 
 of the purchase continue the payment of the rents to him, this is 
 no attornement. So if the lord levie a fine of the seigniorie, and 
 by fine take backe an estate in fee, the tenant continueth the 
 payment of the rent to the first conusor without notice of the 
 fines this is no attornement. But it is to be knowne, that there 
 be two kinde of notices, viz. a notice in deed or expresse, whereof 
 Littleton here speaketh, when he saith, that the tenant agreeth 
 to the grant, and a notice in law or implied, whereof Littleton 
 hereafter speaketh in this chapter. 
 
 " Of the grant made by his lord." Here is to be seene 
 when the thing granted is altered, what becommeth of the at- 
 tornement. 
 
 If 
 
 34 II. 6. 7. 
 20 II. 6. 7. 
 
 Bracton. lib. 2. 
 fol. 81, 82. ace. 
 
 Lib. 6. fol. 68. 
 
 Sir Moyle 
 Finche's case. 
 
 (2 Cro. 193. 
 Post. 321. 
 6 Rep. 68.) 
 27 H. 8. cap. 16. 
 Vide Sect. 584. 
 
 (Ant. 104. b. 
 Post. 321. b. 
 5 Rep. 113.) 
 Lib. 6. ubi supra. 
 Vide Sect. 149. 
 
 49 E. 3. 4. 
 34 H. 6. 8. 
 6 E. 4. 13. 
 (Post. 314. b. 
 1 Roll. Ab. 294. 
 Sect. 564. 
 1 Rep. Alton 
 Wood's case. 
 8 Rep. 89. 
 1 Roll. Rep. 301. 
 1 Cro. 441. 
 Jones, 376.) 
 Lib. 2. fol. 67. b. 
 Tooker's case. 
 13 Eliz. Dier, 
 302. Tooker's 
 case, ubi supra. 
 
 Lib. 2. Tooker's 
 case, ubi supra.
 
 M 13 E. 3. tit. 
 Variance, 63. 
 22 E. 3. IS. 
 Tooker's case, 
 ubi supra. 
 fPost. 314.) 
 
 309. b. 310. a.] Of Attorneinent. L. 3. C. 10. Sect. 551. 
 
 If there be lord, mesne and tenant, and the mesne grant over 
 his mesnaltie by deed, the lord releaseth to the tenant, whereby 
 the mesnaltie is extinct, and there is a rent by surplusage, an 
 attornement to the grant of this rent secke is good, although the 
 qualitie of that part of the rent is altered because it is altered by 
 act in law. 
 
 If a reversion of two acres be granted by deed, and the lessor 
 before attornement levie a fine of one of them, and the tenant 
 attorne to the grantee by deed, this is good for the other acre. 
 
 [a] If the reversion be granted of three acres, and the lessee 
 agree to the said grant for one acre this is good for all three ; 
 and so it is of an attornement in law, if the reversion of three 
 acres be granted," and the lessee surrender one of the acres to 
 the grantee, this attornement shall be good for the whole rever- 
 sion of the three acres according to the grant. 
 
 "The same tenant do agree." Hereafter in this chapter Little- 
 ton doth teach what manner of tenant shall attorne. 
 
 " Agree by parol, &c." And so hee may, and more safely by 
 his deed in writing. 
 
 " As to say to the grantee, &c." Here is to be seene to what 
 manner of grantees the attornement is good. Regularly the at- 
 tornement must be according to the grant either expressly or 
 impliedly. Of the first Littleton hath here spoken. 
 
 O^T Impliedly as if a reversion be granted to two by T 31 0.1 
 deed, and the lessee attorne to one of them according |_ a. J 
 to the grant, this attornement is good, but not to vest 
 the reversion only in him to whom attornement is made ; but it 
 shall enure to both the grantees, for that is according to the 
 grant, and for that it cannot vest the reversion only in him to 
 whom the attornement is made. And so it is if one grantee 
 dieth, the attornement to the survivor is good. 
 
 If the lord grant by deed his seigniorie to A. for life, the 
 remainder to B. in fee, A. dieth, and then the tenant attorne 
 to B. this attornement is void, because it is not according to the 
 grant ; for then B. should have a remainder without any par- 
 ticular estate. 
 
 If a reversion be granted to a man and a woman, they are to 
 have moities in law ; but if they entermarrie and then attorne- 
 ment is had they shall have no moities (and yet by the pur- 
 port of the grant, they are to have moities), because it is by act 
 in law. 
 
 If a feme grant a reversion to a man in fee, and marry with 
 the grantee, the lessee attorne to the husband, this is a good at- 
 tornement in law to the husband. 
 
 If a reversion be granted by deed to the use of I. S. and the 
 lessee hearing the deed read, or having notice of the contents 
 thereof attorne to cesty que use, this is an implied attornement 
 to the grantee. 
 
 If a reversion be granted for life, the remainder in taile, the 
 remainder in fee, the attornement to the grantee for life shall 
 enure to them in the remainder, to vest the remainder in him. 
 63. 5 Rep. Ford's case. 1 Roll. Abr. 412. 3 Leo. 17. 4 Leo. 23.) 
 
 And in those cases if the tenant should say, that I doe attorne 
 to the grantee for life, but that it shall not benefit any of them in 
 
 remainder 
 
 39 H. 6. 3. 
 Tooker's case, 
 ubi supra. 
 
 (Post. 313. a. 
 Ant. 52. a. 
 297. b. 296. a.) 
 
 Tooker's case, 
 ubi supra. 
 11 II. 7. 12. 
 
 20 II. 6. 7. 
 (Ant. 29S. a.) 
 
 Tooker's case, 
 ubi supra. PI. 
 Cora. 187. 483. 
 (Ant. 187. b.) 
 
 2 R. 2. tit. 
 Attornement, 8, 
 Lib. 4. f. 61. 
 Ilemling's case, 
 (Mo. 91. con. 
 1 Leo. 58.) 
 
 Temps E. 1. 
 Attorn. 22. 
 18 E. 4. 7. 
 Ant. 212. b. 
 a 12. b. 6 Rep,
 
 L. 3. C. 10. Sect. 552. Of Attomement. [310. a. 310. b. 
 
 remainder after his death, yet the attomement is good to them 
 all ; for having attorned to the tenant for life, the law (which he 
 cannot controll) doth vest all the remainder. And of this more 
 shall be said hereafter in this chapter. 
 
 Littleton here putteth five examples of an expresse attome- 
 ment, but of them the last is the best, because the eare is not 
 only a witness of the words, but the eye of the delivery of the 
 penny, &c. and so there is dictum et factum. And any other 
 words which import an agreement or assent to the grant, doe 
 amount to an attomement. And albeit these five expresse at- 
 tornments be all set down by Littleton, to be made to the 
 person of the grantee [//], yet an attomement in the absence of [l] Lib. 2. 
 the grantee is sufficient; for if he doth agree to* the grant either fo1 - 68, 69. 
 in his presence or in his absence, it is sufficient. 28H 8* tit M " 
 
 Attomement, Br. 40. (10 Rep. 52. Cro. Car. 440. 1 Roll. Abr. 300." Dyer^ 298. a.) 
 
 Sect. 552. 
 
 ALSO, if the lord grant the service of Ids tenant to one man, and 
 
 after by his deed bearing a later date hee grant the same services to 
 
 another, and the tenant attorne to the second grantee, now the * said 
 
 grantee hath the services; and albeit afterwards the tenant will attorne 
 
 to the first grantee, this is clearly void, $c. 
 
 1 Roll. Abr. 500. 
 Ant. 290. a.) 
 
 HERE it is to be observed, that Littleton expresseth not what 
 estate is granted, and very materially; for if the former 
 grant were in fee, and the latter grant were for life, and the (Cro. Car. 284 
 tenant doth first attorne to the second grantee, he cannot after 
 attorne to the first grautce to make the fee simple passe, for that 
 should not be according to the grant ; but in that case the at- 
 tomement to the first is countermanded. And so it is if a re- 
 version expectant upon an estate for life be granted to another 
 in fee, and after the grantor before attomement confirme the 
 estate of the lessee in taile, the attomement to the grantee for 
 the fee simple is void. 
 
 In the same manner, if a reversion upon an estate for yeares 
 be granted in fee, and the lessee confirme the estate of the lessee 
 for life, he cannot afterwards attorne 
 
 t310."| Q^T" If a feme sole maketh a lease for life or yeares, n n. r. 19. 
 b. J reserving a rent, and granteth the reversion in fee, and 2 R - 2 - 
 
 taketh husband, this is a countermand of the attorne- untU l j1 '*- 
 ment. 
 
 Where our author putteth his case of the whole reversion, if 
 two coparceners bee of a reversion, and one of them granteth 
 her moity by fine, the conusee shall have a quid juris clamat for 
 the moitie. P. 3 E \\i. 
 
 ]5endloe?. 
 Hending's case, ubi supra. (1 Roll. Air. 290. 
 
 If in the case that our author here putteth of severall grantees, n II. 7. 12. 
 if the tenant attorne to both of them, the attomement is void, 
 because it is not according to the grant. If a reversion be granted 
 
 for 
 
 * said — second, L. and M. and Rob.. 
 Tol. II.— 33
 
 310. b.] Of Attomement. L. 3. C. 10. Sect. 553. 
 
 for life, and after it is granted to the same grantee for yeares, 
 and the lessee attorneth to both grants, it is void for the ineer- 
 taintie; a multd fortiori, if the lord by one deed grant his 
 seigniorie to I. bishop of London and to his heires, and by an- 
 other deed to 7. bishop of London and to his successors, and the 
 (Ant. 190. a. tenant attorne to both grants, the attomement is void ; for albeit 
 Mo. 84.) the grantee be but one, yet he hath severall capacities, and 
 
 the grants are severall, and the attomement is not according to 
 either of the grants. 
 
 But if A. grant the reversion of Black- Acre or White-Acre, 
 and the lessee attorne to the grant, and after the grantee maketh 
 his election, this attomement is good ; for albeit the state was 
 incertaine, yet Ife attorned, to the grant in such sort as it was 
 made ; and so note a diversity between one grant and severall 
 grants, and observe in this case an attomement good in expecta- 
 tion, and yet nothing passed at the time of the attomement but 
 by the election subsequent. 
 
 Sect. 553. 
 
 ALSO, if a man be seised of a mannor, wldcli mannor is parcell in 
 demesne, and parcell in service, if he ivill alien this mannor to 
 another, it behooveth that by the force of the alienation, all the tenants 
 which hold of the alienor as of his mannor* doe attorne to the^glienee, 
 or otherwise the services remaine continually in the alienor, saving the 
 tenants at ivill f; for it needeth not that tenants at ivill doe attorne upon 
 such alienation, $c. (car il ne besoigne que tenants a volunt atturnent 
 sur tiel alienation, &c.+) 
 
 Temps E. 2. TTEREit is to bee observed, that when a man maketh a 
 48 e's^iT ' feoffment of a mannor, the services doe not passe, but re- 
 
 (Sid. 310.312. maine in the feoffor untill the freeholders doe attorne ; and when 
 3 ~ 3 - they doe attorne, the attomement shall have relation to some 
 
 Post 341 a' purpose, and not to other. For albeit the attomement bee made 
 :: i; p . 29. ' many yeares after the feoffment, yet it shall have relation to 
 1 Leo. 208.) make it pass out of the feoffor ah initio even by the liverie upon 
 the feoffment, but not to charge the tenants with any meane 
 arrerages, or for waste in the meane time, or the like. 
 (2 Roll. Abr. If a reversion of land be granted to an alien by deed, and 
 
 48^' j! 433 before attomement the alien is made denizen, and then the at- 
 
 Ant. 270. b. ' tornement is made, the king upon office found, shall have the 
 279. b.)_ laud : for as to the estate betweene the parties, it passeth by the 
 
 deed ah initio (1). 
 
 Paseh. 5 E. 3 
 coram rege 
 Sussex in Thesaur, 
 
 If 
 
 * &c. added in L. and M. and Roh. passont al aliene per force de tiel 
 
 r ilV. added in L. and M. and Roh. alienation, added in L. and M. and 
 
 % pur ceo que mesmes lee terres et Roh. and in MSS. 
 tenements que ils teignont a volunte 
 
 (1) Here the fee is supposed to vest immediately in the grantee; but when 
 ftn estate is granted upon a condition precedent, the estate does not vest, 
 
 even
 
 L. 3. C. 10. Sect. 554. Of Attornement. [310. b. 311. a. 
 
 If a man plead a feoffment of a mannor, he need not plead 
 an attornement of the tenants; but (if it be materiall) it must 
 be denied or pleaded of the other side. 
 
 And upon consideration had of all the bookes touching this 21E. 3. 47. 
 point, whether the services of the freeholders do passe wherein 34 E. 3. Double 
 there have been three severall opinions, viz. some have holden Fja 
 that the services doe passe in the right by the livery as parcell 43 Ass! p! 20. 
 of the mannor, but not to avow without attornement, as in the 30 E. 3. 
 case of the fine. And others have holden, that they both passe ^ *;• ^ 
 in right and in possession to distreine without attornement. And q U »Servitia 21. 
 the third opinion is, that in this case the said services passe 8 H. 4. 1. b. 
 neither in possession nor in right, but untill attorne- ^ |J- *■ 
 
 [811. "1 ment figg"* remaine continually in tlfe alienor, as Lit- 35 j^ $ 
 a. J tkton here holdeth. And so it was resolved Pasch. 9 E. 4. 33. 
 
 15 Eliz. betweene Brash itch and Bariccll, according ]3 ?• 7 - 14 - a - 
 to the opinion of our author. And I never yet knew any of 4 eV Attorne- 
 Littleton's cases (albeit I have knowne many of them) to be ment, Br. 30. 
 brought in question, but in the end the iudges concurred with Vid. Bill. 
 our author. * 14 Eli, Rot. 503. 
 
 in Comuium . 
 Banco. 
 
 And where our author speaketh of the attornement of the 9 E. 2. tit. At- 
 
 freeholders, if the lord make a lease for yeares or for life of a tomemcnt.is.b. 
 
 mannor, and the freeholders attorne to the lessee, if after the 21 ! 3 47 
 
 reversion of the mannor be granted, the attornement of the 5 11. 5. 12. b. 
 
 lessee for yeares or life shall binde the freeholders : for by their Vid. Lit. Sect. 
 
 former attornement they have put the attornement into the 549 & 656, 
 mouth of the lessee. 
 
 "Saving the tenants at will, &c." Here is implied tenant at 
 will or by copie of court roll according to the custom of the 
 mannor, so as the freehold and inheritance both of lands in the 
 hands of tenant at will by the common law or by custome shall 
 passe both in right and in possession without any attornement (1). 
 
 Sect. 554. 
 
 A LSO, if there bee lord and tenant, and the tenant lettetJi the land to 
 another for term of life, or giveth the land in taile saving the rever- 
 sion to himself e, Sj-c. if the lord in such case grant his seigniory to an- 
 other, it hehoveth that hee in the reversion attorne to the grantee, and 
 not the tenant for terme of life, or the tenant in taile, because that in 
 this case he in the reversion is tenant to the lord, and not the tenant for 
 terme of life, nor the tenant in taile. 
 
 FOR 
 
 even by way of relation, till the performance of the condition. PI. 4S2. b.— « 
 [Note 273.] 
 
 (1) For the difference between seisin and attornment, See Brediman's case, 
 6 liep. 5G. b.
 
 311. a, 311. b.] Of Attornement. L. 3. C. 10. S. 555-56. 
 
 (8 Rep. 42.) TT^^ * fc * s a max ' me * n ^ lw ' tnat no man s ^ a ^ attome to any 
 
 J- grant of any seigniorie, rent service, reversion or remainder, 
 but he that is immediately privie to the grantor ; and because 
 in this case there is no privitie betweene the lord and the tenant 
 for life, or donee in taile, but only betweene the lord and him 
 in the reversion; for in this case the attornement of him in the 
 reversion only is good. 
 
 " Saving the reversion to himsclfe, dr." That is to say, with- 
 out limitation of any remainder over; and this is but to make 
 his opinion plaine as to the point that he putteth it. 
 
 Sect. 555, 
 
 TN the same manner is it where there are lord, mesne and tenant, * if 
 the lord will grant the services of the mesne, albeit he maketh no 
 
 mention in his grant of the mesne, yet the mesne ought to at 
 tome, f §c. and not the tenant peravaile, $c. Hfe^ for that the r 31 
 mesne is tenant unto him, <f*(?. |_ b. 
 
 This standeth upon the same reason that the next precedent 
 case did. 
 
 Sect. 556. 
 
 T)TJT otherwise it is where certaine land is charged with a rent-charge 
 or rent seeke ; for in such case if he which hath the rent-charge 
 grant this to another, it behooveth that the tenant of the freehold attorn 
 to the grantee, for that the freehold is charged with the rent, $c. And 
 in a rent-charge, no avowrie ought to be made upon any person for the 
 distresse taken, §c. but hee shall avow the prisel to be good and right- 
 full, as in lands or tenements so charged with his distresse, $c. 
 
 (6 Rep. 59. a.) TTERE is to be observed a diversitie betweene a rent service 
 -L-L and a rent charge, or a rent seeke ; for as to the rent ser- 
 vice, no man (as hath beene said) can attorne, but he that is 
 
 21 II. 6. 9. b. privie ; so in case of a rent charge, it behooveth that the tenant 
 of the freehold doth attorne to the grantee, without respect of 
 
 (2 Rep. 67.) any privitie. And therefore the disseisor onely, in the case of 
 a grant of a rent charge, shall attorne, because he is (as Little- 
 ton saith) tenant of the freehold ; but in case of a grant of a 
 rent service, the attornement of a disseisee sufficeth. 
 
 (6 Rep. 39. a.) If there be lord and tenant by homage, fealtie, and rent, the 
 tenant is disseised, the lord granteth the rent to another, the 
 disseisee attorneth, this is void : but if he had granted over his 
 whole seigniorie, the attornment had been good ; and the reason 
 
 of 
 
 *if—and, L. and M. and Roh. f &c - not in L. and M. or Roh.
 
 L. 3. C. 10. Sect. 556. Of Attornement, [311. b. 312. a. 
 
 of this diversitie is here given by our author, for that when the 
 rent was granted onely, it passed as a rent-secke, and conse- 
 quently the disseisor being terre-tenant, must attorne. But 
 when the seigniorie is granted, then the disseisee in respect of 
 the privitie may attorne. 
 
 " 7/ behoveih that the tenant of the freehold, &c." And there- 
 fore if the tenant of the land charged with a rent charge or 
 a rent secke make a lease for life, and he that hath the rent 
 charge or rent secke grantcth it over, the tenant for life shall 
 attorne, for he is tenant of the freehold, according to the ex- 
 presse saying of our author, and (as hath beene said) there 
 needeth no privitie. 
 
 And it was holden by Dyer chiefe justice of the court of com- (1 Leon. 205. a.) 
 mon pleas, and Mounson justice, in the argument of Bracebridge's 
 case abovesaid, and not denied, that if he that hath a rent charge 
 granteth it over for life, and the tenant of the land attorne there- 
 unto, and after he granteth the reversion of the rent charge, that 
 the grantee for life may attorne alone; and that these words of 
 Littleton are to be understood when a rent charge or rent secke 
 is granted in possession; and therewith agreeth 46 E. 8, where 
 it appeareth, that the quid juris clamat, in that case, did lie 
 against the grantee for life. 
 
 A man maketh a lease for life, and after grants to A. a rent 4f> E. 3. 27. 
 charge out of the reversion, A. granteth the rent over, he in the 2 H. 6. 9. 
 reversion must attorne, and not the tenant of the freehold, for , 4 ' ( j ^! 553 
 that the freehold is not charged with the rent; for a release 
 made to him by the grantee doth not extinguish the rent. And 
 Littleton is to be understood, that the tenant of the freehold 
 must atturne when the freehold is charged. 
 
 t31Q."J S£f "And in a rent-charge no avowrie ought to be 
 a. | made upon any person, &c." This is the reason that 
 Littleton giveth of the difference betweene the rent 
 service and the rent charge. Now it may bee said, that this reason 
 is taken away by the statute 21 H. 8, for by that statute the lord 
 needs not avow for any rent or service upon any person in cer- 21 II. 8. cap. 19. 
 taine : and then by Littleton's reason there needeth no privitie to Vide Sect. 454. 
 the attornement of a seigniorie ; for (say they) cessante causa vel 
 ratione legis, cessat lex, as at the common law no aid was grant- 
 able of a stranger to an avowrie; because the avowrie was made 
 of a certaine person : but now the avowrie being made by the 
 said act of 21 H. 8, upon no person, therefore the reason of the 07 H. S. 4. b. 
 law being changed, the law itself is also changed; and conse- (Doe. Plae. 25, 
 quently in an avowrie according to that act, aid shall be granted 2(i -) 
 of any man, and the like in many other cases ; which case is 
 granted to be good law : but albeit the lord (as hath beene said) 
 may take benefit of the statute, yet may he avow still at his 
 election upon the person of his tenant. And albeit the manner 
 of the avowrie be altered, yet the privitie (which is the true cause 
 of the said difference) remaineth still as to an attornement. 
 
 " Rent-charge, &c." It is to be observed, to what kinde of 
 inheritances being granted, an attornement is requisite. _ And in 
 this chapter Littleton speaketh of five. First, of a seigniorie, 
 rent service, &c. Secondly, of a rent charge. Thirdly, of a 
 rent secke. And hereafter in this chapter of two more, viz. of 21 H. 7. 1. 
 a reversion and remainder of lands; for the tenant shall never (IRoll. Abr. 
 
 need ^->-* 6 ->
 
 312. a. 312. I).] Of Attornement. L. 3. C. 10. Sect. 557. 
 
 need to attorne but where there is tenure, attendance, remainder, 
 1 n. 5. 1. or payment of a rent out of land. And therefore if an annuitie, 
 
 37 Ass. 14. common of pasture, common of estovers, or the like, be granted 
 
 liH^Yt f° r ^ e or y eares > & c - tne reversion may be granted without any 
 Attornement, attornement; and albeit sometimes in some of these cases, or 
 Br. 59. the like, an attornement be pleaded, yet it is surplusage, and 
 
 (Ant. 303. b.) inore than needeth, because in none of them there is any tenure, 
 
 attendance, remainder, or payment out of land. 
 
 Sect. 557. 
 
 A LSO, if there be a lord and tenant, and the tenant letteth his tene- 
 ment to another for terme of life, the remainder to another in fee, 
 and after the lord grant the services to another, $c. and the tenant for 
 life attorne, this is good enough, for that 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, untill after the death of the tenant 
 for life : get in this case if hee in the remainder dicth without heire, the 
 lord shall have the remainder bg wag of escheat, because that albeit the 
 lord in such case ought to avow upon the tenant for life (pur ceo que 
 coment que le seignior en tiel cas * covient d'avower sur le tenant a 
 terme de vie,) <fc. get the whole entire tenement, as to all the estates of 
 the freehold or of fee simple, or otherwise, §c. in such case are together 
 holden of the lord, $c. 
 
 %dT f But not to make avowrie upon them altogether. M. r312.~] 
 3 H. 6. L b. J 
 
 15 E. 3. " AND the tenant for life attorne, &c." For he that is (as 
 
 Attorn. 10. -^*- hath beene said) privie and immediately tenant to the 
 
 is H 6 2 l° r d must attorne; and that is in this case the tenant for life : 
 
 9 e. 2. ' and so of the other side if a seigniorie be granted to one for life, 
 
 tit. Attorn. 18. the remainder to another in fee, the attornement to the tenant 
 T 8E " B 1 for life is an attornement to the remainder also; unlesse it be 
 
 Attorn. 22." that (A) they in the remainder ought to have acquittall, or other 
 Vide Sect. 5S0. privilege (whereof they should be prejudiced); and then albeit 
 A t'lttO 6 *" an attorncment De had to the tenant for life, and he acknowledge 
 
 Post. 320. b.) the acquittall, &c. yet after his decease, he in the remainder shall 
 not distreyne untill he acknowledge the acquittall, notwithstand- 
 ing the attornement (13) of the tenant for life. 
 
 9 Rep. 134. b. " Shall have the remainder by vay of escheat." For the re- 
 
 Ant. 280. a.) mainder is holden of the lord, but not immediately holden; and 
 in this case, by the escheat of the remainder the seigniorie is 
 extiuct; for the fee simple of the seigniorie being extinct, there 
 cannot remaine a particular estate for life thereof, in respect of 
 
 the 
 
 * covient d'avower — d'avowera, L. f This paragraph not in L. and M. 
 and M. and Boh. or Roh. 
 
 (A) Here it seem* the text should be understood as if lord Coke had said " unless it be 
 that they who attorned, &c." instead of" unless it be that they in the remainder, &c. 
 See Mr.Ritso's Intr. p. 120. 
 
 (B) Here "of" seems to be printed by mistake instead of" to.
 
 L. 3. C. 10. S. 558-59. Of Attornement, [312.b. 313. a. 
 
 the tenure and attendance over; and of this opinion is Little- 3 H. 6.1. Old 
 ton [«] himselfe in our bookes. But otherwise it is of a rent ^ en " r ^ ' Y*h 
 charge in fee; for if that be granted for life, and after he in the n j^on. 225.) 
 reversion purchase the land, so as the reversion of the rent charge 
 is extinct, yet the grantee for life shall enjoy the rent during his 
 life, for there is no tenure or attendance in this case. 
 
 " But not to make avowrie." This is added to Littleton, but M. 3 II. 6. 1. 
 it is consonant to law, and the authoritie truly cited. 
 
 Sect. 558. 
 
 A LSO, if there be lord and tenant, and the tenant letteth the tene- 
 ments to a woman for life, the remainder over in fee, and the woman 
 taketh husband, and after the lord grant the services, §c. to the husband 
 and his heires ; in this ease the service is put in suspence during the 
 coverture. But if the wife die living the husband, the husband and his 
 heires shall have the rent of them in the remainder, §c. And in this 
 case there needeth no attornement by parol, §c. for that the husband 
 which ought to attorne accepted the deed of grant of the services, §-c. the 
 
 which acceptance is an attornement in the law. 
 
 1 
 
 lt rplIE which acceptance is an attornement in the law, &c." 3 E. 3. 42. 
 
 Littleton having spoken (as hath beene said) of attornements J 5 B * 3 " ^^j 
 in deed, or expresse, now cometh to speake of attornements in ( 6Rep- 63 ' 
 law, or implied ; and having before set downe five expresse at- 9 Rep. 85. 
 toruements in deed, doth in this chapter enumerate seven attor- | 2 ^ u - Abr - 
 nements in law. Here it is to be understood, that the expresse 4 l ^ 3 
 
 attornementofthe husband willbinde the wifeafterthe tit. Fines, 37. 
 
 t313."j OCT coverture, and in as much as this acceptance of ^J^f. 
 a. J the grant is an attornement in law, without a word of ^ 03 _ " 
 
 attornement the seigniorie shall passe. And this is (Ant. 280. a. 
 the first example that Littleton putteth of an attornement in law, 301. 310.) 
 which amounteth to an expresse attornement, for that it is an 
 agreement to the grant. 
 
 If the lord grant his seigniorie to the tenant of the land, and 
 to a stranger, and the tenant accept the deed, this acceptance 
 is a good attornement to extinguish the one moitie, and to vest 
 the other moitie in the grantee, as hath beene said. 
 
 Sect. 559. 
 
 TNthe same manner is it, if there be lord and tenant, and the tenant 
 
 taketh ivife, and after the lord grant (A) his services to the wife and 
 
 (B) his heires (et puis le seignior granta les services a la feme et ses 
 
 heires), and the husband aecepteth the deed; in this case after the death of 
 
 the husband and wife and her heires shall have the services, Sfc.for by the 
 
 acceptance 
 
 (A) "the services," and not "his services," would be the literal translation of the 
 originaltext. See Mr. llitso's Tntr. p. 112. 
 
 (B) Here " his" scents printed by mistake instead of " her." See Mr. Ritso s tntr. p. HZ.
 
 313. a. 313. b.] Of Attomement. L. 3. C. 10. Sect, 560. 
 
 acceptance of the deed by the husband (per le acceptance ^[ del fait per 
 le baron), this is a good attomement, $c. albeit during the coverture the 
 services shall be put in suspence, &c. 
 
 (1 Roll. Abr. TJ ERE is the second example that Littleton putteth of an at- 
 938, 939, 940.) 1\ tornement in law, and standeth upon the former reason. 
 
 (Ant. 143. b.) " Shall be put in suspence." Suspence commeth of suxpendeo, 
 
 4 Rep. 52.) anc ] i n Wall understanding is taken when a seigniorie, rent, 
 ( . ' ' profit apprender, &e. by reason of unitie of possession of the 
 seigniorie, rent, &c. and of the land out of which they issue, are 
 not in esse for a time, el tunc dormiunt, but may be revived or 
 awaked. And they are said to be extinguished when they are 
 gone for ever, et tunc moriuntur, and can never be revived; that 
 is, when one man hath as high and perdurable an estate in the 
 one as in the other. 
 
 Sect. 560. 
 
 J LSO, if there be lord and tenant, and the tenant grant the tenements 
 ^ to a man for terme of his life, the remainder to another in fee, if the 
 lord grant the services to the tenant for life * in fee, in this case the tenant 
 for terme of life hath a fee in the services; but the services are put in 
 suspence during his life. But the heires of the tenant for life shall have 
 the services after his decease (Mes les heires \. le tenant a terme de vie 
 averont les services apres f son decease), fie. % And in this case there 
 needeth no attomement (Et en cest cas il ne besoigne § attomement) ; 
 for by the acceptance of the deed by him ivhich ought to attorne, $*c. this 
 is an attomement of it selfe ||. 
 
 HERE is the third case that Littleton putteth of an attome- 
 ment in law. And it is to bee observed, that albeit a grant, 
 as hath beene said, may enure by way of release, and a release to 
 the tenant for life doth worke an absolute extinguishment, whereof 
 bee in the remainder shall take benefit, yet the law shall never 
 make any construction against the purport of the grant to the 
 prejudice of any, or against the meaning of the parties 
 (Siderf. 25.) as fl®" here it should ; for if by construction it should ["313. "1 
 enure to a release, the heires of the tenant for life should [ b. 
 be disherited of the rent ; and therefore Littleton here 
 saith, that the heires of the grantee shall have the seigniorie 
 after his death. And here is an attomement in law to a grant 
 suspended that cannot take effect in the grantee so long as he 
 liveth, but shall take effect in his heires by descent ; for the 
 inheritance of the seigniorie was in the tenant for life, and the 
 suspension onely during his life. 
 
 Sect. 
 
 ^[ del fait per not in L. and M. or f son not in L. and M. or Roh. 
 
 Roh. % &c. not in L. and M. or Roh. 
 
 * in fee not in L. and M. or Roh. § ascun added in L. and M. and 
 
 \. le tenant a terme de vie, not in Roh. 
 
 L. and M. or Roh. II &c. added in L. and M. and Roh.
 
 L. 3. C. 10. S. 561-62. Of Attomement. [313. b. 314. a. 
 
 SeCt. 561. (Ant. 279.) 
 
 J) UTivhere the tenant hath as great and as high estate in t\e tenements 
 as the lord hath in the seigniory ; in such case, if the lord grant the 
 services to the tenant in fee, this shall enure by ivay of extinguishment. 
 Causa patet. 
 
 HERE Littleton intendeth not onely as great and high an 
 estate, but as perdurable also, as hath beene said ; for a 
 disseisor or tenant in fee upon condition hath as high and great 
 an estate, but not so perdurable an estate, as shall make an ex- 
 
 tinguishment. 
 
 Sect. 562. 
 
 A LSO, if there bee lord and tenant, and the tenant mdkeih a lease to 
 a man for terme of his life, saving the reversion to himself e, if the 
 lord grant the seigniory to tenant for life in fee ; in this case it behoveth 
 that he in the reversion must attorneto the tenant for life by force of this 
 grant, or otherwise the grant is voide, for that he in the reversion is ten- 
 ant to the lord, cf-c. 
 
 * Yet hee shall not hold of the tenant for life during his life. Causa 
 patet, &c. 
 
 HERE in this case he in the reversion of the tenancy must 
 attorne, because he is the tenant to the lord ; and yet the 
 seigniorie shall be suspended during the life of the grantee, be- 
 cause hee hath an estate for life in the tenancie, but his heires 
 shall enjoy the seigniorie by discent. 
 
 [ 3 ^-] . 
 
 " Yet he shall not 03= hold, &c." This is added, and 
 ot it the originall, and is against law, and therefore 
 to be rejected. 
 
 " Tenant to the lord, &c. Here is to bee understood a diver- 
 sity when the whole estate in the seigniory is suspended, and when 
 but part of the estate in the seigniory is suspended. And in this 
 case the seigniorie is suspended but for tonne of life ; [r/] and there- [a] 34 Ass. p. 15. 
 fore as to all things concerning the right it hath his being ; but 
 as to the possession during the particular estate the grantee shall 
 take no benefit of it ; therefore during that time he shall have 
 no rent, service, wardship, releefe, herriot, or the like, because 
 these belong to the possession : but if the tenant dieth without ]f E * 3 ; *'*• 
 heire, the tenancie shall escheat unto the grantee, for that is in 
 the right ; and yet when the seigniorie is revived by the death of 
 
 the 
 
 * This paragraph not in L. and M. or Rob..
 
 314. a. 314. 1).] Of Attomement. L. 3. C. 10. Sect. 563. 
 
 the tenant, there shall be wardship: as if the tenant marry with 
 the seignioresse and dieth, his heire within age, the wife shall 
 have the wardship of the heire. Also in the case that Littleton, 
 here putteth, albeit the seiguiorie be suspended but for life, yet 
 some hold that he cannot grant it over, because the grantee tooke 
 it suspended, and it was never in esse in him. But if the ten- 
 ant make a lease for yeares or for life to the lord, there the lord 
 may grant it over, because the seiguiorie was in esse in him, and 
 5 E. 3. Twong's the fee simple of the seiguiorie is not suspended. But if the 
 Tint 298 b ) ^ 01 '^ disseise ^ e tenant, or the tenaut enfeoffe the lord upon con- 
 dition, there the whole estate in the seigniorie is suspended, and 
 therefore he cannot during the suspension take benefit of any 
 escheat or grant over his seigniorie. 
 
 Sect. 563, 
 
 ALSO, if there be lord and tenant, and the tenant holdeth of the lord 
 by xx. manner of services, and the lord grant his seigniory to 
 another ; if the tenant pay in deed any parcell of any of the services to 
 the grantee, this is a good attomement, of and for all the services, albeit 
 the intent of the tenant was to attorne but for this parcell, for that the 
 seigniorie is intire(p\iv ceo que le seigniory est f entier), although there 
 bee divers manner of services which the tenant ought to doe, fyc. 
 
 HERE it appeareth that an attomement being rnade for par- 
 cell, is good for the whole ; for seeing he hath attorned for 
 29 E. 3. 23. part, it cannot bee void for that, and good it cannot be unlesse it 
 
 5 E. 4. 2. De for the whole : but of this sufficient hath beene said before 
 
 22 Ass. 66. • ,i • u . 
 
 7 II 4 10 in *" 1S chapter. . 
 
 35 H. 6. 8. per Prisott. (Ant. 309. b.) 
 
 4 E. 3. 55, 
 
 Malman's case 
 
 40 E. 3. 34. " p a y an y parcell of the services." Here is the fourth example 
 
 ( ep. .) Q f an a ttornement in law ; for payment of any parcell of the 
 
 services is an agreement in law to the m-ant. 
 
 ( Siderf. 283. " Albeit the intent of the tenant was to attorne, &c." 
 
 ep. o. a.; $gf*> Quia intentio inservire debet lejibns, non leges P314z. ~| 
 20 n. 6. intentioni. And yet as farre as it may stand with the | b. 
 
 (l Rep. 101. b. rule of law, it is honourable for all judges to judge 
 104. a. Doctor according to the intention of the parties, and so they ought to doe. 
 1 Roll. Ab'r. 419'. ^ n( ^ °f tn ^ s somewhat in this chapter hath beene said before. 
 
 Cro. Car. 1. 401. Dyer, 4. a. Post. 367. a. Ant. 20. 47. b. 48. b. 2 Rep. 23. 
 4 Rep. 81. a. Ant. 42. 213. a. 217. b. 222. b. 229. a. 1 Roll. Abr. 303. 
 
 Sect. 
 
 "fforscpie un et added in L. and M. and Roll.
 
 L. 3. C. 10. S. 564-65. Of Attomement. [314. b. 315. a. 
 
 Sect. 564:. 
 
 A LSO, if there bee lord and tenant, and the tenant holdeth of the lord 
 by many Jcinde of services, and the lord grant the services to an- 
 other by fine ; if the grantee sue a scire facias out of the same fine for 
 any pareell of the services, and hath judgment to recover, this judgment 
 is a good attomement in law for all the services.* 
 
 HERE is to be observed, that this judgment in the scire facias 
 (which is no more but that the demandant shall have execu- f 8 _ , • *\* . . 
 
 V » • i „ ., ., . , ,, . 3 h. 3. Quid 
 
 tion, &c.) is a good attomement, albeit it is presumed that j urig c i ainat . 
 judicium redditur in invitum, and that an attomement in law of 4 E. 3. 28, 29. 
 anv part is good for the whole. And this is the fifth example 37 **: 6 \ 14 " 
 
 i J *V . ^ B .i j? , • i per Moyle. 
 
 that Littleton putteth or an attomement in law. 17 e. 3. 29. 
 
 (Ant. 248. b. 6 Rep. 64. b.) 
 
 Note, that in case of a deode nothing passeth before attorne- (5 Rep. 123. 
 ment, as hath beene said. In the case of the fine, the thing £ ect jj 51 ' „. 
 granted passeth as to the state, but not to distraine, &c. without 2 Rep. 67. b.' 
 attomement. In the case of the king the thing granted doth Sect. 579. 
 passe both in estate and in privitie to distraine, &c. without 1 Roll. Abr. 294. 
 attomement, unlesse it be of lands or tenements that are pareell n^Sid. 139>. 
 of the duchy of Lancaster, and lie out of the county palatine (1). 1 Lev. 28.) 
 
 Sect, 565. [lT.\f' h ' 
 
 A LSO, if the lord of a rent service grant the services to another, and 
 
 the tenant attorne by a penny, and after the grantee distraine for 
 
 the rent behinde, and the tenant make rescous ; in this case the grantee 
 
 shall not have an assise for the rent, but a ivrit of rescous, because the 
 
 giving of the penny by the tenant ivas not but by way of attomement 
 
 (per ceo que le done del denier per le tenant f ne fuit forsque per voy 
 
 d'attornement), frc. But if the tenant had given to the grantee the said 
 
 penny as pareell of the rent, or a halfe penny or a farthing 
 
 ["315.1 by way of seisin of the rent, then this jgeg^ is a good attorne- 
 
 L a - J ment, and also it is a good seisin to the grantee of the rent; 
 
 and then upon such rescous the grantee shall have an assise, <fc. 
 
 HEREUPON' is to be observed a diversitic betweene money 39 II. 6. 3. 2G. 
 given by way of attomement, and where it is given as pareell ^ E - 4 ; 2 - 
 of the rent by way of seisin of the rent. For albeit the rent be l e l 
 
 25 E. 3. 44. 
 49 E. 3. 15. 37 II. 6. 39. 49 Ass. p. 6. 34 H. 6. 42. 15 E. 3. Execution, 63. 
 
 40 E. 3. 22. 28 H. G. G. b. 7 II. 4. 2. tit. Attorney, Br. 97. (6 Rep. 59.) (Ant. 281. a.) 
 
 not 
 * &c. added in L. and M. and Roh. f ne not in L. and M. or Roh. 
 
 (1) See PL Com. 221. 4 Inst. 209.
 
 315 a.] Of Attomement. L. 3. C. 10. Sect. 566 
 
 not due before the day, yet a payment of parcell of the rent 
 before hand is an actuall seisin of the rent to have an assise. 
 And so it is if he give an oxe, a horse, a sheepe, a knife, or any 
 other valuable thing in name of seisin of the rent before-hand, 
 this is good. And therefore a payment in name of seisin is more 
 beneficiall for the grantee, because that is both an actuall seisin 
 and an attornement in law ; and yet being given before the day 
 in which the rent is due, it shall not be abated out of the rent. 
 So as to give seisin of the rent, it is taken for part of the rent ; 
 but as to the payment of the rent, it is accounted as no part of 
 the rent ; and the reason of the diversitie is, for that remedies 
 to come to rights or duties are ever taken favourably. Here 
 also appeareth that there is an actuall seisin, or a seisin in deed 
 of a rent, whereof (as Littleton here speaketh) an assise doth 
 lie ; and a seisin in law which the grantee hath by attornement 
 before actuall possession (1). 
 
 Sect. 566. 
 
 ALSO, if there bee many jointenants which hold by certaine services 
 (Item, si sont plusors jointenants * que teignont per certaine ser- 
 vices), and the lord grant to another the services, and one of the joyn- 
 tenants attorne to the grantee, this is as good as if all had attorned (ceo 
 est auxy bon, sicorne touts f ussent attorne), for that the seigniory is 
 entire, §c. 
 
 (l Ro. Ab. 302.) TTERE is to be observed what manner of tenants shall attorne 
 
 rfl 39H 6 3 to tne g rant - And fi rst > W\ if there be two or more join- 
 
 26. tenants, and one of them attorne, it is sufficient : for, as it hath 
 
 See Tooker's beene often said, there cannot be an attornement in part. And 
 
 case, ubi supra, a ] De jt there is great authoritie against Littleton, vet the law hath 
 
 unci tiic iiutliuri- ^ ^ *^ 
 
 ties there cited, beene adjudged according to Littleton's opinion, as it hath beene 
 (2 Roll. Abr. in other of his cases when they have come in question : and as it 
 424. Ant. 297. j g f an attornement, so it is of a seisin ; a seisin of a rent by 
 
 the hands of one joyntenant is good for all, and a seisin of part 
 
 of the rent is a good seisin of the whole, 
 [c] Yid. Lib. 4. [ c ] If either the grantor or the grantee die, the attornement 
 fol. 8. is countermanded ; but if the tenant die, he that hath his estate 
 
 ~~' S" Sv V.' mav attorne at any time. If the tenant grant over his estate, 
 
 Lib. 9. fol. 34. , . J J . ° 
 
 Yid. 4 H. 6. 29. his assignee may attorne. 
 
 is E. 4. 10. [rZ] If an infant hath lands by purchase or by discent, he shall 
 
 [rf] 42 E. 3. 
 
 Ago, 33. 26 E. 3. 62. 37 H. 8. tit. Attorne, Br. 26 E. 3. 62. 26 Ass. 27. 
 
 32 E. 3. tit. Per qujc Servit. 9. 2 E. 2 Attorn. 78. 2 E. 2. ibid. 77. 18 H. 6. 2. 
 
 Lib. 9. f. 84, 85. Conye's case. 4 Mar. Dier, 137. 21 E. 3. Ago, 85. 7 E. 2. Age, 140. 
 
 be 
 
 * que — et, L. and M. and Roll. f ussent attorne — attornerent, L. 
 
 and M. and Roh. 
 
 (1) This is only to be understood of a rent at common law; but if the 
 rent is limited, as an use under the statute, — as if lands are conveyed by 
 lease and release to A. and his heirs, to the use that ■ B. may receive out of 
 them an annual rent; the statute immediately executes the use of the rent 
 in B.— [Note 274.]
 
 L. 3. C. 10. Sect 567. Of Attornement. [315. a. 315. b. 
 
 be compelled to attorne in a per q%icv servitia, and no mischiefe to 
 the infant; for when he cometh to full age, he may diselaiine 
 to hold of him, or he may say that he holds by lesser services; 
 but there should be a greater mischiefe for the lord if the at- 
 tornement of an infant should not be good, for he should lose 
 his services in the mean time. 
 
 If an infant be a lessee, he shall be compelled to attorne in a 
 quid juris clamat. The attornement of an infant to a grant by 
 deed is good, and shall binde him, because it is a lawfull 
 act, albeit he be not upon that grant by deed compellable to 
 attorne. Of baron and fern Littleton putteth many cases in this 
 chapter. 
 
 [e] A man that is deafe and dumb, and yet hath understand- r e ] 2(5 E. 3. C3. 
 ing, may attorne by signs : [/] but one that is not compos mentis [/] IS E. 3. 53. 
 cannot attorne, for he that hath no understanding cannot agree 
 to the grant. 
 
 What conveyances shall be good without attonement more 
 shall be said in this chapter in his proper place. 
 
 [315.1 jw Sect. 567.' 
 
 ALSO, if a manlettcth tenements for terme of yeares, ly force of winch 
 lease * the lessee is seised, and after the lessor by his deed grant the 
 reversion to another for terme of life, or in taile, or in fee ; it behoveth 
 in such case that the tenant for year es attorne, or otherwise nothing shall 
 passe to such grantee by such deed. And if in this case the tenant for 
 yeares attorne to the grantee, then the freehold shall presently pass to the 
 grantee by such attornement without any liverie of seisin, fyc. because if 
 any liverie of seisin,^ $c. should be or were needful to bee made, then the 
 tenant for yeares should be at the time of the livery of seisin ousted of 
 his possession, ivldch should be against reason (| le quel serroit encounter 
 reason), $c. 
 
 HERE Littleton having spoken of grants of seigniories and 
 rent charges, and rents secke issuing out of land, here 
 treateth of a grant of a reversion of land upon an estate for 
 yeares; seeing this grant of the reversion must be by deed, and 
 the agreement of the lessee for yeares requisite thereunto, the 
 freehold and inheritance doe passe thereby, as well by liverie 
 of seisin, if it were in possession : and the grant of the reversion 
 by deed with the attornement of the lessee, doe couutervaile in 
 law a feoffment by liverie, as to the passing of the freehold and 
 inheritance. 
 
 " For terme of yeares." [g~\ And yet a tenant by statute mer- r -i 6£ 3 „ 
 chant, or tenant by statute staple, or by elegit, must also attorne ; 25 E. 3! 53. 
 for the grantee may have a venire facias ad computandnm, or Brook, 
 tender the money, &c. and discharge the land; and if the 32E 3™S' 48 " 
 
 fac. 101. Dy. 1, 2. (Ante, 113. a. 181." b.) 
 reversion 
 
 * the lessee not in L. and M. or f <Cr. not in L. and M. or Rob. 
 
 Rob. X le quel, — que, L. and M. and Roll.
 
 315. b. 316. a.] Of Attornement. L. 3. C. 10. Sect, 568. 
 
 reversion be granted by fine, they shall be compelled to attorne 
 in a quiil juris clamat. 
 
 And so the executors that have the land until the debts bee 
 paid must attorne upon the grant of the reversion, although they 
 have not any certain terme for yeares. 
 
 Sect. 568. 
 
 ALSO, if tenements be letten to a man for terme of life, or given in 
 
 taile, saving the reversion, $c. if hee in the reversion in such case 
 
 grant the reversion to another by his deed, it behooveth that the tenant of 
 
 the land attorne to the grantee in the life of the grantor, or otherwise the 
 
 grant is voyd*. 
 
 HERE Littleton speaketh of a reversion expectant upon an 
 estate for life, or a gift in taile. 
 
 " It behooveth that the tenant of the land #§r" attorne r316.~j 
 to the grantee, dec." Let us therefore speak first of [ a. 
 tenant for life : and yet in some case albeit tenant for 
 life hath granted over his estate, yet he shall attorne. [a] As if 
 tenant in dower or by the the curtesie grant over his or her estate, 
 and the heire grant over the reversion, the tenant in dower or by 
 the curtesie may atturne, because at the time of the grant made 
 they were attendant to the heire in reversion, and the grantee 
 cannot be tenant in dower, or tenant by the curtesie. And if 
 the reversion be granted by fine, the fine must suppose that the 
 tenant in dower or by the curtesie did hold the land, albeit they 
 had formerly granted over their estate, and albeit the reversion 
 doth passe by the fine : yet the quid juris clamat must be brought 
 against him that was tenant at the time of the note levied. But 
 yet after the reversion is granted over, the grantee shall not have 
 any action of waste against the tenant in dower or by the curtesie, 
 but the action of wast must be brought against their assignee, 
 and not against themselves ; for tenant by the curtesie or tenant 
 in dower cannot hold of any but of the heire : and therefore in 
 respect of the privitie, they shall attorne and be subject to an 
 action of waste, as long as the reversion remaineth in the heire, 
 albeit they have granted over their whole estate. And it is 
 worthy of the observation, that if the grantee of the reversion 
 doth bring an action of wast against the assignee of the tenant by 
 the curtesie, [li] the pi. must rehearse the stat. which proveth 
 that no prohibition of waste in that case lay at the common law. 
 as it did if the heire had brought it against the tenant by the 
 curtesie itselfe; and therefore some doe hold, that if the heire 
 doe grant over the reversion, that the attornement of the assignee 
 of the tenant by the curtesie, or of tenant in dower is sufficient, 
 because they afterward must be attendant and subject to the 
 action of waste. 
 
 If the reversion of lessee for life be granted, and lessee for 
 life assigne over his estate, the lessee cannot attorne ; but the 
 
 attornement 
 
 [a] 10 H. 4. 
 tit. Attorn. 16. 
 11 II. 4. IS. 
 30 E. 3. 16. 
 38 E. 3. 23. 
 18 E. 3. 3. 
 10 E. 3. Quid 
 juris clam. 41. 
 41 E. 3. 18. 
 Temps E. 1. 
 tit. Waste, 122. 
 
 (Ant. 54. a.) 
 F. X. B. 55, E. 
 Rcgist. f. 72. 
 4E.3. 26. 
 
 (3 Rep. 23. b.) 
 
 [b] Regiat. 72. 
 
 18 E. 4. 10. b. 
 26 E. 3. 62. 
 
 * dr. added in L. and M. and Roh.
 
 L. 3. C. 10. S. 569-70 Of Attornement. [316. a. 316. h 
 
 attornement of the assignee is good, because (as Littleton here 
 saith) it behooveth that the tenant of the land doe attorne, and 
 after the assignement there is no tenure or attendance, &c. be- 
 tweene the lessee and hira in reversion. 
 
 If lessee for life assigneth over his estate upon condition, he 5 II. 5. 10. 
 having nothing in him but a condition shall not attorne; but 
 the assignee may attorne, because he is tenant of the land. 
 
 Sect, 569. 
 
 TN the same manner is it, if land be f granted in taile, or let to a man 
 for terme of life, the remainder to another X in fee, if he in the re- 
 mainder will graunt this remainder to another, Sj-c. if the tenant of the 
 land attorne in the life of the grantor, then the grant of such a remain- 
 der is good, or otherwise not. 
 
 T ITTLETON also speaketh here of an attornement by ten- 
 ant in taile; and true it is that he may attorne ; but where 12 E. 4. 3. 4. 
 the reversion is granted by fine, he is not compellable to attorn, j* E ' 4, „ 1 !" 
 because he hath an estate of inheritance which may continue 46 E ' V {% 
 for ever. And so it is of a tenant in taile after possibilitie of [9 Rep. S5. b.) 
 issue extinct, he shall not be compelled to attorne for the inhe- (A" 1 -. 2 "- b -) 
 rit'ance which was once in him. [c] But if tenant in taile after , n R ' ,- 9 x 
 possibilitie of issue extinct grant over his estate, his assigne 20 E. 3. Quid 
 shall be compelled to attorn, because he never had but a bare juris clam. 50. 
 
 /• -,-n * [>] bee the chap. 
 
 State for lite. of tenant in taile 
 
 after possibilitie of issue extinct; and Ewin's case adjudged. 
 
 (" 316. "I $£&* But as to tenant in taile, note a diversitie be- 
 b. J tweene a quid juris clamat, and a quern redditum 
 reddil or a per qum servitia; for against a tenant in 
 taile no quid juris clamat lieth, as is aforesaid. But if a man 
 make a gift in taile, the remainder in fee, and the seigniorie or 
 rent charge issuing out of the land be granted by fine, the conu- 
 see shall maintaine a, per qiuc servitia, or a quern redditum, and 
 compell him to attorne ; for herein his estate of inheritance is 
 no privilege to hira, for that a tenant in fee simple (as his estate 
 was at the common law) is also compellable in these cases to 
 attorne. 
 
 Sect, o i 0. (11 Rep> 79) 
 
 *D 12 Edw. 4. It is there holden by the whole court that tenant in 
 *- * taile shall not be compelled to attorne, but if he ivill attorne gratis, 
 it is good enough. 
 
 THIS 
 
 f granted in taile, or not in L. and * This paragraph not in L. and M. 
 M. or Roh. or Roh. 
 
 I in fee — &c. L. and M.
 
 316. b. 317. a.] Of Attomement. L. 3. C. 10. S. 571-72. 
 
 12 E. 4. 3, 4. fPHIS is added to Littleton, and therefore though it be good 
 A. law, and the booke truly cited, yet I passe it over. 
 
 Sect. 571. 
 
 ALSO, if land bee let to a man for years, the remainder to another 
 for life, reserving to the lessor a certaine rent by the yeare, and 
 liverie of seisin upon this is made to the tenant for yeares ; if hee in 
 the reversion in this case grant the reversion to another, §c. and the 
 tenant ivhich is in the remainder after the terme of yeares attorne (si 
 cestuy en le reversion en cest case granta le reversion a un auter, f &c. 
 et le tenant que est en le remainder apres le terme d'ans % soy attourna) 
 this is a good attomement, and hee to whom this reversion is granted 
 by force of such attomement shall distreine the tenant for yeares for 
 the rent due after such attomement, albeit that the tenant for yeares 
 did never attorne unto him. And the cause is, for that where the rever- 
 sion is depending upon an estate of freehold, it sufficeth that the tenant 
 of the freehold doe attorne upon such a grant of the reversion, $e. 
 
 " TT sufficeth that the tenant of the freehold doe attorne (1)." 
 Note, Littleton saith not here, that the tenant of the 
 franktenement ought in this case to attorne, but that 
 J5gg°* it sufficeth that he doth attorne. And I heard sir ["317. ~| 
 Pasch. 15 Eliz. James, Dier chiefe justice of the common pleas hold, |_ a. 
 in Brasbritche's that in this case if the tenant for yeares did attorne, 
 muni Banco 1 " * fc wou ^ vest ^ e reversion ; for seeing the estate for yeares is 
 able to support the estate for life, he shall binde hitn in the re- 
 mainder by his attomement in respect of his estate and privitie. 
 
 ^b!£ 7 a a, Sect. 572. 
 
 308. a.) (2 Roll. Abr. 60. 424.) 
 
 A ND it is to be understood, that where a lease for yeares or for life, 
 
 or a gift in taile, is made to any man, reserving to such lessor or 
 
 donor a certaine rent, fyc. if such lessor or donor grant his reversion to 
 
 another, and the tenant of the land attorne, the rent passeth to the grantee, 
 
 although that in the deed of the grant of the reversion no mention be made 
 
 of 
 •j" &c. not in L. and 31. or Roll. J soy not in L. and 31. or Roh. 
 
 _ 
 
 (1) Two reasons are given for this. One is, that the possession of the tenant 
 for years is the possession of the immediate freeholder. See Brediuian's case, 
 6 Rep. 56. b. The other reason is, that as the termor for years holds of the 
 reversioner, and pays the services to him, so the tenant for life holds also of 
 him. — Thus, as both hold estates of the reversioner, either of them may attorn. 
 —[Note 275.]
 
 L. 3. C. 10. Sect. 573. Of Attornement. [317. a. 317. b. 
 
 of the rent, for that the rent is incident to the reversion in such case, and 
 not e converso, &c. For if a man will grant the rent in such case to 
 another, reserving to him the reversion of the land, albeit the tenant 
 attorne to the grantee, this shall bee but a rent secke, §c. 
 
 Of this Littleton hath spoken before in the chapter of Rents. 
 
 Sect. 573. (Howd.25.b.) 
 
 ALSO, if a man let land to another for his life, and after hee con- 
 Jirme by his deed the estate of the tenant for life, the remainder to 
 another in fee, and the tenant for life accepteth the deed, then is the re- 
 mainder in fait in him to whom the remaynder is given or limited by the 
 same deed. * For by the acceptance of the tenant for life f of the deed, 
 this is an agreement of him, and so an attornement in law. But 
 
 [317.~1 yet hee in the remainder shall not have any action J$§f of waste, 
 b. J nor other benefit by such remaynder, unlesse that he hath the said 
 deed in hand, whereby the remaynder was entayled or granted 
 to him. And because that in such case the tenant for life peradventure 
 will retaine the deed to him, to this intent, that he in the remaynder should 
 not have any action of waste against him, for that he cannot come to have 
 the deed in his possession, it will be a good and sure thing in such case for 
 him in the remaynder (Et pur ceo que eu tiel casle tenant a terme de vie 
 voile pur cas J reteigner le fait a luy, a eel entent, que celuy en le re- 
 mainder n'averoit ascun action de waste envers luy, pur ceo que il ne 
 poit vener d'aver le fait en say possession, || il serrabone § et sure chose 
 en tiel cas pur celuy en le remainder,) that a deed indented bee made by 
 him which will make such confirmation, and the remaynder over, §c. and 
 that hee which maketh such confirmation deliver one part of the indenture 
 to the tenant for life, and the other part to him that shall have the re- 
 maynder. And then he by showing of that part of the indenture may 
 have an action of waste against the tenant for life, and all other advan- 
 tages that he in the remaynder may have in such a case, $e. 
 
 HERE Littleton putteth a case of a remainder whereunto (1 Roll. Abr. 
 
 an attornement is requisite. And this is the sixth example IPA'^a . „„. 
 
 „ . . . * * \ id. Sect. 325. 
 
 ot an attornement in law. 575. 
 
 Vid. PI. Com. 
 " The remainder to another, &c." Of this sufficient hath in ^p* 8 *' 8 . 
 
 beene said in the chapter of Confirmation, Sect. 525. g tU( j. cap/20. 
 
 fol. 93, 94. 
 " Unlesse that hee hath the said deed in hand." And albeit he 8 K. 2. in waste, 
 hath no remedy to come to the deed during the life of tenant for 17 E 3 ' 
 
 life, yet because he is privie in estate, he shall not maintaine an Cunfirmat. 4. 
 
 35 H. 6. fol. 8. 
 14 H. 8. PI. Com. 149. in Throckmorton's case, 
 action 
 
 * For not in L. and M. or Rob. || et pur ceo added in L. and M. 
 
 ■f* of the deeel not in L. and M. or and Roh. 
 
 Roh. § ct sure chose not in L. and M. or 
 
 \ reteigner — resceiver, L. and M. Roh. 
 and Roh. 
 
 Vol. II.— 34
 
 317. b. 318. a.] Of Attomement. L. 3. C. 10. Sect. 5U. 
 
 action of waste without showing the deed; but when the re- 
 mainder is once executed he shall not need to show the deed. 
 
 45 E. 3. 14, 15. 
 11 H. 4. 39. 
 14 H. 4.31. 
 (Ant. 10. a.) 
 
 " It icill be a good and sure thing, &c." Hereby itappeareth 
 how necessary it is to use learned advice in a man's conveyance, 
 for thereby shall be prevented many questions, and not to follow 
 the advice of him that is experimented only. For as inphysicke 
 Nullum medic amen turn est idem omnibus, so in law one forme 
 or president of conveyance will not fit all cases. 
 
 "»■ Sect. 574. 
 
 [ 3 i 8 -] 
 
 ALSO, if two joyntenants be, who let their land to another for terme 
 of life, rendering to them and to their heires a certaine yearely rent ; 
 in this case if one of the joyntenants in the reversion release to the other 
 joyntenant in the same reversion, this release is good, and he to whom 
 the release is made shall have only the rent of the tenant for life, and 
 shall only have a writ of tvaste against him, although he never attorned 
 by force of such release, * kc. And the reason is, for the privitie which 
 once was betweene the tenant for life and them in the reversion. 
 
 (6 Rep. 78. 
 2 Ro. Abr. 403. 
 Ant. 193. a.) 
 
 (Ant. 238.) 
 
 2 Eliz. 
 DLer, 176. 
 (Ant. 185. a.) 
 
 45 E. 3. 6, b. 
 
 13 Eliz. Dier, 
 188. Lib. 3. 
 fol. 86. Justice 
 Windham's 
 case. 
 
 56 H, 6. 24. 
 
 <1 Roll. Abr. 
 297.) 
 
 u fl WO joyntenants." And so it is, (as it is here to be under- 
 stood) albeit there be three or more jointenants, and one 
 of them releaseth to one of the other. 
 
 It is true, that there is a difference between these releases ; 
 for the release in the one case maketh no degree, but hee to 
 whom the release is made is supposed in from the first feoffor; 
 and in the other it worketh a degree, and hee to whom the release 
 is made is in the per by him; yet in neither of these cases there 
 is requisite any attomement, for both of them are within Little- 
 ton's reason (for the privitie, &c.) 
 
 "For the privitie, &c." For if one joyntcnant make a lease 
 for yeares, reserving a rent, and dieth, the survivor shall not 
 have the rent ; and therefore Littleton here addeth materially 
 for the privitie that was between the tenant for life and them 
 in the reversion. 
 
 And here it is good to be seene what grantors or others that 
 make conveyances, &c. are such as their grants or conveyances 
 are either good without attornment, or where the tenant is no 
 way compellable to attorn. Tenant for life shall not be com- 
 pelled to attorne in a quid juris clamat upon a grant of rever- 
 sion by fine holden of the king in chiefe without licence; but the 
 reason hereof is not because the tenant for life might be charged 
 with the fine, for his estate is more ancient than the fine levied, 
 but because the court will not suffer a prejudice to the king, and 
 the king may seize the reversion and rent, and so the tenant 
 shall be attendant to another. Also it is a generall rule, that 
 when the grant by fine is defeasible, there the tenant shall not 
 be compelled to attorne. 
 
 * &c. note in L. and M. or Roh.
 
 L. 3. C. 10. S. 575-6. Of Attornement. [318. a. 318. b. 
 
 As if an infant levie a fine, this is defeasible by writ of error 
 during his minoritie, and therefore the tenant shall not be com- 
 pelled to attorne. 
 
 So if the land be holden in ancient demesne, and he in the 5 E. 3, 25. 
 reversion levied a fine of the reversion at the common law, the 31 E - 3 - Antient 
 tenant shall not be compellable to attorne, because the estate that emesne > 
 passed is reversible in a writ of deceit. 
 
 So if tenant in taile had levied a fine, the tenant should not 24 E. 3. 25. b. 
 
 be compelled to attorne, because it was defeasible by the issue in 3 £ *[. 6. 33. 
 i •! 48 E. 3. 23. 
 
 taile. 
 
 But now the statutes of 4 H. 7, and 32 II 8, having given a 
 further strength to fines to barre the issue in taile, the reason of 
 the common law being taken away, the tenant in this case shall 
 be compelled to attorne, as it was adjudged [*] in justice Wind- [*] Lib. 3. 
 ham's case. fo \- 86 - Justice 
 
 If an alienation be in mortmaine, the tenant shall not be com- indham s 
 polled to attorne, because the lord paramount may defeat it. 17 e. 3. 7. 
 
 22 E. 3. 18. 
 
 [318.1 %a» Sect, 575. (iroha*. 
 
 L b. J 301.) 
 
 J^N the same manner, and for the same cause, is it, where a man letteth 
 land to another for life, the remainder to another for life, reserving 
 the reversion to the lessor (En mesme le maner, il pur mesme la cause, 
 est, lou homme lessa terre a un auter pur terme de vie, le remainder a 
 un auter pur terme de vie, reservant la reversion al * lessour) ; in this 
 case if hee in the reversion releaseth to him in the remainder and to his 
 heires all is right, ^c. then he in the remainder hath a fee, $c. and he 
 shall have a writ of wast against the tenant for life without any attorne- 
 ment of him, 8fc. 
 
 This needeth no explication. vide Sect. 549. 
 
 553. 556. 
 
 Sect. 576. 
 
 ALSO, if a man lett lands or tenements to another for terme of yeares, 
 and after he oust his termor, and thereof enfeoff e another in fee, and 
 after the tenant for yeares enter upon the feoffee, clayming his term, §c. 
 and after doth waste ; in this case the feoffee shall have by law a ivrit of 
 waste against him, and yet he did not attorne f unto him. And the 
 cause is, as I suppose, for that hee which hath right to have lands or 
 tenements for yeares, X or otherwise, should not by laio bee misconusant 
 of the feoffements which were made of and upon the same lands, §c. 
 And inasmuch as by such feoff ement the tenant for yeares was put out 
 of his possession, and by his entriehe caused the reversion to bee to him 
 
 to 
 
 * lessour — luy, L. and M. and Roh. % or otherwis*, not in L. and M. or 
 f unto Mm not in L. and M. or Roh. Roh.
 
 318.1). 319. a.] Of Attomement. L. 3. C. 10. Sect. 577. 
 
 to whom thefeoffement was made, this is a good attomement (Et etant que 
 per tiel feoffernent le tenant a terme d'ans fuit .J. mis hors de son pos- 
 session, et per son entre il causast le reversion d'estre a celuy a que le 
 feoffement fuit fait, ceo est bone attomement) ; for he to whom the feoff- 
 ment ivas made, had no reversion before the tenant for year shad entred 
 upon him, for that he was |j in possession in his demesne as of fee, and 
 by the entrie of the tenant for year es, he hath but a reversion, which is 
 by the act of the tenant for year es, scilicet, by his entrie, §c. 
 
 Sect. 577. 
 
 J 1 HE same laiv is, as it seemeth, where a lease is made for life, saving 
 the reversion to the lessor, if the lessor disseise the lessee, and make a 
 feoffment in fee, if the tenant for life enter and make waste, the feoffee 
 shall have a writ of waste without any other attomement, causa qua su- 
 pra, &c. (1). 
 
 (6 Rep. 69. a.) rpHERE have been now in all seven examples, that Littleton 
 
 J- putteth of an attomement in law, and here he putteth two 
 
 cases also of a notice in law. And the reason of both these are 
 
 here rendred by Littleton. First for the notice, Littleton saith 
 
 that the lessee shall not by law be misconusant of the feoffments 
 
 46 E. 3. 30. b. that were made of and upon the same land. And the reason of 
 
 2 H. 5. 4. the attomement is, because the whole fee simple passeth by the 
 
 5 H. 5. 12. feoffment, and the lessee by his regresse leaveth the reversion in 
 
 18 E. 3.47. the feoffee, which (saith Littleton) is a good attomement. The 
 
 9 H. 6. 10. same law it is of a tenant by statute merchant or staple, or elegit. 
 
 (5Rep.ll.3.b.) ( ^ n( j g0 [ t j s f a i ease f or iif ej aa Littleton here saith; and so it 
 
 ™L Br R b l5l?lfi was resolved [e] in Brasbritche' sense, and after in the 
 Deane of Paul's' deane of Paul's in his case in the figg" common place. ["319.1 
 case. 20 Eliz. jj ut sna ]i the lessee in this case whether he will or no |_ a. J 
 (34 H. 6. 7.) ^ Qe an act t ^ at am0UQ t s to an attomement, viz. by his 
 
 reoresse, or else lose the profit of his land ? And some doe hold, 
 that in that case if the lessee for life doe recover in an assise, this 
 is no attomement, because hee comes to it by course of law, and 
 not by his voluntary act. And yet in that case, as in the case of 
 [/] 18 E. 3. the fine, the state of the reversion is in the feoffee. [/] But 
 4S. b. Lib. 6. others doe hold it all one in case of a recovery, and a regresse. 
 fol. 60. b. 
 Sir Moyle Finebe's case. 
 
 M 9 H. 6. 16. [g\ If the lessor disseise tenant for life, or ouste tenant for 
 
 Deane of Paul's 
 
 case, ubi supra. (Post. 321. b.) (6 Rep. 70. a.) 
 
 yearcs, 
 
 I mis hors de son possession, et per L. and 31. or Roh. 
 
 son entre il causast le reversion d'estre || in possession — seised, L. and M. 
 a celuy a que le feoffment fuit, not in and Roh. 
 
 (1) In these cases, the tenant for life enters only for a partial estate ; he 
 therefore only partially defeats the operation of the feoffment ; jso much of the 
 fee as he does not defeat, necessarily remains in the feoffee. — [Note 276.]
 
 
 L. 3. C. 10. Sect. 578. Of Attomement. [319. a. 319. b. 
 
 yeares, and maketh a feoffment in fee, by this the rent reserved 
 upon the lease for life or yeares is not extinguished, but by the 
 regresse of the lessee the rent is revived, because it is incident to 
 the reversion : and so hath it beene adjudged. But if a man be 
 seised of a rent in fee, and disseise the tenant of the land, and 
 make a feoffment in fee, the tenant re-entreth, this rent is not 
 revived. And so note a diversitie betweene a rent incident to a 
 reversion, and a rent not incident to a reversion. 
 
 If two joynt lessees for yeares or for life be ousted or disseised (Ant. 297. b. 
 by the lessor, and he enfeoffs another, if one of the lessees re- 2 Be P- 67 - a -) 
 enter, this is a good attornement, and shall binde both; for an 
 attornement in law is as strong as an attornement in deed. 
 
 If a man make a lease for life, and then grant the reversion (6 Rep. 69. Mo. 
 for life, and the lessee attorne, and after the lessor disseise the "• Ant 266- a * 
 lessee for life, and make a feoffment in fee, and the lessee re-enter, 
 this shall leave a reversion in the grantee for life, and another 
 reversion in the feoffee, and yet this is no attornement in law of 
 the grantee for life, because he doth no act nor assent to any 
 which might amount to an attornement in law. Et res inter alios 
 acta alteri nocere non debet. Neither hath the grantee for life 
 the land in possession, so as he may well be misconusant of the 
 feoffment made upon the land, and so out of the reason of Little- (2 Rep. 671.) 
 tun. But yet the reversion in fee doth passe to the feoffee. 
 
 [ 3 b 9 -] asr Sect. 578. 
 
 J^LSO, if a lease be made for life, the remainder to another in taile, 
 the remainder over to the right heires of the tenant for life ; in this 
 case if the tenant for life grant his remainder in fee to another by his 
 deede, this remainder maintenant passeth by the deede without any at- 
 tornement* Sfc.for that if any ought to attoume in this case, it should 
 be the tenant for life, and in vaine it were that he should attorne upon 
 his owne grant, fie. 
 
 HERE it appeareth that where the ancestor taketh an estate 
 of freehold, and after a remainder is limited to his right (Ant 13. b. 
 heires that the fee simple vestcth in himself, as well as if it had ]£°} 1 ' Abr ' 
 beene limited to him and his heires ; for his risrht heires are in 
 this case words of limitation of estate, and not of purchase. 
 Otherwise it is where the ancestor taketh but an estate for (1 Rep. 66.) 
 yeares : as if a lease for yeares be made to A. the remainder to 
 B. in tayle, the remainder to the right heires of A. there the 
 remainder vesteth not in A. but the right heires shall take by 
 purchase if A. die during the estate taile : for as the ancestor and (Ant 54. b.) 
 the heire are correlativa of inheritances, so are the testator and 
 executor, or the intestate and administrator of 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 taile, and after to the use of 
 the right heires of B. B. hath the fee simple in him as well (l Roll. Abr. 
 
 when 627 -) 
 
 * &c. not in L. and M. or Roh.
 
 319. b. 320. a.] Of Attornement. L. 3. C. 10. Sect. 579. 
 
 when it is by way of limitation of use, as when it is by act 
 executed (1). 
 
 Vid. Sect. 194. "In vaine it were, &c." Quod, vanum et inutile est lex non 
 
 2 ' 3, requirit. Lex est ratio summa, qucejubet quce sunt utiliaet ne- 
 
 cessaria et contraria prohibet ; and arguments drawne from 
 
 hence are forcible in law. 
 
 Sect. 579. 
 
 ALSO, if there be lord and tenant, and the tenant holdeth of the lord 
 by certain rent, and knight's service, if the lord grant the services 
 of his tenant by fine, the services are presently in the grantee by force of 
 the fine; but yet the lord (A) may not distreine for any parcell of the ser- 
 vices, ivithout attornement: but if the tenant dieth, his heire 
 within age, the lord shall have the wardship Jlgg"* of the bodie r320.~| 
 of the heire, and of his lands, §c. albeit he never attorned, be- L a - J 
 cause that the seigniorie was in the grantee presently by force 
 of the fine- And also in such case if the tenant die without heire, the 
 lord shall have the tenancie by ivay of escheat. 
 
 HERE Littleton beginneth to shew what advantages the 
 conusee of a fine may take before attornement, and what 
 not. 
 
 [fa] First, he cannot distreyne, because an avowrie is in lieu 
 of an action ; and thereupon privitie is requisite. So likewise, 
 and for the same cause, he can have no action of waste, nor writ 
 of entrie, ad conimunem legem, or in consimili casu, or in casu 
 proviso, writ of customes and services, nor writ of ward, &c. (1*) 
 
 But if a man make a lease for yeares, and grant the reversion 
 by fine, if the lessee be ousted, and the conusee disseised, the 
 conusee without attornement, shall maintain an assise; for this 
 writ is maintained against a stranger, where there needeth no 
 privitie. And such things as the lord may seise, or enter into 
 ■without suing any action, there the conusee, before any attorne- 
 ment, may take benefit thereof; as to seise a ward or heriot ; 
 or to enter into the lands or tenements of a ward ; or escheated 
 to him ; or to enter for an alienation of tenant for life or yeares ; 
 or of tenant by statute merchant, staple, or elegit to his dis- 
 herison. 
 
 Sect. 
 
 (A) i. e. the grantee of the service*. For, as Littleton says, "the seigniory was in the 
 grantee presently by force of the fine, and, consequently, the grantee of the services is 
 supposed to become lord by virtue of the grant. 
 
 (l)The observation of Mr. Douglas upon this point (note to page 506 of his 
 Reports) deserves the reader's most serious attention. 
 
 (1*) The distinction in these cases seems to be, that the grantee is entitled, 
 before attornement, to what the lord may seize; but not to any thing which 
 lies in action. — [Note 277.] 
 
 [h] 8 E. 3. 44. 
 
 26 E. 3. 63. 
 
 30 H. 6. 16. 
 
 34 II. 6. 7. 
 
 12 E. 4. 4. 
 
 40 E. 3. 7. 
 
 5 H. 5. 12. 
 
 48 E. 3. 15. b. 
 
 3 E. 2. Droit, 33. 
 
 (F. N. B. 60. 
 
 Sect. 564. 
 
 4 Inst. 209, 
 
 210.)
 
 L. 3. C. 10. Sect. 580-81-82. Of Attornement. [320. a. 
 
 Sect. 580, 581, 582. 
 
 TNthe same manner it is, if a man graunt the reversion of Ids tenant 
 for life to another by fine, the reversion maintenant passeth to the 
 grantee by force of the fine, but the grantee shall never have an action 
 of wast without attornement, fie. 
 
 Sect. 581. 
 
 T>UT yet if the tenant for life alieneth in fee, the grantee may enter, 
 * fie. because the reversion was in him by force of the fine, and 
 such alienation was to his disheritance. 
 
 Sect. 582. 
 
 J) UT in this case where the lord granteth the services of his tenant by 
 fine, if the tenant die (his heire being of full age) the grantee by the 
 fine shall not have relief e, nor shal ever distreinefor relief e, unlesse that 
 hee hath the attornement of the tenant that dieth (Mes en f ceo cas lou le 
 seignior granta les services de son tenant per fine, si tenant devie (son 
 heire esteant de plein age) le grantee per le fine n'avera reliefe, ne 
 unques distreynera pur reliefe, sinon que il \. avoit l'attornement del 
 ten aunt que morust): % for of such a thing which lieth in dish esse, 
 whereupon the writ of replevin is sued, fie. a man must and ought to 
 avow the taking good and rightfully fie. and there there ought to be an 
 attornement of the tenant, although the graunt of such a thing be by 
 fine : but to have the wardship of the lands or tenements so holden dur- 
 ing the nonage of the heire, or to have them by way of escheat, there 
 needs no disiresse, fie. but an entrie into the land by force of the right 
 of the seigniore, which the grauntee hath by force of the fine, fie. Sic 
 
 vide diversitatem, &c. ( que le grantee ad per force del fine, &c. 
 
 Sic vide diversitatem §.) 
 
 1 T is said in our books that if tenaunt for life have a privilege 40 B. 3. 7. 
 1 not to be impeachable of waste, or any other privilege, if Lie ~ |- 1 .^ 
 doth attorne without saving his privilege, that he hath lost it; 45 E 3- 6 _ 
 which is so to be understood, where he attornes in a quid juris 21 E.3. 48. 
 clamat brought by the conusee of a fine, that if he claimeth not 24 ||-|-- 
 his privilege, but attorne generally, his privilege is lost, for that F ' N ' B 1:{6 . b. 
 the writ supposcth him to be but a bare tenant for life ; and by (3 Rep. 36. 
 his gcnerall attornement, according to the writ, he is barred for \ l ^f m ^ 
 ever to claime any privilege but a bare estate for life. _ But if 412 2 9(». 
 upon a grant of the reversion by deed, the tenant for life doth Ant. 274. b.) 
 
 attorne, 
 
 * &c. not in L. and M. or Rob. tournement, L. and M. and Roh. 
 f ceo not in L and M. cud Roh. t dr. added in L. and M. and Roh. 
 4. avoit l'attornement— fhsoit at- § &c. added in L. and M. and Roh.
 
 Vid. Sect. 557. 
 
 320. b. 321. a.J Of Attomement. L. 3. C. 10. Sect. 583. 
 
 attorne, he loseth no privilege ; for there can be no conclusion 
 or barre by the attomement in pais: and so it is of an attome- 
 ment in law. As if the lessor disseise the lessee for life, and 
 make a feoffement in fee, and the lessee re-enter ; this 
 is an attornment in law, which shall not prejudice r320.~l 
 him figg"* of any privilege : so it is if the lessor levie | b. 
 a fine of the reversion, and the conusee die without 
 heire, whereby the reversion escheateth, in this case the law doth 
 (5 Rep. 39. b.) supply an attornment, and therefore the lessee shall lose no pri- 
 vilege. But in the quid juris clamat, if the lessee shew his 
 (Ant. 157. b. estate and his privilege, and is ready, saving to him his privilege, 
 &c. to attorne, hereby either his privilege shall bee allowed and 
 \b] 43 E. 3. 5. entred of record, or he shall not be compelled to attorne : [/>] and 
 (6 Rep. 4. a. jf t ne plaintife be within age, so as hee cannot acknowledge the 
 e P- • •) privilege, the tenant shall not be compelled to attorne until his 
 45 E. 3. 11. a. full age, when he may acknowledge it. But otherwise it is (as 
 Vet. N. B. in some hold) if a quid juris clamat be brought by baron and feme, 
 5 B^KEm**" the P rivile S e slia11 be e ntr ed into the rolle, notwithstanding slice 
 56, & per qua} is a feme covert. And in a]w quai servitia brought by the con- 
 servitia, 16. use e of the mesne, the tenant may shew that he held by houiasrc 
 
 O«*TJ/>00 ' . * .. 'Ill 
 
 39 H 6 25 auncestrell, and saving to him his warrantee and acquittal!, he 
 
 18 E. 4. 7. ' is readie to attorne. In the same manner, if the tenant hath any 
 (7 Rep. 4. b.) other aequittall, and the mesne levie a fine to one for life, the 
 remainder to another in fee, the tenant for life bringeth a per 
 quee servitia, and the tenant is ready to attorne, saving his ae- 
 quittall, and the plaintife acknowledged it, and thereupon the 
 tenant attorne, tenant for life dieth ; in this case, albeit regularly 
 the attomement to the tenant for life is an attomement to him 
 in the remainder, yet in this case hee in the remainder shall not 
 distreine, till he hath acknowledged the aequittall, which must 
 be in a per quai servitia, brought by him against the tenant. 
 
 "Alieneth in fee, &c." Of this sufficient hath been said in 
 the next precedent Section. 
 
 " Shall not have reliefe, &c." Of this sufficient hath bcene 
 said in the next precedent Section. 
 
 Mr Sect, 583. [ 3 f 1 -] 
 
 A LSO, if there be lord, mesne and tenant, and the mesne grant by fine 
 the services of his tenant to another in fee. and after the grantee die 
 without heire, now the services of the mesnaltie shall come and escheate to 
 the lord paramount by way of escheat; * and if aftemvards the services of 
 the mesnaltie bee behind, in this case he which was lord paramont may 
 distreine the tenant, notwithstanding that the tenant did never attorne : 
 and the cause is, for that the mesnaltie was in deed in the grantee by force 
 of the f said fine, and the lord paramont may avow upon the grantee, 
 beeause in deed hee ivas his tenant, albeit he shall not be compelled to this, 
 $-c. But if the grantor in this case had died without heire in the life of 
 the grantee, then he should bee compelled to avow upon the grantee; and 
 
 also 
 
 * and not in L. and M. or Boh. f said not in L. and M. or Boh.
 
 L. 3. C. 10. Sect. 584. Of Attornement, [321. a. 321. b. 
 
 also in as much the lord paramount doth not claime the mesnaltie by 
 force of the grant made by fine levied by the mesne %, but by vertue of 
 his seigniorie paramont, || viz. by way of escheat, he shall avow upon 
 the tenant for the services which the mesne had, <j-c. albeit that the ten- 
 ant did never attorne. 
 
 HERE Littleton putteth the case where one that claimeth 
 under a conusee by fine may distraine or maintaiue any 45 E. 3. 2. 
 action, albeit there was never any attornement made to the 34 5' 6 ' 7 ' 
 conusee, or to him that hath his estate. 3 9 u ' 6 ' ] Jj2 ' 
 
 5 II. 7. 18. per curiam. 
 
 And here is a diversitic betweene an act in law that giveth Lib. 6. fol. 68. 
 one inheritance in lieu of another, and an act in law that con- |'. r Mojle 
 veyeth the estate of the conusee only. Of the former Littleton inc e s case * 
 here putteth an example of the escheat of the mesnaltie which 
 drowneth the seigniorie paramount; and therefore reason would 
 that the lord by this act in law should have as much benefit of 
 the mesnaltie escheated, as he had of the seigniorie that is 
 drowned ; and the rather for that the law casteth it 
 
 t321.~| upon him, and hee hath no remedy to compcll the 
 b. J tenant to fl@~ attorne. Another reason hereof Lit- 
 tleton here yeeldeth, because the lord commeth to the 
 mesnaltie by a seigniorie paramount, and therefore there need- 
 et ; h no attornement. [<:] As if lessee for life be of a mannor [c] Temps E. 2. 
 and he surrender his estate to the lessor, there needeth no at- ^"j. ^ 
 tornement of the tenant's, because the lessor is in by a title para- p L>r p r is 't. ' 
 mount. But if the conusee dieth, and the law casteth his seig- 
 niorie upon his heire by descent, he shall not be in any better 
 estate than his ancestor was, because he claimeth as heire (Ant. 104. b, 
 meerely by the conusee. 309, ^O 
 
 So it is (as hath beene said) if the conusee of a fine before (5 Rep. 113.) 
 attornement bargaineth and selleth the seigniorie by deed in- 
 dented and inrolled, the bargainee shall not distraine, because 
 the bargainor, from whom the seigniorie moveth, had never 
 actuall possession. 
 
 So and for the same reason if a reversion be granted by fine, Fir Moyle 
 and the conusee before attornement disseise the tenant for life F i i ^ c " e s case > 
 and make a feoffment in fee, and the lessee re-enter, the feoffee 
 shall not distraine. 
 
 ubi supra. 
 
 Sect. 584. 
 
 /- 
 
 JY the same manner it is, where the reversion of a tenant for life is 
 granted by fine to another in fee, and the grantee afterwards dieth 
 without heire, noiv the lord hath the reversion by way of escheat ; and if 
 after the tenant maketh ivast, the lord shall have a writ of waste against 
 him, notwithstanding that he never attorned, causa qua supra. But 
 where a man claimeth by force of the grant made by the fine, f scil. as 
 heire, or as assignee, §c. there hee shall not distraine \. nor avowe, nor 
 have an action of waste, §c- ivithout attornement. 
 
 HERE 
 
 | &c. added in L. and M. and Roll. _j. nor avowe, not in L. and M. or 
 \\ viz. not in L. and, M. or Boh. Roh. nor in MSS. 
 
 f &c. added in L. and M. and Roh.
 
 321. b. 322. a.] Of Attomement. L. 3. C. 10. S.585, 586. 
 
 (Ant. 104. b.) T7 ERE Littleton expresseth two diversities. First, betweene 
 XI an act in law, and the grant of the party This case is put 
 [</] 45 E. 3. 2. of an [d] escheat, which is a meere act in law, but so it is when 
 sWJ' ^ il ' S l" 1 ' 11 ^ ky act in law, and partly by the act of the party; as 
 curiam. ' PC ' ' f tne conusee °f a statute merchant extemleth a scigniorie or 
 1:5 H. 4. rent, hee shall distraine without any attomement. If a man 
 
 Avowrie, 237. make a lease for life or yeares, and after levie a fine to A. to the 
 l RolL Abr. 293. use °*" ^- and his heires, B. shall distraine and have an action 
 Ant. 153. a.) of waste, albeit the couusee never had any attomement, because 
 Lib. 6. fol. 68. the reversion is vested in him by force of the statute, and hath 
 Finch e's°ca4 no reme dy to compell the lessee to attorne. 
 (Mo. 92. 68.) 27 H. 8. cap. 10. 
 
 (Ant, 309. And so it is of a bargaine and sale by deed indented and in- 
 
 5 R™ m rolled, but this is by force of a statute since Littleton wrote. 
 
 6 Rep. 68. V. ' Secondly, where he that commeth in by act in law is in the 
 10 Rep. 45.) per, as the heire of the conusee, who setteth in his ancestor's 
 
 seat, tanquam pars antecessor is de sanguine ; and the lord by 
 escheat, which is an estranger, and commeth in meerely in the 
 post. 
 
 (F.N.B. 121. a.) beCt. OOO. 
 
 ALSO, in ancient boroughs and cities, where lands and 
 
 Jg@r° tenements within the same boroughes and cities are r322.~| 
 devisable by testament by custome and use, §c. if in such bo- [ a. 
 rough or citie a man be seised of a rent service, or of a rent 
 charge (si en tiel § borough au citie home soit seisie de rent service ou 
 de rent charge), and deviseth such rent or service to another by his tes- 
 tament and dieth ; in this case, he to whom such devise is made, may 
 distreine the tenant for the rent or service arere, although the tenant 
 did never attorne. 
 
 34 II. 6. 6. TTERE doth Littleton put a case where a man may have a 
 
 ^ H - 7 - ^ -*-J. seigniory, rent, reversion, or remainder meerely by the act 
 
 21 H. 6. 38*. °f the party, and may distraine, and have any action without 
 F.N.B. 121.X. any attomement, and that is by devise of lands devisable by 
 
 custome when Littleton wrote by the last will and testament of 
 
 the owner. 
 
 gS*Sl Sect. 586. 
 
 (1 Rep. 120. 3 Rep. 19. 6 Rep. 16. 81.) (8 Rep. 94.) (10 Rep. 46. 87.) (4 Rep. 66.) 
 
 TN the same manner is it, ivhere a man letteih such tenements devisable 
 
 to another for life, or for yeares, and deviseth the reversion by his 
 
 testament to another in fee, or in fee taile, and dyeth, and after the tenant 
 
 commits waste, he to whom the devise was made shall havea writ of ivaste, 
 
 although the tenant doth never attorne. And the reason is, for that the 
 
 will 
 
 § cas added in L. and M. and Roh.
 
 L. 3. C. 9, S. 587. Of Attomement. [322. a. 322. b. 
 
 will of the devisor made by his testament shall bee performed according 
 to the intent of the devisor ; and if the effect of this should lie upon the 
 attomement of the tenant, | then perchance the tenant would never attorne, 
 and then the will of the devisor should never bee performed, % $c. and 
 for this the devisee shall distraine, §c. or he shall have an action of waste, 
 $c. without attomement. For if a man deviseth such tenements to 
 
 another by his testament, habendum sibi in perpetuum, and 
 [329.1 dieth, and the Jggf devisee enter, he hath a fee simple, causa. 
 L b. J q U; \ supra ; yet if a deed of feoffment had beene made to him 
 
 by the devisor of the same tenements, habendum sibi in perpe- 
 tuum, and livery of seisin were made upon this, hce should have an es- 
 tate but for terme of his life (*uncore j si fait de feoffment ust estej^ fait 
 a luy per le devisor en sa vie de mesmes les tenements, habendum sibi 
 in perpetuum, et livery dc seisin sur ceo fuit fait, il n'averoit estate 
 forsque pur terme de sa vie.) 
 
 BOTH this and the precedent case stands upon one and the 
 same reason, which Littleton here yeeldeth, viz. because that 
 the will of the devisor expressed by his testament shall be per- 
 formed according to the intent of the devisor; and it shall not 
 lie in the power of the tenant or lessee to frustrate the will of 
 the devisor bv denying his attomement. Here Littleton men- (i Roll. Abr. 
 tioneth a maxime of the common law, viz. Quod ultima voluntas - 9 ;w 
 
 , , 7 . . ... Vide Sect. 167. 
 
 testatons est perimplenaa sectinaum veram tntentionem suam : £ raoton y u i, 
 
 and, Rcipublicse interest suprema hominum testamenta rata f. n. & f. 60. 
 haberi. f'eta, lib. 2 cap. 
 
 15. Bntton. fol. 
 .... . 78. & f. 212. b. 
 
 " Testament," Testamcntum, i.e. testatio mentis, which is made (g R ep . 23. 
 
 nidlo prsesentis metu periculi, sed sold cog itatione mortal itatis. Ant. 9. b.) 
 
 Omne testamcntum morte consummatum. 
 
 " For if a man deviseth such tenements to another, &c." Here 22 E. 3. 16. 
 Littleton putteth a case where the intent of the testator shall be 34 H. 6. 7.^ 
 taken, viz. where a man by devise shall have a fee simple with- lt j H " 8 ' 4- ' 
 out these words (heire.s) ; and here Littleton putteth the diver- 
 sitie betweene a will and a feoffment. 
 
 Now by the statutes of 32 and 34 H. 8. (as hath beene said Vide Sect. 167. 
 in the chapter of Burgage) lands, tenements, and hereditaments 
 are devisable, as by the said acts doe appcare. 
 
 Sect. 587. 
 
 ALSO, if a man bee seised of a mannor which is parcell in demesne 
 audparcell in service, and is thereof disseised, but the tenants which 
 hold of the mannor doe never attorne to the disseisor (Item, si home seisie 
 d'un mannor quel est parcel en demesne et parcel en service, et ent soit 
 disseisie, mes les tenants que teignont del mannor ne unque attournant 
 § ale disseisor) ; in this case, albeit the disseisor dieth seised, and his heire 
 is in by discent, §c. yet may the disseisee distreine for the rent behinde, 
 and have the services, cj-c. But if the tenants come to the disseisor and 
 
 say, 
 f &c. added in L. and M. and Roh. | si — le, L. and M. and Roh. 
 t &c. not in L. and M. or Roh. Jt ust este — fuit, L. and M. 
 
 * et added in L. and M. and Roh. \ a le — de le, L. and M. and Roh.
 
 322. b. 323. a.] Of Attornemcnt. L. 3. C. 10. Sect. 588. 
 
 say, We become your tenant, fyc. or to make to him some other attorne- 
 ment, fie. and after the disseisor dieth seised, then the disseisee cannot 
 distraine for the rent, ^-c. for that all the mannor descendeth to the heir e 
 of the disseisor, §c. 
 
 (6 Rep. 69. a.) J^ITTLETON having spoken of estates gained by lawful con- 
 veyances, doth now speake of estates gained by wrong; and 
 here putteth a case of a disseisin of a mannor, where it appear- 
 eth, that the disseisor cannot disseise the lord of the 
 rents or services without JKaP" the attornement of the ["323.1 
 tenants of the disseisor ; for seeing an attornement is | a. 
 requisite to a feoffment and other lawfull conveyances 
 & fortiori, a disseisor or other wrong doer shall not gaine them 
 without attornement. The like law is of an abator and an in- 
 6 H. 7. 14. trudor. But albeit the disseisor hath once gotten the attorne- 
 
 i !!'!' vf' h men ^ °f the tenants and payment of their rents, yet may they 
 (do. Car. 303. ' refuse afterwards for avoiding of their double charge. And here 
 Ant. 180.) the attornement of the tenant of a mannor to a disseisor of the 
 
 demeanes shall dispossesse the lord of the rents and services 
 parcell of the mannor, because both demeanes, rents and services 
 (1 Roll. Abr. make but one entire mannor, and the demeanes are the princi- 
 602.) pall : but otherwise it is of rents and services in grosse, as in 
 
 this next Section our author teacheth us. 
 
 (Cro.Car. 303. Qn/if ^QQ 
 
 1 Roll. Abr. 658.) OCCl. OOO. 
 
 F. N. B. 179. K. (Ant, 180. b. 2 Siderf. 75.) 
 
 T> UT if one holdeth of mee by rent service, which is, a service in grosse, 
 * and not by reason of my mannor, and another that hath no right, 
 claimeth the rent, and receives and taketh the same rent of my tenant 
 by coertion of distresse, or by other forme (et un auter que nul droit ad, 
 f claima le rent, J et receive et prent mesme le rent de mon tenant per 
 cohersion de distres, ou per auter forme), and disseiseth mee by such 
 taking of the rent; albeit such disseisor dieth so seised in taking of the 
 rent, yet after his death I may well distreine the tenant for the rent ivhieh 
 teas behinde before the decease of the disseisor (devant le || decease del 
 disseisor), and also after his decease. And the cause is, for that such 
 disseisor is not my disseisor but at my election and will. For albeit 
 he taketh the rent of my tenant, fie. yet I may at all times distreine my 
 tenant for the rent behinde, § so as it is to mee but as 1 will suffer the 
 tenant too bee so long time behinde in payment of the same rent unto me 
 (per tant de temps arere \. pur paier a moy meme le rent), $®. 
 
 Sect. 
 
 * and not by reason of my mannor, || decease — distress, L. and M. 
 
 not in L. and M. or lloh. and Roll. 
 
 •}• claima — claimant mesme, L. and § cf:c. added in L. and M. and 
 
 M. and Roh. Roh. 
 
 | et receive — a receiver, L. and \. pur — de, L. and M. and Roh. 
 
 M. and Roh.
 
 L. 3. C. 10. Sect. 589. Of Attomement. [323. a. 323. b. 
 
 Sect. 589. < 3 Rep - 77 -> 
 
 Tj^OR the payment of my tenant to another to whom hee ought not to 
 
 pay, is no disseisin to me, nor shall oust me of my rent without my 
 
 will and election (Car le payment de mon tenant a un auter a que il ne 
 
 doit pas payer, n'est pas disseisin a moy, ne ousta moy pas de moi rent 
 
 sans ma volant ^f et ma election), §c. For although I may have 
 
 [323. ~| an assise against such pernor, yet this is at my ICT 3 election, 
 b> J whether, I will take him as my disseisor, or no. So such discents 
 of rents in grosse shall not oust the lord of Ids distresse, but at any 
 time he may xoell distreynefor the rent behinde, §c. And in this case if 
 after the distresse of him which so wrongfully tooke the rent, I grant by my 
 deed the service to another, and the tenaunt attornc, this is good enough, 
 and the services by such grant and attomement, are presently in the 
 grantee, $c. But otherwise it is where the rent is-parcell of a mannor, 
 and the disseisor dieth seised of the ivhole mannor, as in the case next 
 before is sayd, $c. 
 
 yjERE Littleton putteth a diversitie betweene a rent service (2 Rep. 37. 
 
 ). 51. 
 322.) 
 
 J- J- parcel of a maunor, whereof be bad spoken before, and a ^^P; 5 
 
 , , • • -r\ l i 1- • i o L Hob. 3 
 
 rent Service in grosse. For a man cannot be disseised of a rent 
 
 service in grosse, rent charge, or rent secke, by attomement or 
 
 payment of the rent to a stranger, but at his election ; for the 
 
 rule of law is, Nemo redditum alterius invito domino per -cipere 
 
 ant possidere potest ; and our author hath before f*l taught us [*] Vide Sect. 
 
 what be disseisins of rents services, rents charges, and rents ^q ' ' 
 
 seeks, and payment to a stranger is none of them, but at the (Cro. Car. 303.) 
 
 lord's election, as our author here saith. 
 
 "Pernor," i. e. the taker of my rent. But if the disseisee 24 E. 3. 4. 
 bring an assise against such a pernor, then he doth admit him- i . ?' ' ,, . 
 
 „ ° „ ■- . * ' See the authori- 
 
 Seite OUt 01 possession. ties there fol- 
 
 lowing in the 
 
 " Discents." A discent of a rent in grosse bindeth not the next paragraph. 
 right owner but that he may distreyne, albeit he admitted him- 2.3 il. 3. 
 selfe out of possession, and determined his election, as by tit. Ass. 439. 
 bringing of an assise, &c. ?* , *■ 40 - 3 *- 
 
 In Ass 1) 1 1 
 
 If the tenant of the land pay the rent to a stranger which hath ]G E- 3 
 no right thereunto, and the right owner release to him, this Release, 56. 
 release is good, because he thereby admitted himselfe to be out L 1 ^ 6 * 6 « 
 of possession. But if the tenant had given him any thing in 15 V. 4. 8. 
 name of attomement, and the right owner had released to him, Flot. li. 4. ca. 12. 
 this release had beene void, because an attomement only can be 
 no disseisin of the rent. 
 
 " I grant by my deed, &c." This also proveth, that the right (Ant. Sect. 541.) 
 owner is not out of possession, and that this grant over is a 
 demonstration of his election that hee is in possession. 
 
 Sect. 
 
 ^f et— ou sans, L. and 31. and Roll.
 
 324. a. 324. b.] Of Attornement. L. 3. C. 10. S. 590, 591. 
 
 (Bye, 94. b.) Sect. 590. 
 
 (Cro. Car. 303.) (8 Rep. 89.) 
 
 A LSO, if I be seised of a mannor, parcell in demesne and parcell in 
 service, and I give certaine acres of the land, parcell of the 
 demesne of the same mannor, to Ji@°* another in taile, yeelding to J"324."l 
 mee and to my heires a certaine rent, $c. if in this ease I be dis- L a - J 
 seised of the mannor, and all the tenaunts attorne and pay their 
 rents to the disseisor, and also the sayd tenant in tailepay the rent by me 
 reserved, to the disseisor, and after the disseisor dieth seised, * $c. and, his 
 heire enter, and is in by discent, yet in this case I may wel distreyne the 
 tenant in taile, and the heires, for the rent by me reserved upon the gift, 
 scilicet, as well for the rent being behinde before the discent to the heire 
 of the disseisor, as also for the rent which happeth to be behind after the 
 same discent, notwithstanding such dying seised of the disseisor, fyc. And 
 the reason is, for that when a man giveth lands f in taile, saving the rever- 
 sion to himself e, and hee upon the sayd gift reserveth to himself e a rent or 
 other services, all the rent and services are incident to the reversion ; and 
 ivhen a man hath a reversion he cannot be ousted of his reversion by the 
 act of a stranger, unlesse that thetenaunt be ousted of his estate and posses- 
 ion, 8fc. For as long as the tenant in taile and his heires continue their 
 jjossession by force of my gift, so long is the reversion in me and in my 
 heires (car si longeraent § que le tenant en le taile et ses heires con- 
 tinuont lour possession per force de mon clone, cy longement est le 
 reversion en moy et en mes heires) : and in as much as the rent and ser- 
 vices reserved upon such gift be incident and depending upon the reversion, 
 whosoever hath the reversion, shall have the same rent and services, frc. 
 
 ssr Sect. 591. [ 8 £ 4 -] 
 
 TN the same manner is it, where I let parcell of the demesnes of the 
 mannor to another for terme of life, or for terme of year es, rendring to 
 mee a certaine rent, #c. albeit I be disseised of the mannor, §c. and the 
 disseisor die seised, 4. $c. and his heire bee in by discent (et son heire 
 \ esteant eins per discent), yet I may distreinefor the rent arere ut supra, 
 notwithstanding such discent ; for when a man hath made such a gift in 
 taile, or such a lease for life, or for y cares, of parcell of the demesnes of a 
 mannor, §c. saving the reversion to such donor or lessor, §c. and after he 
 is disseised of the mannor, §c. such reversion after such disseisin is severed 
 from the mannor in deed, though it be not severed in right %. And so 
 
 thou 
 
 * &c. not in L. and M. or Roh. \. &c not in L. and M. 
 
 j- to another, added in L. and M. \ esteant not in L. and M. or 
 
 and Roh. Roll. 
 
 § en ceo cas added in L. and M. J dr. added in L. and 31 and 
 
 and Roh. Roh.
 
 L. 3. C. 11. Sect, 592. Of Discontinuance. [324. b. 325. a. 
 
 thou mayst see (my sonne) a diversitie, where there is a mannor pareell 
 in demesne and pareell in services, which services are pareell of the 
 same mannor not incident to any reversion, $c. and where they are in- 
 cident to the reversion, §c. 
 
 HERE Littleton putteth a diversitie betweene rents and ser- ( Cr0 - Car • •' 03. 
 vices pareell of a mannor (whereof he had spoken before) 65S '! 
 and rents and services incident to a reversion pareell of a (ii Rep. 47, 48. 
 mannor. Pluwd. 197. b.) 
 
 And the reason of this diversitie is, for that as long as the 
 donee in taile, lessee for life, or lessee for yeares, are in pos- 
 session, they preserve the reversion in the donor or lessor; and 
 so long as the reversion continue in the donor or lessor, so long 
 do the rents and services which are incident to the reversion 
 belong to the donor or lessor. Neither can the donor or lessor 
 be put out of his reversion, unless the donee or lessee be put 
 out of their possession; and if the donee or lessee be put out 
 of their" possession, then consequently is the donor or lessor 
 put out of their reversion. But if the donee or lessee make a 
 regresse, and regaine their estate and possession, thereby doe 
 they ipso facto revest the reversion in the donor or lessor. 
 
 And here is to be observed, that when a man is seised of a 
 mannor, aud maketh a gift in taile, or lease for life, &c. of par- 
 cell of the demesne of the mannor, [a] the reversion is part of [o] 18 Ass. p. 2. 
 the mannor, and by the grant of the mannor the reversion shall 38 H. 6. 33. 
 passe with the attornement of the donee or lessee. But if the ^stone's case 
 lord make a gift in taile, or a lease for life of the whole mannor, 103. Lib. 5. 
 excepting Blacke-Acre, pareell of the demesnes of the mannor, f ol. 11, 12. 25. 
 and after he granteth away his mannor; Blacke-Acre shall not g45 ' ; E "g e ' 
 passe; because during the estate taile, or lease for Briefe, 713. 
 
 t3Q5.~j $s£T life, it is severed from the mannor. And so note (Post. 349. 
 a. J a diversitie, that a reversion of part may be pareell of n p> ' 
 a mannor in possession, but a part in possession cannot 
 be pareell of the reversion of a manner expectant upon any 
 estate of freehold. But if a man make a lease for yeares of a 
 mannor, excepting Blacke Acre, and after granteth away the 
 manner, Blacke Acre shall passe, because the freehold being 
 entire, it remaineth pareell of the mannor, and one praecipe of 
 the whole mannor shall serve. But otherwise it is in case of the 
 gift in taile or lease for life excepting any part, there must be 
 several writs of prcecipe f because the freehold is severall. 
 
 Chap. 11. Of Discontinuance. Sect. 592. 
 
 JJISOONTINUANCE is an ancient word in the law, and hath 
 divers significations, $c. But as to one intent it hath this significa- 
 tion, viz. where a man hath aliened to another certaine lands or tenements 
 and dieth, and another hath right to have the same lands or tenements, 
 but hee may not enter into them because of such an alienation, frc. 
 
 "DISCONTINUANCE*
 
 325. a.] Of Discontinuance. L. 3. C. 11. Sect. 592. 
 
 Vide Sect, 037. " J\ IS CONTINUANCE" is a word compounded of de and 
 continue), for continuare is to continue without intermis- 
 sion. Now by addition of de (euphonies gratid dis) to it which 
 is a privative, it signifieth an intermission. Discontinuare nihil 
 aliud significat qudm intermittere, desucsccre, inter rumpcre. And 
 
 [a] 8 H. 4. 8. b. as our author saitb, [a] it is a very ancient word in law (1). 
 
 11 II. 4. 85. b. ]± discontinuance 
 
 (1) I. As to discontinuances in general : — In note 1, p. 239. a. it was observed, 
 that in the case of a disseisin, while the possession remains in the disseisor, it is 
 a mere naked possession, unsupported by any right; and that the disseisee may 
 rostore his possession, and put a total end to the possession of the disseisor, by 
 an entry on the land, without any previous action ; but that, if the disseisor 
 dies, the heir comes to the possession of the estate by a lawful title. It was the 
 same, by the old law, if the disseisor aliened; the alienee came in by a lawful 
 title. By reason of this lawful title, the heir, in the first instance, and the 
 alienee in the second, acquires a presumptive right o/jiossession, which is so far 
 good even against the person disseised, that he loses by it his right to recover 
 the possession by entry, and can only recover it by an action at law. When 
 the right of entry is thus lost, and the party can only recover by action, the 
 possession is said to be discontinued. This is the general import of the word 
 discontinuance) but, in its usual acceptation, it signifies the effect of aliena- 
 tions made by husbands seised jure uxor is; by ecclesiastics seised jure ecclesice; 
 or by tenants in taile; those being the three instances adduced by Littleton of 
 a discontinuance. But other cases, where tbo party having the right could not 
 restore his possession by entry, and was therefore left to his remedy by action, 
 were also, in Littleton's time, termed discontinuances. Thus before the 
 statute of the 11 H. 7. c. 20, the alienations of a woman seised of an estate in 
 dower, or of an estate of the gift of her husband, or of any of his ancestors, 
 were said to be a discontinuance; and before the statutes of 32 H. 8. c. 31. and 
 14 El. c. 8. recoveries suffered by tenants for life, or tenants by the courtesy, 
 or tenants in taile after possibility of issue extinct, or even by the feoffee of 
 tenant for years, worked a discontinuance. See sir William Pelham's case, 
 1 Rep. 14. It is to be observed, that there is a material difference between the 
 situation or title of the alienee of any person whose alienation makes a discon- 
 tinuance, and the situation or title of the heir or alienee of a disseisor; for 
 the heir and alienee of a disseisor immediately claim under a person coming 
 in by a wrongful title, and their estates, though not defeasible by entry, are 
 immediately defeasible by action. But the alienee of every person, whose 
 alienation is said to be a discontinuance, claims by a person having a lawful 
 estate, and the estate of the alienee is unimpeachable during the life of the 
 discontinuor. It should also be observed, that a discontinuance extends to 
 those cases only where a person is dispossessed of an estate of freehold : and, 
 where, though he has lost his right of entry, he can still recover the possession 
 by action. At the common law, if there was a terme for years, and the tenant 
 of the freehold suffered a common recovery by covin, it was a good bar to the 
 termor; for, not having the freehold, he could not falsify the recovery, so that 
 all his term and interest in the land was lost, and his only remedy was an 
 action of covenant against the lessor. His possession, therefore, or rather his 
 interest, was absolutely lost, not merely interrupted. Even after the statutes 
 of Gloucester, and the 21 II. 8. c. 15. which preserved the interest of the 
 termer for years, against a common recovery, as the possession of the termor 
 for years is considered in the law as the possession of him who has the next 
 estate of freehold, the recovery is never said to discontinue the estate of the 
 termor for years; the expression discontinuance being applied solely to those 
 cases where the freehold is divested. The peculiar import of the word discon- 
 tinuance,
 
 L. 3. C. 11. Sect. 592. Of Discontinuance. [325. a. 
 
 A discontinuance of estates in lands or tenements is properly 
 (in legal understanding) an alienation made or suffered by tenant (1° Re P- 97.) 
 in taile, or by any that is seised in auter droit, whereby the issue 
 in taile, or the heire or successor, or those in reversion or 
 remainder, are driven to their action, and cannot enter. 
 
 All which is implied by the description of our author, and by 
 the (&c.) in the end of this Section. 
 
 I have added (properly) by good warrant of our author him- 
 selfe, for Sectione 470, he useth discontinuance for a devesting or 
 displacing of a reversion, though the entrie be not taken away. 
 
 This discontinuance consisteth in doing or suffering an act to (1 Roll. Abr. 
 be done, as hereafter shall appeare. And where our author iM - ib0 -> 
 saith, that it hath divers significations, there is also a discon- 
 tinuance of processe consisting in not doing, where the processe- 
 is not continued, concerning which there is an excellent statute 
 made in furtherance of justice in [&] 1 E. 6, and is well expound- [6] Vide the 
 ed in my Reports, and therefore need not here to be inserted. Stat ; of * E - 6 - 
 
 There is another erroneous proceeding, and that consisteth in 31 ' ^j iz _ e lt 
 misdoing ; as when one processe is awarded instead of another, lib. 7. f. 30, 31. 
 or when a day is given which is not legall, this is called a mis- & . c - le c . ase de 
 continuance, and if the tenant or defendant make default, it is d^proccs"" 1106 
 error; but if he appeare, then the miscontinuance is salved, (l Sid. 173. 
 otherwise it is of a discontinuance. But let us returne to the 2 Cr0 - 284 -) 
 discontinuance of estates in lands, whereof Littleton doth treat 4(52330 *' 
 in 'this Chapter. 37 11.6.25,26. 
 
 9 E. 4. 18. 12 E. 4. 
 
 " Significations." Here (as in many other places) it appeareth Vide Sect. 74. 
 how necessary it is to know the signification of words. ^o' 
 
 And in this Chapter it appeareth, that when Littleton wrote, 
 the estate in lands and tenements niisrht havebeene discontinued 
 five manner of wayes, viz. by feoffment, by fine, by release with 
 
 warrantie, 
 
 tinuance, where applied to the cases mentioned by Littleton, is shortly, but 
 forcibly expressed by Mons. Houard, who explains the word discontinuance, 
 " Interruption du droit, quon a sur tin fan ds, par la vente qu'un auter charge 
 de conserver ce droit, en a/aite." See Anciennes Loix de Francois, 2 vol. 435. 
 Our doctrine of discontinuance bears some analogy to the doctrine of inter- 
 ruption in the civil law. — There interruption when applied to the real 
 property, signifies the ousting of a person, from the possession of his land. 
 From that time he ceases to be the possessor of it ; and if he does not renew 
 his possession, but permits the dispossesscr to retaine it, he absolutely loses his 
 right to it, and the disseisor is said to acquire it by prescription. It is 
 observable, that by the laws of the Twelve Tables, possession during two years 
 formed a prescription for land ; one year, for personal estate. Dio. Sic. 20. 
 In 6 Rep. fol. 8. b. 9. a. lord Coke observes, that the reason why the law will 
 not permit a person who is in by judgment of law, to have his possession dis- 
 turbed by the disseisee, is, " to take away the multiplicity and infiniteness of 
 " suits, trials, recoveries, and judgments in one and the same case; and there- 
 " fore in the judgment and policy of the law it was thought more profitable 
 " to the commonwealth, and more for the honour of the law, to leave some 
 " without remedy, and to put others to their writ of right, without any 
 " respect of coverture, &c. than that there should not be any end of actious 
 " and suits." In a preceding note, the writer has already referred to the ex- 
 cellent argument of the master of the rolls, in Beckford v. Wade, 17 Ves. 87. 
 —[Note 278.1 
 Vol II.— 35
 
 325. b.] Of Discontinuance. L. 3. C. 11. Sect. 593. 
 
 warrantie, confirmation with warrantie, and by suffer- 
 ing of a recovery in a S^"prsecipe quod reddat. And [~325.~] 
 this was to the prejudice of five kinds of persons, viz. |_ b. 
 of wives, of heires, of successors, of those in rever- 
 sion, and of those in remainder. But for wives, and their heires, 
 and for successors, the law is altered by acts of parliament since 
 Littleton wrote, as in this Chapter in their proper places shall 
 appeare. 
 
 Sect. 593. 
 
 AS if an abbot be seised of certaine lands or tenements in fee, and 
 alieneih the same lands or tenements to another in fee, or in fee taile, 
 or for terme of life, and after the abbot dieth (et * puis l'abbe morust), 
 his successor cannot enter into the said lands or tenements, albeit he hath 
 right to have them as in right of his house, but he is put to his action 
 to recover the same lands or tenements, which is called a writ, breve de 
 ingressu sine assensu capituli, &c. f 
 
 HERE Littleton putteth an example of a discontinuance made 
 by one seised in aider droit, as by an abbot who had a fee 
 simple in the right of his monastery, and therefore his alienation 
 without the assent of his covent had beene a discontinuance at 
 the common law, and had driven his successor to a writ de 
 ingressu sine assensu capituli. 
 
 Regist. Orig. 
 fo. 230. 
 F. N. B. 195. 
 Bracton, lib. 4. 
 fol. 323. 
 Fleta, lib. 5. 
 cap. 34. 
 
 21 E. 4. 86. 
 (Plo. 536.) 
 (Ant. 85. a.) 
 (Post. 341. b.) 
 (11 Rep. Mag- 
 dalen College's 
 case.) 
 
 See more of this 
 matter hereafter 
 in this chapter, 
 Sect. 648, and 
 before Sect. 528. 
 
 " De ingressu sine assensu capituli, &c." It is called so because 
 the alienation was sine assensu capituli ; for if it had beene cum 
 assensu capituli, it should have beene a barre to the successor. 
 And because the successor could not enter, the common law 
 gave him this writ, and is so called of these words contained 
 in the writ, which writ you may read in the Register, and 
 Fitzherlert's N. B. 
 
 And here is to be noted, that in law the covent, albeit they 
 be regular and dead persons in law, yet are they said in law to be 
 capitulum to the abbot, as well as the deane and chapter, that be 
 secular to the bishop. But it is to be observed and implied in 
 this (<£c.) that, a sole body politike that hath the absolute right 
 in them, as an abbot, bishop, and the like, may make a discon- 
 tinuance; but a corporation aggregate of many, as deane and 
 chapter, warden and chaplaines, master and fellows, maior and 
 commonaltie, &c. cannot make any discontinuance ; for if they 
 joyne, the grant is good: and if the deane, warden, master, or 
 maior make it alone where the body is aggregate of many, it is 
 void, and worketh a disseisin. But now as hath beene said by 
 the statute of 27 H. 8, and 31 H. 8, all the abbots, priors, and 
 other religious persons are so dissolved, as there be none remain- 
 ing this day, and by the statutes of 1 Eliz. and 13 Eliz. cap. 10, 
 and 1 Jac. cap. 3, bishops and all other ecclesiastical persons 
 
 are 
 
 puis not in L. and M. or Roh. 
 
 f &c. not in L. and M. or Roh.
 
 L. 3. C. 11. Sect. 594. Of Discontinuance. [325. b. 326. a. 
 
 are disabled to alien or discontinue any of their ecclesiasticall 
 livings, as by the same acts doth appeare (1). 
 
 Sect. 594. 
 
 ALSO, if a man be seised of land as in right of his wife, * $c. and 
 thereof infeoffe another, f £c. and dieth, the tvife may not enter, but 
 is put to her action, the which is called, cui in vita, &c. 
 
 " 77V" right of Us wife, &c." (2) That is to say, in 
 -* fee simple, fee taile, 8©** or for life. Here Lit- 
 tleton putteth another case where a man is seised in 
 auter droit, and may make a discontinuance, as the 
 husband seised in the right of his wife, and therefore the com- 
 mon law gave her a cui in vita, and her heire a sur cui in vitd, 
 because they could not enter. But this is altered since our Bracton, lib. 4. 
 author wrote, by the statute of 32 H. 8. by the purview of which L2M *«* 
 statute, the wife and her heires after the decease of her husband 5 e " a> 34 & ^ 6> ' 
 may enter into the lands or tenements of the wife, notwithstand- p. n. B. 193. 
 
 iu<r the alienation of her husband. Re « ! ^ 32 H - 8 - 
 
 And ca P- 28 - 
 
 m 
 
 "•& 
 
 * &c. not in L. and M. or Roh. f &c - not in L - and M ' or • Ron - 
 
 (1) II. As to discontinuances by ecclesiastical persons: — It is generally sup- 
 posed that ecclesiastical persons were permitted to acquire real estate as early 
 as the reign of the emperor Constantine. The tenth century is commonly 
 considered as the period when donations to them were most frequent and con- 
 siderable. Very soon after they were permitted to acquire, they were restrained 
 from alienating, their property. See Dec. Gra. Cas. 12. Q. 2. c. 3. Long 
 leases made by ecclesiastical persons are declared to be null by the Council of 
 Trent, Sess. 25. de Ref. ch. 11. For the learning relating to the leases made 
 by ecclesiastical persons, the editor begs to refer to the much-admired collec- 
 tions on this subject in Bacon's Abr. vol. 3. tit. Leases, supposed to be ex- 
 tracted from a manuscript of sir Geoffry Gilbert. It is to be observed, that 
 bishops and abbots were supposed to have the possession in fee, and might 
 therefore alien in fee ; but parsons were considered to have no more than a life 
 estate. See Gilb. Ten. 110.— [Note 279.] 
 
 (2) III. As to discontinuances by persons seised juris uxor is:— It is generally 
 supposed that women, by reason of their incapacity to perform military duty, 
 were not originally admitted to succeed to proper fiefs : so that if the fief, by 
 
 • its original constitution, were descendible to the females, it was, upon that very 
 account, ranked among improper fiefs. See Craig de Jure Feud. 48. 50. 230. 
 Stry. Ex. Jur. Feud. cap. 4. 2. cap. 15. 2. 3. By the Salic law, the females 
 were excluded from succeeding to estates, either lineally or collaterally.— It 
 may not be improper to mention here, that there are two different codes of this 
 law. One of them is supposed to have been collected before Christianity was 
 received into France.— The other is of a later date ; and appears to be a repub- 
 lication of the former, with considerable alterations, both in substance and 
 phraseology : and with several new regulations supposed to have been made 
 by the princes who filled the throne of that kingdom, after the introduction of 
 Christianity. The former code contains the following clause : " De terra vero 
 " Salecd in mv.lierem nulla portio hsereditatis transit; sed lioc virihs sexus 
 
 (i acquirit j
 
 326. a.] Of Discontinuance. L. 3. C. 11. Sect. 594. 
 
 (1 Roll. Abr. And here is one of the alienations to make a discontinuance, 
 
 634. viz. a feoffment; and where our author speaketh of a husband 
 
 Ant 187. b.) seised in the right of his wife, so it is where the husband and wife 
 
 are 
 
 " acquirit ; hoc est, filii in hsercditate succedunt." In the latter it is expressed 
 in this manner: " De terra autem Sailed, nulla portio hcereditatis mulieri 
 " veniat scd ad virilcm sexum tota hcereditas perveniat." But in the course of 
 time, women were admitted, generally, to succeed to all fiefs; and even the Salic 
 law lost all its force, except as to the succession to the crown, in which respect 
 it has been invariably observed from the earliest period of the French monarchy 
 to the present time. This exclusion of females and their descendants from the 
 crown, is now universally agreed to be a fundamental law of that monarchy. — 
 Even in the dispute between Philip Valois and Edward the Third, the validity 
 of the law as to the daughters themselves, was never questioned : the only dispute 
 was, whether it extended to the male descendants of the daughters. Edward the 
 Third contended it did not; but the decision of the assembly which was held 
 upon this affair at Paris, and which was composed of the chief nobility, pre- 
 lates, and burghers of the kingdom, being against him ; and the wars which 
 were undertaken in support of his right, proving unfavourable to the English ; 
 it is now settled beyond all controversy, that the descendants of the daughters 
 are excluded from (he throne of France, as much as the daughters themselves. 
 In consequence of this doctrine, Henry the IVth succeeded to the throne at 
 the distance of twenty-one degrees from his immediate predecessor. See 
 Bapin's Dissertation on the Salic Law, and Le Brun Traite des Successions, I. 
 2. c. 2. § 2.— -This exclusion from the throne of France did not prevent women 
 succeeding there to every other dignity, so as even to become peers of France. 
 Many instances are upon record of their personally presiding in their own 
 courts, even over judicial combats; of their being summoned to, and sitting 
 in, the court of peers; and, what is considered as the highest of honours, of 
 their assisting as peers at the consecration of the king. Thus Mahaut, the 
 countess of Avtois, assisted not only at the trial of Robert of Flanders, but at 
 the ceremony of the coronation of Philip the Long, and with the other peers 
 supported his crown. So, in England, the celebrated Ann countess of Pem- 
 broke, Dorset, and Montgomery, had the office of hereditary sheriff of West- 
 moreland, and exercised it in person. At the assizes at Appleby, she sat with 
 the judges on the bench. The reader will find the revolutions in the laws 
 and usages of France, in this respect, stated with the most consummate learn- 
 ing and perspicuity by the Chancellor D'Aguesseau (then attorney-general) in 
 his pleading in the great cause of the duke of Luxemburgh, torn. 3. p. 643, 
 and in his Requeste sur la Mouvance du ComtS de Soissons, torn. 6. p. 1. & Ob- 
 servations sur les Pairies, torn. 7. p. 598. Prods verbal de ce que s'est passe 
 an Parlement de Paris en 1716, au sujet d'un accusation de duel, intent ee par 
 le Procureur general du Roi contre un Pair de Prance, qui n'avoit pas encore 
 ite recu en Parlement. lb. 616; and see also Droit Public de la France, par 
 Mons. Bouquet, p. 332. The cause of the duke of Luxemburgh gave rise to 
 the edict of 1711. By that edict it was declared, that in the letters for the 
 erection of peerages, whether granted before that time, or to be granted after- 
 wards, the words heirs and successors should only comprise male children, 
 descended from him in whose favour the peerage was first erected, and males 
 descended from males, without the intervention of a female : That those 
 clauses, which expressly comprised females, should be considered as having a 
 condition annexed to them, that the female becoming entitled under them, 
 should marry no person without the consent of the king, signified by letters 
 patent addressed to the parliament of Paris : That in these letters patent the 
 peerage should be confirmed to the husband, and his male descendants; and 
 .that the peer in whose favour the peerage of his wife was thus confirmed, should 
 
 take
 
 L. 3. C. 11. Sect. 594. Of Discontinuance. [326. a. 
 
 are joyntly seised to them and their heires of an estate made Djer,4 A 5 . t 
 during the coverture, and the husband make a feoffment in fee, 14 j 3 ^liz' 
 and dieth, the wife now may enter within that statute, although Di er , 191. 
 
 Lib. 8. fol. 71, 72. Greveleye's case. (9 Rep. 140. a.) Greveleye's case, ubi supra. 
 
 (2 Inst. 343.) 
 
 it 
 
 take his rank only from the day of his reception in parliament, under the letters 
 patent. In the same manner the duchy and peerage of Aubigny was granted 
 in 1684, to the duchess of Portsmouth, the duke of Richmond her son, and 
 his heirs male; but the letters patent by which this grant was made, were not 
 registered; for want of which, though the title of duke of Aubigny had always 
 been admitted by the court of France, and the dukes and duchesses of Rich- 
 mond had always been allowed at Versailles the honours attached to that 
 dignity, the peerage was not admitted by the parliament. In 1779, his grace 
 the then duke of Richmond obtained letters patent, confirming those of 1684, 
 but with a clause that neither his grace, nor any of the heirs male of his grand- 
 father the first duke of Richmond, should be received in parliament, until the 
 possessor should be of the religion and reside in the kingdom of France; and 
 that the rank of the peerage should take place from the date of the reception. 
 These last letters patent have been duly registered ; but his grace's rank_ and 
 precedence were not to begin till his reception. In the mean time, the registry 
 of the peerage in parliament was a recognition of it, and entitled his grace to all 
 the other advantages, honours, and privileges annexed to the dignity. These, 
 when the estate is considerable, are of very great importance. There are in 
 France other peers, whose ancestors have neglected to be received in parlia- 
 ment, and who, being unwilling to take a rank lower than that which the date 
 of their peerage would give them, decline to be received there now. It is 
 said the due de Bouillon, the due d'Elbeuf, the due de Montbazon, and the 
 due de Valentinois, were in this predicament. Some of them claimed to be older 
 than the due de Usez, who by his ancestors having been first received, is now, 
 in fact, the first duke in France. — Both in England and in France females 
 originally communicated their titles and dignities to their husbands. Many 
 instances of this are to be found in the arguments on the claim of Mr. Bertie 
 to the barony of Willoughby. But this has long since ceased ; and we may 
 apply to this circumstance the remark contained in the former part of this 
 work, respecting curtesy in titles of honour, that from the late creations, by 
 which women have been made peeresses in order that the issue of their hus- 
 bands might have titles, yet the husbands themselves continue commoners, it 
 seems that this right in women to communicate peerages to their husbands is 
 
 considered as extinct. See ant. 29. b. not. 1. But though by our law a 
 
 woman does not now communicate her rank or titles of honour to her husband, 
 yet the freehold, or the right of possession, of all her lands of inheritance, vests 
 in him immediately upon the marriage, the right of property still being pre- 
 served to her. 1 Inst. 351. a. 273. b. And see Pothier Traiti des Fiefs, vol. 1. 
 p. 123. This estate he may convey to another. An incorrect statement in 
 the book called Cases in Equity, during the time of lord Talbot, fol. 107, of 
 what was delivered by his lordship in the case of Robinson v. Comyns, seems 
 to have given rise to a notion that the husband could not make a tenant to the 
 praecipe of his wife's estate, for the purpose of suffering a common recovery of 
 it, without the wife's previously joining in a fine; but it now seems to be a 
 settled point that he can. Mr. Cruise, in his Essay upon Recoveries, p. 38, 
 has given an accurate statement of lord Talbot's observations upon this subject, 
 which, in substance and almost in words, is agreeable to a manuscript report 
 of the same case, in the possession of the editor. The same must be concluded 
 from general reasoning. — For the interest which the husband takes in his 
 wife's chattels, real and personal, see 351. a. note. — [Note 280.]
 
 326. a.] Of Discontinuance. L. 3. C. 11. Sect. 594 
 
 it was the inheritance of them hoth. And so it is if the feoffment 
 he made by the husband and wife, (albeit the words of the sta- 
 tute be by the husband only) for in substance this is the act of 
 the husband only (1). 
 
 If the husband cause a praecipe quod reddat upon a faint title 
 to be brought against him and his wife, and suffereth a recovery 
 ■without any voucher, and execution to be had against him and 
 his wife, yet this is holpen by the statute ; for this by like con- 
 struction is the act of the husband, and the words of the statute 
 be, made, suffered, or done. 
 (F. N. B. 205. F. If the husband make a feoffment in fee of the lands which he 
 
 7 Rep. 42. holdeth in the right of his wife, and after they are divorced 
 4 Rep. 29.) causa prcecontractus, yet the woman may enter within the pur- 
 view of that statute, and is not driven to her writ of cui ante 
 divortium, as she was at the common law, albeit the entrie be by 
 the statute given to the wife, and now upon the matter she was 
 never his lawfull wife. But it sufficeth that she was his wife de 
 facto at the time of the alienation, and where her husband dieth 
 she cannot be his wife at the time of the entrie. 
 
 6 E. 6. If the husband levie a fine with proclamations, and dieth, the 
 
 Dier, 72. b. w jf e m ust enter, or avoid the estate of the conusee within five 
 
 4 H. 7. c. 24. yeares, or else she is barred for ever by the statute of 4 //. 7, 
 
 for the statute of 82 H. 8. doth helpe the discontinuance but not 
 
 the barre ; and the statute spcaketh of a fine, and not of a fine 
 
 with proclamations. 
 
 Greveleye's If lands be given to the husband and wife, and to the heires of 
 
 case, ubi supra, their two bodies, and the husband maketh a feoffment in fee and 
 
 mf'ol'i Jac ' dieth, the wife is holpen by the said statute, as hath beene said, 
 (Hob. 261. , ' . , „ r , , J . . , ,. J, , . . ., 
 
 9 Rep. 140.) and so is the issue of both their bodies, .beme tenant in taiJe 
 
 (Dyer, 224. a. taketh husbaud, the husband maketh a feoffment in fee, the wife 
 3 Inst 216.) before entrie dieth without issue, he in the reversion or remainder 
 may enter. For, first, the reversion or remainder cannot be dis- 
 continued in this case, because the estate taile is not discon- 
 tinued. Secondly, the words of the statute be, shall not be preju- 
 dicial! or hurtfull to the icife or her heires, or such as shall have 
 right title or interest by the death of such wife, but that the same 
 xcife and heires, and such other to whom such right shall ap- 
 pertaine after her decease, shall or lawfully mat/ enter into all such 
 mannors, lands, &c. according to their rights and titles therein , 
 by which words the entrie of him in the reversion or remainder 
 in that case is preserved. The husband is tenant in taile, the 
 remainder to the wife in taile, the husband make a feoffment in 
 fee ; by this the husband by the common law did not only discon- 
 tinue his owne estate taile, but his wife's remainder : but at this 
 day after the death of the husband without issue, the wife may 
 
 8 E. 2. tit. Cui enter by the said act of 32 H. 8. If the husband hath issue, 
 34 E ^1 ' anc ^ ma keth a feoffment in fee of his wife's land, and the wife 
 ibidem, 30. dieth, the heire of the wife shall not enter during the husband's 
 
 10 E. 3. life neither by the common law nor by the statute. 
 
 12 Dier. 
 
 21 Eliz. 363. 
 
 " Cui 
 
 (1) But a fine levied both by husband and wife of her lands is not within 
 the statute ; and it operates as a bar to her and her heirs of all her estate and 
 interest in the land. — See 2 Rep. 57. b. 77. b.
 
 L. 3. C. 11. Sect. 595. Of Discontinuance. [326. a. 326. b. 
 
 " Cui in vitd, &c." Here is also implied a sur cui in vitd also 
 for the heire. This writ here mentioned in our author is so called 
 of those words contained in the writ, which you may reade in 
 the Register and Fitzherbert' s N. B. 
 
 336.1 jsr Sect, 595. 
 
 [ 3 ? 6 -] 
 
 ALSO, if a tenant in taile of certaine land thereof enfeoffe another, 
 Sec. and hath issue anddieth, his issue may not enter into the land, 
 albeit he hath a title and right to this, but is put to his action, which is 
 called a formedon in le discender, &c. (1) 
 
 " J^NFEOFFE another, dec." Here is implied, or make a 
 gift in taile or an estate for life. Here Littleton putteth a 
 
 third example of a discontinuance made by tenant in taile so as rieta, lib. 5. 
 
 his issue is put to his formedon in the discender, which is given cap. 34. 
 
 to the issue in taile bj the statute of 13 E. 1. cap. 1, because he 2 { 2 ' R egist ' r# 
 
 cannot enter. (4 Rep. 3. b. 
 
 Post. 365. b.) 
 " Tenant in taile." This extendeth as well to a woman tenant 
 in taile as to a man, and was generally good law when Littleton 
 wrote ; but now by the statute of \d\ 11 E. 7, if the woman hath [<*] 11 H. 7. 
 any estate in taile joyntly with her husband, or only to herselfe, y( d 2 e °g ect 695 r # 
 
 (3 Cro. 244. 1 Rep. 102. b. 3 Rep. Lin. Coll. Case. 10 Rep. 39. b. 6 Rep . 
 9. b. Bend. 40. Hob. 332. Jo. 31. Cro. El. 2.) 
 
 or 
 
 (1) IV. As to discontinuances by tenants in tail with respect to their issue: — 
 It is to be observed, that though the estate of the tenant in taile, as to his right 
 of possession, or rather as to his beneficial property in the lands, has a duration 
 for the term of his life only ; yet, in the eye of the law, he is considered as 
 seised of an estate of inheritance. To understand this, it should be remem- 
 bered, that, in the case of a fee simple conditional at common law, the con- 
 dition, from which that estate took its appellation, did not suspend the fee 
 from vesting in the donee, immediately by the gift. Thus, we find, that, if he 
 aliened before he had issue, it not only was no forfeiture, but, if afterwards he 
 had issue, it was a bar to them. See Flo. 239. 2 Inst. 333. But the con- 
 dition, though it did not prevent the fee from vesting in the donee, suspended 
 his power of alienation. To that power it was considered to be a condition 
 precedent, that the donee should have issue born. The statute extinguished 
 the power, but did not affect the estate of the feudatory in any other respect : 
 so that the tenant in tail was as much seised of the inheritance, after the statute 
 de donis, as a tenant in fee simple conditional was before it. Hence, if he 
 made a feoffment, it did not, during his life, affect or prejudice the issue. 
 Thus, his alienation was, primarily, a lawful transfer of the freehold ; the alienee 
 came in by right; and his estate could not be impeached during the life of 
 the donee. In conformity to the established rule of the common law, that 
 whenever any person acquired a presumptive right of possession, his possession 
 was not to be defeated by entry, however slender or unlawful the title of the 
 grantor himself might be, the statute de donis did not absolutely nullify 
 the alienations of the donee in tail, but enabled the issue to defeat them 
 by the formedon in the descender. — [Note 281.]
 
 326. b.] Of Discontinuance. L. 3. C. 11. Sect. 595. 
 
 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 
 taile 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 
 hereafter being sole, or with any other after-taken husband, dis- 
 continue, &c. the same : every such discontinuance shall be voyd ; 
 and that it shall be lawfull for every person to whom the interest, 
 title, or inheritance, after the decease of the said woman should 
 appertaine, to enter, &c. So as if such a feme tenant in taile 
 doe make any discontinuance in fee, in taile, or for life, although 
 it be without (A) warrantie, yet this doth not take away the 
 entry after her death, either of the issue or of him in reversion or 
 remainder. This statute hath beene excellently expounded by 
 divers resolutions and judgments [c] which I have quoted in the 
 margent, and are worthy of due observation. 
 
 If lands were entailed to a man and to his wife, and to the 
 heires of their two bodies, and the husband had made a feoffment 
 in fee and died, and then the wife died, this had beene a discon- 
 tinuance at the common law : for the title of the issue is as heire 
 of both theire bodies, and not as heire to any one of them, and 
 his eutrie must ensue his title or action. 
 
 [e] Lib. 3. 
 fol. 50, 51. 
 
 Sir George 
 Browne's case, 
 eodera lib. 
 fol. 60. &c. 
 Line. Coll. Case. 
 Lib. 1. fol. 176. 
 Mildeuiaye's 
 
 f;\se. 
 
 Dier, 3 & 4 
 Ph. & Mar. 146. 
 Llom. 8 Eliz. 
 21^. 17 Eliz. 
 340. Idem. 
 ] ;) Eliz. 354. 
 Idem. 20 Eliz. 
 302. 
 
 27 H. 8. 23. 
 Lib. 5. fol. 79. 
 Fitzh. case. 
 Lib. 8. fol. 71,72, 
 Greveleye's 
 case. 
 
 (F. N. B. 211. 
 217. 8 Rep. 88.) 
 
 [o] 4 E. 3. 3S. 
 43 E. 3. 25. 
 
 4 E. 1. 25. 
 
 F. N. B. 124. 
 |7>] 2 E. 2. 
 Droit, 28. 
 [c] P. N. B. 123. 
 [/!21E. 3. 11. 
 
 5 E. 3. 23. 
 1111.4. 49. 
 [.] 2 B. 3. 
 Droit, 28. 
 
 1 i II. 7. 24. 
 5 E. 4. 2. 
 20 E. 3. 
 Avowrie, 131. 
 F. N. B. 10. 
 46 E. 3. tit. Cui 
 in vita, 33. 
 
 " A formedon." De forma clonationis, so called because the 
 writ doth comprehend the forme of the gift. And there be three 
 kinde of writs of formedon, viz. The first in the discender to be 
 brought by the issue in taile, which claime by discentper formam 
 doni. The second is in the reverter, which lieth for him in the 
 reversion or his heires or assigns after the state taile be spent. 
 The third is the remainder, which the law giveth to him in the 
 remainder, his heires or assignes, after the determination of the 
 estate taile ; of all which you may reade in the Register and 
 F. N. B. 
 
 Here Littleton sheweth that the issue in taile shall have a 
 formedon in the discender. What other actions tenant in taile 
 may have, and not have, is good to be seene. 
 
 [y<] Tenant in taile shall have a quod permittat. 
 
 [b~\ Tenant in taile shall have a writ of customes and services 
 in le debet, et solet, but shall not have it in the debet only. 
 
 [c] In like manner he shall have a secta ad molendinum in le 
 debet et solet, but not in the debet tantum. 
 
 [//] Tenant in taile shall have a writ of entre in consimilicam, 
 and an admesurement, and a nativo habendo, cessavit, escheat, 
 waste, and the like. 
 
 [e] But the tenant in taile shall not have a writ of right sur 
 disclaimer, nor a quo jure, nor a ne injuste vexes, nor a nuper obuf, 
 or rationabile parte, nor a mordancester, nor a sur cui in vita ; 
 for these and the like, none but tenant in fee shall have : and the 
 highest writ that a tenant in taile can have is a formedon. 
 
 Sect. 
 
 (A) Here " without" seems printed by mistake instead o/"with." See Mr. Ritso's Intr. p. 121.
 
 L. 3. C. 11. S. 596, 597. Of Discontinuance. [327. a. 
 
 [ 3 f-] 
 
 j^-Sect, 59G. 
 
 A LSO, if there bee tenant in taile, the reversion being to the donor and 
 his heires, if the tenant make a feoffment, * £c. and die without issue 
 Jiee in the reversion cannot enter, but is put to his action of formedon in 
 le reverter f (!)• 
 
 Sect. 597. 
 
 TN the same manner is it, where tenant in taile is seised of certaine land 
 whereof the remainder is to another in taile, or to another in fee (En 
 niesme le manner est, lou tenant en le taile J seisie de certaine terre dont 
 le remainder est a un auter en le taile, ou a un auter en fee). If the 
 tenant in taile alien in fee, or infee-taile, \\ and after die without issue, 
 they in the remainder may not enter, but are put to their writ of formedon 
 in the remainder, <f<?.(2), and for that that by force of such feoffments and 
 
 alienations 
 
 * &c. not in L. and M. or Ron. % se ^ e not in ^ an( ^ ^' or ^°^ 
 
 f &c. added in L. and M. and Roh. || &c. added in L. and M. and Roll. 
 
 (1) V. As to alienations by tenants in tail, with respect to the reversioner : — 
 Upon the death of tenant in fee simple conditional without issue,, if the estate 
 was withheld from the reversioner, either by the alienee of the tenant in tail, 
 or by an abator, the reversioner was entitled, at the common law to a formedon 
 in the reverter. It has been observed before, that if tenant in fee simple con- 
 ditional at the common law, aliened before he had issue, and afterwards had 
 issue, the issue was barred by the alienation ; but it does not seem clear whe- 
 ther the alienation in that case barred the reversioner. See Plo. 235. Ant. 19. — 
 In general, when the ancestor aliened, it was with warranty ; in that case, the 
 warranty descended upon the issue in tail, and therefore prevented his claim- 
 ing against the alienation of his ancestor. But nothing of this nature could be 
 opposed to the reversioner. — [Note 282.] 
 
 (2) VI. As to discontinuances by tenants in tail, with respect to those in 
 remainder : 
 
 I. It has been observed before, that all estates of inheritance were, at com- 
 mon law, either fees simple absolute, or fees simple conditional ; and that 
 tenants in fee simple conditional were, after the birth of issue, permitted to 
 alien the fee, upon a supposition, that, by the birth of issue, the condition was 
 performed. The statute de donis declared this to be manifestly contrary to the 
 form and intent of the gift, and therefore required that thenceforth the will 
 and intent of the donor should be observed, and the fee revert to him, for want 
 of issue. This statute did not create any new estate, but by disaffirming the 
 supposed performance of the condition, preserved the fee to the issue, while 
 there was issue to take it, and the reversion to the donor when the issue 
 failed. An estate of inheritance therefore remained in the donee ; but only a 
 particular description of heirs being entitled to take under it, it received the 
 
 appellation
 
 327. a.] Of Discontinuance. L. 3. C. 11. Sect. 597. 
 
 alienations in the cases aforesaid, and the like cases (en les cases avantdits 
 et en semblables § cases,) they that have title and right after the death of 
 
 such 
 
 § auters added in L. and M. and Roh. 
 
 appellation of an estate tail, that is, an estate docked, cut off, or abridged, in 
 contradistinction from the estate in fee simple absolute, which remained in the 
 donor. Wright's Tenures, 186. Plo. 251. The expression estate tail does 
 not occur in the statute de donis ; but it is to be found in a statute of the same 
 year. See Stat. West. cap. 4. The statute de donis, by thus securing the 
 reversion to the donor, produced another material alteration in the law. For, 
 by the common law, no remainder could be limited upon, or after, an estate in 
 fee simple absolute or conditional ; but, when estates in fee simple conditional 
 were reduced to estates tail, remainders after them were permitted : and, by 
 analogy to what was done for the issue and the reversioner, a formedon in the 
 remainder was given to the remainder-man; — not, however, expressly, but by 
 inference. — For the remainder-man after an estate tail being by the discon- 
 tinuance in the same mischief with the issue or the reversioner in tail, an 
 equitable construction of the statute brought him within the like remedy. — 
 Five years after the enacting of the statute de don is, the statute quia emptores 
 terrarum was passed ; by which all persons were enabled to dispose of their 
 lands; but the feoffees were to hold them immediately of the chief lord. Upon 
 this statute, the courts took the following distinction, with respect to estates 
 tail, and other particular estates ; that, where a person seised in fee granted 
 for life, or in tail, reserving the reversion to himself, the grantees of the par- 
 ticular estates held of the reversioner, and he of the chief lord ; but, where 
 a person granted for life, or in tail, with the remainder over in fee, both the 
 tenant of the particular estate, and the remainder-man, held of the chief lord. 
 2 Inst. 505. 
 
 II. Care must be taken to distinguish between a remainder limited after an 
 estate tail, and a conditionall, or contingent use, limited upon or after such an 
 estate. See page 203. b. note 1, and page 272. a. note 1. V.— There are 
 few occasions where greater nicety, or skill, is required, in limiting uses of 
 this kind, than in the two following cases. — The first is, when a person, being 
 seised of two estates, wishes to raise two families ; and, with this view, intends 
 that one of the estates, (which shall be called here the family estate,) shall be 
 settled on his eldest son and his issue; and for want of such issue on his 
 younger sons, successively, and their respective issue; and, that the other 
 estate, (which shall be called here the second estate), shall be settled on his 
 second son, and his issue; and for want of such issue, on his other subsequent 
 sons successively, and their respective issue. In this case, by the death of 
 the eldest son without issue, the family estate would descend on the second 
 son or his issue. This union of the two estates would effectually defeat the 
 settler's intention. To guard against it, therefore, it is necessary to provide, 
 that, if by the death of the first son, and failure of issue of his body, the family 
 estate descends upon the second son, or any other younger son, or any issue 
 of their bodies, the second estate shall, in that case, shift from the person upon 
 whom the family estate descends, to the person next in remainder. — The other 
 case is, when a person limits his estate in strict settlement with an injunction 
 that the several persons taking under the settlement shall use his name and 
 bear his arms. These being cases of difficulty, the rules of law respecting them 
 not having been long settled ; and the forms for carrying them into execution 
 being in general very imperfect; the following observations, it is imagined, may 
 
 be properly introduced here. 
 
 II. 1. As
 
 L. 3. C. 11. Sect. 597. Of Discontinuance. [327. a. 
 
 such a feoffor or alienor may not enter, but are put to their actions, ut 
 supra ; and for this cause such feoffments and alienations are called 
 discontinuances. 
 
 "3TAKH 
 
 II. 1. As to clauses for shifting the second estate, on the accession of the 
 family estate. From what has been said before, it is elear that the provisoes 
 and injunctions, in these cases, are shifting or secondary uses ; and the point 
 now before us presents us with a curious and striking view of the gradual pro- 
 gress of the doctrines of our courts respecting them. — One of the most remark- 
 able adjudications on this subject is the duke of Norfolk's case, 3d Ca. in Cha. 1. 
 The case there was, that Henry earl of Arundel conveyed his estates to the use 
 of himself for his life ; and, after his decease, to the use of trustees for 200 
 years ; and, after the expiration of that term, to the use of Henry Howard, 
 his second son, in tail male; remainder to Charles Howard, and his other sub- 
 sequent sons, successively, in tail male ; with a declaration that the term of 
 200 years was limited in trust to attend the inheritance, so long as Thomas 
 Howard, the settler's eldest son, or any issue male of his body should live ; 
 but with a proviso, that if by his death without issue male living at his decease, 
 or by a subsequent failure of that issue male, the earldom of Arundel should 
 descend on the second son, then the trust should cease as to the second son, 
 and the heirs male of his body ; and the trust should then be for the benefit 
 of the third son, and the heirs male of his body. The eldest son died without 
 issue, in the life-time of the second son ; upon this the difficulty arose. The 
 question was, whether the executory trust for the benefit of the third son was 
 not too remote ? It is clear, that the event upon which the trust was to take 
 effect for the benefit of the third son, must, if it took place at all, necessarily 
 take place within the compass of one life ; it being, that by event of the death 
 and failure of issue of the first son in the second son's life-time, the second son 
 should become entitled to the earldom of Arundel. The law upon this head is, 
 now, so clearly settled, that if a settlement were to be made now to this effect, 
 all the parties interested would immediately acquiesce in it. But it was then 
 a point so much questioned, that few cases have been heard in the courts, 
 either of law or equity, in which there has been a greater difference of opinion. 
 Lord Nottingham, before whom it was heard, was assisted by the three chief 
 justices. His lordship held the trust to be good. But the three chief justices 
 differed from his lordship; and his lordship's decree was afterwards reversed 
 by lord keeper North : but the house of lords, on appeal, reversed the reversal ; 
 and affirmed lord Nottingham's decree. Thus, by this case, it was solemnly 
 adjudged, that an executory trust of a term of years was good, if so framed 
 as to take effect within the compass of one life in being. This reasoning 
 extended, by analogy, to executory devises of legal estates; and to all shifting 
 and secondary uses, whether created by deed, or will. — The next advance in 
 limitations of this nature was to extend them to a period within the compass 
 of one or more life or lives in being, and twenty-one years after. Upon this 
 principle was determined the case of Lloyd v. Carew, Tree, in Cha. 72. Show. 
 Cases in Par. 137. 
 
 In most cases, till the middle of the last century, the clauses in deeds or 
 wills by which these purposes were intended to be effected were framed upon 
 this plan ; so that the event upon which the estate limited to the second son 
 was to shift from him and his issue to the subsequent sons and their issue, viz. 
 the accession of the family estate was confined to the contingency of its hap- 
 pening within the above period of one or more life or lives in being, and 
 twenty-one years. Afterwards, as it was observed that a common recovery 
 suffered by tenant in tail barred all limitations subsequent or collateral to his 
 
 estate,
 
 327. a.] Of Discontinuance. L. 3. C. 11. Sect. 597. 
 
 (F. X. B. 215.) " MAKE a feoffment, &c." Here is implied fee simple, fee 
 
 taile, or estate for life ; and in this and the next Section 
 Littleton putteth two cases, where if the issues in taile faile, they 
 
 in 
 
 estate, it was concluded, that there was no necessity to confine the event, upon 
 which the estate was to shift, to any particular period of time; and therefore 
 it is now usual to express it generally, that if any of the younger sons, or of 
 the heirs male of their bodies, shall come into possession of the family estate, 
 (without limiting the period, when tfcis happeus to any particular time,) the 
 second estate shall shift from the person so becoming entitled to the family 
 estate, and go to the persons next entitled in remainder. An instance of this 
 kind may be seen in an act of parliament, passed in the year 1758, intituled, 
 "An Act to enable Charles Bagot, now called Charles Chester, and his sons, to 
 " take the surname of Chester." 
 
 In clauses of this nature so many circumstances deserve minute attention 
 and accurate expression, as to render it a clause of singular nicety. — 1st. The 
 event in which the shifting clause is to have effect, should be accurately described. 
 A general direction," that it shall have effect, on the party's accession to the 
 family estate, may be contended not to apply to the event of his succeeding 
 to a proportion of it, however large; nor to the event of his succeeding to the 
 whole, if it be charged with an incumbrance, to which it was not, in fact or in 
 contingency, liable, when the settlement was framed; nor to the event, where 
 the party accedes to the family estate, not under the instrument to which the 
 clause refers, but by a subsequent and independent instrument, or hj act of 
 law; as when the eldest son suffers a recovery, and dies without issue and 
 intestate, or settles the family estate on his next brother. In the former of 
 these cases the next brother would take by heirship to his eldest brother; in 
 the latter he would take under a conveyance from him ; and he would take in 
 neither (at least immediately), by the instrument containing the clause. The 
 clause, therefore, should be so framed as to describe the events, in which it is 
 to operate, and prevent its operation in other events. — 2dly. The clause should 
 describe accurately what estates or interests the younger brother solely, or both 
 the younger brother and his issue male, are to take, in the family property, so 
 as to give to the clause the effect of making the second estate shift from them. 
 — When the property is included in a particular deed, and the party is to take 
 it according to the terms of that deed, this may be easily described ; but, where 
 this is not the case, it is frequently difficult to frame the clause in such a man- 
 ner, as will ascertain, with precision, the events to which the clause is intended 
 to apply. — odly. Equal attention must be observed in describing the person to 
 whom the settler wishes the second estate to devolve when the party accedes 
 to the family estate. It sometimes happens that, iu the case proposed in this 
 annotation, the settler directs that on the accession of any of the subsequent 
 tenants for life to the family estate, the second estate shall devolve to the 
 person next entitled in remainder. Now, in the case proposed, the person next 
 entitled in remainder is the son of the tenant for life, or, (where such a limi- 
 tation is introduced,) the trustees for preserving the contingent remainders. 
 To one or other of these the limitation, worded in the manner which has been 
 mentioned, has, in some adjudged cases, been held to carry the estate. But 
 this, almost always, is contrary to the intention of the settler, as he generally 
 wishes that the estate shifted should not devolve to the trustees, or to the issue 
 of the son, from whom it shifts, but vest in the next son. This, therefore, should 
 be provided for.— 4thly. The clause should also direct to whom the second 
 estate should devolve, if, at the time of its shifting, the person to whom it is 
 limited is not in existence, but may afterwards come in esse. As, where an 
 estate is limited to the sons of IS., (a person in existence,) successively in 
 
 tail
 
 L. 3. C. 11. Sect. 597. Of Discontinuance. [327. a. 
 
 in the reversion and remainder are driven to their formedon in 
 reversion or remainder ; and this remaineth as it was when 
 Littleton wrote, not altered by any statute. And the reason 
 
 whereof 
 
 tail male with a clause, directing that, on the accession of any son of /. S. to 
 a particular estate, the lands in settlement shall devolve to the next son of /. S. ; 
 and while /. S. is living, and has one son only, that son accedes to the estate. 
 It is proper to provide for this case, by directing who is to be entitled to the 
 estate, while there shall be a possibility of a subsequent son, but the existence 
 of such subsequent son shall be in suspense. — 5thly. In many cases it is neces- 
 sary to provide for the relume of the property to a person from whom it has 
 been divested by the shifting clause. As when a person settles his family 
 estate on himself for his life, with successive remainders to each of his sons A. 
 B. 0. and D. in the order of his birth, with remainders over to the sons of 
 each of them successively in tail male ; and settles a second estate on himself 
 for life, with successive remainders over to each of his sons B. C. and D. in 
 the order of his birth, with remainders to the sons of each successively in tail 
 male, with remainder to A. his eldest son for life, with remainders to his sons 
 successively in tail male, with ulterior remainders to the collateral branches of 
 his family ; and with a clause divesting the second estate from B. G. or D. and 
 their respective issue male, on their respectively acceding to the family estate. 
 On the death of A. without issue male, B. would accede to the family estate, 
 and the second estate would therefore shift from him. Now, if C. and D. 
 should die without issue male, the second estate would devolve to the collateral 
 branches of the family, under the ulterior limitations. But it could not be the 
 intention of the settler that this should take place while there should be issue 
 male of his own body. To obviate these and other incongruities of a similar 
 nature, the shifting clause should be so framed as not to take effect unless 
 0. or D. or some issue male of their bodies should be living, when B. accedes 
 to the family estate; and so as to provide, that, if the second estate shall 
 have shifted, and C. and D. shall afterwards die without issue male, the second 
 estate shall again revert to B. and his issue male according to the original limi- 
 tations. Still nicer, and not improbable, cases may be easily supposed in such 
 shifting clauses. 
 
 II. 2. As to clauses enjoining persons, to whom estates are limited in strut 
 settlement, to take the name and use the aims of the settler. This, in some 
 respects, is nicer than the former clause ; because, in the former clause, the 
 intention of the settler generally is, that the second estate, upon the accession 
 of the family estate, shall pass, not only from the person himselfe upon whom 
 the family estate descends, but from his issue, but, in the case now under con- 
 sideration it generally is not the intention of the settler that the issue shall be 
 prejudiced by the non-compliance of his parent with the condition or requisi- 
 tion annexed to his estate. Now suppose an estate is limited to A. for life, 
 remainder to trustees and their heirs, during his life, to preserve the contingent 
 remaindei-s, remainder to A.'s sons successively in tail male ; with a proviso, 
 enjoining A. and his sons, and the heirs male of their bodies, when they become 
 seised in possession of the estate, to take the name and bear the arms of the 
 settler, otherwise the estates limited to them to determine : in this case, if A. 
 the first taker should not comply with the condition or requisition annexed 
 to his estate, before the birth of a son, his estate would determine, and the 
 contingent remainders limited to his sons would either be void, or be pre- 
 served by the limitation to the trustees. The former would be entirely con- 
 trary to the intention of the settler : the latter also would be contrary to his 
 intention, so far, as by the words usually inserted in limitations of this nature, 
 the person refusing to comply with the condition, would be entitled to the 
 rents of the estate during his life; and, if those words were not inserted, 
 
 the
 
 327. a.] Of Discontinuance. L. 3. C. 11. Sect. 597. 
 
 whereof these alienations in the severall cases in this and the 
 next Section doe make a discontinuance, and put him in the 
 reversion or remainder that right had to his action, and tooke 
 
 away 
 
 the rents being undisposed of, would belong to the heir at law of the settler. 
 To prevent this, it is proper to direct, that the trustees for preserving the con- 
 tingent remainders shall, after the cessor or determination of the estate for life, 
 and during the suspense and contingency of the then next expectant remainder 
 stand and be seised of the estate limited to them ; in the first place, to pre- 
 serve the contingent remainders till they come in esse; and in the next place, 
 during the suspense of such remainder, upon trust to pay the rents to those, 
 who would be entitled to the estate, if the persons taking under the contingent 
 remainders then in suspense were dead. It may not, perhaps, be unacceptable 
 to the reader to be presented with the following clauses, in which all the 
 above circumstances seem to be attended to. It must be supposed, that the 
 the estate is previously limited to A. (a feme sole,) for her life, with a power to 
 limit a rent-charge to any person whom she may marry, for his life, with a limi- 
 tation to C. and D. and their heirs during her life, to preserve the contingent 
 remainders ; remainder to her sons successively in tail male ; remainder to her 
 daughters, as tenants in common in tail, with cross remainders in tail between 
 them ; with several remainders over ; then the proviso in question immediately 
 follows : " Provided always, and it is hereby agreed and declared between and 
 " by the parties to these presents, that the person or persons, whom the said 
 u A. shall marry, and every person, who by virtue of the limitations herein- 
 (t before contained, or of this proviso, shall become entitled to the possession, 
 " or to the receipt of the rents and profits of the manors and other heredita- 
 " ments hereby released, or expressed and intended so to be, shall and do, 
 " within the space of one year next after they respectively shall so marry, or 
 " so become entitled to the possession, or to the rents and profits of the said 
 " manors and other hereditaments as aforesaid, take upon him and them re- 
 " spectively, and use in all deeds, letters, accounts, and other writings, to or 
 " in which they respectively shall be party, or parties, or which they respectively 
 u shall sign, the surname of Browne only, and take and use no other sur- 
 "name; and quarter the arms of Browne, with their owne respective family 
 u arms ; and also shall and do, within the space of one year next after they 
 " respectively shall so marry, or so become entitled, as aforesaid, apply, sue 
 " for, and endeavour to obtain an act of parliament, or a proper license from 
 " the crown, or take such other means as may be requisite or proper to enable 
 u or authorize him, or them, respectively, to take and bear the said surname 
 " and arms : and that in case any such person and persons shall refuse or 
 " neglect to take such surname and arms, and to take and use the steps, or 
 " means, which shall be requisite or proper to enable and authorize him or 
 " them so to do, within the said space of one year, — then, if the person so 
 " refusing or neglecting shall be the husband of the said A. the limitation 
 " hereinbefore contained to the use of the said A. shall cease, determine, and 
 " be utterly void ; and any annual sum, which by virtue of the power for that 
 " purpose hereinbefore contained, the said A. shall limit or appoint, to the 
 " use of, or in trust for, or for the benefit of such husband so refusing or 
 " neglecting, and the powers, or remedies, and terms of years which she shall 
 " limit, or create for securing the same, shall cease, determine, and become 
 " utterly void ; and that if the person so refusing or neglecting shall be 
 " any other than the husband of the said A. the limitations hereinbefore cou- 
 " tained of the said manors and other hereditaments, to the use of him or 
 " them so refusing, or neglecting, shall cease, determine, and become utterly 
 " void : and that the said manors, and other hereditaments, shall, in such 
 " cases, immediately thereupon, devolve to the person next beneficially entitled 
 
 in
 
 L. 3. C. 11. Sect. 597. Of Discontinuance. [327. a. 
 
 away his entry, was, for that he was privy in estate, and for the Vide Sect. 592. 
 benefit of the purchaser, and for the safeguard of his warrantie, ^ 7 - 601 - 63 <'> 
 so as every man's right might be preserved, viz. to the demandant ,j£ ' N B 217 b ^ 
 for his ancient right, and to the feoffee for the benefit of his (8. Rep. 3.) 
 
 warrantie, 
 
 in remainder, under the limitations hereinbefore contained, in the same man- 
 ner, as if the person or persons whose estate shall so cease, determine, and 
 become voide, being tenant or tenants for life, was or were dead, or being- 
 tenant or tenants in taile, was or were dead without issue inheritable under 
 such entail; — without prejudice, nevertheless, to any jointure or jointures, 
 portion or portions, annual sum or annual sums of money, lease or leases, 
 or demise or demises, which, previously to such cesser or determination, 
 shall have been granted or demised of, or charged upon, the said manors 
 and other hereditaments hereby released, or expressed and intended so to 
 be, or any part thereof, in pursuance of any of the powers hereinafter con- 
 tained: (except as to any annual sum, and the powers, or remedies, and 
 termes of years for securing the same, which shall have been granted, limited, 
 or appointed, by the said A. in pursuance of the power hereinafter for that 
 purpose contained.) And it is hereby further agreed and declared between, 
 and by, the parties to these presents, that the cessor or determination of the 
 estate of the said A. or of any other tenant for life, by force of the proviso 
 hereinbefore contained, shall not operate to exclude, prevent, or prejudice, 
 any of the contingent remainders hereinbefore limited to her, his, or their 
 spn or sons, daughter or daughters, or any other person or persons: but 
 that the remainder limited to the said C. and D. and their heirs, during the 
 life of the said A. or such other tenant for life, shall, after such cesser or 
 determination, take effect, and continue, for preserving such contingent 
 remainders, and giving them effect as they may arise. And that immedi- 
 ately from and after such cesser or determination of such preceding estate 
 for life, and during the suspense and contingency of such then expectant 
 remainder, the said C. and D. their heirs and assigns, shall receive, pay 
 and apply the rents and profits of the said manors and other hereditaments, 
 which would belong to such tenant for life, if such cesser or determination 
 had not taken place, unto the person or persons, for the intents and pur- 
 poses, and in the manner, to, for, and in which, the same rents and profits 
 would be, or would have been payable and applicable respectively, under 
 and by virtue of the limitations and provisoes hereinfore contained; in 
 case such tenant for life was actually dead; so that, immediately from and 
 after such cesser or determination, the issue of the said A. or of such other 
 tenant for life, entitled for the time being, under the limitations aforesaid, to 
 the said manors and other hereditaments, in remainder immediately expectant 
 on the decease of the said A., or of such other tenant for life, may be 
 entitled to the rents and profits of the said manor and other hereditaments, 
 for his and their own proper use and benefit respectively, during the life of 
 the parent, as if such parent were dead : and that in case no such issue 
 shall be in existence, then, during the vacancy or contingency of such issue, 
 ( the person next entitled for the time being, under the limitations aforesaid, 
 1 to a vested remainder in the said manors and other hereditaments, expectant 
 ' on the decease of the said A. or of such other tenant for life, and failure 
 1 of such issue of her, or his body, shall and may be entitled to the said rents 
 ' and profits for his and their proper use and benefits respectfully, but without 
 ( any exclusion of, or prejudice to the estate, interest, or right of any such 
 ' issue, afterwards coming into existence, but only from the time of the birth 
 ( of such issue respectively." 
 
 On the doctrine particularly applicable to the clauses, forming the subject 
 of this annotation, the cases of Hopkins v. Hopkins, For. 44. 1 Ves. sen. 268, 
 
 1 Atkyns,
 
 327. a. 327. b.J Of Discontinuance. L. 3. C. 11. Sect, 597- 
 
 warrantee, which was founded upon great reason and equitie; 
 which benefit of the warrantie should be prevented and avoided 
 if the entrie of him that right had were lawfull, and thereby also 
 the danger that many times happeneth by taking of possessions 
 was warily prevented by law. But then it may be demanded, see- 
 ing that there was no reversion or remainder expectant upon any 
 estate taile at the common law, nor the issue in taile had any 
 remedy by the common law, if the tenant in taile had aliened, 
 then by what law is the alienation of tenant in taile a discon- 
 
 30 E. 1. 
 Formedon, 65. 
 19 E. 2. 
 Formedon, 61. 
 IS E. 3. 46. 
 12 E. 4. 3. 
 
 (Cro. Car. 405.) tinuance at this day to the issue in taile, or to him in 
 • reversion or remainder? Whereunto it is thus OO^an- 
 
 632.) 
 (Post 356. a.) 
 (Sid. 83.) 
 (Ant. 301.) 
 
 327. 
 
 b. 
 
 ] 
 
 an- I" 
 
 swered, that it is provided by the statute of W. 2. ca. 1. [ 
 Be donis conditionalibus, quod non habeant illi quibus 
 tenementum sic fuerit datum potestatem alienandi, &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 manners. For some alienations of 
 tenant in taile, they have adjudged voydable by the issue in 
 taile by action onl}'; some at the election of the issue in taile to 
 avoid it by action, entry, or claime : some are merely void 
 by the death of the tenant in taile : which several constructions 
 were made upon the selfe-same words aforesaid. 
 
 As for example, if tenant in taile make a feoffement in fee, 
 this drives the issue in taile to his action, which is called in law 
 a Discontinuance; and this construction was made for that at 
 the common law the feoffement of an abbot or bishop, or of the 
 husband seised in the right of his wife, did worke a disconti- 
 nuance, and did drive the successor and the wife to their action, 
 and foreclosed them of their entrie; and as the entrie of the 
 issue was taken away, so consequently of them in reversion and 
 
 18 E. 3. 12. 
 
 19 E. 3. 
 Bre. 468. 
 24 E. 3. 23. 
 36 Ass. S. 
 22 E. 2. 
 Discon. 50. 
 5 E. 4. 3. 
 4 H. 7. 17. 
 33 E. 3. 
 
 F'.rruedon,47. & 
 13 H. 7. PI. Com. 426. Smith & Stapleton's case. (3 Rep. S5.) 
 
 remainder. 
 
 1 Atkyns, 581. Doe d. Heneage v. Heneage, 4 Term Rep. 13. Carr v. lord 
 Erroll, 6 East, 58. 14 Ves. 478. And Stanley v. Stanley, 16 Ves. 491, may 
 be usefully consulted. 
 
 II. 3. The injunction of taking a j)articidar name, and using particular 
 arms, is sometimes improperly used ; — As, where lands are settled to the use 
 of B. and the heirs of his body, he and they taking, using, and bearing, 
 and continuing to take, use, and bear the name and arms of A.; or to the 
 use of B. and his heirs, he and they taking, using, and bearing, and con- 
 tinuing to take, use, and bear the name and arms of A. — But each of these 
 modes of injunction is very objectionable. The first is nugatory; as B. by 
 suffering a common recovery, may acquire the fee simple of the estate, dis- 
 charged from the condition. The second creates a fee simple conditional, to 
 endure no longer than during such time as B. and his heirs comply with the 
 condition, and therefore virtually prevents the alienation of the estate. The 
 introduction of the word "assigns" into the limitations, does not practically 
 remove this objection. If the lands held under the limitation last mentioned, 
 vest in the heir at law of the settler, the condition is determined, as there is 
 no one to take advantage of it. The condition may be also released by such 
 heir at law to the owner of the conditional estate. If, after the condition is 
 broken, the owner of the land levies a fine with proclamations, it may be a 
 bar after the expiration of the five years, to the right of entry of the heir. 
 Mayor of London r. Alford, Cro. Car. 575. 1 Jones, 452. Cromwell's case. 
 
 2 "R^p. 69. Thomasin r. M a .-k worth. Carter, 75.— [Note 283.]
 
 L. 3. C. 11. Sect. 597. Of Discontinuance. [327. b. 
 
 remainder. Also if an abbot, bishop, or husband, in the right 
 of his wife, seised of a rent, or of any other inheritance that lieth 
 in grant, had aliened, it was in the election of the successor, or 
 wife after the death of her husband, to claiine the rent, &c. or 
 to bring an action, for that alienation did not worke a discon- 
 tinuance; and so it is by construction in case of tenant in taile. 
 Lastly, if the abbot, bishop, or husband, had granted a rent 
 newly created out of the land, &c. to another in fee, this had 
 utterly ceased by their death ; and so it is also by construction in 
 case of tenant in taile. So as these words (hwii hubent potesfatem (1 Leo. 66.) 
 nlienandi) do worke these effects, viz. as to lands, that a feoff- 
 ment barreth not the issue, &c. of his action but worketh a dis- (Plowd. 437.) 
 continuance to barre him of his entrie ; as to rents or any thing 
 in esse, that lie in grant, that the said words doe take away his 
 power to make any discontinuance : as to rents, &c. newly 
 created, that they take away his power to make them to continue 
 longer than during his life. 
 
 But there is a diversitie betweene an alienation making a dis- 
 continuance of an estate which taketh away an entrie, and an 
 alienation working, divesting or displacing of estates which 
 taketh away no entry. As if there be tenant for life, the re- 
 mainder to A. in taile, the remainder to B. in fee, if tenant for 
 life doth alien in fee, this doth divest and displace the remainders, 
 but,worketh no discontinuance. And therein it is to be observed, 
 that to every discontinuance there is necessary a divesting, or 
 displacing of the estate and turning the same to a right ; for if 
 it be not turned to a right, they that have the estate cannot be 
 driven to an action. And that is the reason that such inherit- 
 ances as lie in grant cannot by grant be discontinued, because 
 such a grant divesteth no estate, but passeth only that which he 
 may lawfully grant, and so the estate itselfe doth descend, revert, 
 or remaine as shall be said hereafter in this Chapter. 
 
 A. maketh a gift in taile to B. who maketh a gift in taile to C. 
 0. maketh a feoffment in fee and dieth without issue, B. hath 
 issue and dieth, the issue of B. shall enter ; for albeit the feoff- 
 ment of C. did discontinue the reversion of the fee simple which 
 B. hath gained upon the estate taile made to C. yet could it not (10 Rep. 95.) 
 discontinue the right of intaile which B. had, which was discon- 
 tinued before ; and therefore when G. died without issue, then 
 did the discontinuance of the estate taile of B. which passed by 
 his liverie, cease, and consequently the entrie of the issue of B. 
 lawfull ; which case may open the reason of many other cases. 
 
 Also note, that a discontinuance made by the husband did take 
 away the entrie only of the wife and her heires by the common 
 law, and not of any other which 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 heires, and 
 the husband had made a feoffment in fee, this had beene a dis- 
 continuance of the one moitie, and a disseisin of the other 
 moitie : if the husband had died, and then the wife had died, the 
 survivor should have entred into the whole, for hee claimed not 
 under the discontinuance, but by title paramount from the first 
 feoffor ; and seeing the right by law doth survive, the law doth 
 o-ive him a remedy to take advantage thereof by entry, for other 
 remedie for that moiety he could not have. 
 
 " In fee, or in fee taile." And so it is of an estate for life. 
 Vol. II.— 36 Sect.
 
 328. a.] Of Discontinuance. C. 11. S. 598-99, 600-1. 
 
 Sect. 598. 
 
 ALSO if tenant in taile be disseised, and he release by his 
 
 
 deed to the disseisour and to his heirs all the right ("328. "I 
 which he hath in the same tenements, this is no discontinuance, L a - J 
 for that nothing of the right passeth to the disseisor, but for 
 terme of the life of tenant in tail which made the release, $c. 
 
 (2 Rep. 31.) Sect. 599. 
 
 J) UT by the feoffment of tenant in taile, fee simple passeth by the same 
 feoffment by force of the liverie of seisin, §c. 
 
 Sect. 600. 
 
 T) UT by force of a release nothing shall passe but the right zvhich he 
 
 may lawfully and rightfully release, without hurt or dammage to 
 
 other persons who shall have right therein after his decease, §c. So there 
 
 is great diversitie betweene a feoffment of tenant in taile, and a release 
 
 made by tenant in taile. 
 
 0' 
 
 |UR author having put examples of estates passing by trans- 
 mutation of an estate and possession, doth in this and the 
 two Sections following put a diversitie between a feoffment and 
 a release or confirmation of a bare right ; for it is a rule in law, 
 that the disseisee or any other that hath a right only by his 
 9 E. 4. 18. release or confirmation, cannot make any discontinuance, because 
 
 ] 2 E - 4 - , n - nothing can passe thereby but that which may lawfully passe. 
 
 21 H. 6.^53. But otherwise it is of a feoffment in respect of the liverie of 
 (Post. 329, 330.) seisin, for that it is the most solemne and common assurance in 
 the country, and to be maintained for the common quiet of the 
 realine; and by the feoffment the freehold (which is so much 
 esteemed in law) doth passe by open liverie to the feoffee, and 
 by the release a bare right. 
 
 Sect. 601. 
 
 T>UT it is said, that if the tenant in taile in this case release to his 
 
 disseisor, and bind him and his heires to warrantie, * and dieth, 
 
 and this ivarrantie descend to (A) his issue, this is a discontinuance by 
 
 reason of the warrantie (f ceo est doncontinuance per cause de le gar- 
 
 rantie)^. 
 
 THE 
 
 * dr. added in L. and M. and f dotiqucs added in L. and 31. and Role 
 Boh. % <fcc. added in L. and M. and Roh. 
 
 (A) Should it not be, " upon his issue," instead of, "to bis issue" ? See Mr. Hitso's 
 Intr.p. 113, where a distinction is taken between a warranty which descends as abeneficium 
 tu the heir, and a warranty which descends as an onus upon the heir.
 
 L. 3. C. 11. S. 602-3. Of Discontinuance. [328. b. 329. a. 
 
 r j HE reason why the addition of the warrantie in this case 3 H. 4. 9. 
 -» maketh a discontinuance, is that which hath been said, viz. 22 R- 2. 
 
 If the issue in taile should enter, the warrantie (which ^EM ll 
 
 t328.~| is so much favoured in law) O^T" should be destroyed ; 21 H. 7.9." 
 b. | and therefore to the end that if assets in fee simple 43 E - 3. 8. 
 
 doe decend, he to whom the release is made, may ... T ;. 9A 
 plead the same, and barre the demandant: by which meanes all Vi. Sect. 596. 
 rights and advantages are saved. And that [ may note it once 602. 637. 658. 
 
 for all, an [it is said) with Littleton is ah yood as a concemim in 1 v;, L , 
 . . * ' ° (Post. 632, 633.) 
 
 a booke case. 
 
 Sect. 602. 
 
 B 
 
 UT if a man hath issue a sonne by his wife, and his wife dieth, 
 and after he taketh another wife, and tenements are given to him 
 and to his second wife, and to the heires of their two bodies engendred, 
 and they have issue another sonne, and the second wife dieth, and after 
 the tenant in taile is disseised, and hee release to the disseisor all his 
 right, §c. and bind him and his heires to ivarrantie, $c. and die, this 
 is, no discontinuance to the issue in taile by the second wife, but he may 
 well enter, § for that the warranty descendeth to (B) his elder brother 
 iv hie h his father had by his first ivife, || §c. 
 
 SeCt. 603. (8 Rep. 86.) 
 
 TN the same mariner is it, where the lands are descendible to the 
 
 youngest sonne after the custome of Burrough- English, which are 
 
 entayled, fie. and the tenant in tayle hath two sonnes, and is disseised, 
 
 and he releaseth to his disseisour all his right with warrantie, §c. and 
 
 dieth, the younger sonne may enter upon the disseisor, notwithstanding 
 
 the warranty, for that the warrantie descendeth to (C) the 
 
 t 3 29.1 elder son : for alwayes the $CF° warrantie shall descend to him 
 a. | who is heire by the common law. 
 
 BY these two examples in this and the Section next following, 
 it appeareth that a warrantie being added to a release or con- 
 firmation, and descending upon him that right hath to the lands, 
 maketh a discontinuance ; otherwise it is out of the reason of the 
 law, and worketh no discontinuance, if the warrantie descendeth 
 upon another. 
 
 " With warrantie, &c." Here is implied that he doth binde 
 him and his heires to warrant to the releasee and his heires. 
 
 "Alwayes 
 § &c. added in L. and M. and Roh. || &c. not in L. and M. or Roh. 
 
 (B) Vid. note A, on Sect. 601. (C) Vid note A. on Sect. 601.
 
 329. a. 329. b.] Of Discontinuance. L. 3. C. 11. S.604-5-6. 
 
 13 jj 4 # " Alwayes the warrantie shall descend to him who is heire hg the 
 
 (Jarrantie, 94. common law." This is a maxime of the common law, and hereof 
 a! R " 2 - inn 'i more shall be said in the Chapter of Warrantie, Sectione 718. 
 (Post! n 376'.a.) "35, 736, 737. so as it is not the warrantie only that maketh a 
 
 discontinuance, but the warrantie and the discent upon him that 
 
 right hath together. 
 
 Sect, 604. 
 
 A LSO, if an abbot be disseised, and hee releaseth to the disseisor with 
 
 warrantie, this is no discontinuance to his successor, because nothing 
 
 passeth by this release but the right which hee hath during the time 
 
 that he is abbot, and the ivarrantie iq expired by his privation, or by his 
 
 death. 
 
 (3 Rep. 73.) H'HE reason hereof yeelded by Littleton is, for that the war- 
 i rantie is expired by his privation or death. 
 
 " By his privation cr by his death." Note, that privation is 
 
 here resembled to death, and so is translation also. Wherein this 
 
 diversitie is worthy of observation, that when a bishop, &c. make 
 
 an estate, lease, grant of a rent-charge, warranty, or any other act 
 
 which may tend to the diminution of the revenues of the bishop- 
 
 ricke, &c. which should maintaine the successor, there the priva- 
 
 Vide29 E. 3. 16. tion or translation of the bishop, &c. is all one with his death. 
 
 (Ant. 300. b.) But where the bishop is patron and ordinary, and confirmeth a 
 
 (Dyer, 356.) lease made by the parson without the deane and chapter, and after 
 
 the parson dieth, and the bishop collateth another, and thea is 
 
 translated, yet his confirmation remaineth good ; for the revenues 
 
 that are to maintaine the successor are not thereby diminished. 
 
 And the likediversitie doth hold in case of resignation, notwith- 
 
 [i»] 29 E. 3. 16. standing [?/t]the authoritie to the contrary. 
 fit. CJarrant. 99. 
 
 Sect. 605. 
 
 ALSO, if a man seised in the right of his ivife be disseised, and he 
 
 releaseth, 8?c. with warrantie, this is no discontinuance to the wife, 
 
 if shee surviveth her husband, but that shee may enter, ^c. Causa patet. 
 
 rPHIS is evident, unlesse the wife be heire to the husband (as 
 -1- by law she may be), and then it is a discontinuance for the 
 cause aforesaid. 
 
 (1 SauBd. 261.) |0- S ect> (306. T 329.1 
 
 A LSO, if a tenant in tayle of certaine land letteth the same land to 
 
 another for terme of year es, by force whereof the lessee hath thereof 
 
 ^possession, in whose possession the tenant in tayle by his deed releaseth all 
 
 the
 
 L. 3. C. 11. S. 607-8-9. Of Discontinuance. [329. b. 330. a. 
 
 the rigid that he hath in the same land, to have and to hold to the lessee 
 and to his heir es for ever this is no discontinuance, but after the decease 
 of the tenant in tayle, his issue may well enter, because by such release 
 nothing passeth but for terme of the life of the tenant in tayle (pur ceo 
 que per tiel release riens passa forsque pur terme de * la vie de la ten- 
 ant en le taile). 
 
 " 7? E 'CAUSE by such release nothing passeth." Here is one 
 of the maximes of the common law rehearsed by our 
 author, whereof he doth put divers examples hereafter. 
 
 oect. 607. (3 Rep- 85- b j 
 
 TN the same manner it is, if the tenant in tayle conjirme the estate of 
 the lessee for yeares, to have and to hold to him and to his heires, 
 this is no discontinuance, for that nothing passeth by such confirmation 
 but the estate which the tenant in tayle hath for terme of his life, $c. 
 
 " ]\TO THING passeth by such confirmation." Here is another (Ant. 328.) 
 
 •of the maximes of the common law rehearsed by our author, 
 whereof he putteth examples hereafter. 
 
 More shall be said hereof in the next Section following. 
 
 Sect. 608. 
 
 A LSO, if tenant in taile after such lease grant the reversion 
 
 t330."l iri f ee ty his deed to another, and f$Sg^" willeth that after 
 a. | the terme ended, that the same land shall remaine to the grantee 
 and his heires for ever, and the tenant for yeares attorne, 
 this is no discontinuance. For such things which passe in such cases 
 of tenant in taile only by ivay af grant, or by confirmation, or by such 
 release, nothing can passe to make an estate to him to whom such grant, 
 or confirmation, or release, is made, but that which the tenant in taile 
 may rightfully make, and this is but for terme of his life (f et ceo n'est 
 forsque pur terme de sa vie), $c. 
 
 beCt. 609. (Ant. 251. b.) 
 
 TpOR if I lett land to a man for terme of his life, Jr. and the tenant 
 
 for life letteth the same land to another for terme of years, $c. and 
 
 after my tenant for life grant the reversion to another in fee, and the 
 
 tenant 
 
 * la — son) L. and M. and Roh. f ct ceo n'est — &c. est, L. and M. 
 
 and Roh.
 
 330. a.] Of Discontinuance. L. 3. C. 11. Sect. 609. 
 
 tenant for yeares attorne, in this case the grantee hath in the freehold 
 but an estate for terme of the life of his grantor (en cest cas le grantee 
 fn'ad en le franktenement forsque % estate pur terme de vie son 
 grauntor), §c. and I which am in the reversion of the fee simple may 
 not enter by force of this grant of the reversion made by my tenant 
 for life, for that by such grant my reversion is not discontinued, but 
 alwayes remaines unto me, as it was before, notwithstanding such grant 
 of the reversion made to the grantee, to him and to his heires, Sfc. be- 
 cause nothing passed by force of such grant, but the estate ivliich the 
 grantor hath, §e. (1). 
 
 Sect. 
 
 f n'ad — ads L. and M. and Roh. J estate not in L. and M. or Roh. 
 
 (1) VII. As to the modes of conveyance ivhich work a discontinuance, it may 
 be laid down as a general rule, that no alienation which is not made by livery 
 of seisin, or by some mode of assurance equivalent to it, can work a discon- 
 tinuance. It has been observed before, that the usual mode of conveyance at 
 the common law, was a feoffment ; that feoffments were formerly made without 
 writing; and that, when writing came into use, the transmutation of the pro- 
 perty was effected, not by the writing, but by the livery which it authenticated. 
 A fine is often defined to be a feoffment upon record, the conusor's acknow- 
 ledgment upon record of the right of the conusee to the lands being considered 
 tantamount to actual livery. The fines, therefore, which are said to be exe- 
 cuted in contradistinction from those which are said to be executory, give the 
 conusee the immediate possession of the land; and those which are called exe- 
 cutory enable him to recover it immediately, by an habere facias seisinam. — A 
 common recovery is the judgment of a court of record, that the demandant 
 shall recover against the tenant; upon which he may immediately sue out the 
 habere facias seisinam. Considering, therefore, fines and recoveries only as 
 common assurances, the acknowledgment upon record in the former, and the 
 judgment to recover in the latter, are supposed to equipoise the notoriety of 
 livery. Hence both a fine and a common recovery are of force to work a dis- 
 continuance. With respect to releases, — where the person whose estate is dis- 
 continued releases to the alienee, his release must be considered as operating 
 per mitter le droit. Now it has been observed in a former place, that releases 
 by persons disseised, may be made either to the disseisor, his feoffee, or his 
 heir: and that in all these cases, the possession is in the releasee, the right in 
 the releasor, and that the union of the right to the possession completes the 
 title of the releasee, the notoriety of the disseisin countervailing the livery. 
 But this can only be understood of those cases where the releasor has the fee 
 simple. In both cases the possession of the disseisor is equally notorious; 
 but where the releasor, as in the instance brought by Littleton, has only a 
 partial estate in the lands, he has not in him a right to the fee simple of 
 the land, and cannot, of course, transfer, or cede it to another. Hence, 
 though the release of a disseisee, who before the disseisin was seised in fee- 
 simple, completes the title of the disseisor; the release of a disseisee, who 
 before the disseisin had only an estate tail, does not complete his title, and 
 therefore does not amount to a discontinuance. — With respect to conveyances 
 which operate by the statute of uses; it is clear that there cannot be a discon- 
 tinuance, where the possession remains with the party; for, in those cases, 
 the possession is not disturbed, nor can there be any livery of seisin, or any- 
 thing tantamount to it ; but it is equally clear, that if the uses are raised 
 by a transmutation of the possession, that transmutation may produce a 
 
 discontinuance.
 
 L. 3. C. 11. Sect. 610-11. Of Discontinuance. [330. b. 
 
 r330."i s@~Sect. 610. (Ante 32s, 329.) 
 
 TN the same manner is it, if tenant for terme of life by his deed con- 
 
 firme the estate of his lessee for yeares, to have and to hold to him 
 
 and his heires, or release to his lessee and his heires, yet the lessee for 
 
 yeares hath an estate but for terme of the life of the tenant for life, $e. 
 
 u T^OR such things which passe in such cases of tenant in taile, 
 &c." Here is rehearsed another ancient niaxirae of the 
 common law touching grants; and hereby it appeareth that a 
 feoffment in fee (albeit it be by parol) is of a greater operation 
 and estimation in law, than a grant of a reversion by deed, 
 though it be inrolled, and attornement of the lessee for yeares 
 of (A) a release, or a confirmation by deed, for the reasons afore- 
 said. And this is manifested by the example, which our author 
 here in these three Sections putteth. 
 
 Sect. 611. 
 
 J) UT otherwise it is ivhen tenant for life maketh a feoffment in fee, 
 for by such a feoffment the fee simple passeth. For tenant for 
 yeares may make a feoffment in fee, and by his feoffment the fee simple 
 shall passe, and yet he had at the time of the feoffment made but an 
 estate for terme of yeares, §c. (1.) 
 
 "BUT 
 
 (A) Here "of" seems printed by mistake instead of" to" See Mr. Ritso's Intr. p. 121. 
 
 discontinuance. This, in fact, is only repeating what has been observed 
 before ; for it is not the creation or limitation of the use, but the operation 
 upon the possession, that produces the discontinuance. — Upon these grounds, 
 therefore, a bargain and sale, a covenant to stand seised, and a lease and 
 release, cannot work a discontinuance ; but a feoffment executed, a fine levied, 
 or a recovery suffered to uses, have that power. See page 272. a note 1. VI. — 
 But, if a warranty is annexed to a bargain and sale, covenant to stand seised, 
 or release, it may produce a discontinuance. This will be better understood 
 after perusing our author's chapter on Warranty. At present it is sufficient to 
 observe, from lord chief-baron Gilbert's Ten. 120, that a release with warranty 
 works a discontinuance ; for at common law the warranty was a voluntary 
 covenant of the force of a feudal contract, repelling the warrantor from claim- 
 ing the land, and obliging him to defend it ; and though the statute takes 
 away the force of such covenants, that they shall not bar the issue, yet the 
 issue must claim in the method the statute prescribes, viz. by action; and 
 therefore it works a discontinuance, since the issue, in such case, cannot re- 
 continue but by action only. — [Note 284.] 
 
 (1) What possession is required in the feoffo- to make his feoffment an actual 
 
 disseisin
 
 330. b.] Of Discontinuance. L. 3. C. 11. Sect. 611. 
 
 (Post 367. a.) " Ti^T an estate f or terme of year es, &c." Here it ia implied, 
 
 that albeit the feoffment made by lessee for yeares be a 
 
 feoffment between the feoffor and feoffee, and that by this 
 
 feoffment 
 
 disseisin of the freehold, not merely a disseisin which is such at the election of 
 the party, has been a subject of much discussion ; and it is therefore sup- 
 posed, that the following attempt at a full investigation of the very abstruse, 
 but not useless, learning upon the subject, will not be unacceptable to the 
 reader. By the doctrine of the feudal law, no person who had an estate of 
 less duration and extent than for his own life, or for the life of another man, 
 was considered to be a freeholder; and none but a freeholder was considered 
 to have the possession of the land. It is true, that estates were sometimes held 
 for terms of years. In that case, the possession of the termor was considered 
 to be the possession of the freeholder; — but still the termor held the possession, 
 though he held it for the freeholder ; and the freeholder, by trusting the termor 
 with it, exposed himself to lose it, by the termor's negligence or treachery. 
 If the termor left the possession vacant ; if he permitted himself to be disseised 
 of it ; if he undertook to alien it either by act in pais, or by matter of record ; 
 if he claimed the fee ; or if he affirmed it to be in a stranger ; — in all these 
 cases the freeholder exposed himself to the loss of the possession, as much as 
 if they were his own acts. Thus the termor held the possession, but he was 
 said to hold it nomine alieno, in contradistinction to the freeholder himself, 
 who was said to hold it nomine proprio. Hence Britton expressly defines an 
 estate of freehold to be " the possession of the soil by the freeholder •" and 
 the author of the Doctor and Student says, " that the possession of the land 
 " is called in the law of England the franktenement or freehold." Brit. c. 32. 
 Doct. and Stud. dial. 2. c. 22. So nearly synonymous in those days was the 
 possession to the freehold. In this manner, the possession of the termor 
 differed from that of a mere bailiff, who had no possession. The same prin- 
 ciples obtained with respect to the transfer of the freehold. Nothing further 
 was necessary than a delivery of the possession, or, as it is called by our law- 
 writers, livery of seisin. The freehold could be transferred by no other means. 
 But here a difference is to be observed with respect to the effect of the livery 
 of a termor for years (such as was mentioned before), and the livery of a mere 
 bailiff. On account of the solemnity, upon which the entry of the termor into 
 the lands was grounded ; the connection between him and the reversioner, and 
 his actually holding the possession of the land (though he held it for the free- 
 holder), the livery of the former was a transfer of the possession ; but the 
 livery of the latter was absolutely without effect. In process of time, involun- 
 tary alienation, or alienation arising from attachment for debt, was admitted. 
 This produced the estates of tenants by elegit, by statute merchant, and statute- 
 staple. Long leases for years also came into use, and more settled and 
 accurate notions were had of tenancies by sufferance and at will. All these 
 were considered to be in the same situation as the termor for years. Their 
 possession was held to be the possession of the immediate freeholder : but as 
 they had, or rather held, the possession, and were in by the act of the free- 
 holder in some cases, and by his privity or forbearance in all, they were con- 
 sidered to be in as of the seisin of the fee. It sometimes happened that per- 
 sons had the possession who had not the right; such were tenants by disseisin, 
 deforcement, abatement, or intrusion. Still, as they had the possession, they 
 might, by livery of it, transfer it to another. Thus, by the old feudal law, 
 on the one hand, the freehold could not be transferred but by livery of 
 seisin ; on the other, livery of seisin could not be made by any person who 
 had the possession, without transferring the freehold. This transfer of the fee 
 was called a feoffment. No writing was necessary for this purpose; and 
 when charters came into use, the transfer of the fee was supposed to be 
 
 produced
 
 L. 3. C. 11. Sect. 611. Of Discontinuance. [330. b. 
 
 feoffment the fee simple passeth by force of the livery, yet is it a 
 disseisin to the lessor. And here it is worthy to be observed, 
 
 that 
 
 produced (as has been already observed), not by the charter, but by the livery 
 which it authenticated. But the material variation with respect to the form 
 of transferring property by livery was, that originally it was usual to make 
 the feoffment on the land before the peers of the court, who subscribed the 
 charter of feoffment with their names, and the entry of the feoffee upon the 
 land was afterwards recorded in the lord's court: but in progress of time, the 
 feoffment was allowed to be good, though it were attested by strangers only ; 
 and the recording of the feoffee's entry was dispensed with. This, undoubt- 
 edly, lessened, very considerably, the solemnity and notoriety of feoffments ; 
 and we have an opinion of the highest authority, delivered with much consi- 
 deration and infinite ability, in a case of the highest moment, that it had a very 
 great effect on their operation and efficacy, with respect to the circumstance 
 before us. — The case alluded to is that of Taylor on the demise of Atkyns v. 
 Horde and others, 1 Burr. 60. 5 Bro. Par. Ca. 247. Cow. 689. — As a minute 
 and accurate statement and examination of the doctrines laid down in that 
 case will serve greatly to illustrate the point now under consideration, they 
 shall be presented here to the reader. The case, so far as it relates to the 
 points in question, was, that sir Robert Atkyns was tenant for life, remainder 
 to dame Ann Atkyns, his wife, for life; remainder to sir Robert Atkyns (his 
 eldest son by a former marriage) in tail male ; remainder to Mr. John Tracy, 
 and his younger brothers successively, in tail male ; remainder to Mr. Richard 
 Atkyns and his heirs. Upon the death of sir Robert the father, dame Ann 
 his widow entered upon the lands. In Trinity term 1710 an ejectment was 
 brought in the court of common pleas, against her ladyship, by John Phillips, 
 upon the several demises of sir Robert Atkyns the son, and of Joseph Walker, 
 to whom several terms of years attendant upon the inheritance had been 
 assigned, in trust for sir Robert the son. A verdict was found for the plaintiff, 
 and he recovered terminum suum prcedictum, and had an habere facias posses- 
 sionem. It is to be observed, that no account of the case states the grounds 
 upon which this verdict was found for the plaintiff. Most probably it was 
 merely in consequence of the term of years which had been assigned to him. 
 On the 1st of January 1710, John Phillips, the plaintiff, surrendered the terms 
 to sir Robert the son; and on the 17th of the same month sir Robert made a 
 feoffment of the estates in question, with livery of seisin, to James Earle and 
 his heirs. In the deed of feoffment it was declared, that the feoffment was 
 made that James Earle might become perfect tenant of the freehold, in order 
 for the suffering of a common recovery ; which recovery, it was thereby de- 
 clared, should enure to the use of sir" Robert Atkyns the son and his heirs. 
 The recovery was suffered in Hilary term 1710. Sir Robert died on the 9th of 
 November 1711, without issue, and intestate. His nephew, Mr. Robert Atkyns, 
 was his heir at law. In Hilary term 1711 an ejectment was brought against 
 him by lady Atkyns; and in Easter term 1712 a general verdict was given for 
 her. She died in the month of October following. Upon her death, Mr. Robert 
 Atkyns entered, and continued in possession of the estate till the 16th of 
 March 1753, when he died, leaving issue only two daughters; Ann, the wife 
 of Mr. Horde; and Elizabeth, the wife of Mr. Chamberlayne. The death of 
 sir Robert Atkyns the son without issue necessarily brought into question the 
 validity of the recovery suffered by him; for if it were good, it destroyed his 
 estate tail, and all the remainders expectant upon it; and Mr. Robert Atkyns, 
 his nephew, and after his decease Mrs. Horde and Mrs. Chamberlayne, his only 
 children, became entitled to the estates as his heirs at law. But if it were not 
 a good recovery, then, upon the decease of dame Ann Atkyns, Mr. John 
 Tracy became seised in tail of the lands devised by the testator's will, with the 
 
 several
 
 330. b.] Of Discontinuance. L. 3. C. 11. Sect. 611. 
 
 that our author saith, that tenant for terme of yeares may make 
 a feoffment ; whereupon it followeth, that the feoffor may there- 
 unto 
 
 several remainders over. — In the year 1752, an ejectment was brought against 
 Mr. Robert Atkyns, and Mr. and Mrs. Horde, and Mr. and Mrs. Chamberlayne, 
 by Cyprian Taylor, on the demise of Mr. John Tracy, who, in consequence of 
 a direction contained in sir Robert Atkyns the father's will, had taken the 
 name of Atkyns. The jury found a special verdict. The case was argued 
 four times before the judges of the court of king's bench. A point arose, 
 whether, supposing the recovery to be bad, the plaintiff's ejectment, not having 
 been brought within twenty-one years after his title accrued, was not barred 
 by the statute of limitations. The court was of opinion it was barred by that 
 statute. The case afterwards went to the house of lords : all the judges were 
 ordered to attend : their opinion was asked upon the point arising from the 
 statute of limitations; it agreed with that of the judges of the court of king's 
 bench : the judgment of the court was therefore affirmed. Afterwards, Mr. John 
 Tracy Atkyns and all his brothers died without issue; and then, supposing the 
 recovery to be void, Mr. Edward Kinsey Atkyns, the then heir at law of 
 Mr. Richard Atkyns, became entitled to the estate. He claimed under a new 
 title, and was not therefore bound by the statute of limitations. An ejectment 
 was delivered by him in Hilary term 1777. This brought the question of the 
 validity of the recovery once more before the court. It is to be observed, that 
 though, when the case came before the court upon the ejectment brought by 
 Mr. John Tracy Atkyns, the matter went off on the point arising from the 
 statute of limitations, yet the questions arising upon the validity of the 
 recovery were most elaborately argued by the bar : and lord chief-justice 
 Mansfield, when he gave the judgment of the court, entered into a very minute 
 discussion of them, and gave his opinion very fully and decisively upon them 
 all : so that what was said upon this subject, when the case came before the 
 court in 1777, was, in general, only a repetition of what was said upon it on 
 the former occasion. As lord Mansfield's speech in the report given of it by 
 sir James Burrow, contains the most methodical and comprehensive state of 
 the arguments and opinions intended to be discussed in this place, it is here 
 particularly referred to. — His lordship stated the question to be, Whether 
 Earle was a good tenant of the freehold ? He observed, that to prove he 
 was a good tenant of the freehold, it was necessary to show, either that 
 sir Robert Atkyns, by the entry under the judgment in ejectment in 1710, 
 acquired the freehold by disseisin; or that, supposing he did not acquire the 
 freehold, he acquired the possession, and by his feoffment vested an estate of 
 freehold in Earle. His lordship denied both of these positions. As to the 
 first, he laid it down, that the disseisin to be effectual in this case, must be an 
 actual disseisin, not a disseisin which was merely such at the election of the 
 party. No case, therefore, or other authority from the books respecting 
 disseisins, was applicable to the present case, if it did not relate to an actual 
 disseisin. He then proceeded to explain the nature of an actual disseisin. 
 He defined seisin to be a technical term, to denote the completion of that in- 
 vestiture, by which the tenant was admitted into the tenure : disseisin, therefore, 
 must mean the turning the tenant out of his tenure, and usurping his place 
 and feudal relation. He observed, that originally no tenant could alien without 
 license of the lord ; and that, when the lord consented to the alienation, the 
 only form of conveyance was by feoffment, before the peers of the court, with 
 the lord's concurrence, and with the ceremonies of homage and fealty. That 
 a disseisin differed from a dispossession. It was something more. The effect 
 of it was to make the disseisor tenant to every demandant, and freeholder de 
 facto, in spite of the true owner. That, on the one hand, the lord must know 
 upon whom to call as his tenant; on the other hand, the stranger must know 
 against whom to bring his praecipe. A dispossession, therefore, did not amount 
 
 to
 
 L. 3. C. 11. Sect. 611. Of Discontinuance. [330. b. 
 
 unto annex a warrantie, whereupon the feoffee may vouch him; 
 but of this you shall reade more in the Chapter of Warranties, 
 Sect. 698. 
 
 Sect. 
 
 to a disseisin, if it were not forcible, that is, against the will of the real owner; 
 and if it were not such as, both with respect to the lord and to strangers, in- 
 troduced the dispossessor into the tenure. These, he said, were the conse- 
 quences of an actual disseisin. A disseisin by election was attended by none 
 of these circumstances. In that case, the disseisor was neither tenant to the 
 lord nor the stranger ; — he was merely a disseisor at the will of the disseisee, 
 who might, if he thought the process of assise a more eligible remedy than any 
 of those to which he might have recourse, without disclaiming his seisin, resort 
 do it, and, for that purpose, choose to be considered as disseised. From this 
 description of the nature and consequences of the two different kinds of seisin, 
 his lordship inferred, that sir Robert's entry was not an actual disseisin. Sup- 
 posing it a real proceeding, a termor might recover against the disseisor, or 
 against the feoffee of the lessor ; the possession he recovered enured to himself, 
 or for his own benefit during his term : — subject to that, it enured to or for 
 the benefit of the persons who had the right to the freehold ; that is, to the 
 lessor, if he continued the owner of the fee ; to his alienee, if he had enfeoffed ; 
 to the heir or feoffee of his disseisor, if he had been disseised and his entry 
 taken away. — Then, suppose the proceeding to be merely fictitious, the judg- 
 ment only entitled the party to recover the possession, without prejudice to 
 the right. Now, by the special verdict, it appears he had no right to the pos- 
 session : he had therefore a possession without prejudice to the right. He 
 was not in as particular tenant ; there was no privity of seisin; he had only a 
 naked possession. — But, says his lordship, the case is still stronger : the true 
 owner cannot even elect to make a person in possession under a judgment 
 in ejectment, a disseisor : the entry is not injuste & sine judicio, but under au- 
 thority of a court of justice. The true owner might enter upon a disseisor. 
 But after a judgment in ejectment, an actual entry would not be permitted. 
 Upon this reasoning his lordship establishes his first position, That Sir Robert 
 Atkyns did not acquire, by his entry, an actual estate of freehold by disseisin. 
 This brought his lordship to the second question, Whether the feoffment to 
 Earle vested an estate of freehold in him by disseisin ? Here his lordship con- 
 cluded, from the principles laid down by him in his discussion of the first 
 question, that the feoffment did not amount to an actual disseisin, but was such 
 merely at the will of dame Atkyns. In this part of the question he says, that 
 except the special case of fines with proclamation, which, he observed, stands 
 upon distinct grounds, and the construction of the stat. of 4 Hen. VII. c. 24, 
 for the sake of the bar, he could not think of a case where the true owner, 
 whose entry is not taken away, might not elect, by choosing a possessory 
 remedy, to be deemed as not having been disseised. The judges of the king's 
 bench, in the opinion delivered by them in 1774, express themselves still more 
 strongly on this head. They say, that " where the books speak of feoffments 
 " in fee by tenants for years, and that the fee simple passes thereby, it is to 
 " be understood of those feoffments of old, attended with livery, and actual 
 " transmutation of the possession from one man to another ; that feoffments, 
 " from having been the only conveyance of land, for a long term of years, 
 " have languished into mere form, and are nothing now more than a common 
 "conveyance; that their grandeur and efficacy is lost; and that without 
 "actually transferring of the estate from one man to another, they mix with 
 w the community of all other assurances : that the name of these feoffments, 
 u and the remembrance of them, remains, and survives them, however imper- 
 " fectly, after the practice of making them, and consequently their solemnity, 
 
 "is
 
 330. b.] Of Discontinuance. L. 3. C. 11. Sect. 611. 
 
 " is quite at an end." Lord Mansfield afterwards considered the case in a 
 third point of view, which was, That a tenant in tail in remainder could not, 
 by the established law of the land, suffer a common recovery without the 
 consent and concurrence of the immediate tenant of the freehold. Now, says 
 his lordship, the law will never permit that to be effected by wrong, unfair, or 
 indirect means, which cannot be effected by right, fair, and direct means : but 
 sir Robert could not by right, fair, or direct means, suffer a common recovery 
 in the life of dame Ann, without her concurrence ; he never had her concur- 
 rence ; it follows, that his recovery must have been covinous, and therefore 
 void. Upon these grounds, the court were of opinion, 1st, that sir Robert 
 Atkyns the son by his entry under the verdict in 1710, was not an actual 
 disseisor, and therefore had not in him any actual estate of freehold : 2dly, that 
 his feoffement to Earle gave Earle an estate of freehold only at the election of 
 dame Atkyns, but did not give him an actual estate of freehold : and, 3dly, 
 that the whole transaction was fraudulent, and therefore void. — The doctrine 
 upon which the first of these points turns is not immediately the subject of 
 the present inquiry. But some of the principles laid down by the court in 
 giving their opinions on the 2d and 3d points will be investigated in this place. 
 
 The great point for the decision of the court was, What estate in the lands a 
 feoffor must have to give the feoffment efficacy. — It seems to be admitted by 
 the court, in the case referred to, that, originally, no greater estate was re- 
 quired to be in the feoffor than mere possession. This they attribute to the 
 solemnities originally attending both the admission of tenants into the tenure, 
 and the transfer of the fee. But it seems to be their opinion, that, since most, 
 if not all, of these solemnities have been dispensed with, the peculiar efficacy 
 of a feoffment has been lost. This has certainly been the case in one very 
 remarkable instance. Lord chief baron Gilbert, in his Treatise of Tenures, p. 43. 
 observes, that lord Coke says, " that the feoffee of the disseisor that comes 
 " in by title, after a year and a day was expired, was anciently held to have 
 " right of possession, and to put the disseisee to his writ of entry, because the 
 " feoffee came in by title; and for quiet of purchasers, this non-claim for a 
 "year and a day was held a dereliction. Hence, writs of entry against the 
 " feoffee in the^e?- and cui. But this was not held so in respect of disseisors, 
 "because they themselves being the wrong-doers, had no law in their favour, 
 " lest it should encourage such injuries. But afterwards, as feoffments became 
 " more secret, and nothing paid to the lord, then they thought it too hard such . 
 " feoffments should alter the right of possession, and therefore they con- 
 " strued the feoffee, that came in by his own act, to be a wrong-doer, and not 
 " to alter the right of possession; but the heir, for the reasons aforesaid, was 
 " left as before." But it will be difficult to find another instance in which 
 feoffments have lost their efficacy. The arguments brought to prove that they 
 have lost their efficacy in creating an estate of freehold, when it is not in the 
 feoffor at the time of the feoffment, are, 1st, that livery is not made now with 
 the solemnity with which it was made formerly : — 2dly, that the passages in the 
 books which speak of feoffments by tenants for years, and others having estates 
 less than freehold, creating estates of freehold in the feoffee, by disseisin, are to 
 be understood as referring only to a disseisin by election. 
 
 As to the first argument, — It seems to be everywhere admitted, that the feoff- 
 ments we are speaking of, once had the operation and efficacy in question; and 
 that this operation and efficacy is ascribed to them in numberless passages in 
 our law books ; so that the great, if not the only, difficulty is to show, that, 
 at the time when it is universally agreed feoffments had this operation and 
 efficacy, they were made with no other forms and solemnities than those with 
 which they are made now. It is certain, that the custom of making livery 
 before the peers of the court, and recording the entry of the feoffee in the re- 
 cords of the lord's court (if it were ever absolutely necessary), was dispensed 
 with very soon after the Conquest, and was fallen completely into disuse at 
 
 so
 
 L. 3. C. 11. Sect. 611. Of Discontinuance. [330. h. 
 
 so early a period as that of Henry II. ; so that in this reign, and from thence 
 to the present time, no other ceremony in making feoffments was used than 
 that which is now practised, of the feoffor and feoffee coming upon the land, 
 either in person or by attorney, and there the feoffor, in the presence of wit- 
 nesses (all other persons being out of the land) delivering the possession of it 
 to the feoffee. The form of making feoffments in the reign of Henry II. is 
 minutely described in Bracton, lib. 2. cap. 18. fol. 39. b. Item, non oalet donatio, 
 
 nisi subsequatur traditio, tunc demum, cum don a tor plenam facer it seisinam 
 
 donatorio per se si praisens fuerit, vel per procuratorem & literas, si absensfurrit, 
 ita quod charta donationis & liter se procurator ise. coram vicinis, ad hoc special iter 
 convocatis, legantur in jiublico, & etiam cum donator corpore &animo recesserit a 
 possessione. This is the account given by Bracton of the mode of making 
 feoffments in his time. He makes no mention of the presence of the pares 
 curies being necessary; or of its being necessary to record the entry of the 
 feoffee in the lord's court; or of any other ceremony besides those now practised. 
 Hence we find that the account given by sir William Blackstone, book 2. chap. 
 20. p. 309-315. Archbold's ed. of the present mode of making feoffments, 
 is no more than a transcript of the passage cited above from Bracton. The 
 next thing to be shown is, that as the ceremony of making feoffments has been 
 the same during all this period, the courts of judicature, and the writers upon 
 our laws, have, during all this period, agreed in ascribing to them the effect 
 and operation in question. Their language in this respect is perfectly uniform, 
 that no freehold is required in the feoffor, and that however tortious or slender 
 his possession may be, his feoffment, necessarily and unavoidably, gives an 
 estate of freehold to the feoffee. Nothing can be more decisive on this subject 
 than the following passages transcribed from Bracton : — Poterit autem res esse 
 omnino aliena et ex toto, quantum, ad jus & proprietatem, & feodum, & liberum 
 tenementum, usum-fructuum, & nudum usum ; & aliquis posuerit se in seysinam, 
 per disseijsinam, vel per intrusionem, cum forte invenerit rem vacantcm. Et si 
 talis, dum ita fuerit in seysina, donationem fecerit, volebit quantum ad ipsum, 
 & feoff atum swum, & alios, qui jus non habent, ut prius dictum est, donee per 
 ilium, qui jus habet, revocetur. Item poterit esse aliena, quantum ad omnia 
 prsedicta, et alicujus in possessione existentis, quoad nudum usum, vel quoad 
 hoc, quod servitutem habeat in re, quoad usum fructuum per cipiendum, she ad 
 certum terminum vel ad voluntatem. Item quoad, hoc, quod habeat custodiam, 
 vel curam,vel hujusmodi; in quibus casibus, si dum sic fuerit in seysina, quali 
 quali, donationem fecerit, statim ft res data accipientis, quoad dantem & acci- 
 pientem, & quoad alios, qui jus non habent. Sed quoad vcrum dominum, nun- 
 quam erit liberum tenementum, nisi ex longa & pacifca seysina, denude siincon- 
 tinenti post tale feoff amentum posset verus dominus ponere se in seysinam, om m s 
 
 quoscunque tenere posset exclusos a possessione Sed quid dicetur dc eo 
 
 qui nullum omnino seisinam habuit, nee aliquam juris scintil/am, si donationem 
 fecerit de re quam alius tenet, perse ipsum vel per alium nomine suo, non faciei 
 rem accipientis, cum ipse nihil teneat, quia non potest phis juris ad alium 
 transferre quam ipse habet, nee plus valcbit ista donatio quamvaleret, si aliquts 
 transiens peraliquod manerium ab aliquo jwssessum, diceret socio suo viator i, do 
 tibi tale maiier ium quod talis possidet, quia nihil aliud esset dicer e, quam dare 
 ei plenam pugnatam ex nihilo,cum possessio non sit vacua, Bract, lib. 2. c. 14. 
 fol. 31. a. 31. b. — So in another place: Item licet liberum tenementum non 
 habuerit, donationem potest facere quis, dum tamen in seisina fuerit a/iqttd 
 justa de causa, sicut ad terminum annorum, vel ratione custodice. Idem erit, 
 si nullam just am causam habuerit, ut si per intrusionem vel disseisinam ; et 
 cum sit in seisina alijs donarc poterit, licet non cum effectu et a His per donatio- 
 nem facere liberum tenementum, quod quidem ipse non habuerit. — Ibid. lib. 2. 
 c. 5. §4. fol. 11. b. — It socins to be clear from these passages, that in Bracton's 
 time, every person who had the possession, however slender his possession might 
 be, as termor for years, tenant at will, or guardian ; or however tortious his 
 
 possession
 
 330. b.] Of Discontinuance. L. 3. C. 11. Sect. 611. 
 
 possession might be, as a disseisor or intruder; was nevertheless considered to 
 be in the seisin of the fee, and might by livery transfer it to another. Bracton 
 frequently repeats this doctrine, and illustrates it by many examples in the 
 course of the second book. — Such is the account given by Bracton of the ope- 
 ration of feoffments ; and as the account given by him of the form of feoffments 
 has been contrasted with the account given of it by sir William Blackstone, 
 t'.ie reader is desired to contrast the above account given by him of the operation 
 of feoffments with the account given of it by sir Edward Coke, ant. 48. b. and 
 49. a. He expresses himself to the same effect in his 2d Inst. fol. 413. Com- 
 menting on the statute of Westminster 2. cap. 25. he observes, that though the 
 act speaks of an alienation by feoffment by a tenant for years, yet it extends 
 to tenants by statute-merchant, statute-staple, tenant at will, and tenant by 
 sufferance ; because all these have a possession. But he observes, that it is 
 otherwise of a bailiff, for he has no possession at all. — Several other authorities 
 will be offered to prove this point in a subsequent part of this note ; one more 
 authority only shall be mentioned here. Mr. Kuowler, in his argument for 
 the defendant in the case above referred to, seems, with reason, to lay great 
 stress upon it. It is 10 Ed. IV. 8, 9. In trespass, the defendant said, that 
 one M. was seised in his demesne as of fee, and leased to him for his life. The 
 plaintiff said, that long before M. had any thing in the land, D. was seised in 
 fee, and leased to E. for life; that D. died, and thereupon the reversion de- 
 scended upon Jane his daughter, who married M. ; that M. granted the rever- 
 sion to the defendant for life; that the tenant attorned; that M. died, and 
 then Jane granted the reversion to the plaintiff, and the tenant attorned ; 
 whereupon he (the plaintiff) entered, and was seised till the defendant made 
 the trespass without this, that M. whom the defendant supposes to have leased 
 to him, was seised in his demesne as of fee. It is to be observed, that the 
 leases mentioned here, being for lives, were necessarily created by Lvery. The 
 question before the court therefore was, Whether want of seisin in a feoffor 
 was a good plea? All the judges held it was not; and that the plaintiff should 
 have pleaded generally ne lessa pas. And Littleton expressly says, that if a 
 man pleads a feoffment, it is no plea to say that the feoffor had nothing at the 
 time ; he can only plead n'enfeoffa pas. — Here then we have the most decisive 
 evidence, that from the reign of Henry II. to the present time, the courts of 
 judicature and tin writings of the professors of the law are perfectly agreed, 
 in considering feoffments as made with the same ceremonies, and attended with 
 the same efficacy and operation. It follows from this, that it can be no argu- 
 ment against their having the efficacy and operation contended for in the par- 
 ticular instances now in question — that at a period anterior to that mentioned 
 here, they were made (if that really was the case) with more notoriety and 
 ceremony than they are now. 
 
 As to the second argument, — That the passages in the books which speak of 
 tenants for years and others having estates less than of freehold, creating 
 estates of freehold in the feoffee by disseisin, are to be understood as referring 
 only to a disseisin by election ; — lord Mansfield, on his entering into this part of 
 the argument, observes, that the precise definition of what constituted that dis- 
 seisin, which made the disseisor the tenant to the demandant's pr&cipe, 
 though the right owner's entry was not taken away, was once well known, 
 but that it is not now to be found. Most unquestionably there are many 
 cases in which it would now be difficult, perhaps impossible, to say with 
 certainty, whether they amounted to an actual disseisin, according to the 
 doctrine of the old law ; yet surely many cases may be stated, which by the 
 most conclusive and satisfactory reasoning may be shown to be actual dis- 
 seisins, according to that law. Perhaps the following observations may serve 
 to establish a general rule for distinguishing those acts which amount to actual 
 disseisins, from those which are such only at the election of the party. By 
 a disseisin at the election of the party, is not to be understood an act which in 
 itself is a disseisin, but which the party supposed to be disseised, may, if he 
 
 pleases,
 
 L. 3. C. 11. Sect. 611. Of Discontinuance. [330. b. 
 
 pleases, consider as not amounting to a disseisin: on the contrary, every act 
 which is susceptible of being made a disseisin by election, is no disseisin till 
 the party in question, by his election, makes it such. It follows therefore, that 
 every act which is said by the writers to produce an immediate disseisin, ne- 
 cessarily implies an actual disseisin. Now we find, that the disseisins produced 
 by feoffments instantly gave the feoffee, against every person but the disseisee, 
 an immediate estate of freehold, with all the rights and incidents annexed to it. 
 To this effect Bracton writes, lib. 2. ch. 5. § 3. fol. 11. b. Item valid a poterit esse 
 donatio statim ab initio inter quasdam persmas, et invalid a et suspensa quantum 
 ad alias per sonas, vt si quis rem alienam dederit alicui, ut supra dictum est. 
 Hence we find every where, that the wife of the feoffee became immediately en- 
 titled to her dower; the husband of the feoffee became immediately entitled to his 
 curtesy; and the descent upon the heir of the feoffee immediately took away the 
 entry of the disseisee. This is the constant language of the books, when they 
 speak generally of disseisins. Now the books make no difference, whether the 
 feoffment is made by a person seised of an estate of freehold, or by a person 
 having only the bare possession as tenant for years, at will, or by sufferance. 
 The description given by Bracton in the passages cited from him, answers every 
 notion given by lord Mansfield of an actual disseisin. Bracton says, that im- 
 mediately upon the feoffment the estate becomes the property of the feoffee, 
 as between him and the feoffor, and every other person, except the rightful 
 owner, that a long and uninterrupted possession of a certain duration, will 
 make the title of the feoffee good even against the rightful owner; that, to 
 prevent this, the donor must restore his own seisin. — Here then is what his 
 lordship so justly considered as necessarily requisite to form an actual disseisin — 
 a person who has expelled the tenant from his fee, and usurped his feudal 
 place and relation; a tenant to the ■praecipe of every demandant, though the 
 true owner's right of entry upon him is not taken away. If the feoffee in this 
 case were only a disseisor at the election of the disseisee, it would follow, that 
 he was not a deisseisor till the right owner made him such by his election, and 
 therefore, that the fee would not be in him, if the rightful owner did not elect 
 to make him a disseisor. According to this doctrine, if the feoffee of tenant 
 for years, or any other person making a feoffment without an estate of free- 
 hold in him, did in the life of the rightful owner of the estate, the estate would 
 not be subject to dower or curtesy, nor would the entry of the rightful owner 
 be taken away. But we find, that in all cases in which our law-writers treat 
 of disseisins made by feoffments, they consider it as a matter of course, that 
 the estate of the feoffee, immediately became an estate of freehold, Avith all 
 the qualities and rights of a freehold estate annexed to it. A similar argument 
 lies from the relation in which such a feoffee stood with respect to strangers. 
 Bracton observes, that he immediately acquired the seisin of the fee as against 
 strangers; which could not be, if he were only a disseisor at the election of 
 the party. It has been observed before, that the books make no difference 
 between feoffments made by persons having estates of freehold, and feoffments 
 made by persons having estates less than freehold. Bracton expressly mentions 
 guardians, tenants for years, by sufferance, at will, by disseisin, or intrusion, 
 as persons whose feoffments are attended with the effect described above. 
 So does sir Edward Coke, in the passage cited from the second Institute. So 
 Perkins, sect. 222. " If lessee for years enfeoff a stranger, the lessor being 
 "upon the land, yet the land shall pass by the feoffment; but perhaps, if he 
 " continues upon the land, claiming the same after the feoffment, this counter- 
 " vails an entry for a forfeiture; and the reason why it passed by such a 
 " feoffment, is because the lessor had nothing to do, to meddle with the poe- 
 " session of the land during the term." So Dyer, 362. b. A termor for 
 1,000 years made a feoffment, by the words dedi, eoncessi, et feoff avi. It was 
 made a doubt, whether the lands passed by the feoffment, so that the lessor 
 might enter for the forfeiture; or whether the term passed by the first words. 
 The very doubt shows that it was taken for granted, that without those words 
 
 the
 
 330. b.] Of Discontinuance. L. 3. C. 11. Sect. 611. 
 
 the freehold would vest in the feoffee. In the margin of that case, in the edition 
 of 1688, it is said, that in the case of Read and Morpeth v. Errington (reported 
 in Cro. Eliz. 321.) it was held, that the lessee for years might make a feoffment, 
 notwithstanding the presence of the lessor; and that it was a forfeiture of the 
 lease; for though the lessee had the possession and might dispose of it, yet the 
 lessor might enter for the forfeiture. Thus, in the case of Blundell v. Baugh, 
 sir William Jones, 315. the judges held, that when tenant at will makes a lease 
 for years rendering rent, and the lessee enters and pays rent, there is no disseisin, 
 but at the election of the first lessor; for, say they, it never shall be a disseisin, 
 unless there be the claim of a stranger by entry to have the freehold, or unless 
 the owner of the land waves the occupation of the land, or brings an action, or 
 otherwise declares his intention that he takes it by disseisin. Here the two 
 kinds of disseisin are contrasted in the most direct and positive manner. The 
 judges also, in the case of Blundell v. Baugh, cited Mathew Taylor's case, 
 34 Eliz. C. B. Tenant at will, or for years, makes a feoffment in fee, and dies, 
 his wife brings dower against the feoffee, who pleaded ne unque seisie qve dower : 
 but the whole court was against him ; for in the instant the fee was gained. In 
 Cro. Jac. 615. and ant. 31. b. that doctrine is controverted, on the ground that 
 the seisin of the feoffor was but momentary : but this proves the position at- 
 tempted to be established here ; for if the feoffment in this case only gave a free- 
 hold at the election of the reversioner, the feoffor had no seisin. The same doc- 
 trine seems to be laid down very expressly by lord Hardwicke, 2 Ves. sen. 481. 
 Having occasion to mention a fine levied by tenant at will, he says, "If they 
 " meant a wrong thereby, they must have taken another method; as this could 
 " not work a disseisin on the trustees, and turn their estate to a right, while 
 " they were tenants at will to the trustees. This way indeed they might 
 " do it, according to the distinction taken in several cases, particularly in 
 "Dormer and Parkhurst, if they executed a feoffment on the land; because 
 " it is a feoffment on livery, which is a notoriety to the trustees, and puts it 
 "on them to make entry to avoid." In the same manner, 3 Atk. 339. his 
 lordship says, " If a man enters on my tenant, he does not gain such a pos- 
 " sesion to levy a fine thereon, unless he continues in possession; for a wrong- 
 " doer to gain a possession by disseisin, must not step on the land, and 
 " withdraw and leave the rightful owner in possession, which would be 
 " sufficient to gain a seisin on a feoffment, but not to levy a fine." — In every 
 stage of our law, the most modern as well as the most ancient, the peculiar 
 operation of a feoffment, as to the divesting of estates, destruction of con- 
 tingent remainders, and extinction of powers, has been recognized. Citations 
 and arguments to prove the point before us might be easily multiplied; but 
 they shall be concluded here, by some observations upon the allowed effect of 
 a fine levied by a tenant for years, or even by a tenant at sufferance, who has 
 previously made a feoffment. No point of our law is more clearly settled, than 
 that, unless some one of the parties to a fine has an estate of freehold in the 
 lands, of which it is levied, it is totally voide, as to all strangers, and may be 
 avoided at any time by the plea, quod partes Jin is nihil habuetunt. Now, sup- 
 posing a tenant for years to make a feoffment, and the feoffee afterwards to 
 levy a fine, it is clear that the fine would be without effect, unless the feoffment 
 gave him an estate of freehold. In the case of Whaley v. Tancred, 1 Vent. 241. 
 sir Thomas Raymond, 219. 2 Lev. 52. it was settled, that where a fine is 
 levied in this manner, the fine will bar the lessor at the end of five years after 
 the expiration of the term. This would never be the case unless the feoffment 
 had previously created an estate of freehold. — In the case of Doe v. Prosser, 
 Cowp. 217. lord Mansfield expressed himself as follows: — "It is very true that 
 " I told the jury, they were warranted by the length of time in this case, to 
 " presume an adverse possession and ouster by one of the tenants in common, 
 " of his companion ; and I continue still of the same opinion. Some ambiguity 
 " seems to have arisen from the term " actual ouster," as if it meant some act 
 u accompanied by real force, and as if a turning out by the shoulders were 
 
 " necessary.
 
 L. 3. C. 11. Sect. 611. Of Discontinuance. [330. b. 
 
 " necessary. But that is not so . A man may come in by a rightful posses- 
 " siou, and yet hold over adversely without a title. If he does, such holding 
 " over under circumstances will be equivalent to an actual ouster. For instance, 
 " length of possession during a particular estate, as a term of one thousand 
 " years, or uuder a lease for lives, as long as the lives are in being, gives no 
 " title. But if tenant pur autre vie hold over for twenty years after the death 
 " of cestuy que vie, such holding over will in ejectment In- a complete bar to the 
 " remainder-man or reversioner; because it was adverse to his title. So in the 
 " case of tenants in common : the possession of one tenant in common, eo 
 " nomine, as tenant in common, can never bar his companion ; because such pos- 
 " session is not adverse to the right of his companion, but in support of their 
 " common title ) and by paying him his share, he acknowledged him co-tenant: 
 " nor indeed is a refusal to pay of itself sufficient, without denying his title. 
 " But if upon demand by the co-tenant of his moiety, the other denies to pay, 
 " and (levies his title, saying he claims the whole and will not pay, and continues 
 " in possession, such possession is adverse and ouster enough." By the adverse 
 possession mentioned in this case, his lordship never could mean a disseisin at 
 the election of the party. What is there to distinguish it from an actual dis- 
 seisin ? — Upon the whole, therefore, it is submitted to the learned reader's con- 
 sideration, 1st, that, as feoffments have not been made from the reign of Henrv 
 the "2d. to the present time, with any other solemnities than those with which 
 they are made at present, every operation and efficacy which has been con- 
 stant y and uniformly allowed or ascribed to them by the courts of judicature, 
 or writers of authority cotemporary with or subsequent to that monarch's reign, 
 down to the present time, ought, notwithstanding the objection that they are 
 not now made with some of the solemnities with which they are said to have 
 been made in their very earliest institution, to be allowed and ascribed to them 
 now; 'Idly, that by the passage cited from Bracton, and the other authorities 
 cited or referred to in the course of this note, it appears, that the disseisin pro- 
 duced by feoffments must be understood to be an actual disseisin, and not a 
 disseisin merely at the election of the party ; 'idly, that in many of these autho- 
 rities it is most expressly mentioned, and that in all of them it must be implied, 
 that however slender, bare, or tortious, the possession of the feoffor is, his feoff- 
 ment necessarily and unavoidably vests the freehold in the feoffee, till the dis- 
 seisee by entry or action restores his possession; ithly, (to apply this abstruse 
 and antiquated learning to the present subject-matter of business) that copy- 
 holders, tenants for years, by elegit, statute-merchant, statute-staple, at will, or 
 by sufferance, are all considered to have the possession of the estate, and that 
 they may by feoffment vest an actual estate of freehold in the feoffee : 5/7//?/. 
 that a tine may be levied of, or a common recovery suffered upon, this estate of 
 freehold ; Qthly, that the feoffment so executed, the fine so levied, and the reco- 
 very so suffered, are immediately good against every person except the right- 
 ful owner; and Ithly, that in process of time they become good against the 
 owner himself. — To ascertain the exact period of time when such feoffments, 
 fines and recoveries, will be a bar to the rightful owner, would be too great aa 
 extension of this note*, the length of which already requires an apology. 
 
 J* to the opinion of the court. — That the feoffment of sir Bobert Atkyns wag 
 founded in fraud, and was therefore void; it is to be observed, that however 
 that reasoning applied to the particular case before the court, it does not apply 
 to the general question discussed in this note, which presupposes previous pos- 
 session in the feoffer, free from every circumstance of fraud ; either fair and 
 innocent, or acquired by the open and notorious circumstance of disseisin, 
 abatement, intrusion, or deforcement. Sir Bobert Atkyns acquired his pos- 
 session by the entry made by him under the verdict obtained by him in 1710. 
 He lost it by the verdict given for dame Ann Atkyns in 1712. It may, there- 
 fore, be said (and the fact really was), that he obtained the verdict given for 
 him in 1710, and consequently the possession under it, by a pretended title, 
 lie had not a fair or innocent possession. He did not acquire his possession 
 
 by 
 
 Vol. II.— %1
 
 330. b.] Of Discontinuance. L. 3. C. 11. Sect. 612. 
 
 Sect. 612. 
 
 A LSO, if tenant in taile grant his land to another for terme of the, 
 
 life of the said tenant in taile, and deliver to him seisin, $c. and 
 
 after by his deed he releaseth to the tenant and to his heires all the 
 
 right 
 
 by disseisin, intrusion, abatement, or deforcement ; it did not descend upon bim ; 
 it did not come to bim by act of law ; he was not in tbe seisin of the fee by 
 virtue of any gift or demise from the freeholder: he obtained his possession by 
 the judgment of a court of law, under the colour of a pretended title. Thus, 
 in the luDguage of the law, his original possession was founded in fraud, prac- 
 tice, and stratagem. And to use an expression of the judges, 3 Rep. 78. a. 
 " the common law does so abhor fraud and covin, that all acts, as well judicial 
 " as others, which of themselves are just and lawful, yet being mixed with fraud 
 " and deceit, are in judgment of law wrongful and unlawful." — From the 
 reports of the case of Taylor v. Horde, it appears that lord Mansfield laid 
 great stress on the resolutions of the judges in Fermor's case. In this case, 
 Thomas Smith being seised in fee of several lands, and holding others by 
 copy of court roll, and others for a term of years, and others at will (all of 
 them lying in the same vill), made a feoffment with livery of all those held 
 by copy, tor years, and at will, to one Chappell, for life, and afterwards levied 
 a fine. The question was, Whether the fine was a bar to the owners of the 
 fee, at the expiration of the first five years ? It appeared that Smith con- 
 tinued in possession of the land, and paid the rents. See 3 Rep. 77. 2 Ander- 
 son, 176. Gary, 20. The judges were of opinion, that the feoffment was 
 fraudulent. Upon an examination of the different reports of the case, it will be 
 found, that his continuing in the possession of the land, and paying rent after he 
 made the feoffment, were the chief circumstances which induced the court to 
 consider the feoffment to be fraudulent, The same may be observed of the 
 case of White v. Bacon, Saville, 126. The continuing in the possession of the 
 land after the conveyance has always been considered in our law as a badge of 
 fraud. Fernon's case therefore only proves, that if a tenant for years, after 
 making a feoffment, continues in the possession of the land, and pays rent for 
 it, the possession acquired by him under the feoffment is fraudulent ; and there- 
 fore a fine, and every other act which derives its effect from that possession, is 
 void. But, Fernon's case does not apply to the general question, of the opera- 
 tion of a fine levied by tenant for years, who has previously executed a feoffment, 
 when the case is not affected by circumstances of fraud. The case mentioned 
 before in this note of Whaley v. Tancred is directly in point, that a fine so levied 
 by lessee for years is a bar to the lessor after five years from the expiration of 
 the lease. And with respect to the feoffor's remaining in the possession, if by 
 the deed declaring the uses of the fine it is expressed that the fine should enure 
 to his use, the poscssion will be invested in him by tbe statute of uses. — The 
 editor begs to conclude with an observation of lord Hardwicke (2 Atk. 631.) 
 which seems to him to sanction, in some measure, the general reasoning con- 
 tained in this note : — " If it is a mere legal title, and a man has purchased an 
 " estate which he sees himself has a defect upon the face of the deeds, yet the 
 " fine will be a bar, and not affect him with notice so as to make him a trustee 
 " for the person who had the right, because this would be carrying it much too 
 " far ; for the defect upon the face of the deeds is often the occasion of the 
 " fines being levied." The doctrine contended for in this note seems to the 
 editor to receive some countenance from the arguments and conditions in Good- 
 right v. Forrester, 8 East's Reports, 552.— [Note 285.]
 
 L. 3. C. 11. Sect. 613. Of Discontinuance. [331. a. 
 
 t 331.1 J|@ EO rigid which hee hath in the same land ; in this case the 
 a - J estate of the tenant of the land is not enlarged by force of such 
 release for that when the tenant had the estate in the land for 
 term of the life of the tenant in tail, hee had then all the right which 
 tenant in tail could rightfully grant or release * : so as by this release 
 no right passeth, inasmuch as his right was gone before. 
 
 Sect. 613. p*j*» 
 
 A LSO, if tenant in taile by his deed grant to another all his estate 
 which he hath in the tenements to him entailed, to have and to hold 
 all his estate to the othei , and to his heir es for ever, and deliver to him 
 seisin accordingly ; in this case the tenant to whom the alienation was 
 made hath no other estate but for terme of the life of tenant in taile. 
 And so it may bee well proved that tenant in taile cannot grant nor 
 alien, nor make any rightfull estate of freehold to another person, but 
 for terme of Ids owne life only, 8fc. (1) 
 
 THE 
 
 * dr. added in L. and M. and Ron. 
 
 (1) The livery, in this case, is secundum formam charter ; and therefore, 
 according to sir Edward Coke's doctrine, ante 48. a. its operation and effect 
 are restrained to the quantity and quality of the effectual estate contained in 
 the deed. Thus, says he, if a man makes a lease for yeares by deed, and delivers 
 seisin according to the form and effect of the deed, yet he has but an estate 
 for years, and the livery is void. .The expression in the text, that the tenant in 
 tail caunot grant, or alien, or make any rightful estate of freehold to another 
 person, but for the term of his own life, is not to be understood literally, 
 that the grantee has but an estate for life, and that his estate is ipso facto de- 
 termined by the death of the tenant in tail : all that is meant by it is, that 
 his estate is certain and indefeasible, no longer than the life of the tenant in 
 tail ; for upon the death of the tenant in tail, it is defeasible by the issue, 
 either by action, or by entry or claim on the land, at his election. Still it has 
 a continuance till it is so defeated by the issue. In note 1, ante 326. b. it has 
 been explained upon what principle, in the case of a tenant in tail conveying by 
 feoffment, it was held, that the statute de don is did not absolutely nullify the 
 alienation, but only took away the entry of the issue, and reduced him to his 
 remedy by formedon. Upon similar principles, in the case of a tenant in tail 
 conveying by bargain and sale, release, covenant to stand seised, or any other 
 mode of conveyance operating by way of grant, it has been held that the sta- 
 tute does not nullify the conveyance, but reduces the issue in tail to his entry ; 
 or, if he prefers it, to his action to avoid it. Thus, the grantee hath a base fee; 
 his wife is entitled to her dower during the continuance of the fee ; and if the 
 grantee commits waste, the tenant in tail, having no reversion, has no right of 
 action against him. 3 Hep. 84. b. 10 Rep. 96. See Machel v. Clarke, 
 2 Salk. 619. Farreslcy, 18. Com. 119. 2 Lord Raym. 778. Goodiight on the 
 demise of Tyrrell v. Mead and Shilson, 3 Burr. 1703. The passage, therefore, 
 in Littleton must be understood, in this qualified sense, otherwise it is inaccu- 
 rate. This was observed by lord chief justice Holt in the case of Machel v. 
 Clarke, and by lord chief justice llobart in the case of Sheffield v. Ratcliff, 
 Hob. Rep. 338, 339.— [Note 286.]
 
 331. a. 331. b.] Of Discontinuance. L. 3. C. 11. Sect. 611:. 
 
 (Post. 342. b. r rHE meaning of Littleton in both these cases, in this and in 
 
 345. a. 1 the Section next preceding is, that having regard to the issue 
 
 Aut. 263. b.) - n taile, and to them in reversion or remainder, tenant in taile 
 
 cannot lawfully make a greater estate than for terme of his life ; 
 
 and therefore this release or grant is no discontinuance. But in 
 
 regard to himselfe, this release or grant leaveth no reversion in 
 
 13 II. 7. 10. a. him, hut puts the same in abeiance, so as after this release or 
 
 Brooke, erant made he shall not have any action of waste, &c. 
 
 Release, 95. & 
 
 " Grant to another all his estate." Vid. Sect. 650. Action of 
 waste, &c. there is implied that he shall not enter for a forfeiture, 
 if after the release or grant the lessee maketh a feoffment in fee. 
 
 Sect. 614. 
 
 ~P0R if I give land to a man in taile, saving the reversion to my self e, 
 and after the tenant in taile enfeoff eth another in fee, the feoffee hath 
 no rightfull estates in the tenements for two causes. One is, for that by 
 such feoffment my reversion is discontinued, the which is a wrong and 
 not a rightfull act. Another cause is, if the tenant in taile dieth, and 
 his issue bring a writ o/formedon against the feoffee, the writ and also 
 the declaration shall say, Sfd that the feoffee by wrong him deforces, $c. 
 Ergo if he deforceth him by wrong, he hath no right estate. 
 
 HERE Littleton proveth, that the feoffee of tenant 
 in taile hath no rightfull estate, having (£r respect J 331.1 
 to two persons ; the one is to the donor, whose rever- L D - J 
 sion is divested and displaced ; and the other to the_ 
 issue in taile, who is driven to his action to recover his right, 
 
 [»] I3mct. li. 4. " By icrong him deforces." [»■] Drforciare is a word of art, 
 fol. 238. Fiet. an( j cannot be expressed by any other word ; for it signifieth, to 
 lib. 5. cap. 11. withhold lands or tenements from the right owner; in which case 
 either the entry of the right owner is taken away, or the defor- 
 ceor holdeth it so fast, as the right owner is driven to his reall 
 praecipe, wherein it is said, unde A. cum injuste deforceat or the 
 deforceor so disturbeth the right owner, as he cannot enjoy his 
 r.mot. & Flet. owne ; and therefore it is said, Per hocautcm quod dicitur in brevi 
 ubi supra. ultima 'presentation is deforciant, videtur quibusdam quod querens 
 
 innuatperhoc quod deforceans sit in seisind, sicut in brevi de recto 
 sed reverd non est ita, sed satis deforceat qu i possessorem utiseisina 
 non permiserit omnino vel minus commode impediatprcesentanclo, 
 appellando, impetrando, secundum quod dicitur de disseisitoire, 
 satisfacit disseisinam, qui uti non permisit possessorem vel minus 
 commode licit omnino non expellat. In this case that Littleton 
 putteth, the discontinuee being in by wrong, is no disseisor, abator, 
 [o] Mir cap. 2. or intrudor, but a deforceor ; and hereof commeth Deforcement, 
 sect. 25. ' and thus did antiquitie describe it : [o] Deforcement, come si ascun 
 
 (5 Rep. 85. enter en aU f er tenement tant come le veray seignior est almarket, 
 
 2 lust. 3j0.) ^ a ii orS} e t retorne, et ne poet aver entre eins est celuy deforce et 
 debotue. And for that at the first the withholding was with vio- 
 lence and force, it was called a deforcement of the lands or tene- 
 ments
 
 L. 3. C. 11. S. 615-16. Of Discontinuance. [331. b. 332. a. 
 
 merits ; but now it is generally extended to all kinde of wrong- 
 full withholding of lands or tenements from the right owner. 
 There is a writ called a quod ei deforceat, and lieth where tenant 
 in taile, or tenant for life, loseth by default, by the statute he Westm. 2. cap. 4. 
 shall have a quod ei deforceat against the rccoverer, and yet he 
 commeth in by course of law (1). 
 
 Sect. 615. 
 
 J^LSO, if land bee let to a man for terme of Ids life, the remainder to 
 another in taile, if he in the remainder will grant his remainder to 
 another in fee by his deed, and the tenaunt for life attorne, this is no 
 discontinuance of the remainder*. 
 
 I 8 ' 2 -] 
 
 $®~ Sect. 616. 
 
 ALSO, if a man hath a rent service or rent charge in taile, and hee 
 grant the sayd rent to another in fee, and the tenant attorne,^ this 
 is no discontinuance, $c. 
 
 Sect. 
 
 &c. added in L. and M. and Roh. f<fcc. added in L. and M. and Ron. 
 
 (1) Sir William Blackstoue, in his account of a deforcement, 3 Com. c. 10. 
 observes, that it is nomen generalissimum ; being a much larger and more com- 
 prehensive expression than any of the former, and signifying the holding of 
 any lauds or tenements to which another person has a right; so that it includes 
 as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other 
 species of wrong whatsoever, whereby he that hath a right to the freehold is 
 kept out of possession. Rut, as contradistinguished from the former, it is only 
 such a detainer of the freehold from him that hath the right of property, but 
 never had auy possession under that right, as falls within none of those injuries. 
 A deforcement may also be grounded on the non-performance of a covenant 
 real : as if a man seised of lands covenants to convey them to another, and 
 neglects or refuses so to do, but continues possession against him, this possession 
 beinc wrongfull is a deforcement. Aud hence, in levying a fine of lands, the 
 person against whom the fictitious action is brought upon a supposed breach of 
 covenant, is called a deforceant. Mons. Houard, Anc. Loix des Francois, torn. 
 1. p. 654. mentions, thatDu Cange refers to the laws of Alfred and other kings 
 of England precedent to the Conquest, for an explanation of the word Deforce- 
 ment: but that he ought to have observed, that it was not introduced into the 
 Latin translation of those laws till after the introduction of the Norman cus- 
 toms into England; that deforce is an old French word, and th&tfortia is taken 
 for force in the 28th formula of Marculphus.— [Note 28G*.]
 
 332. a.] Of Discontinuance. L. 3. C. 11. Sect. 617-18. 
 
 Sect. 617. 
 
 A LSO, if a man bee tenaunt in taile of an advowson in grosse, or of 
 a common in grosse, if he by his deed will graunt the advowson or 
 common to another in fee, this is no discontinuance ; for in such cases 
 the grauntees have no estate but for terme of the life of tenant in taile 
 that made the grant, fyc. 
 
 BracU.2^fo.3.& T)Y the cases in these three Sections it appeareth, that if a re- 
 s''-? 6 !?' 3 7q 8 ; -D maiuder or a rent service, or a rent charge, or an advowson, 
 
 Brit. fo. 187. , ' . P ,. , . i 
 
 Mir. c. 2. sec. 17. or a common, or any other inheritance tiiat lieth in grant, be 
 Flet.lib.3.ca.l5. granted by tenant in tail, it is no discontinuance, as formerly 
 
 ruE 3 ^^ ^ ata k eene saitl - 
 
 21 E. 3. 37, 38. [/ J ] Note, here is an advowson named by Littleton, as a thing 
 
 43 E. 3. 1. b. that lieth in grant, and passeth not by liverie of seisin. 
 
 5 H. 7. 37. 18 IT. 8. 16 El. Dv. 323. b. 
 
 Sect. 618. 
 
 A NI) note, that of such things as passe by way of grant, by deed made 
 
 in the countrie, f and ivithout livery, there such grant maketh no 
 
 discontinuance, as in the cases aforesayd, % and in other like cases, Sfc. 
 
 || And albeit such things bee graunted in fee, by fine levied in the king's 
 
 court, fre. yet this maketh not a discontinuance, $c. 
 
 BERE is the generall reason yeelded of the precedent cases 
 and the like ; for that it is a maxime in law, that a grant [c/] 
 l 2 . E ' 3 : o by deed of such things as doe lie in grant, and not in liverie of 
 
 Discont. 3. •*. . o . » » , . , 
 
 33 Ass. 8. seisin, do worke no discontinuance (1). .out the particular 
 
 4H.7. 17. reason is, for that of such things the grant of tenant in taile 
 
 15 H 7 19* worketh no wrong, either to the issue in taile, or to him in re- 
 
 21 h! 6. 52* 53. version or remainder ; for nothing doth passe but onely during 
 
 5 E. 4. 3. the life of the tenant in taile, which is lawfull, and every discon- 
 
 „i S" i'£'- tinuance worketh a wrong, as hath beene said. 
 
 2^ R 2 Discon. ® 
 
 56. 38 H. 8. Discon. 35. Brooke. 19 E. 3. Bre. 468. PI. Com. 435. 
 
 18 Ass. p. 2. 
 
 If 
 
 + and ivithout livery, there — &c. % and in — or, L. and M. and Roh. 
 
 where, L. and M. and Roh. || And not in L. and M. or Rob. 
 
 (1) VIII. That nothing which lies in grant can be said to be discontinued. — 
 The term discontinuance is used to distinguish those cases where the party, 
 whose freehold is ousted, can restore it by action only, from those in which 
 he may restore it by entry. Now, things which lie in grant caunot either be 
 divested or restored by entry. The owner, therefore, of any thing which lies 
 in grant, has in no stage, and under no circumstances, any other remedy but 
 
 by
 
 L. 3. C. 11. Sect. 618. Of Discontinuance. [332. b. 
 
 339.1 [?] $$T If tenant in taile of a rent service, &c. or of [ q ] 33 E. 3. 
 b. J a reversion, or remainder in taile, &e. grant the same ^'"V?^- **• 
 in fee with warrantie, and leaveth assets in fee simple, 36 A ^ s ' 8 
 and dieth, this is neither barre nor discontinuance to the issue in 4 H. 7. 17. 
 taile; but he may distraine for the rent or service, or enter into (3 Rep. 84,85. 
 the land after the decease of tenant tor life. But if the issue 9 Rep - jL a,) 
 brin^eth aformedon in the descender, and admit himselfe out of 
 possession, then he shall be barred by the warrantie and assets. 
 
 [r] Tenant in taile of a rent disseiseth the tenant of the land, [,.] 3 h. 7. 12. 
 and makelh a feoffment in fee with warrantie and dieth, this is (Mo. 634.) 
 no discontinuance of the rent, but the issue may distreyne for 'y^ 
 the same; and albeit the warrantie extend to the rent, yet by 532. Sir E>iw. 
 the rule of Littleton it lieth not in discontinuance : and where Seymour's case, 
 the thing doth lie in liverie, as lands and tenements, yet if to 10Ra P- 9a -) 
 the conveyance of the freehold or inheritance no liverie of seisin 
 is requisite, it worketh no discontinuance, [x] As if a tenant in 
 taile exchange lands, &c. or if the king being tenant in taile, [*] 38 H. 8. 
 grant by his letters patents the lands in fee, there is no discon- SJ'SJJmJ 1, 
 ti nuance wrought. Li. 1. f. 26. 
 
 Alton Wood's 
 
 " By fine." Of a thing that lieth in grant, though it be JJJJ M] fe 
 granted by fine, yet it worketh no discontinuance; and this is 45 B. 3. 23." 
 regularly true. (2 Sid. 65.) 
 
 [t] If tenant in taile make a lease for yeares of lands, and after \t\ 15 E. 4. 
 levie'a fine, this is a discontinuance ; for a fine is a feoffment of J^'STSr" 3 °' 
 record, and the freehold passeth. But if tenant in taile maketh (1 R ep /7 6 / 
 a lease for his own life, and after levie a fine, this is no discon- 1 Roll. Rep. 
 tiuuauce, because the reversion expectant upon a state of free- 188 - 1 Sld - 83 -) 
 hold which lieth onely in grant passeth thereby (1). 
 
 Sect. 
 
 by action ; consequently the distinction in question can never be applicable to 
 him. It is true, that the books often mention both disseisins and discontinu- 
 ances of incorporeal hereditaments ; but these disseisins and discontinuances 
 are only at the election of the party, for the purpose of availing himself of the 
 remedy by action. — Some observations on disseisins of this description are in- 
 serted in note, page 330. b. — [Note 287.] 
 
 (1) It is frequently said in our law-books, that a fine has no operation upon 
 any estate or interest, which is not previously divested or turned to a right ; 
 but this expression, considered strictly, is inaccurate. By turning to a right, 
 it is generally meant, that the person whose possession is usurped, cannot 
 restore it by entry, and can only recover it by action. See note 1, ant. 239. a. 
 But in the present case, the expression, turned to a right, must be understood 
 in a more general sense. The import of it is, that the parties to the fine, or 
 some of them, have in them at the time of their levying the fine, or acquire by 
 it, a possession, adverse to, and inconsistent with, the estate or right intended 
 to be barred ; the real owner, therefore, at the time of levying the fine, or by its 
 operation, is disseised of his possession, but the right still remains in him. In 
 this general sense, his possession may be said to be turned to a right ; but this 
 right may be such as enables him to restore his possession by mere entry, 
 without his resorting to an action. See 2 Atk. 631. In another sense it is 
 inaccurate, as it seems to imply, that the turning to a right is produced by the 
 operation of the fine ; but, generally speaking, this is not the case. Every 
 disseisin, intrusion, or abatement, turns the estate to a right, in the sense in 
 which that expression is explained before. If the disseisor, intruder, or abater, 
 afterwards levies a fine, it operates by the statute, after a non-claim of five 
 
 years,
 
 332. b. 333. a.] Of Discontinuance. L. 3. C. 11. S. 619-20. 
 
 Sect. 619. 
 
 [f XTOTE, if I give land to another in taile, and liee letteth the same 
 land to another for terme of year es, and after the lessor graunteth 
 the reversion to another in fee, and the tenant for yeares attome to 
 the grantee, and the term expireth during the life of the tenant in tayle, 
 by which the grauntee enter, and after the tenant in taile hath issue and 
 die; in this case this is no discontinuance, notwithstanding the grant 
 he executed in the life of the tenant in taile, for that at the time of the 
 lease made for yeares, no new fee simple was reserved in the lessor, but 
 the reversion remained to him in taile, as it was before the lease made. *] 
 
 r rHIS is added to Littleton, and not in the originall, and 
 A- therefore I purposely omit it : yet is the case good in law, 
 because neither the lease for yeares, nor the grant of the rever- 
 sion, divesteth any estate. 
 
 w Sect. 620. [~ 333 
 
 a. 
 
 J 
 
 .j. 73 UT if the tenant in taile make a lease for terme of the life of the 
 lessee, §c. in this case the tenant in tayle hath made a new reversion 
 of the fee simple in him (en cest case le tenant en le tayle ad J fait un 
 novel reversion de || fee simple en luy ;) because when he made the lease 
 for life, $c. he discontinued § the tayle, $c. by force of the same lease, and 
 also hee discontinued my reversion, $c. And it behoveth that the reversion 
 of the fee simple be in some person in such case : and it cannot be in me 
 which am the donor, inasmuch as my reversion is discontinued ; ergo, the 
 reversion of the fee ought to be in the tenant in tayle, who discontinued 
 my reversion by lease, $e. And if in this case the tenant in tayle grant by 
 
 his 
 
 f Note, — also, L. and M. and Roll, land to another for term of life, &c. 
 
 — No part of this Section within J en added in L. and M. 
 
 crotchets is in L. and M. or Roh. | de — en, L. and M. 
 
 1 In L. and M. and MSS. this Sec- § the tayle, de. by force of the same 
 
 tion begins thus: //' 1 give land to lease, and also hee discontinued, not in 
 
 another in taile and he letteth the same L. and M. or Roh. 
 
 years, as a bar to the right of the person whose estate is disseised, intruded 
 upon, or abated. But its operation in these cases is merely as a bar, the 
 ouster of the possession or divesting of the right being previously effected by 
 the disseisin, intrusion, or abatement. In some cases, however, it does not 
 operate only as a bar. As if tenant for life levies a fine, it is a forfeiture of 
 his estate; and if the reversioner does not enter within five years after the for^ 
 feiture, or at the farthest within five years after the death of the tenant for life, 
 ho is barred of his remedy to recover. Whaley and Tancred, 1 Ventris, 241. — 
 [Note 288.]
 
 L. 3. C. 11. S. 620. Of Discontinuance. [333. a. 333. b. 
 
 his deed this reversion in fee to another, and the tenant for life attorne, 
 §e. and after the tenant for life dieth, living the tenant in taile, and the 
 grantee of the reversion enter, fye. in the life of the tenant in taile, then 
 this is a discontinuance in fee; and if after the tenant in tayle dieth, his 
 issue may not enter, hut is put to his writ of formedon. And the cause 
 is, for that he which hath the grant of such reversion in fee simple, hath 
 the seisin and execution of the same lands or tenements, to have to him 
 and to his heires in his demesne as of fee, in the life of the tenant in tayle. 
 * [And this is by force of the grant of the said tenant in tayle. 
 
 " J? OR termeofthe life of the lessee, &c." Here is implied, 
 
 or for terine of another man's life (1). (1 Roll. 633.) 
 
 "A new reversion of the fee simple. Which must be under- 15 E. 4 tit. 
 stood of a fee simple determinable upon the life of the lessee, Discont. 30. 
 which our author here calleth a fee simple; for if the lessee 
 dieth the donee is tenant in taile againe, as bee was before ; and 
 that is the reason tbat if in that case hee granteth over the re- 
 version and dieth ; and after the death of tenant in taile the (Cro. Car. 156.) 
 lessee dieth; tbe entry of the issue is lawfull, because by the 
 death of the lessee the discontinuance is determined ; and con- 
 sequently the grant made of the reversion gained upon that dis- 
 continuance is void also. 
 
 If tenant in taile maketh a lease for three lives according to 
 the statute of 32 E. 8, that is no discontinuance of the estate 32 H. S. cap. 28. 
 taile or of the reversion, because it is authorised by act of par- 
 liament, whereunto every man in judgement of law is partie. 
 
 And yet in some cases the freehold may be discontinued and 
 not the reversion. [?<] As if the husband and wife make a lease [«] 38 E. 3. 32. 
 for life by deed (2) of the wife's land, reserving a rent, the bus- ™ ^ SS g 2 j 4 
 band dieth ; this was a discontinuance at the common law for 22 jj' # g. 24". 
 
 life ; and yet the reversion was not discontinued, but 
 r333."| remained in the wife. Otherwise it is BST if the bus- ( 8 Re P- 7L ) 
 |_ b. band had made the lease alone. 
 
 "And after the tenant for life dieth, &c." The like law it is 21 H. 6. 52. 
 if the tenant for life surrender to the grantee, or if the grantee ij!/^ ^ 
 recover in an action of waste, or enter for the forfeiture. 
 
 "Hath 
 
 * No part of this or of the following Section within crotchets is in L. and 
 M. or lioh. 
 
 (1) IX. It has been observed before, that no conveyance by tenant in tail 
 can operate as a discontinuance, unless it is created by livery, or by that 
 which, in the eye of the law, is tantamount to it. — Littleton now proceeds to 
 lay down, that to make a discontinuance, the conveyance must be of such an 
 estate as in its original creation may, by possibility, endure beyond the life of 
 the tenant in tail. When the estate so created is at an end, the discontinuance 
 also is at an end. — [Note 289.] 
 
 (2) Nota, a proviso on 32 Hen. VIII. that the lease shall be made in both 
 their names, where the inheritance is in the woman. And see Cro. Car. 22. 
 Smith v. Trender, where there is a quaere, whether it ought to be so where the 
 inheritance is in both. — Lord Nott. MSS. — [Note 290.
 
 333. b.J Of Discontinuance. L. 3. C. 11. Sect. 620. 
 
 32 e. 3. "Hath the seisin and execution." And here it is to be ob- 
 
 Discont. 2. served, that when the reversion in this case is executed in the 
 
 i? E. 3. life of tenant in taile, it is equivalent in judgement of law to a 
 
 3 ■&.% g Dg feoffment in fee, for the state for life passeth by liverie. 
 
 22 R. 2. Discont. 50. 34 Ass. 6. PI. 4. 38 Ass. 6. p. 6. 43 Ass. 6. 48. 18 E. 3. 43. 
 21 H. 6. 52. 15 E. 4. tit. Discontinuance, 30. Brooke, tit. Discont. 3, and 14. 
 
 4 H. 7. 17. 21 H. 7. 11. 
 
 [w] 21 H. 6. [w] If tenant in taile make a lease for life, the remainder in 
 
 62 > 63 - fee, this is an absolute discontinuance, albeit the remainder be 
 
 not executed in the life of tenant in taile, because all is one 
 
 estate, and passeth by one livery. And so note a diversitie be- 
 
 tweene a grant of a reversion, and a limitation of a remainder. 
 
 B. tenant in taile maketh a gift in taile to A. and after B. re- 
 
 leaseth to A. and his heires, and after A. dieth without issue; 
 
 the issue of the first donee may enter upon the collateral heire, 
 
 because A. had not seisin and execution of the reversion of the 
 
 land in his demesne as of fee, as Littleton here speaketh. But 
 
 if tenant in taile make a lease for the life of the lessee, and after 
 
 releaseth to him and his heires, this is an absolute discontinuance ; 
 
 because the fee simple is executed in the life of tenant in taile. 
 
 [y] If tenant in taile of a mannor whereunto an advowson is 
 
 [y] 34 E. 1. appendant, maketh a feoffment in fee by deed (as it ought to be) 
 
 Quaere impedit. £ r . , , , -, ,, , \ i .i, -j 
 
 179. 22 E. 3. 6. or one acre wlta tue advowson, and the church becometn void, 
 
 17 E. 3. 3.' and the feoffee present, tenant in taile dieth, the church becom- 
 
 ? 3E \q- Quare metnv °id; tne issue shall not present untill he hath re-con- 
 
 23 Ass. 8. tinued the acre. But if the feoffee had not executed the same 
 50 E. 3. 26. by presentment, then the issue in taile should have presented. 
 (Ant. 298. ^ nc i so wag i t at t he common law, of the husband seised in the 
 F. N. B. 32.' right of his wife, mutatis mutandis. 
 
 (L Roll. Abr. 632. 1 Rep. 76.) 
 
 If a fine be levied to a tenant in taile, and he granteth and 
 rendreth the land to him and his heires, and die before execu- 
 42 E S 3. 20. ti 011 ) this is no discontinuance. Otherwise it is, if it had beene 
 
 22 R. 2. executed in the life of tenant in taile. 
 
 Discont. 50. [f tenant in taile make a lease for life of the lessee, and after 
 
 21 a 6.°52^3. g rant the reversion with warrantie, and dieth before execution, 
 Brooke, tit.' this is no discontinuance; because the discontinuance was (as 
 
 Discont. 3. hath D eene gaid) Du t for life, and the warrantie cannot enlarge 
 
 21 H. 7. 11. 4.u rt\ 
 
 Lib.lfol.85. the same (1). 
 Lib. 10. fol. 96, 97. (W.Jones, 210. Cro. Car. 156.) 
 
 u And this is by force of the grant of the said tenant in tayle." 
 [*] 15 E. 4. Hereupon Littleton hitnselfe is of the same opinion, [*] as it ap- 
 Discont. 30. peareth he was in our bookes ; that if tenant in taile make a lease 
 Vide Sect. 642. fm . ^ aQ( j gKmt the revers i on j n f ee , and the lessee attorue, aud 
 
 that grantee granteth it over, and the lessee attorne, and then 
 the lessee for life dieth, so as the reversion is executed in the life 
 
 of 
 
 (1) All this is a consequence of the doctrine laid down in the last page. 
 If the remainder or reversion is created at the same time as the particular 
 estate, it necessarily must be created by the same livery. If it is created at a 
 subsequent time, then to continue the discontinuance after the determination 
 of the particular estate, the reversion or remainder must be executed in posses- 
 sion during the life of the tenant in tail. The entry of the reversioner or 
 remainder-man in this case is tantamount to a second livery. — [Note 291. J
 
 L. 3. C. 11. S. 621-2. Of Discontinuance. [333. b. 33-1. a. 
 
 of tenant in taile, yet this is no discontinuance, but that after 
 the death of tenant in taile the issue may enter; because (as 
 Littleton here saith) he is not in of the grant of the tenant in 
 taile, but of his grantee. 
 
 If at this day tenant in taile make a lease for life, and after by 
 deed indented aud inrolled according to the statute he bargaineth 
 and selleth the reversion to another in fee, and the lessee dieth, 
 so as the reversion is executed in the life of tenant in taile; 
 albeit the bargainee is not in the per by the tenant in taile, yet 
 inasmuch as he claimeth the reversion immediately from him, 
 which is executed in his lifetime, this is a discontinuance. And 
 so it is, and for the same cause, if tenant in taile had granted the 
 reversion to the use of another and his heires. If tenant in taile 
 maketh a lease for life, and after disseiseth the lessee for life, and 
 maketh a feoffment in fee, the lessee dieth, and then tenant in 
 taile dieth ; albeit the fee be executed, yet for that the fee was 
 not executed by lawfull meanes, (as in all the cases of Littleton 
 it appearcth it ought to be) it is no discontinuance. 
 
 f334.i m- Sect. 621. %2JwJL, 
 
 [ 33 a 4 -] 
 
 JN the same manner shall it be, if in the case aforesaid the tenant for 
 terme of life after the attornement to the grantee had aliened in fee, 
 and the grantee had entred by forfeiture of his estate, and after the ten- 
 ant in tayle had died, this is a discontinuance, causa qua supra.] 
 
 r \ HIS is added in this place, but in the originall it commeth 21 H. 6. 52, 53. 
 1 in after in this chapter*. Discount 30 
 
 Sect. 622. S w ' Jone8 " 
 
 Cro. Car. 156.) 
 
 J) UT in this case, if tenant in taile that grants the reversion, <fc. dieth, 
 living the tenant for life, and after the tenant for life dieth, and after 
 hee to whom the reversion was granted enter, $c. then this is no discon- 
 tinuance, but that the issue of the tenant in tayle may ivell enter upon 
 the grantee of the reversion ; because the reversion which the grantee had, 
 $c. was not executed, §c. in the life of the tenant in taile, £c. And 
 so there is a great diversitie when tenant in tayle maketh a lease for 
 yeares, and where he maketh a lease for life ; for in the one case hee hath 
 a reversion in tayle, and in the other case hee hath a reversion in 
 fee(l). 
 
 OF 
 
 * Rut it does not appear in this Chapter in L. and M. or Rob., nor in MSS. 
 (1) See the note on the following Section.
 
 334. a. 334. b.] Of Discontinuance. L. 3. 0.11. S. 623-4-5. 
 
 0' 
 
 >F this sufficient hath beene said before, and is of itselfe mani- 
 fest and needeth no explication. 
 18 Ass. 6. Like law was at the common law of a husband seised of land 
 
 21 H. 6. 53. j n right f hi s w ife ; mutatis mutandis. 
 
 n@r Sect. 623. [ 3 ? 4 '] 
 
 TpOM if land bee given to a man and to his heires males of his body 
 engendred, ivho hath issue two sonnes, and the eldest sonne hath issue 
 a daughter and dieth,* and the tenant intayle mahetha lease for yeares 
 and die, ?iow the reversion descendeth to the younger sonne, for that the 
 reversion was but in the taile, and the youngest sonne is heire male, fyc. 
 But if the tenant had made a lease for life, frc. and after died, now the 
 reversion descendeth to the daughter of the elder brother, for that the 
 reversion is in the fee simple, and the daughter is heire generall, $c. (1) 
 
 This is evident also and needeth no explanation. 
 
 Sect. 624. 
 
 J LSO, if a man be seised in taile of lands devisable by testament, $c. 
 and hee deviseth this to another in fee, and dieth, and the other 
 enter, $c. this is no discontinuance, for that no discontinuance was made 
 in the life of the tenant in taile, $c. 
 
 'JE.4.22. ''PHIS is manifest, and needeth no explanation: only this is 
 
 Vd^is E*3 8 ^- to be observed, that no discontinuance can be made by ten- 
 ;Cro. Car. 405." ant in taile, but such as is made and taketh effect in his lifetime, 
 ] Roll. Abr. 633.) which is here implied in the (<£c.) 
 
 Sect. 625. 
 
 A LSO, if land be given in taile, saving the reversion to the donor, 
 
 and after the tenant in taile by his deed enfeoffe the donor, to have 
 
 and to hold to him and to his heires for ever, and deliver to him seisin 
 
 accordingly, 
 
 * and die tenant in tayle malceth a lease for yeares and die, not in L. and M. 
 or Roh. 
 
 (1) The estate of the lessee for years not being created by livery, does not dis- 
 place the possession, and consequently does not disturb the descent of the in- 
 heritance upon the issues inheritable to the estate. It is otherwise where the 
 lease is for life. That is created by livery, and therefore displaces the posses- 
 sion, and gives the tenant in tail a tortious estate in fee simple, in reversion 
 immediately expectant upon the life estate of his donee; — that reversion must 
 therefore descend on the daughter as heir general. — [Note 292.]
 
 L. 3. C.ll. S. 625. Of Discontinuance. [334. b. 335. a 
 
 accordingly, $*c. this is no discontinuance, because none can discontinue 
 the estate taile, unlesse he discontinued the reversion of him who hath 
 the reversion, $c. or remainder, if any hath the remainder, $e. And 
 inasmuch as by such feoffment made to the donor (the reversion then 
 being in him) his reversion was not discontinued nor altred, $c. this 
 feoffment is no discontinuance, §c. 
 
 AND of this opinion is Littleton [a] in our bookes, and saith [a] 9 E. 4.24. 1. 
 that so it was adjudged. 
 
 " Enfeoffe the donor, &c." This must be under- Lib. 1. fol. 140. 
 
 t 335.1 stood where the reversion of the donor is immediately in Chudlye's 
 a. | 8@°' expectant upon the estate of the donee; [/>] for (i^'oll. Abr. 
 if a man make a gift in taile the remainder in taile, 634.) 
 reserving the reversion to himselfe : in this case if the donee [^1 *} Ass - 2 - 
 enfeoffe the donor, this is a discontinuance, because there is a , x R " " T ^ 6> b . 
 meane estate; and so doth Littleton here put his case of a rever- (Ant. 42. a.) 
 sion immediately expectant upon the gift in taile. Also it is to 28 II. 8. Dier, 12. 
 be intended of a feoffment made to the donor solely or only; for 
 if the donee enfeoffe the donor and a stranger, this is a discon- 
 tinuance of the whole land. 
 
 But if tenant for life make a lease for his owne life to the (1 Rep. 76. b. 
 lessor, the remainder to the lessor and an estranger in fee : in Sid. 361.) 
 this'Case, forasmuch as the limitation of the fee should worke 
 the wrong, it enureth to the lessor as a surrender for the one 
 moytie, and a forfeiture as to the remainder of the stranger; for (Dyer, 12. b.) 
 he cannot give to the lessor that which he had before, as our 
 author here saith; and as to the remainder to the stranger, it is 
 a forfeiture for his moytie, and when the lessor entreth, he shall 
 take the benefit of it. But if two joyntenants be, and one of (Ant. 169. a. 
 them enfeoffe his companion and a stranger, and make livery to 1S6. a. 193. b. 
 the stranger; this shall vest only in the stranger, because the Abr. 86. 403.' 
 livery cannot euure to his companion. l Rep. 100. b. 
 
 4 Leo. 23.) 
 
 " None can discontinue the estate taile, unlesse he d '/ 'scon t inn eth 40 Ass. 36. 
 
 the reversion, &c. or remainder, &c." And therefore for this |^ ss ' 36 ' 
 
 cause, if the reversion or remainder be in the king, the tenant ■p.'N'.B. 142. a. 
 
 in taile cannot discontinue the estate taile. [c] But tenant in pi. Com. 555. 
 
 taile, the reversion in the king, might have barred the estate W|t 3 .S'| 
 
 taile by a common recovery, untill the statute of 84 //. 8. ca. 20. p j] c'om.' ul»i 
 
 which restraineth such a tenant in taile; but that common reco- supra. 
 very neither barred nor discontinued the king's reversion (1). 
 
 Note, the reversion may be revested, and yet the discontinu- 
 ance remains, [d] As if a feme covert be tenant for life, and M 27 Ass. p. 60. 
 the husband make a feoffment in fee, and the lessor enter for ^ i*s". 11. 
 the forfeiture; here is the reversion revested, and yet the dis- 16 Asa! 1L 
 continuance remained at the common law. 18 B. 3. 45 
 
 (Ant. 333. b. 
 
 Post. 336.) 
 
 Sect. 
 
 (1) See Stone v. Newman, 3 Cro. 427.
 
 335. a.] Of Discontinuance. L. 3. C. 11. Sect. 626. 
 
 [\*f- AhT - Sect. 626. 
 
 TN the same manner is it, where lands are given to a man in taile, the 
 remainder to another in fee, and the tenant in taile enfeoff e him that 
 is in the remainder, to have and to hold to him and to his heires ; this is 
 no discontinuance, causa qua supra (2). 
 
 " rp HE remainder to another." Here it appeareth that (as 
 hath beene said in case of a reversion) the remainder must 
 be immediately expectant upon the estate taile. 
 
 Sect. 
 
 (2) X. As to discontinuances made to, or with the concurrence of, the remain- 
 der-man or reversioner : — The feoffment of tenant in tail to the immediate re- 
 mainder-man or reversioner in fee, has the operation of a surrender. In this 
 light it cannot be considered to pass a greater estate than the grantor may law- 
 fully convey: it does not, therefore, work a discontinuance. But if it is made 
 to a stranger, the mere concurrence of the remainder-man or reversioner does 
 not prevent the discontinuance, either with respect to the issues in taile, or his 
 own remainder or reversion, even though the tenant in tail die without having 
 issue. Thus, in Baker v. Hacking, 3 Cro. 387. 405. J. 0. being tenant in 
 tail, with the immediate reversion in fee to R. G. both of them joined in a 
 feoffment to A. for life. R. C. made his will and died; and then J. C. died 
 without issue. It was admitted, that if it were a discontinuance of the rever- 
 sion, the devisor, not being seised, had no power to devise. Sir Geo. Croke 
 was of opinion, that as there was no issue of the tenant in tail, his feoffment 
 was no discontinuance of the reversion : he considered it as the lease of the 
 tenant in taile during his life, and afterwards, the lease of the reversioner; and 
 that the reversioner's joining showed it was not the intention of the parties to 
 displace his estate. But the three other judges held it to be a discontinuance, 
 on the ground that the effect of a discontinuance is immediate, and does not 
 depend on the tenant in tail having or not having issue. — They were also of 
 opinion, that if the reversion in fee, instead of being in a stranger, had been 
 in the tenant in tail himself, the feoffment would have been a discontinuance, 
 as well of his own reversion as of the estate of the issue in tail. — But where 
 the tenant for life and reversioner join in the conveyance, each of them is con- 
 sidered to pass his own estate : the tenant for life, the freehold; the reversioner, 
 the inheritance. Hence if tenant for life, remainder in tail, remainder in fee, 
 join in a fine, it is no discontinuance to the remainder-man in fee. This was 
 resolved in Peck v. Channell, 1 Cro. 827, 828. on the ground, that none shall 
 make a discontinuance but he who is seised of an estate tail in possession. — 
 [Note 293.]
 
 L.3.C.11.S.627-8-9-30. Of Discontinuance. [335.b.336.a. 
 
 [-335.1 m~ Sect. 627. 
 
 A LSO, if an abbot hath a reversion or a rent service, or a rent 
 charge, and he will grant * this reversion, or rent service, or rent 
 charge, to another in fee, and the tenant attorne, §c. this is 710 dis- 
 continuance. 
 
 Of inheritances that lie in grant ; sufficient hath been said 
 before. 
 
 Sect. 628. 
 
 TNthe same manner where an abbot is seised of anadvowson, or of such 
 things which passe by way of grant without liverie of seisin, frc. 
 
 HERE it appeareth (as hath beene said) that an advowson 
 doth not lie in liverie, but in grant. 
 
 SeCt. 629. (Ant. 234. a.) 
 
 A LSO, if tenant in tayle letteth his land to another for life, and after 
 he granteth in fee the reversion to another, and the tenant attorne, 
 and after the tenant for life alien in fee, and the grantee of the reversion 
 enter, Spc. in the life of the tenant in taile, and after the tenant in taile 
 dieth, his issue shall not enter, but is put to his writ of formedom, be- 
 cause the reversion in fee simple which the grantor (A) had by the graunt 
 of the tenant in tayle, was executed in the life of the same tenant in tayle, 
 and therefore it is a discontinuance in fee, Sec. 
 
 Of this sufficient hath beene said before. 
 
 [ 3 f-] 
 
 *srSect. 630. &7\ 0lL Abr ' 
 
 AND note, that some make discontinuances for terme of life. As if 
 
 tenant in tayle make a lease for life, saving the reversion to him 
 
 as long as the reversion is to the tenant in tayle, or to his heires ; this is 
 
 no 
 
 * this reversion, or rent service, or rent charge — one of them, L. and M. and 
 R)h. but as above in MSS. 
 
 (A) Here "grantor" seems printed by mistake instead of " grantee j" for, in this case, 
 tht tenant in tail is the grantor. See Mr. Ritso'e Intr. p. 113.
 
 336. a. 336. 1).] Of Discontinuance. L. 3. C. 11. S. 631-2. 
 
 no discontinuance but during the life of tenant for life, $c. And if such 
 tenant in taile giveth the lands to another in tayle, saving the reversion, 
 then this is a discontinuance during the second tayle, frc. 
 
 fTHIS is manifest, and hath beene handled before, and needeth 
 -1 no explanation; onely this is to be observed, where Little- 
 ton putteth hereafter cases of discontinuances by feoffement, &c. 
 he hath a double intendment. First, by feoffement, or by any 
 other conveyance which may make a discontinuance. Secondly, 
 (<fcc.) implieth a discontinuance by a gift in taile, or a lease for 
 life, &c. 
 
 Sect. 631. 
 
 7? UT where the tenant in tayle maketh a lease for yeares or for life, 
 the remainder to another in fee, and delivereth liverie of seisin 
 accordingly, this is a discontinuance in fee, for that the fee simple passeth 
 by force of the liverie of seisin, $c. 
 
 This is evident also, and hereof sufficient hath beene spoken 
 before. 
 
 Sect. 632. 
 
 A ND it is to be understood, that some such discontinuances are made 
 upon condition, $c. and for that the conditions be brokeyi, §c. or 
 for other causes, according to the course of law, such estates are defeated, 
 then are the discontinuances defeated, and shall not by force of them 
 take any man from his entrie, $c. * As if the husband be seised of 
 certain land in right of his wife, and maketh a feoffment in fee upon 
 condition, and dyeth, if the heire after enter upon the feoffee for the 
 condition broken, the entrie of the wife was congeable upon the heire, 
 for that by the entry of the heire the discontinuance is defeated, as is 
 adjudged. 
 
 " T)ISCOXTlXUANCESmade upon condition, &c." _ Here 
 ■*-^ is to be understood a diversitie betweene a condition in 
 deed, whereof Littleton here speaketh, and a condition in law. 
 (Ant. 335. a.) whereof somewhat hath beene said before iu this chap- 
 ter, $ST" viz. where the feme is tenant for life, and the r336."l 
 husband maketh a feoffement in fee, and the lessor L b. J 
 entreth for the condition in law. 
 
 " The conditions be broken, &c" Here is implied, or any 
 
 cause o-iven either by disabilitie of the feoffees, or by any con- 
 
 J dition 
 
 * The remaining part of the above the case of the grandfather, father, and 
 Section is not in L. and M. or Roh. son, Sect. 637, is_ here inserted, with 
 nor in Pynson, or MSS. But iu all some small variation.
 
 L. 3. C. 11. Sect. 633. Of Discontinuance. [336. b. 337. a. 
 
 dition performed on the part of the feoffor, or otherwise, whereby 
 the state is in any sort avoided. 
 
 "As if the husband be seised of certaine land in right of his wife, (2 Rep. 59.) 
 &c." Here it appeareth, that for the condition broken, the heire 
 of the husband may enter; for albeit no right descend from the 
 husband to his heire, yet the title of entry by force of the con- 
 dition which the husband created upon the feoffement, and re- 4 H. 6. 2. 
 served to him and his heires, doth descend to his heire : and 9 H. 7. 24. b. 
 Littleton saith truly, that so it hath been adjudged. 44. 'whittingl 
 
 ham's case. 
 
 " Upon the heire." Nota, when the heire in this case hath (Ant. 12. b. 
 entred for the condition broken, and hath avoided the feoffement, 46 - b - 202 - a ^ 
 the estate of the heire vanisheth away, and presently the estate 
 yesteth in the feme or her heires, without any entry or claime 
 by her or them ; for the heire entreth in respect of the condition, 
 upon the reall contract, and not of any right, as hath beene said ; 
 and if the husband himselfe had re-entred, the state had vested 
 in his wife : and therefore where Littleton and our bookes say, Whittingham's 
 that the wife shall enter upon the heire, the meaning is, that case > ubi su P ra - 
 after the entry of the heire she may re-enter. 
 
 Sect. 633. 
 
 A LSO, if a woman inheritrix hath a husband who is within age, and 
 hee being within age maketh a feoffement of the tenements of his 
 wife in fee, and dieth, it hath beene a question, if the wife may enter or 
 not, &c. And it seemeth to some, that the entrie of the wife after the 
 death of her husband, is congeable in this case. For when her husband 
 made such feoffment, gc. he might well enter, notwithstanding such feoff- 
 ment, $c. during the coverture ; and he could not enter in his owne 
 right, but in the right of his wife: ergo, such right as hee had to enter 
 in the right of his wife, §c. this right of entrie remayneth to the wife 
 after his decease. 
 
 M'tlE reason here rendred by Littleton is, for that the husband Whittingham's 
 1 cannot enter in his owne right, but in the right of his wife ; case, ubi supra, 
 and the heire of the husband cannot enter, for no right or title 
 descends unto him, and the wife in this case shall take benefit 
 of the nonage of her husband, and enter into the land. 
 
 If an infant be tenant for another man's life, and make a feoffe- 
 ment in fee, and cesty que vie dieth, the infant himselfe shal not 
 enter, because he hath no right at all. 
 
 [337.1 O^T If the husband within age take to wife feme 
 a. I tenant in taile generall, and the husband make a gift 
 in taile and dieth within age, in this case the wife may 
 enter, as Littleton here holdeth, or the heire of the husband in 
 respect of the new reversion descended unto him may enter. 
 But if the heire enter, presently thereupon his estate vanisheth. 
 If tenant in taile being within the age of one and twenty yeeres 
 make a feoffment in fee, and after is attainted of felony and dieth, 
 the entry of the issue is not lawfull ; for his entry is not law- 
 full in respect of his estate only, but of his blood also which 
 
 is 
 
 Vol. II.— 38
 
 337. a. 337. b.] Of Discontinuance. L. 3. C. 11. S. 634-5. 
 
 is corrupted ; and therefore in that case he is driven to his 
 (8 Rep. 43.) formedon. 
 
 28l E 14^3 ^ husband and wife be both within age, and they by deed 
 
 Dum fait infra indented joyne in a feoffment reserving a rent, the husband 
 setatem, 6. dieth, the wife may enter, or have a dumfuit infra seta tern. But 
 
 n n ' 11 Ah 2 ' ^ s ^ e were °^ * u ^ a a e > sue shall n °t have a dumfuit infra detatem, 
 6 34_j° for the nonage of her husband, albeit they be but one person in 
 
 law. 
 
 Sect. 634. 
 
 A ND it hath beene said, that if two joyntenants being within age 
 make a feoff ement in fee, and one of the infants die, and the other 
 surviveth ; in as much as both the infants might enter joy ntly in their 
 lives, this right accrueth all to him which surviveth, and therefore hee 
 that surviveth may enter into the whole, $c. And also the heire of the 
 husband which made the feoffment within age cannot enter, $c. because 
 no right descendeth to such heire in the case aforesaid, for that the hus- 
 band had never any thing but in right of his wife, $c. 
 
 21 E. 3. 50. " WT^ Y enter into the whole, &c." And the reason hereof 
 8316 E 34 * s i^P'^d m this (<£c.) for that they may joyne in a writ 
 
 911. G. 6. of right, and therefore the right shall survive. But they cannot 
 
 19 H. 0. 6. joynein a dumfuit infra astatem, because the nonage of 
 
 ?4h'6*3i 2 ' the one is not the ^ nona g e of the otner - In tuis [337. "1 
 p. n! B. 192. case, if one joyntenant had made a feoffment in fee and [ b. 
 See of this in died, the right should not have survived, for the joyn- 
 the Chapter of ture wag severec i f or a time. If two joyntenants be, and the 
 (8 Rep. Whit- one 1S °f fu-11 age, and the other within age, and both they make 
 tingbam's case.) a feoffment in fee, and he of full age dieth, the infant shall en- 
 ter, or have a dumfuit infra cetatem but for the moitie. 
 
 (F. N. B. 192. a. Qppf ftQ^J 
 
 5 Rep. 27.29. ° eLL * DO °' 
 
 C Rep. 3. 9 Rep. 84. b, 8 Rep. 42.) 
 
 A ND also when an infant makes a feoffment being within age, this 
 shall neither grieve nor hurt him, but that hee may well enter, $c. 
 for jt should be against reason that such feoffment made by him that ivas 
 not able to make such a feoffment shall grieve or hurt another, to take 
 them from their entry, Sfc. And for these reasons it seemeth to some, 
 that after the death of such husband so being within age at the time of 
 the feoffment, $c. that his wife may well enter, $e. 
 
 Bract, fol. 14. " 7?^ ^ a * ^ ie ma y well enter, &c." Here is implied, that he 
 Fleta liV o 3 I m ^S nt enter eitner within age, or at any time after full age, 
 
 (Post! 350. b! and likewise after his death his heire may enter. Meliorem enim 
 380. b.) conditionem facere potest minor deteriorem nequaquam. 
 
 Nota, 
 
 (A) Vicl. ante 188. a. & note 4 there.
 
 L. 3. C. 11. Sect. 636. Of Discontinuance. [337. b. 
 
 Nola, A speeiall heire shall take advantage of the infancie of 
 the ancestor. As if tenant in taile of an acre of the custome of 
 borrow English make a feoffment in fee within age, and dieth, 
 the youngest sonne shall avoid it; for he is privie in bloud, and 
 claimeth by discent from the infant. 
 
 And so if tenant in taile to him and the heires females of his (s Rep. 54. 
 bodie make a feoffment in fee and dieth within age, having issue Ant. 12. a.) 
 a sonne and a daughter, the daughter shall avoid the feoffment. 
 And so note, that a cause to enter by reason of infancie is not 
 like to conditions, warranties, and estoppels, which ever descend 
 to the heire at the common law. 
 
 The residue of this Section upon that which hath beene said 
 is evident. 
 
 Sect. 636. 
 
 A LSO, if a woman inheritrix taketh husband, and they have issue a 
 sonne, and the husband dieth, and she takes another husband, and 
 the second husband letteth the land which he hath in right of his wife to 
 another for terme of his life, and after the wife dieth, and after the 
 tenant for life surrendered his estate to the second husband, §c. quaere, 
 if the sonne of the wife may enter in this case upon the second husband 
 during thelife of tenant for life, * fie. But it is cleere law, that after 
 the death of the tenant for life, the son of the wife may enter ; because 
 the discontinuance, which was only for terme of life, is determined, fte. 
 by the death of the same tenant for life f. 
 
 " SURRENDER, (1)," sursum redditio, properly is a yeeld- (Ante, 218. 
 ^ ing up an estate for life or yeares to him that hath an Perk- 581. 
 immediate estate in reversion or remainder, wherein the estate \ u ^ ' 
 for life or yeares may drowne by mutuall agreement betweene 
 
 them (-2). 
 
 K Note, 
 
 * &c. not in L. and M. or Koh. f &c. added in L. and M. and Rob. 
 
 (1) A surrender differs from a release in this respect, that the release ope- 
 rates by the greater estate's descending upon the less : — a surrender is the 
 falling of a less estate into a greater. As there is necessarily a privity of 
 estate between the surrenderor and the surrenderee, no livery of seisin is 
 necessary to perfect a surrender. See 2 Bla. Com. Ch. 20. — In Thompson v. 
 Leach, 2 Salk. 618. the court held, that a surrender immediately divests the 
 estate out of the surrenderor, and vests it in the surrenderee ; for this is a con- 
 veyance at common law, to the perfection of which no other act is requisite but 
 the bare grant ; and that, though it be true, that every grant is a contract, 
 and there must be an actus contra actum, or a mutual consent, yet that consent 
 is implied ; that a gift imports a benefit ; that an assumpsit to take a benefit 
 may well be presumed ; and that there is the same reason why a surrender 
 should vest the estate before notice or agreement, as why a grant of goods 
 should vest a property ; or sealing of a bond to another in his absence should 
 be the obligee's bond, immediately without notice. — [Note 294.] 
 
 (2) This°doctrine ; that to give a surrender legal effect, the surrenderee must 
 
 have
 
 338. a.] Of Discontinuance. L. 3. C. 11. Sect. 636. 
 
 B^^Note, there be three kinde of surrenders, viz, a ["388. "1 
 irrender properly taken at the common law, which | a. 
 
 (Ante, 213. b.) 
 
 surrei 
 
 is here before described, and whereof Littleton 
 
 speaketh 
 
 have the immediate estate in remainder or reversion expectant on the estate 
 of the surrenderor, evidently applies to the common case of a tenant for life, 
 with remainder to trustees during his life to preserve contingent remainders. 
 It is now settled beyond doubt, that the estate of the trustee is vested estate 
 of freehold. It must therefore necessarily prevent a surrender from the tenant 
 for life to the ulterior remainder-man. In cases of limitations to the father 
 for life, remainder to his sons successively in tail, it was the practice formerly, 
 particularly where it was intended to suffer recoveries with single voucher, to 
 make the father convey his estate to the son. This was sometimes done by 
 surrender. To this there could be no objection, where there was no limitation 
 to trustees to preserve. But in those cases where such a limitation was intro- 
 duced, the deed necessarily failed to operate as a surrender, for the reason above 
 mentioned. It has, however, been contended, that, though in this case the 
 deed was void as a surrender, it would operate as a covenant to stand seised. 
 That, an assurance, where there is a proper consideration, will operate as a 
 covenant to stand seised, though the words used in the deed point at a different 
 mode of assurance, is placed beyond doubt by many authorities both ancient 
 and modern. But between those cases and that now under consideration, 
 there is this striking difference; that, in all those cases the estate vested in 
 the party would be the same both in quantity and quality, whether the deed 
 operated in the mode imported by the language of the deed, or in any other 
 mode. But in the case under consideration, if the deed operated by way of 
 surrender, the party would take one kind of estate ; if it operated by way of 
 covenant to stand seised, he would take another. For if it could operate by 
 way of surrender, the father's life estate would be immediately extinguished. 
 and the son would become tenant in tail in possession : if it operated by way 
 of covenant to stand seised, the father's life estate would immediately, by the 
 statute of uses, be transferred to the son, and he would become tenant for life 
 of his father, remainder to trustees to preserve, remainder to himself in tail. 
 Then supposing him to die without issue in the father's lifetime, if the deed 
 operated by way of surrender, v the person entitled in remainder next expect- 
 ant upon the estate tail of the son would be entitled to enter immediately : but 
 if the deed operated by way of covenant to stand seised, there would be an 
 estate of special occupancy during the father's life, and the next remainder 
 man would not be entitled to take until the father's decease. To this it may 
 be replied, that the object of the parties was, that the son should by virtue of 
 the deed become seised of the lands for a particular purpose. It is found, that 
 it cannot have that effect if its mode of operation be that which the parties 
 themselves intended, but that, if the deed is held to operate in another mode, 
 it will accomplish the object of the parties. The courts therefore, it may be 
 said, conformably to their usual practice of effectuating the intent of parties, 
 when it can be done, will construe the deed to operate in that mode of assurance 
 in which it can take effect, and consequently consider the deed to operate by 
 way of covenant. It is observable, that when the tenant to the praecipe in a 
 recovery is made by bargain and sale, it sometimes happens that the bargain 
 and sale is not enrolled. But frequently in these cases the lands are out upon 
 leases for years, or in the hands of tenants at will ; where this is the case 
 there seems room to contend, that the deed, though void as a bargain and 
 sale for want of inrolment, may operate as a grant of the reversion expectant on 
 these particular estates. — [Note 294*.]
 
 L. 3. C. 11. Sect, 636. Of Discontinuance. [338. a. 
 
 speaketh (1). Secondly, a surrender by custome of lands holden 
 by copy, or of customary estates, whereof you have read before, 2Eliz Dier 176 
 Sect. 74, and a surrender improperly taken (as appeares before, 14 H. 7. 3. 
 Sect. 550), of a deed. And so of a surrender of a patent, and 27 ^ s? ; 37 - 
 of a rent newly created, and of a fee simple to the king. n H ' ' 4 ' ~% 
 
 12 H. 4. 21. 13 H. 4. 13. 
 
 A surrender properly taken is of two sorts, viz. a surrender in 
 deed, or by expresse words, (whereof Littleton here putteth an 14 jj g. ] 5 _ 
 example) and a surrender in law wrought by consequent by ope- 37 H. 6. 17. 
 ration of law. Littleton here putteth his case of a surrender of 21 if- ?• Jj- 
 an estate in possession, for a right cannot bee surrendered. And 3^ ^j s ' 9 q ' 
 it is to be noted, that a surrender in law is in some cases of 50 E. 3. 6. 
 greater force than a surrender in deed. As if a man make a 44 Ass - Vj - 
 lease for yeares to begin at Michaehnasse next, this future inte- Di er '37 
 rest cannot be surrendered, because there is no reversion wherein 8 Ass. 20. 
 it may drowne; but by a surrender in law it may be drowned. 4 Ma. Dier, 141. 
 As if the lessee before Michaelmasse take anew lease for yeares n ;„. oan 
 
 •1 i • 1 w-77 1 • • 1 -Lner, Z80. 
 
 either to begin presently, or at Michaelmasse, this is a surrender 6 H. 7. 9. 
 in law of the former lease. Fortior <£• aouior est disnosilio leqis 37 ?■ 6 - l<". 
 
 • • -k \ 21 tf 7 fi 
 
 quam hominis (2). 14 H ' i' ?' 
 
 Lib. 6. f. 69. Sir Moyle Finehe's case. (5 Rep. 11. 1 Leo. 323. 4 Rep. 53.) 
 (10 Rep. 67. 6 Rep. 69. Cro. Jac. 84. 2 Roll. Abr. 494. Ant. 47. b. Dyer, 58 ) 
 19 H. 6. 33. 27 Ass. 46. 14 H. 7. 4. 1 H. 6. 1. PI. Com. 541. 
 
 ' Also there is a surrender without deed, whereof Littleton 
 putteth here an example of an estate for life of lauds, which may 
 be surrendered without deed, and without livery of seisin; be- 
 cause it is but a yeelding, or a restoring of, the state againe to 
 him in the immediate reversion or remainder, which are alwayes 
 favoured in law. And there is also a surrender by deed ; and 
 that is of things that lie in grant, whereof a particular estate 
 
 cannot 
 
 (1) By the stat. 29 Cha. II. c. 3. sect. 3. no leases, &c. either of freehold or 
 terms of years, or any uncertain interest, not being copyhold or customary 
 interest, shall be surrendered, unless it be by deed or note in writing, signed 
 by the party surrendering the same, or his agents thereunto lawfully authorized 
 by writing, or by act and operation of law. Upon this statute it was held, by 
 lord chief-baron Gilbert, in Magennis v. Mac-Cullogh, Gilb. Ca. in Eq. 230. 
 that a lease for years cannot be surrendered by cancelling of the indenture with- 
 out writing ; because the intent of that statute was to take away the manner 
 they formerly had of transferring interests to lands by signs, symbols, and 
 words only; and therefore, as a livery and seisin on a parol feoffment, was a 
 sign of passing the freehold before the statute, but is now taken away by the 
 statute ; so the cancelling of a lease was a sign of a surrender before the statute, 
 but is now taken away, unless there be a writing under the hand of the party. 
 In Farmer d. Earl v. Rogers, 2 Wils. p. 27. it was held, that the statute does 
 not make a deed absolutely necessary to a surrender; for it directs it to be 
 made either by deed or note in writing ; and when it is made by a note in 
 writing, there is no occasion for any stamp-duty, it not being a deed. But see 
 55 Geo. III. c. 184. sch. part 1, under the head Surrender. — [Note 295.] 
 
 (2) For the first lease and the second cannot subsist together, and the par- 
 ties, by making a contract of as high a nature for the same thing, tacitly con- 
 sented to dissolve the former; for without the dissolution of that, the lessor 
 could uot graut to the lessee that interest which was already passed from the 
 lessor to the lessee by the first lease. Note to the Wth edition. — [Note 296.]
 
 338. a. 338. b/J Of Discontinuance. L. 3. C. 11. S. 636. 
 
 cannot commence without deed, and by consequent the estate 
 cannot be surrendered without deed. But in the example that 
 Littleton here putteth, the estate might commence without deed, 
 and therefore might bee surrendered without deed. And albeit 
 a particular estate be made of lands by deed, yet may it be sur- 
 rendred without deed, in respect of the nature and qualitie of 
 the thing demised, because the particular estate might have 
 beene made without deed ; and so on the other side (A). If a 
 man be tenant by the courtesie, or tenant in dower of an advow- 
 (Ant. 225. b. son, rent, or other thing that lies in grant ; albeit there the 
 9r' i^av 399 ' es t a *e begin without deed, yet in respect of the nature and 
 498 \ ' qualitie of the thing that lies in grant it cannot be surrendered 
 
 without deed. And so if a lease for life be made of lands, the 
 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 surrendred 
 without deed. See in my Reports plentifull matter of sur- 
 renders. 
 
 (10 Rep. 66. " Quaere, if the Sonne of the wife may enter, &c." Here 
 
 '•' Littleton maketh a qucere. So as grave and learned men may 
 
 doubt, without any imputation to them ; for the most learned 
 
 rloubteth most, and the more ignorant for the most part are the 
 
 more bold and peremptory. 
 
 It is holden of some, that after the surrender the issue in taile 
 during the life of tenant for life may enter ; for that having 
 regard to the issue, the state for life is drowned, and conse- 
 quently the inheritance gained by the lease is by the acceptance 
 of the surrender vanished and gone : as if tenant in taile make 
 a lease for life, whereby he gaiueth a new reversion 
 (as hath fl-ap beene said) if tenant for life surrender ["338."] 
 to the tenant in taile, the estate for life being drowued, | b. 
 the reversion gained by wrong is vanished and gone, 
 and he is tenant in taile againe against the opinion obiter of 
 
 21 H. 6. 53. Portington, 21 II. 6. 53. 
 
 (Ant. 185. l^ ut herein are two diversities worthy of observation. The 
 
 8 Rep. 145.) first is, that having regard to the parties to the surrender, the 
 
 estate is absolutely drowned, as in this case betweene the lessee 
 and the second baron. But having regard to strangers, who 
 were not parties or privies thereunto, lest by a voluntary sur- 
 render they may receive prejudice touching any right or interest 
 they had before the surrender, the estate surrendered hath in 
 45 E. 3. 13. consideratiou of law a continuance (1). As if a reversion be 
 
 5115 'J t'i • 
 
 9 E. 4. 18. granted with warrantie, and tenant for life surrender, the grantee 
 
 shall not have executiou in value against the grantor, who is a 
 
 stranger during the life of tenant for life; for this surrender 
 
 shall worke no prejudice to the grantor who is a stranger. 
 
 oV^io 3 " S° if tenant for life surrender to him in reversion being within 
 
 l II. 6. I.' a 8 e > h e shall not have his age ; for that should be a prejudice to 
 
 24 E. 3. 77. a stranger, who is to become demandant in a reall action. 
 
 If 
 
 (A) Here the sense appears to require a comma only after the word " side :" and perhaps 
 there should he a period after the preceding words " because the particular estate might 
 have been made without deed.-" See Mr. Jtitso's Intr. p. 116, 117. 
 
 (1) On the surrender of term of years by one termor for years to another 
 termor for years, see Hughes v. Robotham, 1st do. 302.
 
 L. 3. C. 11. Sect. 636. Of Discontinuance. [338. b. 
 
 If tenant for life grant a rent charge, and after surrender, yet 5 H. 5. 8 
 
 26 Ass. 38. 
 7 H. 6. b. 
 
 the rent remaineth, for to that purpose he conirneth in under the 
 charge. Causa qua supra. (6 Rep. 79. 
 
 If a bishop be seised of a rent charge in fee, the tenant of 7 Rep. 38. 
 the land enfeoffe the bishop and his successors, the lord enter Ant. 184. b.) 
 for the mortniaine, he shall hold it discharged of the rent; for 
 the entrie for the mortniaine affirmeth the alienation in mort- 
 niaine, and the lord claimeth under his estate; but if tenant for 
 life grant a rent in fee, and after infeoffe the grantee, and the 
 lessor enter for the forfeiture, the rent is revived, for the lessor 
 doth claitne above the feoffment. But if I grant the reversion (Ant. 234.) 
 of my tenant for life to another for terme of his life, and tenant 48 E. 3. 1C. 
 for life attorue, now is the waste of tenant for life dispunish- ( Mo - 94> ) 
 able (2). Afterwards I release to the grantee for life and his 
 heires, or grant the reversion to him and his heires; now albeit 
 the tenant for life be a stranger to it, yet because he attorned 
 to the grantee for life, the estate for life which the grantee had 
 shall have no continuance in the eye of the law as to him, but 
 he shall be punished for waste done afterward. 
 
 The second diversitie is, that for the benefit of an estranger (Plo. Com. 196.) 
 the estate for life is absolutely determined. As if he in the 
 reversion make a lease for yeares, or grant a rent charge, &c. 
 and then the lessee for life surrender, the lease or rent shall 
 commence maintenant So in the case of Littleton, first, be- 
 tweene the lessee and the second husband, the state for life is 
 determined; and secondly, for the benefit of the issue it shall 
 be so adjuged in law. Here note a- diversitie, when it is to 
 the prejudice of a stranger, and when it is for his benefit. 
 
 If a man niaketh a lease to A. for life, reserving a rent of 40 
 shillings to him and his heirs, the remainder to B. for life, the 
 lessor grant the reversion in fee to B. A. attorne, B. shall not 
 have the rent, for that although the fee simple doe drowne the 
 remainder for life betweene them, yet as to a stranger it is in 
 esse ; and therefore B. shall not have the rent, but his heire shall 
 have it. 
 
 A master of an hospitall being a sole corporation, by the con- ( 4 . Leo. 37. 
 sent of his brethren makes a lease for yeares of part of the pos- Hob. 3.) 
 sessions of the hospitall; afterwards the lessee for years is made f^ff^ 
 master, the terme is drowned; for a man cannot have a terme int. Turner pi. 
 for yeares in his owne right and a freehold in aider droit to con- & Gray def. in 
 sist together (as if a man lessee for yeares take a feme lessor to ejecti ^ firma 
 wife) (3). [a] But a man may have a freehold in his owne right bane0j R()t 945# 
 and a terme in audr droit: and therefore if a man lessor take Sir Francis 
 the feme lessee to wife, the terme is not drowned, but he is F^Jg^J 86 - 
 possessed of the terme in her right during the coverture [6]. p" ^ om 4 18 * # 
 So if the lessee make the lessor his executor, the terme is not [/,] 32 H. 8. 
 drowned. Causa qua supra (4). gj Surrender, 
 
 (2 Cro.' 275. Mo. 54.) 
 
 But 
 
 (2) See note 2. ante, 218. b. 
 
 (3) Cont. Lichden v. Winsmore, 1 Boll. Abr. 934. and lady Piatt v. Sleap, 
 Cro. Jac. 275 ; and see Mr. Sugdeu's treatise on Vendors and Purchasers, 
 4th ed. p. 336. 
 
 (4) Mergers were never favored in courts of law, and still less in courts of 
 equity. Hence, even in a very early period of the equitable jurisdiction of the 
 court of chancery, it was admitted, that a fine or feoffment to lessee for years 
 
 to
 
 338. b. 339. a.] Of Discontinuance. L. 3. C. 11. Sect. 637. 
 
 But if it had beene a corporation aggregate of many, the 
 making of the lessee master had not extinguished the terme, 
 no more than if the lessee had beene made one of the brethren 
 of the hospitall. 
 
 * Sect. 637. 
 
 |"~ ^~OTE, that an estate taile cannot bee discontinued, but there where 
 hee that makes the discontinuance was once seised by force of the 
 taile, unlesse it bee by reason of a warranty, $c. As] if there be a grand- 
 father, father, and son, f and the grandfather is tenant in taile, and is 
 disseised by the father who is his son, and the father maketh a feoffment of 
 this without warranty and die, and afterwards the grandfather dies, the 
 son may wel enter upon the feoffee, because this was no discontinuance, 
 inasmuch as the father was not seised by force of the entaile at the time of 
 the feoffment, $c. but was seized in fee by the disseisin of the grandfather. 
 
 Vide Sect. 658. " f)XCE." Here it is to be observed, that it not necessary 
 (1 Roll. Abr. ^ that the tenant in taile bee ever seised of an estate taile at 
 
 634 -^ the time when the discontinuance of the whole estate is 
 
 begun ; as if tenant in taile make a lease B®" for life, r339.~l 
 whereby he gaineth, as hath beene said, a fee simple |_ a. J 
 by wrong; in this case if he grant the reversion in fee, 
 and the lessee dieth, the whole estate is discontinued; and yet at 
 the time of the grant (by which the discontinuance continueth) 
 hee was not seised by force of the taile : and therefore Littleton 
 
 materially 
 
 * The part of this section within that part of the work which is distin- 
 
 crotchets is not either in L. and M. guished by Sect. 682. 
 or Roh. or MSS. and the remainder f and the grandfather is tenant in 
 
 of this Section in those copies imme- taile, and is disseised by the father who 
 
 diately follows (with a small variation) is his son, not in L. and 31. 
 
 to the use of a stranger, did not extinguish the terme ; because the cestui que vse 
 had no method to compel the execution of it, but through the medium of the 
 court of chancery; and the court would not compel him to execute it to his 
 own prejudice during the continuance of the term. The statute of uses 
 expressly saves the rights of the feoffee to the use; this preserves him the 
 benefit of any terms which may be vested in him. Even where a termor for 
 years was made a tenant to the praecipe, it was determined, that the momentary 
 freehold vested in him, for the purpose of making him tenant, did not extinguish 
 the terme. Sir John Ferrers and sir John Curson v. sir Richard Fcrmor and 
 others, Cro. Jac. 043. It has by some been said dangerous to make feof- 
 fees or releasees to uses trustees for terms of years, if they are also trustees 
 for preserving contingent remainders; for if they should have occasion to enter 
 for the forfeiture of the tenant for life, it may be made a question, whether, 
 at least in law, that would not be a merger of their term. The profession 
 have lately been favoured by Mr. Preston with a complete and profound 
 treatise on the abstruse doctrine of Merger, in the third volume of his Treatise 
 on Conveyancing. It is hoped that they will soon be favoured by the same 
 learned gentleman with a new edition of his valuable Essay on the Quantity 
 of Estates.— [Note 297.]
 
 L. 3.C. 11. Sect. 638. Of Discontinuance. [339. a. 339. b. 
 
 materially added this word (once), that is, that hee was once Vide Sect. 592. 
 seised by force of the estate taile : and seeing that (as hath beene 6i0 ' « 5g ' 
 said) a discontinuance is a privation, the rule of law agreeth well 
 with the rule of philosophic, that omnis privatio prsesupponit 
 habitum and therefore he cannot discontinue that estate which 
 he never had. 
 
 " Unlesse it be by reason of a warranty, &c." For in many cases 
 a warrantie added to a conveyance is said to make a discontinu- 
 ance ab efferta, although he that made the conveyance was never 
 seised by force of the estate taile, because it taketh away the 
 entrie of him that right hath, as a discontinuance doth. As if 
 tenant in taile be disseised and dieth, and the issue in taile re- ^p 4 ', 19 ,', 
 lease to the disseisor with warrantie ; in this case the issue was 2 i e. 4. 97*. 
 never seised by force of the taile ; and yet this hath the eifect of 
 a discontinuance by reason of the warrantie, and the reason 
 hereof appeareth before in this Chapter. 
 
 " The son may wel enter." But if the father that made the 
 feoffment had survived the grandfather, he should never have 15 E. 4. 
 entred against his own feoffment ; but albeit the father had sur- Discont. 30. & 
 vived, yet after his decease the sonne should have entred, for 2 \_ e. 4. 97" 
 the reason here yeelded by Littleton. But if the feoffment had 9 E. 4. 19. 
 beene with warrantie, then it had wrought the effect of a discon- 39 H - 6 - 45 - 
 
 • • 21 II 6 52 
 
 tinuance : and therefore Littleton saith without warrantie. 12 ^' ±' u ' 
 
 1 Mar. Dier, 98. (Ant. 265.) 
 
 Sect. 638. 
 
 A LSO, if tenant in taile make a lease to another for terme of life, and 
 
 the tenant in tayle hath issue and dieth, and the reversion descendeth 
 
 to his issue, and after the issue granteth the reversion to him descended, 
 
 to another in fee, and the tenant for life attorne and die, and the grantee 
 
 of the reversion enter, $c. (et le tenant a terme de vie attourna * et devie, 
 
 et le grantee del reversion enter, &c.) and is seised in fee in 
 
 [339.1 the life of the issue, and after the issue in tayle hath $CT° issue 
 b - J a son and dieth, it seems that this is discontinuance to the son, 
 but that the son may enter, §c. for that his father, to whom the 
 reversion of the fee simple descended, had never any thing in the land 
 by force of the entaile, $c. 
 
 
 
 F this opinion is Littleton in our bookes. 15 E. 4. 
 
 Discont. 30. 
 43 Ed. 3. 6. 21 H. 6. 52. 4 H. 7. 17. (1 Roll. Abr. 634.) (4 Leo. 39. 160. 156.) 
 
 " The grantee of the reversion enter, &c." Here it is to be 
 understood and observed, that in this case of the grant of the 
 reversion Littleton doth not say without warranty; because if a 
 warrantie had been added, it had wrought no discontinuance, 
 for that (as hath beene said) the discontinuance in judgment of 2 J "•'•*?» 53, 
 law was but for life : but when the addition of a warrantie doth *■ 
 worke a discontinuance, then Littleton saith without warranty, 
 as you may observe often in this Chapter. 
 
 Sect. 
 
 * et devie, et le grantor del reversion terme de vie morust, et celuy en le re- 
 enter, &c. — &c. et puis le tenant a version cntra, &c. L. and M. and Boh.
 
 339.b.340.a.] Of Discontinuance. L.3.C.1LS.639-40-41. 
 
 Sect. 639. 
 
 TpOH if a man seised in the right of his wife, letteth the same land to 
 another for terme of life, now is the reversion of the fee simple to the 
 husband, Src And if the husband dieth, living his wife and the tenant 
 for life, f and the reversion descend to the heire of the husband, if the 
 lieire of the husband grant the reversion to another in fee, and the ten- 
 ant attorne, Src and aftemvards the tenant for life dieth, and the grantee 
 of the reversion in this case enter : % in this case this is no discontinu- 
 ance to the wife, but she may well enter upon the grantee, Src because 
 the grantor had nothing at the time of the graunt, in the right of his 
 (A) wife, when hee made the graunt of the reversion. 
 
 1* E - 3 - " Tp OR if a man seised in the right of his wife, letteth, &c." 
 IjTass p 2 Here Littleton puttetb his case where the baron onely makes 
 
 18 E. 3. 54. a lease for life; for if he and his wife joyne in a lease by deed, 
 
 38 E. 32. there the reversion is not discontinued. See before, Sect. 620. 
 
 21 H 6 ' 59" 53 More need not be said hereof, in respect the like case of tenant 
 
 15 E. 4. in taile hath been explained before. 
 
 Discont.30. 
 
 (i roii. 634.) jw-Sect. 640. [ 8 t *] 
 
 A ND so it seemeth, that men ivhich are inheritable by force of an en- 
 taile, and never were seised by force of the same entaile, that such 
 feoffments or grants by them made without clause of ivarrantie, is no 
 discontinuance to their issues after their decease, but that their issues 
 may well enter, Src albeit they ivhich made such graunts in their lives 
 were forebarred to enter by their owne act, Sj-c. 
 
 (10 Rep. 95.) Sect. 641. 
 
 AND if tenant in taile hath issue two sonnes, and the eldest disseiseth 
 fas father, and thereof maketh a feoffment in fee without clause of 
 warrantie, and die without issue, and after the father die, the youngest 
 son may well enter upon the feoff ee ; for that the feoffment of his elder 
 brother cannot be a discontinuance, because he was never seised by force 
 of the same tayle. For it seemed to be against reason, that by matter 
 in fact, Src without clause of warrantie, a man should discoiitinue a § 
 deed (B) Src that was never seised by force of the same taile*. 
 
 Vide Sect. 592. V|OTE, there also in these two Sections appeareth, that (as 
 596, 597. 601. J_\ k a th Deene ga j,j before) a warrantie, though he were never 
 
 seised 
 
 "f" and not in L. and M. and Roh. § deed — taile, L. and M. 
 
 j in this case not in L. and M. or Roh. * &c. added in L. and M. and Roh. 
 
 (A) Here "his" seems to be printed by mistake instead of "the." For it is not the husband 
 who is here spoken of, but tWe heir of the husband. See Mr. Ritso's Intr. p. 113. 
 
 (B) Here the sense appears to require the word " tail" instead of the word " deed." See lord 
 Coke's observation above, and Mr. Jtitso's Intr. p. 113.
 
 L. 3. C. 11. S. 642-3-4. Of Discontinuance. [340. a. 340. b. 
 
 seised by force of the taile, may worke the effect of a discon- 
 tinuance. 
 
 "A man should discontinue a deed, &c." This is mistaken, 
 and should be, a man should discontinue a taile; and so is the 
 original!.. 
 
 r340.i m- Sect. 642. 
 
 f IS^OTE, if there be lord and tenant, and the tenant giveth lands to 
 another in 4. taile, the remainder to another in fee, and after the 
 tenant in taile makes a lease to a man for a terme of life, $c. saving 
 the reversion, $c. and after granteth the reversion to another in fee, and 
 the tenant for life attorne, cj-e. and after the grantee of the reversion die 
 ivithout heire, now the same reversion commeth to the lord by way of 
 escheat. If in this case the tenant for life dieth, and the lord by force 
 of his escheat enter into the life of tenant in taile, and after the tenant 
 in taile dieth, it seemeth in this case that this is no discontinuance to 
 the issue in taile, nor to him in the remainder, but that he may well 
 enter, because the lord is in by way of escheat, and not by the tenant in 
 tayle. But othenvise it should be, if the reversion had beene executed 
 in the grantee in the life of tenant in tayle, for then had the grantee 
 been in the tenements by the tenant in tayle, % $c. 
 
 fPHE reason of this case is here rendred (as before it was in Vide Sect. 620. 
 1 this Chapter), that albeit the reversion be executed in the 
 lord by escheat in the life of tenant in taile, yet because he is 
 not in by the tenant in taile but by escheat, it worketh no dis- 
 continuance. But if it had beene executed in the life of tenant Lib. 1. fol. 136. 
 in taile in the grantee which was in by tenant in taile, then the L j b - 3 - fol - 62 > 
 lord by escheat should have taken advantage of it. But of this 
 sufficient hath beene said before in this Chapter. 
 
 Sect. 643, 644, & 645. 
 
 A LSO, if a parson of a church, or vicar of a church, alien certaine 
 lands or tenements parcell of his glebe, £c. to another in fee, and die 
 or resigne, $c. his successor may well enter, notwithstanding such alien- 
 ation, as is said in a Nota 2 H. 4. Termino Mich, which beginneth thus. 
 
 Sect. 644. 
 
 VI OTA quod dictum fuit pro lege, in a writ of account brought by a 
 ™ master of a college against a chaplaine (en un briefe de accompt 
 port per un master d'un college* vers un chapleine) that if a parson, or 
 vicar, grant certaine land which is of the right of his church to another and 
 die, or changeth, the successor may enter, £c. And I take the cause to 
 
 bee, 
 
 + Note,— Also, L. and M. and Boh. J &c not in L. and M.or Boh. 
 4. taile, the remainder to another, in, * vers un chapleine— d'un chapel, 
 not in L. and M. or Boh. L. and M. and Roh.
 
 MO. b. 341. a.] Of Discontinuance. L. 3, C. 11. Sect. 645. 
 
 bee, for that the parson, or vicar, that is seised, $c. as in right of his 
 church, hath no right of the fee simple in the tenements, but (A) the right 
 of the fee simple abideth in another person (et jeo croy que la cause est, 
 pur ceo que le parson, ou vicar, que est seisie, &c. come en droit de son 
 esglise, n'ad pas droit de fee simple en les tenements, 1 et (B) le droit 
 de fee simple de ceo deraurt en ascun auter person) ; and for this cause 
 his successor may ivell enter, notwithstanding such alienation, cfc. 
 
 Sect. 645. 
 
 TpOR a bishop may have a writ of right of the tenements of the rigid 
 of his church, for that the right is in his chapiter, and the fee simple 
 abideth in him and in his chapiter (Car un evesque poit aver breve de 
 droit de f tenements de droit de son esglise, pur ceo que le droit est en 
 son chapiter, et le fee simple demurrant en luy et en son chapiter). And 
 a deane may have a writ of right, because the right remaynes in him. 
 %And an abbot may have a writ of right, for that the right remaynes in 
 him and in his covent. And a master of an hospitall may have a writ 
 of right because the right remaineth in him and in his confreres, <fc. 
 And so of other like cases (et sic de aliis § casibus consimilibus ||). But 
 a parson or vicar cannot have a writ of right, Sfc. 
 
 "pARCELL of his glebe, &c." In whom the fee 
 
 simple of the 00" glebe is, is a question in our T341. 1 
 [a] 8 H. 6. 24. bookes. [a] Some hold that it is in the patron ; but [_ a. 
 12 H. 8. 8. that cannot be for two reasons. First, for that in the 
 
 beginning the land was given to the parson and his successors, 
 Vide Registr. and the patron is no successor. Secondly, the words of the writ of 
 f-t V v. ' ' juris utrum be, si sit libera eleemosina ecclesise de D. and not of 
 12 H. 8, 9. the patron. Some others doe hold that the tee simple is in the 
 
 (F. N. B. 48, patron and ordinary; but this cannot be, for the causes above- 
 F \ T B 19 L S;l ^ ' an< ^ therefore, of necessitie, the fee simple is in abeyance, 
 (Dyer, 71. a. ' as Littleton saith. And this was provided by the providence 
 2 Bull. Abr. and wisdouie of the law ; for that the parson and vicar have 
 > curam 
 
 ^[ et — ne, L. and 31. and Roh. right, for that the right remaynes in 
 
 f tenements de droit de sou esglise, him, not in L. and M. or Roh. 
 
 pur ceo que le droit est en son chapi- § in added in L. and M. and Roh. 
 
 ter, et le — not in L. and 31. or Roh. \\ &c. added in L. and 31. and Roh. 
 
 | And an obbot may have a writ of 
 
 (A) The reader's attention should here be directed to the F rench words introduced in the 
 latter part of Sect. 644, with respect to the various readings of the original French. See 
 also note B. infra. 
 
 (B) Here, instead of "et," the edition of Littleton by Lettou and Machlinia and the 
 Rohan edition, have the word '' ne." See the reading 'above under ^[. The substitution of 
 the word "ne"for " et" materially alters the meaning of the concluding part of the sen- 
 tence, and appears to be requisite to the true sense of the text. For, in what other person 
 does the fee simple abide if it is not in the parson*' Lord Coke, in his Comment on Sec- 
 tions 644, 645, gives two reasons against the opinion that the fee simple of the glebe is in 
 the patron, or in the patron and ordinary/ and then concludes in these words/ "'and 
 therefore, of necessitie, the fee simple is in abeyance, as Littleton saith." Consequently 
 bird Coke maybe supposed to have understood Littleton in the sense indicated by the Rohan 
 edition, which was the edition preferred by lord Coke. See Mr. Hargrave's first Address 
 to the public at the beginning of the work.
 
 L.3.C. ll.S. 645. Of Discontinuance. [341. a. 341. b. 
 
 curam animarum, and were bound to celebrate divine service, 
 and administer the sacraments ; and therefore no act of the pre- 
 decessor should make a discontinuance to take away the entry 
 of the successor, and to drive him to a reall action, whereby he 
 should be destitute of maintenance in the meane time. Upon 
 consideration of all our bookes I observe this diversitie : 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 fee simple qualified ; 
 but to doe anything to the prejudice of his successor in many 
 cases, the law adjudgeth him to have in effect but an estate for 
 life. Cattsce eeclesise publicis causis cequiparantur : and Summa Brncton, lib. 4. 
 
 ratio est quce pro reliqione facit. And Ecclesia funqitur vice „., ,, ,,„ 
 . * -..* J J , M ,.,. » , • Brit. fol. 143. 
 
 minor is, mehorem faeere potest conditionem suam, deter torem 
 
 nequaquam. 
 
 As a parson, vicar, archdeacon, prebend, chantery priest, and F. N.B. 55. D. 
 
 the like, may have an action of waste, and in the writ it shall 10 ^ 7 ' 5 " 
 
 be said, ad exhceredationem ecclesix, &c. ipsius B. or prabendse. 
 
 ipsius A. 
 
 And the parson, &c. that maketh a lease for life, shall F. N. B. 49. L. 
 
 [34:1.1 have a comimili cnsu during 0O° the life of the lessee, ^- ^ r°- ^ '''■ 
 b. J and a writ of entrie ad communem legem after his death, Temps E. 3. 
 
 or a writ ad terminum qui prseteriit, or a quod per- Juris utrum, 14. 
 mittat in the debt, and none can maintaine any of these writs, }:.}* E ' 3 " 
 but a tenant in fee simple or fee tayle. p jj # g 50 _ 
 
 30 E 3. 26. 21 E. 3. 11. tit. Entrie. 10. F. N. B. 206. F. Begistr. 237. 4 E. 4. 2. 
 8 E. 3. tit. Entrie, 3. 7 H. 3. 54, 55. (Ant. 67. a.) 
 
 And a parson, &c. may receive homage (A), which tenant for 
 life cannot doc. Temps E. 1. Incumbent, 19. 
 
 [c] Likewise a parson, &c. shall have a writ of mesne, and a W F. N. B. 49. 
 contra formam feoffamenti. L< 50 ' a< 
 
 But a parson cannot make a discontinuance, as Littleton here 
 tcacheth ; for that should be to the prejudice of his successor to 
 take away his entrie, and to drive him to a reall action. 
 
 Also if a parson, &c. make a lease for yeares, reserving a rent (1 Roll. Abr. 
 
 and dieth, the lease is determined by his death ; as if tenant fcr 476 - 479 - 4SS - 
 
 life had made a lease, no acceptance of the rent by the successor = r ™' a o", 
 i . i I i • ii • • i itep. si. 
 
 can make it good. Also in a reall action, a parson, vicar, arch- 2 Roll. Abr. 63. 
 
 deacon, prebend, &c. shall have aid of the patron and ordinarie, :!;i4 -) 
 
 '* * i 9(1 b 1 ^ 
 
 as tenant for life shall have. So as it is evident, that to many 7r. :£ ?0 
 purposes a parson hath but in effect an estate for life, and to 25 E. 8. 54. 
 many a qualified fee simple, but the entire fee and right is not in 8 E. 3. 45. 
 him : and that is the reason that he cannot discontinue the fee j."'"^]' 
 simple that he hath not, nor ever had ; for, as it hath beene said, 6 E. 3. 45*. 
 Omnis privatio prasupponit habitum. And for the same cause he 4 3 A.*s. PI. 13. 
 cannot have a writ of right right, nor a writ of right in its nature ; .' r ' " J ' 
 as a writ of right sur disclaimer of customes and services, ne 
 injuste- vexes, rationabilibus divisis, quo jure, and the like. 
 
 But here it appeareth by Littleton, that such bodies politike (2 Cm. 200. 
 or corporate as have a sole seisin, and may have a writ of right, Ant. 326. b. 
 for that the fee and right is in them (albeit they cannot absolutely p^ 27*271^ 
 convey away their lauds, &c. without assent of others), may 
 make a discontinuance ; as a bishop, an abbot, a deane, a master 
 of an hospitall, and the like. But this is to bee understood where 
 
 a deane 
 
 (A) Vid, ante 67. a. contra ; and Mr. Hagraves's note 1, there.
 
 44 E. 3. 11. 
 
 11 H. 4. G8. 
 V) E. 4. 16. 
 
 13 E. 3. 7. 
 6 E. 3. 11. 
 
 5 E. 2. Aid, 167, 
 
 12 H. 4. 11. 
 
 32 E. 3. Aid. 39. 
 38 E. 3. 19. 
 
 14 E. 3. 
 Juris utrum, 4. 
 
 ] 
 
 Vide Sect. 527. 
 593, &e. 
 1 Eliz. c. 18. 
 J3 Eliz. c. 10. 
 1 Jacobi, cap. 3. 
 
 341. b. 342. a.] Of Discontinuance. L. 3. C. 11. Sect. 645. 
 
 a deane or master of an hospital], &c. are solely seised of dis- 
 tinct possessions : for if the bodie that is seised be aggregate of 
 many, as the deane and chapiter, master and confreres, &c. then 
 the feoffment of the deane or master is so farre from a discon- 
 tinuance as it is a disseisin. 
 
 And these that have the fee and right in them shall not have 
 aid in respect of their high and large estate, albeit any of them 
 be presentable : but a deane that is collative shall have aid of 
 the king. 
 
 And it is to be observed, that the remedie is ever agreeable to 
 the right : and therefore the bishop, deane, master of an hospi- 
 tall, that hath college and common seale, or the like, shall have 
 a writ of right right, which is the highest remedie, for that they 
 have the highest estate. 
 
 fi^* Here Littleton citeth the booke case, Mich. 
 2 H. 4. as an authoritie whereupon he groundeth his r343. 
 opinion. And it is to be observed, that the yeares of J a. 
 H. 4. were published before Littleton did write. 
 
 But at this day, the bishop, deane, master of an hospitall, or 
 the like, that have the fee and right in them, as hath beene said, 
 cannot discontinue; neither can they or any parson, vicar, arch- 
 deacon, prebend, or any other having any ecclesiasticall living, 
 with assent of deane and chapiter, patron and ordinary, or the 
 consent of any others, make any lease, gift, grant or convey- 
 ance, estate, charge or incumbrance to biude his successor other 
 than for terme of one and twentie yeares, or three lives in pos- 
 session, whereupon the accustomed rent or more shall be reserved. 
 These be excellent lawes, and have beene well expounded for the 
 maintenance of religion and the good of God's church ; for 
 otherwise it is to bee feared that holy church would lose more 
 than it would gaine in these dayes. 
 
 But where Littleton, in this and other Sections, makes mention 
 of masters of hospitals, the reader must know, that since Littleton 
 wrote, there hath beene a great alteration made by divers acts of 
 parliament concerning hospitals; 
 
 " Master of an hospitall." These points concerning hospitals 
 were resolved [d~\ by the justices. 
 
 First, that no hospitall was given to the crowne by the statute 
 of 27 H. 8. nor any hospitall is within the statute of 31 //. 8. of 
 monasteries, but only religious and ecclesiasticall hospitals, and 
 that no lay hospitall was within those statutes. 
 
 Secondly, if upon the foundation of any lay hospitall, or after 
 it was ordained, that one or divers priests should be maintained 
 within the hospitall to celebrate divine service to the poore, and 
 to pray for the soule of the founder, and all christian soules, or 
 the like ; and that the poore of such hospitall should make the 
 like orisons, yet such an hospital is not within the said statutes ; 
 for the hospitall is lay, and not religious ; and all or the most 
 part of antient lay hospitals were founded or ordained after the 
 like sort ; and the makers of those statutes never intended to 
 overthrow workes of charitie, but to take away the abuse. 
 Lib. 1. f. 24. Thirdly, that no hospitall was given to the king by the statute 
 
 Porter's case. of 37 H. 8. but in two cases, where the donors, founders or 
 patrons, &c. had entered and expulscd the priests, wardens, &c. 
 betweene the fourth day of Februarie, Anno 27 H. 8. and the 
 five and twentieth of December, Anno 37 H. 8. or where king 
 Rmiry the eighth, by commission according to that act, should 
 
 enter 
 
 Lib. 1 fol. 46. 
 Lib. 4. fol. 76. 
 & 20. Lib. 5. 
 fol. 9 & 14. 
 Lib. 6. fol. 37. 
 Lib. 7. fol. S. 
 Lib. 11. fol. 67. 
 37 II. 8. 
 
 31 H. 8. 
 
 32 H. 8. 
 37 H. 8. 
 
 1 E. 6, <tc. 
 
 [<7]Pasc. 24 Eliz, 
 the Lord 
 Cheneye's case. 
 Lib. 2. fo. 48, 49, 
 Evesque de Can- 
 terburie's case. 
 (2 Sid. 4S.)
 
 L. 3. C. 11. Sect. 616. Of Discontinuance. [312. a. 312. b. 
 
 enter and seise the same ; but that determined by the death of 
 that king. 
 
 Fourthly, that the statute of 1 E. 6, extended not to any Porter's case, 
 hospitall whatsoever, either lay or religious, as by the same ^i 4 ill 113 
 appeareth. m. 116, in 
 
 And I was of counsell with the lord Cheney in this case, Lambert's case, 
 which, seeing it may doe good for maintenance of charitable C o . eMas l £» 8 ' 
 uses, I thought good summarily to report it. To this I will t$ R e p. 131. a.) 
 adde, Punis pauperum vita pauperum ; qui defraudat eos vir 
 sanguinis est. 
 
 Nota, Of hospitals, some are corporations aggregate of many; 
 as of master or warden, &c. and his confreres : some, where the 
 master or warden hath only the estate of inheritance in him, and 
 the brethren or sisters power to consent, haviug college and com- 
 mon seale : some, where the master or warden hath the state in 
 him, but hath no college and common seale; and such a master . ATfa . 
 
 or warden shall have a juris utriim : and of these hospitals some utrum '4. 
 bee eligible, some donative, and some presentable. 
 
 SeCt. 64:6. (F.N. B. 48.) 
 
 T> UT the highest writ that they can have is the writ of juris atrum, 
 
 - which is a great proof e that the right of fee is not in them, nor in any 
 
 others, $c. But the right of the fee simple is in abeiance, that is to say, 
 
 that it is only in the remembrance, intendment and consideration 
 
 f342.~| of the law* ^c.forit seemeth to me^Hfeg^that such a thing f and 
 
 b. ] such a right which is said in divers bookes to be in abeyance, 
 
 is § as much to say in Latine {scilicet), Talis res, vel tale rectum, 
 
 quae vel quod non est in homine adtunc superstite, sed tantummodo 
 
 est, et consistit in consideratione et intelligentia legis, et quod alii 
 
 dixerunt talem rem aut tale rectum fore in nubibus. % But I suppose 
 
 that they meane by these ivords (in nubibus, &c), as I have said before^. 
 
 " TN aheiance." (1) That is, in expectation, of the French 2413. 3. 63. 
 word bayer, to expect. For when a parson dieth, we say ^ ^ v~j 
 
 Vide Sect. 1. (Hob. 333. Aut. 263. b. 2 Roll. 339. Post. 335. a.' 1 Rep. 66.) 
 
 that 
 
 * &c. not in L. and M. or Roh. these words (in nubibus, &c.) not in 
 
 •j" and — in, L. and M. and Roh. L. and M. or Roh. 
 
 § &c. added in L. and M. and Roh. 1. &c. added in L. and M. and 
 
 I But I suppose that they meane by Roh. 
 
 (1) In the course of these notes, frequent mention has been made of the 
 necessity which there was at the old law, that there should always be an imme- 
 diate tenant of the freehold, and of the reasons on which this necessity was 
 grounded ; but these reasons did not apply, in the same degree, against the 
 suspense of the inheritance. Hence, though for the reasons before mentioned, it 
 was an established maxim, that the freehold never could be in suspense, or, as 
 it is generally called, in abeyance, it was admitted that the inheritance might. 
 But this suspence or abeyance of the inheritance could not but be considered 
 with a very jealous eye; for though fiefs, in their original constitution, were not 
 hereditary ; still, when they had once become hereditary, the consequences of 
 
 their
 
 342. b.] Of Discontinuance. L. 3. C. 11. Sect. 646. 
 
 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 
 
 their becoming such were so numerous, and affected materially so many other 
 parts of the feudal system of real property, that, though it was always admitted 
 that the inheritance might be suspended, it was agreed, that the suspense of it 
 should be discountenauced and discouraged as much as possible, and allowed 
 upon none but the most pressing and urgent occasions. The chief reasons 
 of the aversion of the old law to the suspension of the inheritance are set forth 
 in two late masterly and profound publications, sir William Blackstone's 
 Argument on the case of Perryn and Blake, and Mr. Hargrave's Observations 
 on the Rule in Shelley's case. — To these reasons, the modern law has added 
 her discouragement of every contrivance which tends to render property un- 
 alienable beyond the limits settled for its suspense ; it being clear, that no 
 restraint upon the alienation of property would be more effectual than the 
 admission of a suspense of the inheritance. — The same principles have, in 
 some degree, give rise to the well-known rule of law, that a preceding 
 estate of freehold is indispensably necessary for the support of a contingent 
 remainder; and they influence, in some degree, the doctrines respecting the 
 destruction of contingent remainders. Mr. Fearne's excellent Essay on these 
 subjects makes any further investigation of them here quite unnecessary; but 
 perhaps the reader will not be displeased with the following short discussion 
 of a subject, intimately connected with them : — the suspension and extinction 
 of powers, deriving their effect from the statute of uses, or the statute ot 
 wills. 
 
 I. A power may be defined a right reserved by a person to himself, or given 
 to him by another, to devest land from those on whom it is settled, by the instru- 
 ment containing the power, and to vest it in others. — When it may be exercised 
 indiscriminately in favour of any object, the party has the complete dominion 
 of the land; such a power may therefore be termed a power of ownership : 
 when the objects, in whose favour it may be exercised are confined, it may 
 be termed a limited power, and in most cases, partakes of the nature of a 
 trust, delegated to the party to be exercised, more or less, at his discretien, 
 for their benefit, and is therefore a power charged with a trust, more or less 
 discretionary. A power to appoint land in settlement, or any proportion of it, 
 or to charge it with the payment of a given sum to any person, is a power of 
 ownership; a power of jointuring, and a power to appoint land to or among 
 any description of persons, as the party's own children, or the children of 
 another, or to charge it with the payment of a sum of money to such chil- 
 dren, is a limited power, and a species of trust, exerciseable, more or less, at 
 the party's discretion, for their benefit; and therefore a power charged with 
 a trust. 
 
 II. Powers over real property, — (to which this annotation is altogether 
 confined), — may be distinguished into powers collateral, and powers relating to 
 the estate of the donee of the power in the land. A collateral power is, where a 
 power is given to a person who has no estate or interest in the land. Such 
 is the power of sale given to persons who have neither an estate for pre- 
 serving contingent remainders, nor any other estate or interest in the lauu. 
 Powers relating to the estate of the donee of the power in the land may be 
 subdivided into powers appendant to an estate, which the donee of the power 
 hath in the land, subject to it, and powers in gross. A power is said to be 
 appendant to the estate of the party, when the use or estate, to be created 
 by the power, takes effect in possession during the continuance of an estate 
 which the donee hath in pessession or remainder, and therefore wholly 
 
 or
 
 L. 3. C. 11. Sect. 646. Of Discontinuance. [342. b. 
 
 If tenant pur terme cV miter vie dieth, the freehold is said to 
 be in abeyance untill the occupant entreth. If a man make a 
 lease for life, the remainder to the right heires of 1. S. the fee 
 
 simple 
 
 or partially overreaches it. Such is the power usually given in settlements, 
 to tenants for life to execute leases: such also are the powers of sale and 
 exchange, usually given to trustees for preserving contingent remainders. 
 Powers in gross are, when the person to whom they are given, hath an estate 
 in the lands, but the estate to be created under or by virtue of the power, 
 is not to take effect till after, and therefore does not overreach the estate 
 of the donee of the power. Such is the power of jointuring usually given 
 in settlements. But where a person takes distinct estates under the same 
 settlement, the same power is sometimes a power appendant in respect to 
 one estate, and a power in gross in respect to the other. Thus, where land 
 is limited to the use of A. for life; remainder to his sons successively in tail, 
 with remainder to the heirs of his body, with a power to jointure and to create 
 a term for securing the jointure; these powers, in respect to A.'s estate for 
 life, are powers in gross; and, in respect to his remainder in tail, are powers 
 appendant. 
 
 III. As to the suspense or extinguishment of powers collateral to the land, — it 
 is said, that the release, fine, feoffment, or common recovery of the donee of 
 such powers, will not extinguish or destroy them. See ante 265. b. Albanie's 
 case, 1 Rep. 110. b. Digges's case, 1 Rep. 173. a. Moore, 605. The reason, 
 why a release does not extinguish them, is shown to be (ante 265. b.) 1st. that 
 collateral powers are not in the nature of rights or titles, and cannot therefore, 
 from their nature, be released. 2dly, That, where powers are given or reserved 
 to any person, having any estate or interest, either present or future, in the 
 land, the exercise of these powers is considered as advantageous to him ; and 
 there is no reason why he should not be allowed to depart with or exclude 
 himself from the benefit of them : but that, when they are given to strangers, 
 they are intended for the benefit of some third person; and therefore the 
 extinction of them is supposed to be injurious to some person intended to be 
 benefited by them. With respect to their not being destroyed by feoffment, 
 fiue, or recovery, every man, it is said, is estopped from claiming any estate 
 contrary to his own feoffment ; but if a stranger, with a power of revocation, 
 makes a feoffment, levies a fine, or suffers a recovery, and afterwards revokes, 
 the person claiming the estate under the revocation is in immediately by, and 
 makes his title immediately from, the original settler or devisor, and not by or 
 from the feoffor, conusor, or recoveree : he is not therefore bound or estopped 
 by any act of the feoffor, conusor, or recoveree. Thus, if a person devised 
 that his executors should sell his land, and died, and his executors made a 
 feoffment; it was held that the executors might sell against their own feoff- 
 ment, because the power to sell was merely collateral to the right to the land, 
 and the purchaser took nothing by the feoffment. 
 
 IV. As to powers relating to the estate of the donee of the power in the land. — 
 Such of those powers as are in the nature of powers appendant to the estate, 
 may, it is agreed, be extinguished by the release, feoffment, fine, or common 
 recovery of the donee of the power. These powers also are liable to be ex- 
 tinguished or suspended by any of the conveyances which are said not to 
 operate by transmutation of the possession, as bargains and sales, leases and 
 releases, and covenants to stand seised : for whoever has any estate in the 
 land, may convey that estate to another; and it would be unjust that he should 
 afterwards be admitted to avoid, or to do any thing in derogation from his 
 own grant. — Any assurance of this nature, therefore, which carries with it the 
 
 whole 
 Vol. II.— 39
 
 3-12. b.] Of Discontinuance. L. 3. C. 11. Sect. 646. 
 
 simple is in abeyance untill 1. S. dieth. And so in the case of 
 the parson, the fee and right is in abeiance, that is, in expecta- 
 tion, in remembrance, entendment, or consideration of law, 1. J>i 
 
 considcratione 
 
 whole of the grantor's estate, is a total destruction of the powers appendant to 
 that estate- and by parity of reason, any such assurance as carries with it 
 only a part of the estate, (as a term for years, or an estate for life), suspends, 
 during the continuance of that estate, the exercise of the power, or, at least, 
 the estate to be raised by it; and any such assurance, which induces only a 
 charge upon the estate, (as a grant of a rent), necessarily subjects the estate 
 created by the power to that charge. It should, however, be observed, that, 
 in cases where a power is in the nature of a trust, a question may arise, 
 whether a release of the power be not a breach of trust, and, on that account, 
 inoperative. 
 
 V. As to such of the powers relating to the estate of the donee of the power 
 in the land as are said to be powers in gross: — As the estates raised by them 
 do not fall within the compass of the estate to which they are said to relate, 
 there does not seem to be any reason why any alteration in that estate should 
 affect them. Hence, if tenant for life, with a power to jointure an after-taken 
 wife, conveys his life estate by bargain and sale, lease and release, or covenant 
 to stand seised, this conveyance will not affect the power of making a jointure. 
 If he even makes a conveyance in fee by any of these assurances, as it is not 
 their operation to pass a greater estate than the grantor has a right to convey, 
 the power in gross is not affected by it ; but, if he conveys by fine, feoffment, 
 or recovery, as these assurances not only pass the estate of the grantor, but 
 convey a tortious fee, they necessarily disturb the whole inheritance. They 
 therefore may operate in extinction of the power. A power in gross may also 
 be released to any of those in remainder : — and if the whole fee is in the terre- 
 tenant, subject to the power; as where an estate is limited to A. for life, 
 remainder to such uses as he shall by deed or will appoint, and in default of 
 such appointment to A. in fee; there if A. conveys the whole fee by lease and 
 release, his power of appointment, notwithstanding it is in the nature of a 
 power in gross, is totally extinguished. See Penne v. Peacock &, ux. Ca. 
 Temp. Talbot, 41. 
 
 VI. It should be observed, that in mentioning above the effect of a feoff- 
 ment, fine, or common recovery, the expression is, that powers may be extin- 
 guished by those conveyances : — But it is not intended to express, either with 
 respect to powers appendant or powers in gross, that such conveyances necessarily 
 and unavoidably extinguish such powers, in all cases. 
 
 VI. 1. On the contrary, the cases of Bullock v. Thorne, Moore, 615. and 
 Smith on the demise of Richards v. Clyfford, 1 Durn. and East, 738. seem to 
 show, that such conveyances will not have this effect, if they are accompanied by a 
 < id, which directs them to operate, as a confirmation of the subsisting uses, and 
 cither declares no other uses, or dec/ares none inconsistent with such subsisting 
 uses. — As where land is limited to A. during his life, with a limitation to trus- 
 tees and their heirs, during his life, in trust to preserve contingent remainders, 
 remainder to his sons successively in tail male; and, for default of such issue, 
 to the right heirs of A. ; and powers of leasing, jointuring and charging with 
 portions, are given to A., and powers of sale and exchange are given to trus- 
 tees to be exercised with A.'s consent; — at a subsequent period, A. covenants to 
 levy a fine, and directs it to operate, in the first place, for confirming the uses 
 antecedent to the limitation of the reversion, and the powers collateral or 
 relating to those estates; and, in the next place, for conveying and limiting 
 the reversion to uses, which he proceeds to declare of the same : — it is appre- 
 hended
 
 L. 3. C. 11. Sect. 646. Of Discontinuance. [342. l>. 
 
 considerations sive intelligent id legis, because it is not in any man 
 then living • and the right that is in abeiance is said to be in nu- 
 bibus, in the clouds, and therein hath a qualitie of fame whereof 
 the poet speaketh : 
 
 Ingrediturque solo, et caput inter nubila condit. Virg.4.iEneid. 
 
 Sect. 
 
 bended that the fine will operate neither to divest the uses, nor to destroy the 
 powers, nor to forfeit the estate of the tenant for life, but, as a confirmation and 
 further assurance of those uses, estates and powers. 
 
 VI. 2. And the cases of the Earl of Leicester, 1 Vent. 278. and Hering v. 
 Brown, 1 Vent. 3G8. 371. appear to show, that, where a tenant for life has a 
 power of appointment; and, by a deed executed in the manner prescribed for 
 the exercise of the power, covenants to levy a fine and directs it to operate to uses 
 warranted by the powers, the fine will not destroy the power, but operate, in 
 concurrence with the deed, as an exercise of it. Hence, if tenant for life h*as 
 a power of jointuring by deed executed by him in the presence of and attested 
 by two or more witnesses; and by deed, so executed and attested, covenants to 
 levy a fine, and directs it to operate as a confirmation of his life estate, and 
 after his decease to the use, intent and purpose that B. his intended wife, may, 
 if she survive him, receive a jointure rent-charge during her life, and, subject 
 to the same, to the subsisting uses ; and the fine is levied accordingly : — it is 
 apprehended, that the fine, thus directed in its operation, will be a legal exer- 
 cise of the power, and operate at the same time, as a further assurance of the 
 uses subsisting or capable of taking effect under the deed creating the power. 
 
 VI. 3. It may further be generally asserted, that, in all cases where a fine or 
 common recovery can be so connected with a prior deed, as to make with it 
 one entire assurance, the fine or recovery will operate not to expend or extin- 
 guish but to strengthen and establish the poicers contained in that deed. As, 
 where a tenant in tail, supposing himself seised in fee, conveys the land to 
 several uses in strict settlement, and limits powers of all or any of the de- 
 scriptions which have been mentioned ; and afterwards, on discovering the 
 mistake, levies a fine or suffers a recovery, and directs it to operate to the uses 
 of the settlement, a court would consider the settlement, the fine or recovery, 
 and the deed declaring the uses, as forming one assurance, and that the powers 
 were therefore established by the fine or recovery. 
 
 VII. It should also be observed, that any contract entered into by the donee 
 of a power, with which an exercise of the power would be inconsistent, prevents, 
 a; least in equity, a valid exercise of it. Thus, where a tenant for life has a 
 power to charge an estate with a sum of money, for his own benefit, and to 
 create a term for securing it, and covenants for a valuable consideration, not to 
 exercise these powers, a subsequent exercise of them would be a breach of his, 
 contract, and therefore void in equity. 
 
 VIII. It even maybe thought doubtful whether it would not be mid also at law. 
 This leads to the discussion of a point of great importance, but which doth 
 
 not appear to the writer to have received the attention it deserves, — whether 
 in conveyances which derive their effect from the statute of uses, the use is 
 executed by the statute in any case, in which the party is not entitled bond 
 fide to the trust; or in other words, whether there can be a cestui que use, 
 under the statute, in any case, where the party to whom the use is limited, 
 would not have been cestui que trust, while uses remained in their fiduciary 
 state, at common law. To bring this suggestion to the test, let it be supposed 
 that lands are conveyed by A. to I. S. and his heirs, to the use of A. for life, 
 remainder to 1. S. and his heirs during the life of A. in trust to preserve the 
 contingent remainders ; and after the decease of A. to the use of the sons of A . 
 successively in tail male ; and for default of such issue, to the right heirs of 
 A.; and that before the birth of any son to A., A. and I. S. far a valuable 
 
 conside-ation,
 
 342. b.] Of Discontinuance. L. 3. C. 11. Sect. 646. 
 
 consideration, convey the lands, by bargain and sale inrolled, to G. and bis 
 heirs — C. having notice of the settlement. It is generally considered that, in 
 such a case, the bargain and sale would operate as a valid conveyance of the 
 legal fee of the ltmd to O. ; and that the only remedy of the issue male of A. 
 would be a bill in equity, upon which the court would direct a reconveyance. 
 Now, if, previously to the statute of uses, A. and /. S. had, in the proposed 
 case, conveyed the lands by bargain and sale to G. and his heirs, the bargain 
 and sale would have been, in respect to the sons of A. wholly inoperative. For, 
 before the statute, the effect of a bargain and sale was only to transfer the trust, 
 by substituting one cestui que trust for another. But, in the case which has 
 been mentioned, I. S. notwithstanding the conveyance to C. would have con- 
 tinued trustee for the sons of A. and accountable for the rents to them. 
 Now, the statute of uses (27 Hen. 8. c. 10.), enacted that, "when any person 
 " should be seised of land to the use, confidence, or trust of any other person 
 " or body politic, the person or corporation, entitled to the use in fee simple, 
 "Tee tail, for life, or years, or otherwise, should from thenceforth stand and 
 " be seised or possessed of the land, of and in the like estates, as they had 
 "in the use, trust or confidence." It seems to follow, that, in the proposed 
 case, to entitle G. to the benefit of the statute, and bring the conveyance to him 
 within its operation, it must be shown that 1. S. was seised "to the use, con- 
 " fidence or trust of G." and that C. was entitled to the "use, trust, or confi- 
 " dence" of the land. But the sons of A. were entitled to the benefit of the 
 use, trust and confidence ; and G. had no title to them against the sons of A. 
 It may be thought to follow, that, in the case which had been proposed, the 
 statute of uses would not operate, and the conveyance of A. and /. S. to G. 
 would be equally void at law, as it is allowed to be void in equity, with re- 
 spect to the issue male of A. If this doctrine be founded, it must be attended 
 with extensive consequences. 
 
 IX. This leads to the consideration of the effect, which conveyances Ly the 
 person, seised for the time of the land, have on collateral powers vested in other 
 persons. 
 
 IX. 1. As, where a tenant for life under a settlement containing the usual 
 powers of sale, executes a feoffment, levies a fine, or suffers a recovery. A 
 necessary effect of such a conveyance is, to divest the whole fee, and vest it 
 in the feoffee, conusee or recoveror. This, therefore, makes it necessary to 
 consider, what from that circumstance, independently of any other, its effect 
 would be in suspending or extinguishing the power of sale. To arrive at a 
 conclusion on this point, it might be found necessary to ascertain, with pre- 
 cision, the nature of the estate of trustees for preserving contingent remainders, 
 — particularly, whether it vests in them in possession in the instant of the com- 
 mission of the act of forfeiture by the tenant for life, or waits for its so vesting in 
 them in possession, till the trustees determine the estate conveyed by the tenant 
 for life, by their entrj. This case sometimes occurs in practice; — as, where a 
 person considering himself seised in fee simple, conveys to the use of himself for 
 life, with a limitation to trustees and their heirs during his life for preserving con- 
 tingent remainders ; remainder to the use of his sons successively in tail, and for 
 default of such issue to the use of his own right heirs. Having issue an only 
 son, they levy a fine to the use of a purchaser. It is afterwards discovered 
 that, at the time of the execution of the settlement, the father was tenant in tail 
 with remainders over : and the father and son join in suffering a common reco- 
 very, to the use of a purchaser in fee. It might be contended in such a case, 
 that, if the legal freehold vested in the trustees, immediately on the levying of 
 the fine, the recovery suffered by the father and son, would be void, for want 
 of a tenant to the praecipe ; but that the recovery would not be subject to this 
 objection, if, to vest the legal freehold in the trustees, their previous entry was 
 necessary. — The writer is not apprised of any judicial authority, which leads to 
 a certain conclusion in this case. — In respect to the effect of a fine, feoffment 
 or recovery of a tenant for life, on a power vested in a third person, he thinks 
 
 there
 
 L. 3. C. 11. Sect. 647. Of Discontinuance. [342. b. 
 
 Sect. 647. 
 
 J^LSO, if a parson of a church dieth, now the freehold of the glebe of 
 the parsonage is in none during the time that the parsonage is 
 
 voide, 
 
 there is strong ground to contend, that if the estate waifs for its vesting in the 
 trustees, for their entry, the power is suspended by the feoffment, fine or re- 
 covery, till it is restored by the entry of the trustees; but that it is unaffected 
 by the feoffment, fine or recovery, if the estate vests in the trustees immediately 
 on the commission of the act of forfeiture. 
 
 IX. 2. The effect of feoffments, fines or recoveries of tenants in tail, on 
 2>oioers vested in other persons, depends on other principles; and leads to dis- 
 cussions too numerous and extensive for the present annotation. — It shall be 
 confined to a case, which frequently occurs in practice. — Lands are conveyed to 
 the use of A. for life, with a limitation to trustees and their heirs during the life 
 of A., in trust to preserve contingent remainders; with remainders to his sons 
 successively in tail; — and powers are limited to A. either to appoint the land to 
 or among his children, or to charge it with portions; — or other powers are 
 limited to him, enabling him to create uses which are to take effect in possession 
 after his decease. In these cases, it frequently becomes necessary to consider, 
 whether, if previously to the execution of these powers, A. and his eldest 
 or only son, join in suffering a common recovery, it will have the effect of de- 
 stroying the power. Now it is the known effect of a common recovery by a tenant 
 in tail to bar, not only estates limited in remaiuderafter the estate tail, butall uses 
 which "may take effect, and divest the lands either wholly or partially from him, 
 during the continuance of his estate. If, therefore, after the limitations, which 
 have been mentioned, a proviso had been inserted, directing that, if particular 
 lands devolved to any of the sons, the settled lands should be divested from him, 
 and devolve to others, there is no doubt that a recovery, suffered by the tenant 
 in taile, before this event, would prevent the effect of such a proviso. With great 
 deference to the contrary opinion, it appears to the present writer, that this case 
 and the case now under consideration are, in respect to the effect of the re- 
 covery, perfectly parallel. Whether uses arise under a limitation, or by the 
 exercise of a power, they are equally springing or shifting uses if they arise on a 
 deed, and executory uses if they arise on a will. In the proviso, which has been 
 suggested, they arise on an event, in which the settler himself directs them to 
 arise ; when they arise under a power, they take effect on an event, on which 
 the settler authorises the donee of the power to direct their raising: but, in each 
 ''ase, when the event happeus, the effect of the use then springing up or vesting, 
 on the uses previously subsisting or capable of coming into existence, is exactly 
 the same: — and thus, in the view of the present writer, both are equally liable to 
 destruction by a recovery. — The reader will observe, that, in the case pro- 
 pounded, the uses, to be created under the power, are supposed to be limited 
 in such manner, that they take effect after the death of the tenant for life, and 
 that the estate of the tenant in taile, who suffers the recovery, is the next estate 
 of freehold. Where other estates of freehold are interposed, or where the uses 
 are so limited that they may take effect in the lifetime of the precedent tenaut 
 for life, the case is different, and leads to different considerations: — in the opi- 
 nion of the writer, the uses in this case, are equally to be barred by a common 
 recovery, and a deed properly prepared to give it the operation. 
 
 The principles of the doctrine contained in this annotation may be ex- 
 tended much farther in argument; but it is by no means advisable to do it in 
 practice. On the learning of powers, Mr. Sugden has lately favoured the public 
 with a third edition of his excellent treatise upon that subject. — [Note 2'J8.]
 
 342. b. 343. a.] Of Discontinuance. L. 3. C. 11. Sect. 648. 
 
 voide, but in abeiance, viz. in consideration and in the understanding of 
 the law, until another be made parson of the same church; and imme- 
 diately when another is || made parson, the freehold in deed is in him 
 as successor^. 
 
 " TF a parson of a church dieih, &c." So it is of a bishop, 
 abbot, deane, archdeacon, prebend, vicar, and of every 
 
 other sole corporation or body politike, presentative, elective, or 
 Bract, li. 1. c. 2. donative, which inheritances put in abeiance are by some called 
 Brit. f. 249. haired it ates jacentes ; and some say, que le fee est en balauace. 
 
 *^r Sect. 648. [343. j 
 
 ^LSO, some per adventure wil argue and say, that inasmuch as a 
 parson ivith the assent of the patron and ordinary, may grant a rent 
 charge out of the glebe of the parsonage in fee, and so charge the glebe 
 of the parsonage perpetually, ergo they have a fee simple, or two or one 
 of them have a fee simple at the least (ou deux ou un de eux avoit fee 
 simple * al meins f). To this may bee ansivered, that it is a principle 
 in lata, that of everie land there is a fee simple, $c. in some bodie, or 
 | otherwise the fee simple is in abeyance ||||. Andthere is another principle, 
 that every land of fee simple may be charged with a rent charge in fee by 
 one way or other. And when such rent is granted by the deed of the 
 parson, and the patron and ordinarie, Sfc. in fee, none shall have prejudice 
 or losse by force of such grant, but the § grantors in their lives, and the 
 heires of the patron, and the successors of the ordinarie after their decease. 
 And after such charge if the parson die (si le ** parson devie), his suc- 
 cessor cannot come to the sayd church to be parson of the same by the law, 
 but by the presentment of the patron, and admission and institution of 
 the ordinarie Iff. And for this cause the successor ought to hold him- 
 selfe content, and agree to that which his patron and the ordinarie have 
 lawfully done before, $c. But this is no proof e that the fee simple, $c. 
 is in the patron and the ordinarie, or in either of them, $-c. But the 
 cause that such graunt of rent-charge%% is good, is, for that they who 
 have the interest, $c. in the said church, viz. the patron according to 
 the law temporatt, and the ordinarie according to the law spiritual, were 
 assenting, or parties to such charge, $c. And this seemeth to be the true 
 cause why such glebe may be charged in perpetuitie,^ $c. 
 
 (Ant. 10. b.) " TT is a principle in law, dec." Principium, quod est quasi 
 
 primum caput, from which many cases have their originall 
 
 or beginning, which is so strong, as it suffereth no contradiction; 
 
 and therefore it is said in our books, that ancient principles of 
 
 [a] ll H. 4. 9. the law [a] ought not to be disputed, Contra negantem principia 
 
 non est disputandum. That which our author here calleth a 
 
 Sect. 3 & 90. principle, Sect. 3, & 90, he calleth a masime. 
 
 Here 
 
 || made not in L. and M. or Roh. § grantors — grantees, L- and M. and 
 
 ^f dec. added in L. and M. and Roh. Roh. 
 
 * al — an, L. and M. and Roh. ** parson not in L. ana 1 31. and Roh. 
 
 f &c. added in L. and M. and Roh. ff &c. added in L. and M. and Roh. 
 
 | otherwise not in L. and M. or Roh. 
 
 | &c. added in L. and M. and Roh. 
 
 dec. added in L. and M. and Roh. ^]^[ dec. not in L. and M. or Roh.
 
 L. 3. C. 11. S. 648. Of Discontinuance. [343. a. 343. b. 
 
 Here Littleton in answer to an objection alleageth two prin- 
 ciples. First, 
 
 " That of everie land there is a fee simple, &c." This is per- 
 spicue verum, and needeth no explanation. Secondly, 
 
 "Every land of fee. simple may bee charged in fee by one way (Lampet's case, 
 or other.'' Hereby it appeareth, that albeit the "right of the fee 10 Ke P- 46 - b --> 
 simple be in abeyance, yet it may be charged by one way or 
 another. And so it may be aliened in fee, albeit the right of the 
 fee be in abeyance, or in consideration of law. And herein is 
 a diversitie worthy the observation to be made, that when the 
 right of fee simple is perpetually by judgement of law in abey- 
 ance, without any expectation to come in esse, there he that hath 
 the qualified fee, concur rent ibus hiis qust injure requiruntur, may 
 charge or alien it, as in the case of parson, vicar, prebend, &c. 
 But where the fee simple is in abeyance, and by possibilitie may 
 every houre come in esse, there the fee simple cannot be charged 
 untill it commeth in esse(l). As if a lease for life be made, (2 Roll. 418, 
 
 the remainder to the right hcires of I. S. the fee 419.) 
 [343.1 simple cannot be fl®** charged till 7. S. be dead. 
 b. And so is Littleton to be understood, viz. that either 
 
 it may be charged in prsesenti, or in futuro. 
 
 "Every land of fee simple." And so it is of lauds entailed? 
 for they may be charged in fee also ; for the estate taile may be 
 cut off by fine or recovery. Also the estate taile may continue, 
 and yet tenant in taile may lawfully charge the land and binde u E- 3 . 2 i, 22. 
 the issue in taile. As if a disseisor make a gift in taile, and the (Plo. Com. 436.) 
 donee in consideration of a release by the disseisee of all his 
 right to the donee, granteth a rent charge to the disseisee and 
 his heires, proportionable to the value of his right, this shall 
 binde the issue in taile, Vide Sect. 1, Bridgeioater's case (A); Vide Sect. 1. 
 which lands, by the rule of Littleton, may be charged : and JjjJ*J w 6 l J a 
 therefore if the owner of those thirteene acres grant a rent- 
 charge out of those thirteene acres generally, lying in the 
 meadow of eightie, without mentioning where they lie particu- 
 larly ; there, as the state in the land removes, the charge shall 
 remove also. But since our author wrote, ail ecclesiasticall per- 
 sons are disabled to charge in fee any of their ecclesiasticall pos- 
 sessions, as before hath beene spokeu of at large. 
 
 "And when such rent is granted, <f>." This is an excellent JJ^J &J*| JJJj 
 interpretation and limitation of the said principle, viz. that none ^ j am 
 shall have prejudice or losse by any such grant, but such as are 31 e. 1. tit. 
 partie or privie thereunto; as the patron and his heires, the Grant, 90. 
 ordinary and his successors, and the parson and his successors; Annu " i ' t 53# 
 which successors of the parson are to be presented by the patron (2 Cro. 197.) 
 or his heires, and admitted and instituted by the ordinary or his 
 successors. The like is to be said of an archdeacon, prebend, 
 vicar, chauntrie priest, and the like. 
 
 "By the deed of the parson, and the patron, and ordinarie, &c." JJJX 8L) 
 Yet if the person die, and in time of vacation the patron, of the Ann J uit *. 2 4. 
 
 40 E. 3. 30. 3 E. 3. 17. Hog. 38. (Doct. & Stud. 56. b.) 
 
 (A) See ante 4. a. 48. 6. assent 
 
 (1) On the question, whether the fee simple, during the suspense of a con- 
 tingent remainder, remains in the grantor, or is in abeyance, see Mr. Fearne's 
 Essay on Contingent Remainders, 6th ed. 351.
 
 343. b. 344. a.] Of Discontinuance. L. 3. C. 11. S. 648. 
 
 ] 
 
 assent of the ordinary, or the patron and ordinary grant an 
 annuitie or rent-charge out of the glebe, this shall (as hath 
 beene said) binde the succeeding parsons for ever. 
 
 If there be parson, patron, and ordinary, and the 
 parson by the ordinance and assent Big" of the ordi- ["3-4-4. 
 narie grant an annuitie to another, having quid pro |_ a. 
 quo in consideration thereof, this shall binde the suc- 
 cessor of the parson, without the consent of the patron. 
 
 A church parochiall may be donative and exempt from all 
 ordinarie jurisdiction, and the incumbent may resigne to the 
 patron, and not to the ordinarie; neither can the ordinarie visit, 
 but the patron by commissioners to be appointed by him. And 
 by Littleton s rule, the patron and incumbent may charge the 
 glebe; and albeit it be donative by a layman, yet merelaicus is 
 not capable of it, but an able clerke infra sacros ordines is ; for 
 albeit hee come in by lay donation, and not by admission or in- 
 stitution, yet his function is spirituall : and if such a clerke 
 donative be disturbed, the patron shall have a quare impedit, of 
 this church donative, and the writ shall say, quod permit tat 
 F. N.B.33.C.16. ipsum prcesentare ad ecclesiam, &c. and declare the speciall mat- 
 Bre. 660. ter in his declaration. And so it is of a prebend, chautery, chap- 
 pell, donative, and the like ; and no laps shall incurre to the 
 ordinary, except it be so specially provided in the foundation. 
 But if the patron of such a church, chantery, chappell, &c. dona- 
 tive, doth once present to the ordinarie, and his clerke is admit- 
 ted and instituted, it is now become presentable, and never shall 
 be donative after, and then laps shall incurre to the ordinary, 
 as it shall of other benefices presentable. But a presentation to 
 such a donative by a stranger, and admission and institution 
 thereupon, is meerely void. And all this was resolved by the 
 whole court of king's bench, for the rectorie parochiall donative 
 of Saint Burian in the countie of Cornewall. 
 
 It appeareth by our bookes, and by divers acts of parliament, 
 that at the first all the bishopricks in England were of the king's 
 foundation, and donative per traditionem haculi (id est) the 
 crosier, which was the pastorall staffe, & anuuli, the ring whereby 
 hee was married to the church. And king Henry the first beiug 
 requested by the bishop of Rome to make them elective, refused 
 it : but king John by his charter bearing date quintoJuni anno 
 decimo septimo, granted that the bishopricks should be eligible. 
 If the king doth found a church, hospitall, or free chappell dona- 
 tive, he may exempt the same from ordinarie jurisdiction, and 
 then his chancellor shall visit the same. Nay, if the king doe 
 found the same without any speciall exemption, the ordinarie is 
 not, but the king's chancellor, to visit the same. Now as the 
 king may create donatives exempt from the visitation of the 
 ordinarie, so he may by his charter licence any subject to found 
 such a church or chappell, and to ordaine that it shall be dona- 
 tive, and not presentable, and to be visited by the founder, and 
 not by the ordinarie. And thus beganne donatives in England, 
 whereof common persons were patrons. 
 2 H. 5. c. 1. (F. N. B. 35. a.) 
 
 " Ordinarie." Ordinarius is hee that hath ordinarie juris- 
 diction in causes ecclesiasticall, immediate to the king and his 
 courts of common law, for the better execution of justice, as the 
 bishop or any other that hath exempt and immediate jurisdiction 
 in causes ecclesiasticall. 
 
 6 E. 3. 4. 55. 
 
 7 E. 3. 40, 41. 
 F. N. B. 152. 
 17 E. 3. 32. 
 39 E. 3. 17. b. 
 11 11.4.68. 
 
 8 H. 3. 23. 
 Vi. Sect. 133. 
 530. 11 E. 3. 
 Jur. utr. 3. 
 
 8 Ass. 29. 31. 
 13 Ass. 2. 
 
 14 II. 3. Quar. 
 Imp. 183. 
 17 E. 3. 12. 64. 
 14 H. 4. 11 
 
 c. 
 
 13 E. 4. 3. 
 6 H. 7. 14. 
 Vid. Sect. 530 
 22 H. 6. 26. 
 F. N. B. 35. c. 
 
 Hil. 1 Jac. 
 Coram Reg. rot. 
 601. inter Wil. 
 Fairchild, pi. & 
 
 Wil. Gayer, def. 
 in Trespass. 
 
 17 E. 3.40. 
 6 E. 3. 10. 
 25 E. 3. ca. 
 Unico de Provi- 
 sos. Math. Par. 
 pa. 10 & 62. 
 
 F. N. B. 35 E. 
 
 42. A. B. 
 
 27 E. 3.8. & 85. 
 
 8 Ass. 29. 
 
 8 E. 3. Ass. 150 
 
 15 E. 3. 
 Scire fac. 11. 
 6 H. 7. 14. 
 
 16 E. 3. 
 Briefe, 660. 
 21 E. 3. 60. 
 Registr. 40. 
 Dyer, 10 Eliz. 
 f. 273. 
 14 El. ca. 5. 
 
 (9 Rep. 39. 
 4 Inst. 338. 
 Ant. 96. a.)
 
 L. 3. C. 11. S. 648. Of Discontinuance. [344. a. 344. b. 
 
 " Law temporall." Which consisteth of three parts, viz. First, (Ant. 110. 
 on the common law, expressed in our bookes of law, and judi- 115. b.) 
 ciall records. Secondly, on statutes contained in acts and re- 
 cords of parliament. And thirdly, on customes grounded upon 
 reason, and used time out of minde ; and the construction and 
 determination of these doe belong to the judges of the realme. 
 
 " Law spirituall, &c." That is, the ecclesiasticall lawes (12 Rep. 72.) 
 allowed by the lawes of this realme, viz. which are not against !' he H ^ tute 1 f 
 the common law (whereof the king's prerogative is a principall 33 n ] 6 ] 3 '^ 
 part) nor against the statutes and customes of the realme : and 32 II. 6. 28. 
 regularly according to such ecclesiasticall lawes, the ordinarie 
 and other ecclesiasticall judges doe proceed in causes within 
 their conusance. And this jurisdiction was so bounded by the 
 ancient common lawes of the realme, and so declared by act of 
 parliament. 
 
 " Admission & institution." In proprietie of speech, admission 
 is, when the bishop upon examination admitteth him to be able, 
 and saith, Admitto te habilem. [d] Institution is, when the [<f] Lib. 4. f. 75. 
 bishop saith, Instituo te rectorem talis ecclesice cum cura amma- Lib ' 6 f 49 
 rum, & accipe curam tuam & meam. [e] But sometimes in a Lib. 7. fo. 46. 
 more large sense, admissus doth include institutus also : cuius [«] W. 2. cap. 5. 
 prcesentatus sit admissus, (i. e.) institutus. And it is to be ob- L6 *' L ' 
 served, that institution is a good plenartie against a common 
 person (but not against the king unlesse he be inducted); and 22 H. 6.27. 
 that, is the cause that regularly plenartie shall be tried by the 38 E. 3. 4. 
 bishop, because the church is full by institution, which is a spi- 
 rituall act : but void or not void shall be tried by the common law. Glanvill. lib. 13. 
 
 At the common law, if an estranger had presented his clerke, c - 18 > 19 > 20 - 
 
 , . 1 • t 1 • ° • 1 1 1 1 e Mirror, cap. 5. 
 
 and he had beene admitted and instituted to a church, whereot ? 5> Bracu.n, 
 any subject had beene lawfull patron, the patron had no other lib. 4. fo. 238. 
 remedy to recover his advowson, but a writ of right of 240. 244, &e 
 
 tS4:4z.l advowson, wherein the figg 00 incumbent was not to be c ^\ 16 ,'i7." 
 b. J removed : and so it was at the common law, if an usur- Brit. f. 222, 
 pation had beene had upon an infant or feme covert, 223, 224.^ 
 having an advowson by discent, or upon tenant for life, &c. the 52 39 'e. 3. 24. 
 infant, feme covert, and he in the reversion were driven to their 43 E. 3.25. 
 writ of right of advowson; for at the common law, if the church 45 E. 3. 
 were once full, the incumbent could not be removed, and pie- iQjf 2™om. 22. 
 nartie generally was a good plea in a quare impedit, or assise of 31 e. 1. Quar. 
 darreine presentment: and the reason of this was to the intent imp. 186. 
 that the incumbent might quietly intend and applie himselfe to Lib6 49 50.b. 
 his spirituall charge. And secondly, the law intended, that the g Bep. Grecn'3 
 bishop that had cure of soules within his diocese, would admit case, 
 and institute an able man for the discharge of his dutie and his | vj°' B 33 ^ \ 
 owne ; and that the bishop would do right to every patron within 
 his diocesse. But at the common law, if any had usurped upon 
 the king, and his presentee had beene admitted, instituted, and 
 inducted, (for without induction the church had not beene full F. N. B. 36. k. 
 
 against the kimr) the king might have removed him by quare im- Jf 3 - a : „ 
 t> , . ~' ii- • /» 1 • i_ 1 *i «5 h. •>. ca. 6. 
 
 pedd, and beene restored to his presentation : tor therein he hath 13 R 2 . ca. 1. 
 
 a prerogative, quod nullum tern pus occur it regi (A)', but he could 4 H. 4. ca. 21. 
 
 not present, for the plenartie barred him of that; neither could he l H - fo1 - 19 - 
 
 remove him any way but by action, to the end the church might 
 
 be the more quiet in the meane time. [*] Neither did the king [•] Li. 6. fo. 51. 
 
 Li. 7. fo. 19. 
 3 H. 6. Dam. 17. 34 H. 6. 28. 12 E. 3. Champerty, 9. 18 E. 3. 2. Temps E. 1. 
 Quar. imp. 181. 
 (A) This rule, however, -is subject to various exceptions. See ante 119, a. note 1. 
 
 recover
 
 344. b.] Of Discontinuance. L. 3. C. 11. Sect. 648. 
 
 recover damages in his quare impedit at the common law. But 
 
 [d] W..2. ea. 5. the said statute [o] hath altered the common law in the cases 
 
 13 E. 1. aforesaid; as namely, Quoad hoc, quod si jwrs rea accipiat (A) 
 
 de plenitudine ecclesios per suam propriam prcesentationem, non 
 
 propter Mam plenitudinem reman eat loquela dummodo breve 
 
 infra tempus semestre impetretur, &c. and also hath provided 
 
 remedy in-the other cases, as by the said act appeareth. 
 
 [g] 45 E. 3. 35. [g] And if the king doe present to a church, and his clerke 
 
 ;;. |r a *L is admitted and instituted, yet before induction the king may 
 
 13 El. Dy. 292. repeale and revoke his presentation. But regularly no man can 
 
 Reg. 302, &c. be put out of possession of his advowson but by admission and 
 
 18 El. Dy. 348. institution upon an usurpation by a presentation to the church, 
 7 ii 4 32 cum aliquis jus prsesentandi non habens prsesentaverit, drc. and 
 31 E. i. Quar. not by collation of the bishop: [h] and therefore if the bishop 
 imp. 185. collate without title, and his clerke is inducted, this shall not 
 nil l^B.' flfte. P ut tne rightfull patron out of possession : for it shall be taken 
 (2 Inst. 356. to be only provisionally made for celebration of divine service 
 6 Rep. 29. a. un til the patron doe present ; and therefore he is not driven to 
 ° 0, a ^ his quare impedit, or assise of darreine presentment, in that 
 
 case ; but an usurpation by collation shall take away the right 
 of collation that is in another (1). 
 (3 Rep. 30. a. It is to be observed, that an usurpation upon a presentation 
 
 50. a.) shall not only put out of possession him that hath right of pre- 
 9 H. 6. 32 & 56. sentation, but right of collation also. Therefore at this day the 
 
 19 H. 6. 68. incumbent shall be removed in a quare impedit, or assise of dar- 
 
 reine presentment, if there be not a plenartie by six months be- 
 ll Rep. 27. fore the teste of the writ : but then the incumbent must be named 
 Oro. Car. 74. in the writ, or else he shall never be removed; yet at the common 
 n'b' & nb U 'l' law > if tue orainai 7 refused to admit and institute the clerke of 
 
 51. Ant. 17. b.) the patron, or when any disturbed him to present, so as he could 
 
 notpreferre his clerke, he might have his quare impedit, or assise 
 de, darreine presentment ; and if the church were not full, have a 
 writ to the bishop to admit his clerke : but so odious.was symonie 
 in the eye of the common law, that before the statute of W. 2. he 
 recovered no damages. At the common law, if hanging the 
 quare impedit against the ordinary for refusing of his clerke, and 
 before the church were full, the patron brought a quare impedit 
 against the bishop, and hanging the suit, the bishop admit and 
 institute a clerke at the presentation of another, in this case if 
 judgement 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 inno- 
 vctur, and therefore at the common law it was good policie to 
 bring the quare impedit against the bishop as speedily as might 
 be. And it is to be observed, that albeit the clerke that comes 
 
 5 Rep! P 102." in pendente lite, by usurpation, shall be removed; yet if the right- 
 
 6 Rep. 51. full patron, being a stranger to the writ, present pendente lite, 
 ^°! 5 - 2fU - and his clerke is admitted and instituted, he shall not be removed ; 
 18 K 2. Pre- for else by the bringing of such quare impedit against the ordi- 
 sentment. 20. nary, the rightfull patron might be defeated of his presentation : 
 50 E. 3. En- and therefore ever after the statute of Westm. 2. amongst other 
 SlKVfc things it was enquired ex officio, if the church were full, and of 
 
 Dyer, 260.'%. N. B. 32. 14 H. 8. 31. 19 E. 2. Dar. Pres. 21. 10 E. 3. 17. 9 H. 6. 31. 
 
 J ' whose 
 
 (A) Here " aecipiaf seems to be printed by mistake instead of " excipiat." See 2 Inst. 354, 
 and Mr. Ritso's Intr. p. 121. 
 
 (1) V. stat. 7 Ann. c. 18.
 
 L. 3. C. 11. S. 649-50. Of Discontinuance. [344. b.34o. a. 
 
 whose presentation, &c. and if the plaintife should have a writ 
 to the bishop, and his clerke admitted, (as in most cases hee 
 ought) yet may the rightful incumbent have his remedie by law. 
 
 And as it was good policie (as hath beene said) to bring a 30 E. 3. tit 
 quare impedit as speedily as might be against the bishop, so it Qj>«- l ^f tat ' 
 is good policie at this day to name the bishop in the quare im- 9 h.Vs2.'o6. 
 pedit, for then he shall not present by laps. But seeing the bishop 19 H. 6.68. L. 
 shall not present by laps because he is named in the writ, what 5 E. 4. 115. 
 then, after that the time be devolved to the metropolitan, shall 
 not he present by laps, because he is not named ? To this it is 
 answered, that he shall not in that case present by laps ; for the 
 metropolitan shal never present or collate by laps after six 
 moneth, but when the immediate ordinary might have collated n H. 4. 80. 
 
 by laps within the six moneths, and had surceased his (Hob. 154.) 
 [34 5.1 time. And so it is if the time be devolved to the king, 
 a. | JS@~ for the first step or beginning faileth ; and in 
 
 humane thing3, Quod non habet principium, non liahet 
 finem. And all these points were resolved f *] in a writ of errour [*] Mich, 
 brought by Richard bishop of London and John Lancaster (g *JJ ^ g fe 
 against Anthony Lowe upona judgement given against them in 2 Cro. 92.) 
 a quare impedit in the common-place for the church of Wimbishe. 
 But now let us heare what our author will say unto us. 
 
 Sect. 649. 
 
 A LSO, if tenant in tayle hath issue and is disseised, and after he re- 
 leaseth by his deed all his right to the disseisor: in this case no right 
 of taile can be in the tenant in taile, because hee hath released all his 
 right. And no right can be in the issue in taile during the life of his 
 father. And such right of the inheritance in the taile is not altogether 
 expired by force of such release, $c. Ergo, it must needs be that such 
 right remaine in abeiance, * ut supra, during the life of tenant in taile 
 that releaseth, $c. and after his decease such right presently is in his 
 issue in deed, §c. 
 
 Sect. 650. 
 
 TN the same manner it is, ivhere tenant in taile grant all his estate to 
 another ; in this case the grantee hath no estate but for terme of life 
 of the tenant in taile, and the reversion of the taile is not in the tenant 
 in taile, because he hath granted all his estate, and his right, $c. And 
 if the tenant to whom the grant was made make waste, the tenant in tail 
 shall not have a writ of waste, for that no reversion is in him. But the 
 reversion and inheritance of the tail, during the life of the tenant in 
 taile, is in abeiance, that is to say, only in the remembrance, considera- 
 tion, and intelligence of the law f. 
 
 LITTLETON 
 
 * &c. added in L. and M. and Boh. f &c - added in K and M * and Roh -
 
 315. a. 345. b.] Of Discontinuance. L. 3. C. 11. S. 650. 
 
 (Hob. 338.) 
 
 PI. Com. fol. 
 562, 563. in 
 AValsingham's 
 case. 14 E. 3. 
 Discont. 5. 
 (Cro. Car. 427. 
 8-9. Ant. 217. a, 
 Dyer, 71. a.) 
 19 H. 6. 60. 
 29 Ass. p. 
 Walsingham's 
 case, ubi. supra. 
 
 Vide Sect. 65. 
 524, 525, 526. 
 44 E. 3. 10. 
 14 Ass. 28. 
 
 43 Ass. 8. 
 5 H. 7. 30. 
 
 44 Ass. 28. 
 44 E. 3. 10. 
 
 ] 
 
 T IT TLB TON having declared where a fee is in abeyance, and 
 where a freehold and fee is in abeyance by act in law, and 
 where a fee that is in abeyance may be charged; here he putteth 
 two cases where a right of an estate tail may be in abeyance by the 
 act of the partie, which are so clear and evident, as there needs 
 no further proofe or argument, than Littleton hath justly and 
 artificially made, albeit some objections of no weight have beene 
 made against it. If tenant in taile of lands holden of the king 
 be attainted of felonie, and the king after office seiseth the same, 
 the estate taile is in abeyance, there said to be in suspence. 
 Ant. 263. b. 299. b. 331. a. 342. b.) 
 
 " Grant his estate, concedit statum suum." State or estate 
 signifieth such inheritance, freehold, terme for yeares, tenancie 
 by statute merchant, staple, elegit, or the like, as any man bath 
 in lands or tenements, &c. And by the grant of his estate, &c. 
 much as he can grant shall passe, as here by Littleton's case ap- 
 peareth. Tenant for life, the remainder in taile, the remainder 
 to the right heires of tenant for life, tenant for life grant totum 
 statum suum to a man and his heires, both estates doe passe. 
 
 " Right," Jus, sive rectum (which Littleton often useth) sig- 
 nifieth properly, and specially in writs and pleadings, when an 
 estate is turned to a right, as by discontinuance, disseisin, &c. 
 where it shall be said, quod jus discendit et non terra. 
 But (Right) doth also include the figg"* estate in esse r345 
 in conveyances ; and therefore if tenant in fee simple | b. 
 make a lease for yeares, and release all his right in 
 the land to the lessee and his heires, the whole estate in fee 
 simple passeth. 
 
 And so commonly in fines, the right of the landincludeth and 
 passeth the state of the land ; as A. cognovit tenementa prsed i<ta 
 [a] W. 2. cap. 3. esse jus ipsius, B. &c. And the statute [a] saith, jus suum de- 
 PL Com. 484. fendere, (which is) statum suum. And note that there is ivs 
 & 487. b. J ;•• •, i- • iz. t • s- j- ■ • 
 
 recuperandi, jus intrandi, jus habendt, jus retinendi, jus perci- 
 
 p>iendi, jus jjossidendi. 
 
 Title, properly, (as some say) is, when a man hath a lawfull 
 cause of entry into lands whereof another is seised, for the which 
 bee can have no action, as title of condition, title of mortmaine, 
 &c. But legally this word (Title) includeth a right also, as you 
 shall perceive in many places in Littleton : and title is the more 
 generall word ; for every right is a title, but every title is not 
 such a right for which an action lieth ; and therefore Titulus est 
 justa causa possidendi quod nostrum est, and signifieth the meanes 
 whereby a man commeth to land, as his title is by fine or by 
 feoffment, &c. And when the plaintife in assise niaketh himselfe 
 a title, the tenant may say, Venial assisa super titvlum ; which 
 is as much to say, as upon the title which the plaintife hath made 
 by that particular conveyance. Et dicitur titulus & tuendo, be- 
 cause by it he holdeth and defendeth his land ; and as by a re- 
 lease of a right a title is released, so by release of a title a right 
 is released also. See more hereof in Fitzherhert and Brooke's 
 Abridgements in the title of Title. 
 
 Interest. Interesse is vulgarly taken for a terme or chattle 
 
 (Plo. 484.) 
 
 20 H. 6. 9. 
 Vide Sect. 465. 
 PI. Com. 484. 
 Lib. 8. fol. 153. 
 Altham's case. 
 39 H. 6. 38. 
 
 (1 Cro. 429.) 
 
 Vid Sect. 429. 
 659, &e. 
 (Post. 347. b.) 
 
 6 H. 7. 8. a. 
 Altham's case, 
 ubi supra. 
 
 PI. Com. fol. 
 
 374, in seignior 
 
 Zuuche's case; & fol. 487 & 448, in Nichol's case 
 
 reall,
 
 L. 3. C. U.S. 651-52. Of Discontinuance. [345. b. 346. a. 
 
 reall, and more particularly for a future tearme ; in which case it 
 
 is said in pleading, that he is possessed de interesse termini. But 
 
 ex vi termini, in legall understanding, it extendeth to estates, 
 
 rights, and titles, that a man hath of, in, to, or out of lands ; for 
 
 he is truly said to have an interest in them : and by the errant of 23 H. 8. Taile. 
 . . • / • i i j 11 • Br. 32. 35. H. 8. 
 
 totum interesse suum in such lands, as well reversions as posses- Q rant Br 150 
 
 sions in fee simple shall passe. And all these words singularly Vide 16 Eliz. 
 
 spoken are nomina collect iva ; for by the grant of totum station ^jer, 325 - b - 
 
 suum in lands all his estates therein passe. Et sic de cceteris. 
 
 " Shall not have a writ of waste, &e." So it is if tenant for 43 Ass. p. 13. 
 life be, the remainder in taile, and he in the remainder release to *? ^- 3 - 
 the tenant for life, all his right and state in the land. Hereby n'n 4. 67.' 
 it is said in our bookes, that the estate of the lessee is not in- 13 H. 7. 10. 
 larged, but the release serveth to this purpose, to put the estate P1 - c ° m - 482 - 
 taile into abeyance, so as after that he in the remaynder cannot ^ r H 'g r ' 20 
 have an action of waste; yet in that case (saving reformation) 
 the lessee for life hath an estate for the life of tenant in taile 
 expectant upon his owne life. But if tenant in fee release to his 42 E. 3. 23. 
 teuant for life all his right yet he shall have an action of waste. F - N. B. 60. H. 
 And if tenant in taile make a lease for his owne life he shall Wast ' e '§3 
 have an action of waste. 43 E. 3. 18. 
 
 [ 8 t 6 -] w Sect. 651. $£»?& 
 
 
 ALSO, if a bishop alien lands ivhich are parcell of his bishopriche and 
 die, this is a discontinuance to his successor, because he cannot enter, 
 but, is put to his writ of de ingressu sine assensu capituli. 
 
 OF this sufficient hath becne said (how the law standeth at this 
 day) before in this Chapter. 
 
 SeCt. 652. (Ant. 342. a.) 
 
 ALSO, if a dean alien lands* which he hath in right of him and his 
 chapter, and dieth, his successor may f enter.% But if the dean bed 
 sole seised as in right of his deanry, then his alienation is a discontinu- 
 ance to his successor, as is said before. 
 
 HEREOF also that which was necessary is before said in 22 E - 4. 
 this Chapter, and Littleton's owne words are plaine and Jfp^*'™!™' 
 evident. 21 E. 4.' 85, 86. 
 
 Sect. 
 
 * which he hath in right of him and % But may have a writ dc ingressu 
 
 his chapter—parcel of his deanry, L. sine assensu episcopi et capituli, &c. 
 
 and M. and Koh. added in L. and M. and Boh. and 
 
 f not added in L. and M. and Boh. MSS.
 
 346.a.346.b.] Of Discontinuance. L. 3. C. U.S. 653-4-5-6. 
 
 Sect. 653. 
 
 A LSO, peradventure some ivill argue and say, that if an abbot and 
 
 his eovent bee seised in their demesne as of fee of certaine lands to 
 
 them and to their successors, $c. and the abbot without the assent of his 
 
 eovent alien the same lands to another and die, this is a discontinuance 
 
 to his successor, $c. 
 
 Sect. 654:. 
 
 T> Y the same reason they will say, that where a deane and chapter (un 
 
 (dean * en chapter) are seised of certain land to them and 
 their successors, if the deane alien the same lands, g^iP $c. this j"346."| 
 shall be a discontinuance to his successor, so as his successor L D - J 
 cannot enter, fyc. To this it may be answered, that there is a 
 great diversity betweene these two cases (perenter les f deux cases.) 
 
 (Ant. 342. a) Sect. 655. 
 
 JpOR when an abbot and the eovent are seised X, yet if they bee dis- 
 seised, the abbot shall have an assise in his oum name, without naming 
 the eovent, \. $c. And if any ivill sue a praecipe quod reddat, &c. of 
 the same lands when they were in the hands of the abbot and eovent, it 
 behooveth that such action reall be sued against the abbot only without 
 naming the eovent \\, because they are all dead j^rsons in law, but the 
 abbot who is the soveraigne, $c. And this is by reason of the sove- 
 raignty §/ for otherwise hee should be but as one of the other monkes 
 of the eovent (car auterment il serroit fosque come 1 un de les auters 
 nioignes de le eovent), $e. 
 
 Sect. 656. 
 
 J^UT deane and chapter are not dead persons in law, §c. for every 
 
 of them may have an action by himself e in divers cases. And of 
 
 such lands or tenements as the deane and chapter have in common, fyc. if 
 
 they bee disseised, the deane and chapter shall have an assise, and not the 
 
 deane 
 
 * en— et le, L. and 3L and Roh. | &c. in L. and M. and Roh. 
 
 f dites added in L. and M. and i\&c. added in L. and M. and Roh. 
 
 Roh. § &c. added in L. and M. and Roh. 
 
 % &c. added in L. and M. and Roh. \ un not in L. and M. or Roh.
 
 L. 3. C. 11. S. 657-58. Of Discontinuance. [3-16. b. 317. a. 
 
 deane alone, * $c. And if another will have an action reallfor such lands 
 or tenements against the deane, frc. he must sue against the deane and 
 
 [347. "I chapter, and not against the deane alone, $e. and so there 
 a - J appeareth a Jt@f° great diversitie betweene the tivo cases, fyc. 
 
 THESE are apparent and need no explanation. Saving in (io itep. 132. 
 the 655 Section mention is made of the praecipe, quod reddat, F - **. B. 2. e. 
 which in this place is intended of a reall action whereby land is 
 demanded, and is so called of the words in every such writ. 
 
 And the reason of this diversitie betweene the case of the y id _ Sect 2 oo 
 abbot and covent, and deane and chapter is, for that (as hath s E. 3. 27. 
 beene said) the monkes are regular, and civilly dead, and the u H. 4. 84. 
 chapter are secular, and persons able and capable in law. But ^ ^ J 12 " 
 by the policie of law the abbot himselfe (here termed the sove- 
 reigne) albeit he be a monke and regular, yet hath he capacitie 
 and abilitie to sue and be sued, to enfeoffe, give, demise, and 
 lease to others, and to purchase and take from others; for 
 otherwise they which right have should not have their lawfull 
 remedie, nor the house remedie against any other that did them 
 wrong: neither could the house without such capacitie and 
 abilitie stand. And the covent have no other abilitie or 
 capacitie, but only to assent to estates made to the abbot, and 
 to estates made by him, which for nccessitie's sake, though 
 they be civilly dead, they may doe. 
 
 OC^L. UU 1 . (Pl 0- 22. b.) 
 
 A LSO, if the master of an hospitall discontinue certaine land of his 
 hospitall, his successor cannot enter, but is put to his writ of de 
 ingressu sine assensu confratrum etf consororum, &c. And all such 
 writs fully appeare in the Register, Sfc. 
 
 fPIIIS must also be understood where the master of the 
 -A- hospitall hath sole and distinct possessions, and not where 
 he and his brethren are seised as a body politikc aggregate of 
 many. And here Littleton (as divers times before) doth cite 
 the Register. 
 
 SeCt. 658. (1 Roll. Ab. 634.) 
 
 A LSO, if land be lett to a man for terme of his life, the remainder to 
 another in taile, saving the reversion to the lessor, and after he in the 
 remainder disseiseth the tenant for terme of life, and maketh a feoffment 
 to another in fee, and after dyeth without issue, and the tenant for life 
 dyeth; it seemeth in this case, that hee in the reversion may well enter 
 upon the feoffee, because he in the remainder which made the feoffment, 
 ivas never seised in taile by force of the same remainder, frc. 
 
 HERE 
 
 * cfr. not in L. and M. or Roh. f corsororum — sororum, L and M 
 
 and Roh.
 
 U7. b.] Of Remitter. L. 3. C. 12. Sect. 659. 
 
 Vid. Sect. 637. O^T TTERE it apeareth, that albeit the feoffor hath T347. 1 
 592.596,597. _Ll an estate taile in him expectant upon an estate I b. 
 
 no Re > 35 f° r ^ e ' y et n * s f e °ff ement worketh no discontiuuauce. 
 1 Roll. Abr.' "Wherein Littleton doth adde a limitation to that which in this 
 634.) Chapter he had generally said, viz. That an estate taile cannot 
 
 be discontinued, but where he that maketh the discontinuance 
 was once seised by force of the taile; which is to be understood, 
 when he is seised of the freehold and inheritance of the estate 
 in taile, and not where he is seised of a remainder or reversion 
 expectant upon a freehold ; which freehold (as often hath 
 beene said) is ever much respected in law. 
 
 Chap. 12. Of Remitter. Sect. 659. 
 
 T>EMITTEU is an ancient terme in the law, and is where a man 
 hath two titles to lands or tenements, viz. one a more ancient title, 
 and another a more latter title; and if he come to the land by a latter 
 title, yet the law will adjudge him in by force of the elder title, because 
 the elder title is the more sure and more worthie title. And then when 
 a man is adjudged in by force of his elder title, this is sayd a remitter in 
 him, for that the laiv doth admit him to be in the land by the elder and 
 surer title (per le pluis eigne * et sure title). As if tenaunt in taile dis- 
 continue the taile, and after he disseiseth his discontinuee, and so dieth 
 seised, whereby the tenements descend to his issue or cosine inheritable by 
 force of the taile ; in this case, this is to him, to whom the tenements descend, 
 who hath right by force of the tayle a remitter to the tayle, because the laiv 
 shall put and adjudge him to bee in by force of the tayle, which is his 
 elder title : for if he should bee in by force of the discent, then the dis- 
 continuee might have a writ of entrie sur disseisin in the per against him, 
 and should recover the tenements and his damages, f frc. But inasmuch 
 as he is in his remitter by force of the taile, the title and interest of the 
 discontinuee is quite taken away and defeated, $c. (1). 
 
 HERE our author having next before treated of a Discon- 
 tinuance, very aptly beginueth this Chapter with a descrip- 
 tion of a Remitter. 
 
 (2 Roll. Abr. " Remitter is an ancient terme in the law," and is derived of the 
 
 422.) Latine verbe remittere, which hath two significations; either to 
 
 restore and set up againe, or to cease. Therefore a remitter is 
 an operation in law upon the meeting of an ancient right reme- 
 diable, and a latter state in one person where there is no follie 
 in him, whereby the ancient right is restored and set up againe, 
 and the new defeasible estate ceased and vanished away. And 
 
 the 
 
 * et sure not in L. and M. or Boh. &c. not in L. and M. or Roh. 
 
 (1) As to the general doctrine of remitter: — In note 1, p. 289. a. notice was 
 taken of the different degrees of title, which a person disseising another of his 
 lands acquires in them in the eye of the law, independently of any interior 
 
 right:
 
 
 L. 3. C. 12. Sect. 659. Of Remitter. [347. b. 
 
 the reason hereof is, for that the law preferreth a sure and con- 
 stant right, though it be little, before a great estate by wrong 
 and defeasible ; and therefore the first and more ancient is the 
 
 most 
 
 
 right : That if A. is disseised by B. while the possession is in B. it is a mere 
 naked possession, unsupported by any right ; and that A. may restore his pos- 
 session, and put a total end to the possession of B. by an entry on the land, 
 without any previous action : but that if B. dies, the possession descends on 
 his heir by act of law. That, in this case, the heir comes to the possession of 
 the land by a lawful title, and acquires in the eye of the law an apparent right 
 of possession, which is far good against the person disseised, that _ he has 
 lost his right to recover the possession by entry, and can only recover it by an 
 action at law. That the actions used in these cases are called possessory actions ; 
 but that if A. permits the possession to be withheld from him beyond a certain 
 period of time, without claiming it, or suffers judgment in a possessory action 
 'to be given against him by default; or, if being tenant in tail, he makes a 
 discontinuance ; in all these cases, B.'s title is strengthened, and A. can no 
 longer recover by his possessory action, and his only remedy there is by an 
 action on the right. That these last actions are called droiturel actions, and 
 that they had the ultimate resource of the person disseised. — Now, if in any of 
 these three different stages of the adverse title, the disseisee, without any default 
 in him, comes to the possession of the estate by a defeasible title, he is con- 
 sidered to be in not as of his new right, but as of his ancient and better right ; 
 and consequently the right of the person, who, supposing the disseisee still to 
 be in as of his defeasible estate, would be entitled to the lands, upon the cesser 
 or determination of that estate, is gone forever. In these circumstances, the 
 disseisee is said to be remitted to his ancient estate. The principal reason for 
 his being remitted is, that the person so remitted cannot sue or enter upon 
 himself; so that in these cases where the possession is recoverable by entry, 
 the remitter has the effect of a judgment at law. But there is no remitter 
 where he who comes to the defeasible estate, comes to it by his own act, or 
 his own assent. Hence the defeasible estate, to entitle the party to be re- 
 mitted, must be made to him during infancy or coverture, or must come to 
 him by descent, or act of law ; neither is there any remitter where the ancient 
 estate is recoverable, neither by action, nor by entry. So that in those cases 
 where the disseisee is beyond the three stages mentioned in the beginning of 
 the note, if he afterwards comes to the estate by a defeasible title, he remains 
 seised as of that estate, and is not remitted to his more ancient title. These 
 are the doctrines of the common law respecting remitter. But they are greatly 
 altered by the statute of the 27 Hen. 8. That statute executes the pos- 
 session to the party in the same plight, manner, and form, as the use was 
 limited to him. It operates only with respect to the first taker, and therefore 
 the issue is remitted. By the estate of 32 Hen. 8, it is enacted, that no 
 fine, feoffment, or other act by the husband, of the wife's lands, shall be any 
 discontinuance ; but that the wife and her heirs, and such others to whom 
 the right shall appertaine after her decease, shall, notwithstanding such fine, 
 or other act, lawfully enter into her lands, according to their rights and titles 
 therein. This takes from the wife, and those claiming under her, the effect 
 of the statute of the 27 Hen. 8, so that she has her election to take by the 
 27 Hen. 8, or to enter by the 32 Hen. 8, upon which she shall be remitted. 
 See Buncombe v. Wingfield, Hobart, 254.— Sir W. Blackstone, 3 Com. Cha. 10. 
 observes that the doctrine of remitter might seem superfluous to an hasty 
 observer; who perhaps would imagine, that since the tenant hath now both the 
 right, and also the possession, it little signifies by what means such possession 
 shall be said to be gained. But the wisdom of our ancient law determined 
 
 nothing 
 
 Vol. II.— 40
 
 [ 3 f a ] 
 
 34:8. a.] Of Remitter. L. 3. C. 12. Sect, 659. 
 
 most sure and more worthy title; Quod prhis est, verius est, &• 
 
 [a] 25 Ass.pl. 4. quod prius est tempore, points est jure : [o] therefore many bookes 
 35 Ass. pi. 11. instead of remitter say, that he is en son primer estate, or en son 
 ?, 6 ™ j" fn melior droit, or en son melior estate, or the like (1). 
 
 11 11. 4. 50. a. ' / v / 
 
 41 E. 3. 17. b. Et tit. Remit. 11. 6 E. 3. IT. 
 
 (8 Rep. 153.) « Where a man hath two titles." Here this word (Titles) is taken 
 
 in the largest sense, including rights : for being properly 
 
 [b] Vide Sect, taken, [b] as in case of a condition, mortmaine, B^° as- 
 *uH & <f 5! -' &C ' sent to a rav i saer > anc * tne like, there is no remitter 
 Remitter,Br. 50. wrought unto them, because these are but bar) titles of 
 44 E. 3. ' entrie, for the which no action is given : but a remitter must be 
 Attaint. 22. to a p reC edent right : and Littleton in this chapter putteth all 
 (Pio. S 484. ' h* 3 cases onely of remitters, to rights remediable. 
 
 Ant.' 345.) (2 Roll. Abr. 421.) 
 
 19 H. 6. 59. 78. " And another a more latter title, &c." Here is to be observed, 
 tfon *' 3 Dtre that an estate must work a remitter to an ancient right; for 
 PL Com". 246. a. albeit two rights doe descend, there can be no remitter, because 
 (3 Rep. 1.) one right cannot work a remitter to another; for regularly to 
 
 every remitter there be two incidents, viz. an action right and 
 a defeasible estate of freehold comming together. 
 
 " The elder title is the more sure and more xcorthie title." So 
 as the eldest title is worthily (as hath been said) preferred, be- 
 cause it is .the more sure and more worthy. 
 
 19 H. 6. 61 62. " -^ s if i enan t *R taile discontinue the taile, &c." Here our 
 author according to his accustomed manner, to illustrate his 
 description putteth an example of a remitter, where the law 
 preferreth the ancient estate by right, before a new estate defea- 
 sible. And this remitter is wrought by an estate cast upon the 
 issue in taile by discent, which is an act in law, and the discent 
 of the land in possession, and the right of estate taile descend 
 together. 
 
 (Post. 390. a. a J s q U {( e taken aicay and defeated, &c." Here be two things 
 
 Post ^ & a.) imphed and to be understood : First, that this remitter is wrought 
 in this case by operation of law upon the freehold in law de- 
 scended without any entrie. Secondly, that the law so favoureth 
 a remitter (being a restoring to right, that if the discontinuee 
 
 be 
 
 nothing in vain. As the tenant's possession was gained by a defective title, 
 it was liable to be overturned, by showing that defect in a writ of entry ; and 
 then he must have been driven to his writ of right, to recover his just in- 
 heritance ; which would have been doubly hard, because during the time he 
 was himself tenant, he could not establish his prior title by any possessory 
 action ; the law, therefore, remits him to his prior title, and puts him in 
 the same condition as if he had recovered the land by writ of entry. "Without 
 the remitter, he would have had/Ms, et seisinam, separate, a good right, but a 
 bad possession; now, by the remitter, he hath the most perfect of all titles^wrw 
 es seisinae conjunctionem. — [Note 299.] 
 
 (1) I. Here the ancient right and the defeasible estate come tor/ether. It is 
 immaterial whether they come by descent or by other act of law. See the in- 
 stances brought by Littleton afterwards, Sect. 6G5 ; 666, and 678.— [Note 300.]
 
 L. 3. C. 12. Sect. 660. Of Remitter. [348. a. 348. b. 
 
 be an iufant or a feme covert, and tenant in taile after a discon- 
 tinuance disseise them and die seised, the issue shall be remitted 
 without any respect of the privilege of infancie or coverture; 
 and therefore our author said, the title and interest of the discon- 11 E. 4. 1. 
 tinuee is quite taken away and defeated. 
 
 " Then the discontinue, &c." Here is a reason added in this 11 E. 3. 3. 
 particular case, that fitteth not other cases of remitter; for in Vg A ^ s 'o- 5 ' 
 this case and many other, the law that iibhorreth suits of vexa- n r 2. 
 tiou doth avoid circuitie of action ; for the rule is, Circuilus est Bar. 242. 
 evitandus. Ise^V' 
 
 19 H. 6. 63. 24 E. 3. 70. 14 H. 4. 27. 10 H. 7. 11. F. N. B. Mesne & Wast. 
 
 Sect. 660. 
 
 A LSO, if tenant in tayle infeoffe his sonne in fee, or his cosine in- 
 heritable by force of the taile, which sonne or cosine at the time of 
 the feoffment is within age, and after the tenant in taile dieth, and hee 
 to whom the feoffment was made is his heire by force of the taile; this is 
 a remitter to the heire in taile to whom the feoff ement was made. For 
 albeit that during the life of the tenant in tayle who made the feoff ement, 
 stich heire shall bee adjudged in by force of the feoff ement, yet after the 
 death of tenant in taile, the heire shall be adjudged in by force of th< 
 taile, and not by force of 'the feoffment. * For (A) altho' such heire were 
 of full age at the time of the death of the tenant in taile who made the 
 feoffment, this makes no matter, if the heire ivere within age at the time 
 of the feoff ement made unto him. And if such heire beeing ivithin age 
 at the time of such feoffment, commeth to full age, living the tenant in 
 tayle that made the feoff ement, and so being of full age he charges by 
 his deed the same land with a common of pasture, or with a rent charge, 
 and after the tenant in tayle dieth ', now it seemeth that the land is dis- 
 charged of the common, and of the rent, for that the heire is in of another 
 estate in the land than he zvas at the time of the charge made, in as much 
 as hee is in his remitter by force of the tayle, and so the estate which 
 hee had at the time of the charge, is utterly defeated, f $c.(l) 
 
 
 
 UR author having put one example where both the Temps E. 1. 
 rights descend together, now puts another example, Remit. 13. 
 
 t348."l JB^" where the issue in taile claimeth by purchase in ** ^' ^ jf 6 ' 5 ' 
 b. I the life of tenant in taile, and the ancient right 40 e. 3. 43. 
 descendeth after to the same issue. 21 E. 4. 19. 
 
 " For altho' such heire weir of full age at the lime of the death, 
 
 * For not in L. and M. or Roh. f &c. not in L. and M. or Roh. 
 
 (A) Perhaps "And" should be inserted here instead of "For." See Mr. Ritso's Intr. 
 p. 113, 114. 
 
 (1) II. Here the ancient right comes after the defeasible estate. — [Note 301.]
 
 27 II. 8. c. 10. 
 of Uses. 
 
 35 H. 8. 
 Dy. 54. b. 
 6 E. 6. ib. 77. 
 1 & 2 P. & M. 
 116. 1 <fc 2 P. 
 & M. 129. 191. 
 
 28 H. 8. 23 b. 
 PL Com. Amy 
 Townshend's 
 case, fol. 111. 
 Hob. 255. 298. 
 
 PL Com. ubi 
 supra. 
 
 ) 
 
 348. b. 349. a.] Of Kemitter. L. 3. C. 12. Sect. 660. 
 
 &c." The reason is, because no follie can be adjudged in the 
 infant at the time of the acceptance of the feoffement. There- 
 fore the law respcctcth the time of the feoffement, and not the 
 time of the death. And albeit he might have waived the estate 
 which he had by the feoffement at his full age, yet here it 
 appeareth, that the right of the estate taile descending to him 
 either within age, or of full age, shall work a remitter in him ; 
 for that the waiver of the state should have beene to his losse 
 and prejudice. 
 
 Since Littleton wrote, and after the statute of 27 II. 8. cap. 
 10, if tenant in taile make a feoffement in fee to the use of his 
 issue being within age, and his heires, and dieth, and the right 
 of the estate taile descend to the issue being within age; yet he 
 is not remitted, because the statute executeth the possession in 
 such plite, manner and forme, as the use was limited : Et sic de 
 simiUbus, so as there is a great change of remitters since Little- 
 ton wrote (1). 
 34 H. 8. tit. Remit. Br. 49. (Dyer. 106. Sid. 63. 1 Leo. 91. 
 
 But if the issue in taile in that case waive the possession, and 
 bring a formedon in the discender, and recover against the 
 feoffees, he shall thereby bee remitted to the estate taile ; other- 
 wise the lands may be so incumbred, as the issue in taile should 
 be at a great inconvenience ; but if no formedon be brought, if 
 that issue dieth, his issue shall be remitted ; because a state in 
 fee simple at the common law descendeth unto him. 
 
 " Being of full age he charges by his deed, JggT &c." T349. 
 The reason is, because the grantor had not any right [_ a. 
 of the estate in taile in him at the time of the grant, 
 but only the estate in fee simple gained by the feoffment, which 
 (as Littleton here saith) is wholly defeated. And the state of 
 the land out of which the rent issued, being defeated, the rent 
 is defeated also. 
 
 But if tenant in taile make a lease for life whereby he gaineth 
 a new reversion in fee, so long as tenant for life liveth, and he 
 granteth a rent charge out of the reversion, and after tenant for 
 life dieth, whereby the grantor becommeth tenant in taile againe, 
 and the reversion in fee defeated ; but because the grantor had a 
 right of the entaile in him; cloathed with a defeasible fee simple, 
 the rent-charge remaineth good against him, but not against his 
 issue ; which diversitie is worthy of observation, for it openeth 
 the reason of many cases. 
 
 If the heire apparent of the disseisee disseise the disseisor, and 
 grant a rent-charge, and then the disseisee dieth, the grantor 
 shall hold it discharged ; for there a new right of entrie doth 
 descend unto him, and therefore he is remitted. 
 
 So if the father disseise the grandfather, and granteth a rent- 
 charge, and dieth, now is the entry of the grandfather taken 
 away, if after the grandfather dieth the sonne is remitted, and 
 
 he 
 
 (2 Roll. Abr. 
 419.421. 
 1 Roll. Rep. 
 260.) 
 
 (2 Roll. Abr. 
 419.421. 
 3 Rep. 5. b. 
 Hob. 45.) 
 
 ] 
 
 11 H. 7. 21. 
 
 Edriche's case. 
 (Mo. 319. 
 1 Rep. 148. 
 Ant. 278. a.) 
 
 (2 Roll. Abr. 
 422.) 
 
 (1) The effect of this statute on the doctrine of Remitter is very fully ex- 
 plained in Duncombe v. Wingfield, Hob. 254. See 2 Leo. 222. 1 Sid. 63. 
 Dyer, 351.
 
 
 L. 3. C. 12. Sect. 661. Of Remitter. [319. a. 319. b. 
 
 he shall avoid the charge. So as where our author putteth his 
 example of a fee taile, it holdeth also in case of a fee simple. 
 
 li A common cf 'pasture or a rent charge, &c." Here Littleton 
 putteth his case of things granted out of the land. But what if 
 the issue at full age by deed indented or deed poll make a lease 
 for yeares of the land, and after by the death of tenant in taile he 
 is remitted, whether shall be avoid the lease or no ? And it is 33 H. 8. 
 holden he shall not, because it is made of the land it selfe, and Dier » 51 - *>• 
 the land is become by the lease in another plight than it is in 
 the case of a grant of a rent-charge, which I gather out of our 
 author's owne words in another place. Vide Sect. 289. 
 
 " The land is discharged of the rent, &c." Littleton doth adde 
 these words materially, because the whole grant is not thereby 
 avoided, but the land discharged of the rent-charge ; for the 
 grantee shall have notwithstanding a writ of annuitie, and charge ll 2. f. 36. b. 
 the person of the grantor. Ward's case. 
 
 Sect. 661. 
 
 ALSO, a principall cause why such lieire in the cases aforesaid, and 
 other like cases, shall bee said in his remitter, is for that there is not 
 any person against whom he may sue his writ o/formedon. For against 
 himself e he cannot sue, and hee cannot sue against any other, for none 
 other is tenant of the freehold ; and for this cause the law doth adjudge 
 him his remitter, scilicet, in such plite, as if hee had lawfully recovered 
 the same land against another, Sec. 
 
 11 A principall cause why, &c." And of this opinion is [<?] Lit- M 12 E. 4. 20. 
 
 ■** tlcton in our bookes. \\ II' 3 ; l h 
 
 11 11. 1. 50. 
 
 11 There is not any person against whom, &c. as if hee had (6 Rep. 58. b. 
 lawfully recovered the same land against another, &c." Here it is 1 Sid - 63 - 
 to be understood, that regularly a man shall not be re- ^ ig ^ ' 
 
 [3-49. "1 mitted to a 13®" right remedilesse, for the which he can Lib. 3. f. 3. the 
 b. I have no action ; for Littleton here saith, that there is no Marquesso of 
 person against whom the issue when he commeth to the Wincliester s 
 land without folly may bring his action ; and saith also, that this (3 R e p. 3.) 
 is the principall cause of the remitter; for neither an action 
 without a right, nor a right without an action, can make a re- 
 mitter. As if tenant in taile suffer a common recovery in which 
 there is error, and after tenant in taile disseiseth the recoveror 
 and dieth, here the issue in taile hath an action, viz. a writ of 
 error ; but as long as the recoverie remaineth in force, he hath 
 no right, and therefore in that case there is no remitter (1). 
 
 If 
 
 (1) III. By what sir Edward Coke says here, and in other parts of this 
 Chapter, it appears, that there is no remitter to a bare title, nor to an irremediable 
 right, nor to a bare right of action, nor in those cases where the freehold does not 
 accrue to the right, nor where there was default in him who takes the defea- 
 sible estate, nor if he takes the defeasible estate by st. 27 H. 8. c. 10, which 
 
 executes
 
 349. b/| Of Remitter. L. 3. C. 12. Sect. 662. 
 
 If B. purchase an advowson, aud suffereth an usurpation and 
 six moneths to passe, and after the usurper granteth the advow- 
 son to B. and his heires, B. dieth, his heire is not remitted, 
 because his right to the advowson was remedilesse, viz. a right 
 without an action (2). 
 (Ant. 122. b.) Tenant in taile of a mannor whereunto an advowson is appen- 
 
 o H. 7. 35. dant niaketh a discontinuance, the discontinuee granteth the 
 
 advowson to tenant in taile and his heires, tenant in taile dieth, 
 the issue is not remitted to the advowson, because the issue had 
 no action to recover the advowson before he recovered the man- 
 nor 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 them before he recontin- 
 ueth the mannor, &c. whereunto they are regardant, appendant, 
 or belonging. 
 Britton fol. 126. ^ ur nu ^ ne P oe ^ Maimer droit en les appurtenances ne en les 
 
 accessories que nul droit ad en le principal!. 
 [e] Bract, li. 4. [ e ] Item, excipi potest, &c. quamvis jus habeat in tenemento et 
 l'o. 243. b. pertinentiis, primo recuperare debet tenementum ad quod pertinet 
 
 8 R- 2. advocatio, et tunc postea prsesentet et non ante, et de hac materia 
 
 2 11*4 18 P in R° iu l° d e termino Sancti Michaelis, anno regis Henrico tertio 
 
 H H. 6. 15, 16. in comitatu Norff. de Thoma Bardolfe. 
 
 8 H. 6. 17. But, on the other side, if a man be remitted to the principally 
 
 FN B 35 B ^ e sua ^ a ' s0 ^ e remitted to the appendant or accessory, albeit it 
 
 A 36. F. ' were severed by the discontinuee, or other wrong doer. And 
 
 24 E. 3. therefore if tenant in taile be of a mannor whereunto an advow- 
 
 ^' s 5P nt - 16# son is appendant, and infeoffeth A. of the mannor with the appur- 
 
 l)ier 48. b. tenances, A. re-infeoffeth the tenant in taile, saving to hirnselfe 
 
 (Ant. 324. b. the advowson, tenant in taile dieth ; his issue being remitted to 
 
 fp 3 ' J* o fi o v \ *h e mannor, is consequently remitted to the advowson, although 
 
 at that time it was severed from the mannor. So it is in the same 
 
 case if tenant in taile had beene disseised, and the disseisor suffer 
 
 an usurpation, if the disseisee enter into the mannor, he is also 
 
 remitted to the advowson. 
 
 Sect. 662. 
 
 ALSO, if land be entailed to a man and to his wife, and to the heires 
 
 of their two bodies begotten, who have issue a daughter, and the wife 
 
 dieth, and the husband taketh another wife, and hath issue another 
 
 daughter, 
 
 executes the possession in the same plight as the use was limited. It is upon 
 I he last ground, that where tenant in tail makes a feoffment to the use of his 
 issue within age, and dies, the issue in tail is not remitted. Neither is there 
 ;t remitter to a term for years. Hence, if lessee for years, to commence at a 
 future day, enters before that day (which is a disseising, and continues in 
 possession till the term commences, he shall not be remitted, for the disseisor 
 acquires by the disseisin an estate of freehold; which, though it be tortious, 
 the law will not divest from him for a term which is of no account. See 2 
 Roll. Abr. 420. 1. 85. Com. Dig. tit, Remitter, C— [Note 302.] 
 
 (2) This seems to be altered by the afore-mentioaed statute of 7 Ann. c. 18. 
 Xote to the llth edition.
 
 L. 3. C. 12. Sect. 663. Of Remitter. [350. a. 
 
 daughter, and discontinue the Utile, and after hedisseiseththe 
 
 [350.1 discontinuee and Xt^gk so die seised, now the land shal descend 
 a. J to the tivo daughters. * And in this case as to the eldest daughter, 
 who is inheritable by force of the tayle, this is no remitter but of 
 the moitie (ceo f n'est un remitter forsque de le moity). And as to the 
 other moitie she is put to sue her action of foruiedon against her sister. 
 For in this case the two sisters are not tenants in parcenarie, but they are 
 tenants in common, for that they are in by divers titles. For the one 
 sister is in her remitter by force of the entaile, as to that which to her 
 belongeth ; and the other sister is in as to that to her belongeth in fee 
 simple by the discent of her father, X£c. 
 
 " rplIIS is no remitter hut of the moities, &c." Here Littleton 44 E. 3. 26. 
 putteth a case where the issue in taile shall be remitted to } 9 >i H 'o , i'R 59 ''* 
 
 • A i_ i n • i" i i i -ii . (Plo. 24b. a.) 
 
 a moitie, because but a moity of the land descended unto her, 
 and there cannot be any remitter, but for so much as commeth 
 to the issue by discent, or by any other means without his 
 folly; and in this ease by act in law the coparcenary is defeated, 
 for the daughters are in by severall titles, viz. the eldest daughter 
 is tenant in taile per formani doni, by the remitter of the one 
 moitie; and the youngest seised in fee simple by discent of the 
 other moitie, against whom the other sister in taile may have 
 rmedon (1). 
 
 Sect. 663. 
 
 TN the same manner it is, if tenant in taile enfeoff e his heire apparent 
 
 in tayle (the heire being within age), and another jointenant in fee, and 
 
 the tenant in tayle dieth ; now the heire in tayle is in his remitter as to 
 
 the one moitie, and as to the other moitie hee is put to his writ of 
 
 formedon, || $c. 
 
 " rplIE heire, &c. is in his remitter as to one moitie, &c." (2 Roll. Abr. 
 
 Hereby it appeareth that albeit joyutenants be seised 41 .0 
 pro indiviso per my et per tout, yet each of them hath in judge- *' 
 
 ment of law but a right to a moitie; and therefore the issue in 
 taile in this case is remitted but to a moity, and is tenant in 
 common but with the other feoffee. And so it is if the discon- 
 tinuee, after the death of tenant in tayle, make a charter of 
 feoffment to the issue in tayle, being within age, who hath right, 
 and to a stranger in fee, and make livery to the infant in name 
 of both; the issue is not remitted to the whole, but to the 
 halfe; for first he taketh the fee simple, and after the remitter 
 is wrought by operation of law, and therefore can remit him 
 but to a moitie. But of this sufficient hath been said in the 
 Chapter of Joyntenants. 
 
 Sect. 
 
 * And not in L. and M. or Roh. $ &c. not in L. and M. or Roh. 
 
 f n'est — est, L. and M. and Roh. \\ &c. not in L. and M. or Roh. 
 
 (1) IV. By this and the following section it appears, that if part of the 
 estate comes to the right, it is remitted for that purpose. — [Note 303.]
 
 350. b.J Of Remitter. L. 3. C. 12. Sect. 664-65 
 
 jm* Sect. 664. b. J 
 
 A LSO, if tenant in tayle enfeoff e his heire apparent, the heire being 
 
 of full age at the time of the feoffment, and after tenant in tayle 
 
 dieth; this is no remitter to the heire, because it was his folly, that being 
 
 of full age hee would take such feoffment, £c. But such folly cannot be 
 
 adjuged in the heire being within age * at the time of the feoffment, §c. 
 
 (Ant. 171. h. ~D Y this feoffment, albeit the heire apparent hath some benefit 
 187. a. 246. a. _D in the life of his ancester, yet he is thereby (besides his owne) 
 3: | 7 - b - 3 ^- b -) subject during his life to all charges and incumbrances made or 
 18 e! 4. 25. suffered by his ancestor. And therefore our author saith well, 
 
 it was his folly, that being of full age hee icould take such feoff- 
 ment, but folly shall not be judged in one within age in respect 
 of his tender yeares, and want of experience. 
 
 Sect. 665. 
 
 A LSO, if tenant in taile enfeoff e a ivoman in fee, and dyeth, and his 
 issue within age taketh the same ivomanf to ivife; this is a remitter 
 to the infantl within age, and the wife then hath nothing, for that the 
 husband and his wife are but as one person in law. And in this case 
 the husband cannot sue a writ of formedon, unless he will sue against 
 himself e, which should be inconvenient, and for this cause the law ad- 
 judgeth the heire in his remitter, for that no folly can be adjuged in him 
 (pur ceo que nul folly poit estre || adjudge en luy) being within age at the 
 tune of the espousels, $c. And if the heire bee in his remitter by force 
 of the entaile, it followeth by reason, that the wife hath nothiny, §c. For 
 inasmuch as the husband and wife be as one person,^ the land cannot be 
 parted by moities; and for this cause the husband is in his remitter of the 
 whole. But othenoise it is if such heire were of full age at the time of 
 espousels, for then the heire. hath nothing but in right of his wife, § $c. 
 
 (Ant. 202. b.) T I ERE Littleton putteth a case where the husband within age 
 • * by the intermarriage may be remitted, albeit he gaineth 
 but a freehold during the overture en aider droit. 
 
 Also here is to bee observed, that the estate which doth in this 
 case worke the remitter, could not have continuance after the 
 decease of the wife. And so on the other side, if the husband 
 make a discontinuance, and take backe an estate to him and 
 his wife, during the life of the husband, this is a remitter to the 
 wife presently, albeit the estate is not by the limitation to have 
 continuance after the decease of the husband; which case is 
 proved by the reason of the casa which our author here putteth. 
 And here our author observeth the diversity when the husband 
 
 is 
 
 * &c. added in L. and M. and Roh. || adjudge— avette, L. and M. and 
 
 ■j" to wife not in L. and M. or Roh. Roh. 
 
 I within age not in L. and M. or Roh. § &c. not in L. and M. or Roh.
 
 L. 3. C. 12. Sect. 665. Of Remitter. [350. b. 351. a. 
 
 is within age, and when hee is of full age ; for when he is within 
 age, no folly can be adjudged in him, as in this Chapter hath 
 beene often said. 
 
 [3 51. "I OO'Here is also to bee noted, that presently by the mar- 
 a. I riage within age, the husband is remitted and the free- 
 hold and inheritance of the wife banished cleane away. 
 
 " Taheth the same woman to wife." Here it is good to be scene (4 Rep. 29.) 
 what things are given to the husband by marriage. (1) First, it 
 
 appeareth 
 
 
 (1) On the interest which the husband takes in the chattels real and things in 
 action of his wife. — Some observations have been offered to the reader in a 
 former part of this work, upon the nature of the estate which the husband 
 takes in his wife's lands of freehold or inheritance. See ante, 325. b. note 2. 
 The following observations are now submitted to his consideration, upon the 
 nature of the interest the husband takes in his wife's chattels real and 
 things in action. I. Where the husband survives his wife : — At the common 
 law no person had a right to administer ; it was in the breast of the ordinary to 
 grant administration to whom he pleased till the statute of the 21 Henry VIII. 
 which gave it to the next of kin ; and, if there were persons of equal kin, 
 whichever took out administration first, was entitled to the surplus. The statute 
 of distribution was made to prevent this injustice, and to oblige the adminis- 
 trator to distribute. In those cases, where the wife was entitled only to the 
 trust of a chattel real, or to any chose in action, or contingent interest in any 
 kind of personalty, it seems to have been doubted, whether, if the husband 
 survived her, he was entitled to the benefit of it or not. See the commentary on 
 sect. 665. and 4 Inst. 87. 1 Roll. Abr. 346. All. 15. Wytham v. Waterhouse, 
 Cro. Eliz. 466. 3 Rep. in Cha. 37. and Gilb. Ca. in Eq. 234. By the 22 and 
 23 Car. II. c. 10, administrators are liable to make distribution ; but as the act 
 makes no express mention of the husband's administering to his wife, and as 
 no person can be in equal degree to the wife with the husband, he was not 
 held to be within the act. To obviate all doubts upon this question, by the 
 29 Car. II. c. 3. § 25, it is declared that the husband may demand adminis- 
 tration of his deceased wife's personal estate, and recover and enjoy the same, 
 as he might have done before the statute of the 22 and 23 of that reign. Upon 
 the construction of these statutes it has been held, that the husband may ad- 
 minister to his deceased wife, and that he is entitled for his own benefit to all 
 her chattels real, things in action, trusts, and every other species of personal 
 property, whether actually vested in her and reduced into possession, or contin- 
 gent or recoverable only by action or suit. It was however made a question, 
 after the statute of 29 Car. II. c. 3. § 25, whether, if the husband, having sur- 
 vived his wife, afterwards died during the suspense of the contingency upon 
 which any part of his wife's property depended, or without having reduced into 
 possession such of her property as lay in action or suit, his representative, or his 
 wife's next of kin, were entitled to the benefit of it. But, by a series of eases 
 it is now settled, that the representative of the husband is entitled as much to 
 this species of his wife's property, as to any other; that the right of administra- 
 tion follows the right of the estate, and ought, in case of the husband's death 
 after the wife, to be granted to the next of kin of the husband (see Mr. Har- 
 graves Law Tracts, 475); and if administration de bonis non of the wife is 
 obtained by any third person, he is a trustee for the representative of the hus- 
 band. See Squib v. Wyn, 1 P. W. 378. Cart v. Rees, cited ib. 381. 
 
 II. With respect such part of the wife's personalty as is not in her possession ; 
 as money owing or bequeathed to her, or accrued to her in case of intestacy, or 
 contingent interests, these are a qualified gift by law to the husband, on condition 
 that he reduce them into possession during the coverture ; for if he happen to 
 
 die
 
 351. a.] Of Remitter. L. 3. C. 12. Sect. 665. 
 
 appeareth here by Littleton, that if a man taketk to wife a woman 
 [/] 13 II. 4. 6. seised in fee, [/] he gaineth by the intermarriage an estate of 
 Staunf. 1. 7. b. freehold in her right, which estate is sufficient to worke a re- 
 11 H 8 19 mitter, and yet the estate which the husband gaineth dependeth 
 
 10 Hie! 11. upon 
 
 7. H. 6. 9. b. Vide Sect. 58. 
 
 die in the lifetime of his wife, without reducing such property into possession, 
 she and not his representatives will be entitled to it. Roll. Abr. 342. 350. 
 Moor. 452. Gold. 160. 2 Vent. 141. His disposing of it to another is the same 
 as reducing it into his own possession. Thus, if a baron be possessed of a 
 term, or the trust of a term in the right of his wife, he may dispose of it, except 
 in the case of a trust term, where the trust is created by herself previously to 
 the marriage : and it should seem that the husband's power of disposition over 
 his wife's contingent personal estate can extend only to such part as he may 
 possibly become possessed of during the marriage, and not to any part of her 
 estate which depends upon a contingency that cannot possibly happen during 
 his life ; as if a lease be made to the husband and wife during their lives, with 
 remainder to the survivor, and the husband disposes of the term and dies, 
 the disposition will not bar the wife ; for during the coverture she had a 
 mere possibility only. Ant. 46. b. 1 Roll. Abr. 343. pi. 15. Lane, 54, 55. 
 Ch. Ca. 225. Vein. 7. 18. 2 Vern. 270. Eq. Ca. Ab. 58. Pre. Ch. 519. 1 Roll. 
 Ab. 344. 2 Roll. Abr. 48. Poph. 5. 4 Leon. 185. Godb. 139. Cro. Eliz. 841. 
 Hutt. 17. 
 
 This interest of the husband in, and his authority over, the personal estate 
 of the wife, is however, considerably modified by equity, in some particular 
 circumstances. A settlement made upon the wife in contemplation of mar- 
 riage and in consideration of her fortune, will entitle the representatives of the 
 husband, though he die before the wife, to the whole of her goods and chattels, 
 whether reduced into possession or not during the coverture. Gilb. Eq. Rep. 
 100; but it seems to be the better opinion, that, in cases where the provision 
 for the wife is not made in consideration of her fortune, or is made in considera- 
 tion of a particular part only of it, the husband will not in the first case, be 
 entitled to the wife's choses in action, unless he survive her; and in the second, 
 to no more than is comprised in the contract. Pre. Ch. 63. Amb. 692. 2 
 Vcs. jun. 607. 2 Ves. sen. 676. But it seems doubtful whether a settlement 
 made after marriage will not entitle the representatives of the husband to such 
 an estate in preference to the wife. See Lanoy v. duke and dutchess of Athol, 
 
 2 Atk. 444 ; and see 4 Ves. jun. 15, 
 
 III. If the husband be obliged to resort to a court of equity, to recover the 
 choses in action of the wife, or any property which he cannot recover without 
 the assistance of the wife, the court will not interfere unless he will submit to 
 dispense equity before it be administered to him ; or, in other words, equity 
 will not act on his behalf, unless he submit to make a competent settlement on 
 his wife, when no settlement has been made; but, if the wife consent in court, 
 or being abroad, before proper commissioners there, that the husband shall re- 
 ceive her fortune, he will be ordered payment of it accordingly. 2 P. Will. 641. 
 
 3 P. Will. 12. 202. 2 Atk. 67. 2 P. Will. 638. 2 Ves. sen. 60. 2 Bro. C. C. 
 663. 3 Bro. C. C. 195. But see ex parte Higham, 2 Ves. sen. 579. The equity 
 of the wife to compel the husband to make a settlement is merely personal ; so 
 that if he survive his wife, the children, though unprovided for by settlement, 
 cannot oblige them to make provision for them out of it. Amb. 509 ; and ex- 
 cept in a strong case of the husband's misbehaviour, as in 3 Atk. 21, and Like 
 v. Beresford, 3 Ves. jun. 506. a court of equity will not interfere with the 
 husband's right to receive the income during the coverture, though the wife 
 resist the application, 2 Ves. sen. 562. 4 Ves. jun. 15. 20. 798. 
 
 IV. Whether the wife's equity will prevail against the assignee of the husband 
 
 for
 
 L. 3. C. 12. S. 665. Of Kemitter. [351. a. 
 
 upon uncertaintie, and consisteth in privitie [#] ; for if the wife 
 
 be attainted of felony, the lord by escheat shall enter and put out I/ 7 !* As f - p \ 4 ' 
 
 jiii i ,1 ••,••/. 1 /» i . 1 • i <. 4 E. 3. Ass. 166. 
 
 the husband: otherwise it is it the felonie be committed after -^ R ep , 50. a . 
 issue had. Also, if the husband be attainted of felonie, the king 1 Roll. Abr. 
 gaineth no freehold, but a pernancie of the profits during the ? 4 i!' 3 **' 
 coverture, and the freehold remaineth in the wife, [/i] Secondly, Hob. 285.) 
 if she were possessed of a terme for yeares, yet he is possessed in [//] Pi. Com. 
 her right; but he hath power to dispose thereof by grant or de- {° L 26 °- b - 
 
 j •* 1 u j.1 j . • i. 1 xi -/-x • 1 Daine Hales 
 
 unse ; and 11 he be outlawed or attainted, they are guts in law. cage 50 Ass _ 5 
 
 38 H. 6. 23. 21 E. 4. 35. 7 E. 4. 6. 7 H. 7. 2. 10 H. 6. 11. 
 
 Upon 
 
 for a valuable consideration, has been a subject of frequent discussion; see 
 1 P. Will. 459. Mr. Cox's note. One of the last cases on this point is Macaulay 
 v. Philips, 4 Ves. jun. 19. in which the Master of the Rolls thus expressed 
 himself: "Many cases upon this point have been before me, which have put 
 " me under the necessity of considering very much the right of the wife ; and 
 " I am clearly of opinion, the doubt respecting the assignment of the husband, 
 " for valuable consideration, of the wife's equitable interest, was not well 
 " founded, with the single exception, perhaps, of a trust of a term for years 
 " of land, upon which, perhaps, there may be some doubt; but subject to that, 
 " I am clearly of opinion, an assignment for valuable consideration will not 
 "bar the equity of the wife; and it would be strange if it did, since, in the 
 " courts of law, with regard to an action brought against executors by the 
 ".husband for a legacy due to his wife, it is determined, that an action does 
 " not lie, and the reason given is, that it would totally defeat the wife's equity. 
 " It would be whimsical then that the assignment by the husband, for valu- 
 " able consideration, should put that assignee in equity in a better situation 
 " than the husband himself is at law. The guard of this court upon the wife's 
 " interest, would be very singular, if the husband, not being entitled at law, 
 " might assign it for a valuable consideration to another person, who would be 
 " entitled in equity. I am clearly of opinion, it was only a doubt, and it never 
 " was decided that the husband could, by such assignment, or any other means, 
 " deprive her of her equity." See also note 5 Ves. 517. Mr. Roper, to whose 
 useful u Treatise on the Revocation and Republication of Wills and Testaments; 
 " together with Tracts upon the law concerning Baron and Feme," the editor is 
 indebted for a considerable part of the present note, observes, that the reason 
 why the trust of a term is probably made an exception to the rule, depends 
 upon the disposition of such a term being good at law, and in order to preserve 
 an unity of decision, in both tribunals; and that for the same reason it seems 
 that an assignment by the husband of his wife's mortgage term will bind her. 
 
 Assignees in law are bound by this equity of the wife to have a settlement 
 made for her benefit. The principal cases, in which the doctrine has come 
 into consideration, have arisen in consequence of the husband's bankruptcy, 
 and are systematically arranged and ably discussed by Mr. Montagu in his 
 Digest of the Bankrupt Laws, 1 vol. 199. The result of them, in his words, 
 is, that " the wife's property which vests in the husband by operation of law, 
 " and of which the assignees under a commission of bankruptcy against the 
 " husband can obtain possession only by the intervention of a court of equity, 
 " or of an ecclesiastical court, is not distributable under the commission, till 
 " there is a sufficient settlement upon the wife out of this or some other fund : 
 " — but whether property which the assignee can recover at law, is subject to 
 " a provision for the wife, seems not to be finally settled. The extent of the 
 " provision is either left to the liberality of the creditors, or determined upon 
 " a reference to the Master, or fixed by the Chancellor." 
 
 V. From what has been stated it appears to have been settled, that, where a 
 settlement of personal estate, except chattels real, is executed before marriage, and 
 contains an express stipulation that the woman, on the event of her surviving her 
 
 husband 7
 
 351. a.J Of Remitter. L. 3. C. 12. Sect. 665. 
 
 [*] Mich. 26 & [*] Upon an execution against the husband for his debt, the 
 27 Eliz. inter sheriffe may sell the terme during her life ; but the husband can 
 Amnor & Lod- ma k e n0 disposition thereof by his last will. Also, if he make 
 de erro'r,adjudge no disposition or forfeiture of it in his life, yet it is a gift in law 
 in both courts, unto him if he doe survive his wife ; but if he make no disposi- 
 M b ' 8 ^ r fo1 ' ? 6 ', tion, and die before his wife, she shall have it againe. And the 
 case. same law is of estates by statute merchant, statute staple, elegit, 
 
 wardships, and other chattels reals in possession. 
 
 7 H. 6. fol. 2. But if the husband charge the chattell reall of his wife, it 
 
 (i Ro11 - Abr - shall not binde the wife if shee survive him. 
 
 Vide Sect. 58. ^ a ^ eme sole ^ e possessed of a chattel reall, and be thereof 
 
 dispossessed, and then taketh husband, and the wife dieth, and 
 
 the husband surviveth, this right is not given to the husband by 
 
 the intermarriage, but the executors or administrators of the wife 
 
 shall have it ; so it is if the wife hath but a possibilitie. 
 
 Pi. Com. fo. 294. In the same manner it is if the wife be possessed of chattels 
 
 Osborne's case, rea i s en a uter droit, as executrix or administratrix, or as gardeine 
 
 192. b^Wrotes- m socage, &c. and she intermarrieth, the law maketh no gift of 
 
 ley's case. them to the husband, although he surviveth her. In the same 
 
 manner if a woman grant a terme to her own use, taketh husband, 
 
 and dieth, the husband surviving shall not have this trust, but 
 
 [0 Pasc. 32 El. the executors or administrators of the wife [i] ; for it consisteth 
 
 in Witham"' in P rivitie : and so hath it; beene resolved by the justices. 
 
 case. Hil. 38 Eliz. in Cancell. in Waterhouse's case. Wrotesley's case, ubi sup. 
 
 Chattels 
 
 husband, shall have the absolute property, or shall have the income of it during 
 her life, no deed executed by the woman, either alone or jointly with her husband, 
 during their joint lives, can transfer, charge, or in any manner affect her con- 
 tingent right to the property or income by survivorship. — It then became a 
 question, whether in a suit, to which the husband and wife were parties, a 
 court of equity, with the consent of the wife, upon examination, would direct 
 a transfer, or otherwise sanction any disposition of such her contingent pro- 
 perty. In several cases, particularly Fraser v. Baillie, 1 Bro. Ch. Ca. 518. 
 Sperling v. Rochfort, 8 Ves. 164. Chesslyn v. Smith, ib. 183. Richards 
 v. Chambers, 10 Ves. 580. and Lee v. Muggeridge, 1 Ves. & Beames, 118. 
 it seems now to be settled that the court will not, in such a case, direct such 
 a transfer, or sanction such a disposition. It should, however, be borne in 
 mind, that a wife's vested or contingent interest in a real estate, or chattels 
 real, is, during the joint lives of herself and her husband, always subject to the 
 operation of their fine. 
 
 VI. — It remains to state some of the general rules of equity respecting dis- 
 j)Ositions by a married woman of her separate estate. Speaking generally, it 
 may be laid down, 1st. That, except in particular cases, a court of equity will 
 decree a conveyance or assignment of a woman's separate estate,, either to her 
 husband or a stranger, on «a bill filed for such purpose by the husband and 
 wife ; Allen v. Papworth, 1 Ves. sen. 163 ; Clarke v. Pistor, cited 3 Bro. Ch. 
 Ca. 346 ; Ellis v. Atkinson, 3 Bro. Ch. Ca. 565. 2dly, That a married woman 
 may dispose by anticipation of her separate estate, though it be for her life 
 only, unless the anticipation be prohibited in the deed creating the trust. 
 Grrigby v. Cox, 1 Ves. sen. 517; Hulme v. Tenant, 1 Bro. Ch. Ca. 16 ; Pybus 
 v. Smith, 3 Bro. Ch. Ca. 340; Burnaby v. Griffin, 3 Ves. 266; Wagstaff v. 
 Smith, 9 Ves. 520 ; Parkes v. White, 11 Ves. 209 ; and Witts' v. Dawkins, 
 12 Ves. 501. And 3dly, That where it appears by the instrument creating 
 the trust to have been the intention of the parties, that the woman should not 
 have the power of disposing of her separate income by anticipation, the court 
 will not allow it. Sockett v. Wray, 4 Bro. Ch. Ca. 485 ; Whi.stler v. Newman, 
 4 Ves. 129; Mores v. Huish, 5 Ves. 692; Hovey v. Blakeman, cited in 
 Wagstaff v. Smith, 9 Ves. 524.— [Note 304.]
 
 L. 3. C. 12. Sect. 665. Of Remitter. [351. a. 351. b. 
 
 Chattels reals consisting meerely in action the husband shall 
 not have by the intermarriage, unless he recovereth them in the 
 life 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 reals being of a mixt nature, viz. partly in pos- 13 E.3. 
 session, and partly in action, which happen during the cover- Quar. Imp. 57. 
 ture, the husband shall have by the intermarriage, if hee survive 3 * E • £^' h 
 his wife, albeit he reduceth them not into possession in her life- 50 e. 3. 13. ' 
 time ; but if the wife surviveth him she shall have them. As if 10 II. 6. 11. 
 the husband be seised of a rent service, charge, or seek, in the ^ ^ g' 26 1 ' 
 right of his wife, the rent become due during the coverture, the 29 ^.' 3.' 40 '. 
 wife dieth, the husband shall have the arerages ; but if the wife 11 R. 2. 
 survive the husband she shall have them, and not the executors ^r"^' ^' 
 of the husband. So it is of an advowson, if the church become Bride," 639. 
 voyd during the coverture [k] he may have a quare impedit in 5 E. 3. 
 his owne name, as some hold ; but the wife shall have it if she j^soV;!' 13 
 survive him; and the husband if he survive her : et sic de similibus. 28 h. 6.9. 
 
 7H.7. 2.' 
 
 [351.1 B^But if the arerages had become due, or the 26 E. 3. 64. 
 b. J church had fallen voyd before the marriage, there they 1° H. 6. 11. 
 were meerely in action before the marriage ; and 22 ' H ' 6 ' 25> ' 
 therefore the husband should not have them by the common law, 
 although he survived her. And so it is of releefes, mutatis mu- 
 tandis. [I] But now by the statute of 32 H. 8. cap. 37, if the \t\ Lib. 4. fbl. 
 husband survive the wife, he shall have the arerages as well in- 51, in Ongers 
 curred before the marriage, as after. 17 E1> Rot ' 45 ^ 
 
 But the marriage is an absolute gift of all chattels personals i n com. Banco," 
 in possession in her owne right, whether the husband survive the Sharp's case, 
 wife or no ; but if they be in action, as debts by obligation, con- ^| h. 7. 29. 
 tract, or otherwise, the husband shall not have them unlesse he n h! 7! 4. ' 
 and his wife recover them. And of personall goods, en auter 26 H. 8. 7. 
 droit, as executrix or administratrix, &c. the marriage is no gift fj^^^'lt. 
 of them to the husband, although he survive his wife (1). 4 h. 6. 5. ' 
 
 14 E. 2. Det. 73. 
 5 E. 2. ibid. 169. 30 E. 3. 48 E. 3. 12. 12 R. 2. Bre. 638, 639. 16 E. 4. 8. 16 H. 
 6. Bre. 939. 
 (m) If an estray happen within the mannor of the wife, if [m] 43 E. 3. 8.V. 
 the husband die before seizure, the wife shall have it, for that 10 ^* m *}' 
 the property was not in the wife before seisure. 
 
 But as to personall goods, there is a diversitie worthy of 
 observation betweene a propertie in personal goods (as is afore- 
 said) and a bare possession ; for if personall goods be bailed to 
 a feme, or if she finde goods, or if goods come to her hands as 
 executrix to a bailiife, and taketh a husband, this bare possession 
 is not given to the husband, but the action of detinue must be 
 brought against the husband and wife. 
 But now let us hcare Littleton. 
 
 " Which should be inconoenicnt." This argument a b incon- Vide Sect. 87, 
 venienti, our author hath used in many places (A). . &c - 
 
 Sect. 
 
 (A) As to the limited force of the argument, see ante, note 1 to 66. a. 
 
 (1) But they shall go to the administrator de bonis non ; for should they go 
 to the husband, the creditors, legatees, &c. of the deceased would be thereby 
 •wronged. Note to llth edition . — [Note 305.]
 
 351. b. 352. a.] Of Remitter. L. 3. C. 12. Sect. 666-67. 
 
 (Ant. 350. b.) Sect. Q6Q. 
 
 A LSO, if a woman seised of certaine land in fee taketh husband, who 
 alieneth the same land to another in fee, * the alienee letteth the same 
 land to the husband and wife for terme of their two lives, saving the 
 reversion to the lessor and to his heires ; in this case the wife is in her 
 remitter, and she is seised in deed in her demesne as of fee, as shee was 
 before, because the taking backe of the estate shall be adjudged in laiv 
 the fact of the husband, and not the fact of the wife ; so no folly can be 
 adjudged in the wife, which is covert in such case. And in this case the 
 lessor hath nothing in the reversion (Et en cest case le lessor n'ad f rien 
 en le reversion), for that the ivife is seised in fee, % §c. 
 
 21 E. 3. 26. « rpHE wife is in her remitter." By this it appeareth, that 
 
 41 E 3 43 ' albeit there be no nioities betweene husband and wife, yet 
 
 Remit. 11. this is a remitter presently, and standeth not upon the survivor 
 
 19 E. 3. of the wife, as some have thought : for if the estate gained by 
 
 vT" 12 intermarriage be a sufficient estate to work a remitter; dfor- 
 
 38 E. 3. 24. tiori, an estate made to the husband and wife shall worke a 
 
 39 E. 3. 29,30. remitter in the wife. And so it is if the tenant in taile infeoffe his 
 46 B I 20 h * ssue De ^ n S within age, and his wife in fee, and dieth; this is a 
 26 E. :-.. 69. remitter to the issue presently, by the death of tenant in taile ; 
 Vide Sect. 676. though some have thought the coutrarie. 
 
 11 R. 2. Remit. ° 
 
 Th M-\r u of B^*" Here also it appeareth, that no follie in this ["352."] 
 Winch, case, case can be adjudged in a feme covert, for the taking |_ a - J 
 ubi sup. backe of the estate shall be adjudged in law the act of 
 
 (Hob. 71.) the husband. 
 
 Note in the case of the feme covert, she may be remitted in 
 the life of the discontinuor, because she hath a present right: 
 but in the case of tenant in taile, the issue cannot be remitted 
 in the life of the discontinuor, because the issue hath no right 
 untill his decease. 
 
 Sect. 667. 
 
 Z? UT in this case if the lessor will sue an action of wast against the 
 husband and his wife, for that the husband hath committed wast, the 
 husband cannot barre the lessor by shelving this, that the taking backe of 
 the estate to him and to his wife was a remitter to his wife, because the 
 husband is stopped to say that which is against his owne feoff ement (pur 
 ceo que le baron est estoppe a dire ceo § que est encounter son feoff- 
 ment), and taking backe of the estate for terme of life to him and to his 
 wife. And yet the lessor hath no reversion (Et uncore le lessor n'ad f un 
 
 reversion), 
 
 * and added in L. and M. and Roh. J &c. not in L. and M. or Rob. 
 f ascun added in L. and M. and § que est not in L. and M. or Roh. 
 Boh. f un — null L. and M and Jioh. 
 
 4
 
 L. 3. C. 12. Sect, 667. Of Kemitter. [352. a. 352. b. 
 
 reversion), for that the fee simple is in the wife. And so a man may see 
 one thing in this case, that a man shall bee stopped by matter in fact, 
 though there bee no writing by deed indented, or otherwise. 
 
 " ~DE CAUSE the husband is stopped to say (pur ceo que le Li. 2. f.4. b. 
 JJ baron est estoppe a dire), &c. vltuiT 
 
 " Estoppe," commeth of the French word estoupe, from whence ?p„* 3J3. j,j 
 the English word stopped : and it is called an estoppel or con- 
 clusion, because a man's owne act or acceptance stoppeth or 
 closeth up his mouth to allcage or plead the truth : and Little- 
 ton's case here proveth this description. 
 
 Touching estoppels, which is an excellent and curious kinde 
 of learning, it is to be observed, that there be three kinde of (Cro. Car. 388. 
 estoppels, viz. by matter of record, by matter in writing, and by lBoU.Abr.8650 
 matter in paiis. 
 
 [a] By matter of record, viz. by letters patents, fine, recoverie, [a] 43 Ass. 29. 
 pleading, taking of continuance, confession, imparlance, warrant i^*' 54 8 " 
 of atturney, admittance. 15 e. 3. 
 
 Estop. 239. 4 E. 3. ib. 133. (1 Roll. Abr. 862.) 
 
 [b] By matter in writing, as by deed indented, by making of [6] 4 H. 4. 1. 
 an acquittance by deed indented or deed poll, [c] by defeasance ?., H y 7 ; 6, 24 
 by deed indented or deed poll. 15 e. 4. 28. 
 
 41 E. 3. Estop. 12. 12 R. 2. ib. 212. [c] 8 R. 2. Estop. 283. 35 H. 6.18. 
 3 H. 6. 16. 16 H. 7. 5. 34 H. 6. 19. 14 H. 4. 29. 
 
 By matter in paiis, as by liverie, by entry, by acceptance of 
 
 rent, by partition, and by acceptance of an estate, as here in the 
 
 case that Littleton putteth; whereof Littleton maketh a speciall (i Leo. 82. 15S. 
 
 observation, that a man shall be estopped by matter in the coun- 4 Rep. 53. 
 
 ... ' ... .-.v rr J 8 Rep. 53, 54.) 
 
 trey, without any writing (1). l ' 
 
 To make the reader more capable of the learning of estoppels 
 these few rules, amongst others, are to be knowne. 
 
 [</] First, that every estoppel ought to be reciprocall, that is, [>/] 33 II. 6. 19. 
 to binde both parties; and this is the reason, that regularly a 50 - 3 j| n - ,; - -'• 
 stranger shall neither take advantage, nor be bound by the es- Estop.' 240. 
 toppel : [e] privies in bloud, as the heire; privies in estate, as 33 Ass. is. 
 the feoffee, lessee, &c. ; privies in law, as the lords by escheat ; 30 Ass - 51 - 
 tenant by the curtesie, tenant in dower, the fif®" in- 18 E ^' \' 
 
 [353.1 cumbent of a benefice, and others that come under (3 Mod. 141.) 
 b. I by act in law, or in the post, shall be bound and take [c] 8 Ass. 53. 
 advantage of estoppels ; and that a rebutter is a kinde ^ r ;, Fl ,, no f: 7:; " 
 of estoppell. 21 E. 3. 35. 
 
 38 E. 3. 31. 20 E. 3. Estop. 1ST. 
 
 Secondly, 
 
 (1) The reasons why estoppels are allowed, seem to be these : No man ought 
 to allege any thing but the truth for his defence, and what he has alleged once, 
 is to be presumed true, and therefore he ought not to contradict it ; for as it 
 is said in the 2 Inst. 272. allegans contraria non est audiendus. Secondly, 
 as the law cannot be known till the facts are ascertained, so neither can the 
 truth of them be found out by evidence; and therefore it is reasonable that 
 some evidence should be allowed to be of so high and conclusive a nature, as 
 to admit of no contradictory proof. Note the Wilt edition. — [Note oOG.]
 
 352. b.] Of Remitter. L. 3. C. 12. Sect. 667. 
 
 r/'l 21 E. 4. 4. [/"] Secondly, that every estoppell, because it concludeth a 
 23 Ass. 14. man to alleadge the truth, must be certaine to every intent, and 
 
 17 H. 6. not t De taken by argument or inference (B). 
 Estop. 273. J ° x 
 
 18 E. 3. 30. 7 H. 7. 6. & 16. 
 
 [</] 46 E. 3. 33. [gr] Thirdly, every estoppell ought to be a precise affirmation 
 29 Ass. 38. f ^at which maketh the estoppell, and not be spoken imper- 
 
 Pl. Com. . sonally ; as if it be said, Ut diciiur, quia impersonalitas non 
 conchidit, nee ligat : impersonalis dicitur, quia sine persona, 
 [h] 35 H. 6. 33. [h] Neither doth a recitall conclude, because it is no direct affir- 
 46 E. 3. 12. mation. 
 
 j^Ass. 3. 45 Ass. 5. 3 El. Dy. 196. 11 El. ib. 280. 9 H. 6. 60. 
 
 [i] 5 E. 4. 7. [{] Fourthly, a matter alleaged that is neither traversable nor 
 
 8 E. 4. 19. materiall, shall not estoppe. 
 
 10 E. 4. 12. rr 
 
 22 E. 4. 38. 32 Ass. 9. 35 H. 6. 20. 
 
 [fc] 33 H. 6. 16. [/,-] Fifthly, regularly a man shall not be concluded by accept - 
 4 E. 3. 22. ance or t jj e like before the title accrued. 
 
 6 H. 4. 7. ' 
 
 31 E. 1. Gard. 155. F. N. B. 142. E. 
 
 [?] 12 H. 7. 4. [7] Sixthly, estoppell against estoppell doth put the matter at 
 
 20 H. 6. 29. 1-Jl.p 
 
 3 H. 4. 9. lEr S e - 
 
 41 E. 3. 4. 11 H. 4. 30. 
 
 [m] 2 R. 3. 14. [m] Seventhly, matters alleaged by way of supposall in counts 
 
 2 R- 2. shall not conclude after non-suit : otherwise it is after judgment 
 
 ?A St u P ^ el oi 2 given : and after non-suit, albeit the supposall in the count sball 
 
 12 E. 4. 13. not conclude, yet the barre, title, replication or other pleading 
 
 18 E. 3. 31. 35. f either partie, which is precisely alleaged, shall conclude after 
 
 tl ?' 3 '„t 5- non-suit ; and hereby are the bookes reconciled. 
 
 17 Ass. 27. ' J 
 
 45 E. 3. 2. 21 H. 7. 24. 5 E. 4. 7. 7 E. 4. 19. 3 E. 4. 11. 4 E. 3. 54. 7 E. 6. 
 Br. Estop. 162. 11 II. 4. 30. 30 E. 3. 21. 31 Ass. 14. 
 
 Eighthly, where the veritie is apparent in the same record, 
 there the adverse party shall not be estopped to take advantage 
 of the truth ; for he cannot be estopped to alleage the truth, 
 [h] 37 Ass. 17. when the truth appeareth of record. [«] If a fine be levied with- 
 38 H. 6. 12. ou t any originall, it is voydable, but not void ; but if an origi- 
 5 El. Dy. 222. Qa ^ ^ Q Dr0 ught, and a retraxit entred, and after that a concord 
 is made, or a fine levied, this is void, in respect the veritie ap- 
 [o] 7 El. Dy. peareth of record, [o] An impropriation is made after the death 
 244. of an incumbent, to a bishop and his successors; the bishop by 
 
 indenture demiseth the parsonage for fortie yeares, to begin after 
 the death of the incumbent ; the deane and chapiter confirmeth 
 it, the incumbent dieth ; this demise shall not conclude, for that 
 it appeareth that he had nothing in the impropriation till after 
 the death of the incumbent. 
 r«l Brae f 420 [p] Ninthly, where the record of the estoppell doth run to the 
 26 Ass. 64. disabilitie or legitimation of the person, there all strangers shall 
 
 39 Ass. 10. take benefit of that record ; as outlawrie, excommengement, pro- 
 
 7H 6 7 ' fession, attainder of praemunire, of felouie, &c. bastardie, mu- 
 33 Ass. 5. liertie, and shall conclude the partie, though they be strangers 
 
 11 E. 3. to the record. Vide in Littleton, cap. Vittcnage, Sect. 196, 197, 
 
 21 E P, 3 2 39 - &c. But of a record concerning the name of the person, qua- 
 
 19 R. 2. Estop. 282. 3 E. 3. ib. 23. 33 E. 3. Estop. Stath. Le stat. de 9 H. 6. ca. 11. 
 30 H. 6. 2. Doct. & Stud. 69. 34 H. 6. 39. 18 E. 4. 1. b. 10 E. 4. 16. 
 
 litie, 
 
 (B) Vid. ante 303. a. and the note under (A) there.
 
 L. 3. C. 12. Sect. 668-69. Of Remitter. [352. b. 353. a. 
 
 litie, or addition, no estranger shall take advantage, because he 
 shall not be bound by it. But nota, reader, that in case of the 
 muliertie prima facie, an estranger shall take benefit of it, &c. 
 But yet because he may be a mulier by the ecclesiastical law, 
 and a bastard by the common law, therefore against such a cer- 
 tificate pleaded, the adverse partie may allege the speciall mat- 
 ter, and confesse the certificate of the bishop according to the 
 ecclesiastic-all law, and alleage further the speciall matter accord- 
 ing to the common law, whereunto the adverse partie must 
 answer; and so are the books that treat of this matter to be re- 
 conciled (1). But now let us rcturne to Littleton. 
 
 Sect, 668. 
 
 ~D UT if in the action of wast the husband make default to the grand 
 distresse, and the wife pray to be received, and is received, slice may 
 well sheiv the whole matter, and hotv shee is in her remitter, and shee 
 shall barre the lessor of his action, * $c. 
 
 " fp HE wife pray to be received, and is received." Receipt, (Ant. 192. b.) 
 
 recepUo, commeth of the Latine verbe recipere, so called 
 because the wife, upon the default of her husband, is received as 
 a feme sole alone, without her husband, to defend her right; and 2 n E. 1. 
 it is also called defensio juris ; and in this case the wife may bee Defensio juris, 
 received by the [a] statute : and yet [A] ancient authors who [„] w. 2. oa. ?.. 
 wrote before the statute, doe speake of a kind of receit at the [&] Bract, f. 393. 
 common law. The civilians call resceit, admissionem tertii pro Mi r - lll) ; 3. cap. 
 sua interesse which more properly is resembled to the receipt of 
 him in the reversion or remainder, that is no party to the writ. 
 
 [ 3 33.J i*» Sect, 669, 
 
 TpOR in every case where the wife is received for default of her hus- 
 band, she shall plead and have the same advantage in pleading, ax 
 shee were a woman sole, § $c. And albeit that the alienee made the 
 lease to the husband and wife by deed indented, yet this is a remitter to 
 the wife. And also, albeit the alienee rendreth the same land to the 
 husband and his wife by fine for terme of their lives, yet this is a re- 
 mitter to the wife, because a feme covert which takes an estate by fine, 
 shall not be examined by the justices, f $ e ' 
 
 " A S slice icere a woman sole, &c." In this Section foure 
 things are to be understood. 
 First, when a feme covert is received, that she shall plead as if 
 
 she 
 
 * &c. not in L. and M. or Boh. f &c. not in L. and M. or Boh. 
 
 § &c. not in L. and M. or Boh. 
 
 (1) See note 1 to page 245. a. 
 Vol. TL— 41
 
 353. a. 353. b.] Of Remitter. L. 3. C. 12. Sect, 670. 
 
 she wore sole. And this is regularly true, yet hokleth not in all 
 
 [c] 37 Ass. 1. cases : [c] for if a feme covert be received in an assise, and plead 
 
 a record and faile, therefore she shall not be adjudgerl a disseisor, 
 
 17 Ass. 17. as shee should be if shee were sole, &c. So if a feme covert 
 
 29 E. 3. 43. onely levie a fine executorie, and a scire facias is brought against 
 
 Voucher 17S ner an ^ ner nus k an( i> if shee be received upon the default of her 
 
 husband, shee shall barre the conusee, which if she had been 
 
 sole, she could not doe, and in some other cases. 
 
 Secondly, that though the estate taken backe be by deed, in- 
 dented, yet that shall not hinder the remitter in case of a feme 
 covert, or an infant. 
 
 Thirdly, that though it be by fine sur render, yet that shall 
 
 (10 Rep. 43.) not hinder the remitter: because a feme covert is not to be 
 
 examined upon any fine, but when shee and her husband passe 
 
 some estate or interest, or release her right by a fine of the lands 
 
 or tenements. 
 
 Trin. 27 Eliz. Fourthly, if the husband levie a fine of his wife's lands, and 
 
 inter Owen <fc the conusee grant and render the land to the husband and wife, 
 
 ^S 1113 : Rot - although the wife be not partie to the originall, nor to the conu- 
 
 _ib. in banco o r o ' 
 
 communi, sans, and therefore she ought not by the law to take any present 
 
 Li.3. fol.5. the estate but by way of remainder only; yet here it is proved by 
 
 Winchester^ Littleton that the grant and render de facto to the wife in prce- 
 
 ense. 7 E. 3. 64. scnti is not void; for then it could not worke a remitter, but 
 
 13 E. l. voidable by writ of error; and that avoidable estate doth worke 
 
 Voucher, 119. & remitter ^ 
 
 (3 Rep. 5. a.) " Shall not he examined by the justices, &c." The examination 
 
 of a ferae covert ought to be secret; and the effect is to examine 
 her, whether shee be content to levie a fine of such lands (naming 
 them particularly and distinctly, and the state that passeth by 
 the fine) of her owne voluntary free will, and not by threats, 
 menaces, or any other compulsorie nicanes. 
 
 Sect. 670. 
 
 A ND here note, that ivhen any thing shall passe from the 
 
 wife which is covert of a husband by JS-g 3 * force of a fine : ["353. ~| 
 as if the husband and wife make conusance of right to an- |_ b. 
 other, <§"C. or make a grant and render to another, or release 
 by fine unto another, et sic de similibus, where the right of the wife shall 
 passe from the wife by force of the same fine ; in all such cases the wife 
 shall be examined before that the fine be taken, because that such fines 
 shall conclude such femes coverts for ever, * Sfc. But where nothing is 
 moved in the fine but oncly that the husband and wife doe take an estate 
 by force of the said fine, this shall not conclude the wife ; for that in 
 such case she shall not be at all examined, f $c. 
 
 " WEEN 
 
 * &c. not in L. and M. or Roh. f &c. not in L. and M. or Roh. 
 
 (1) Y. From this passage, and others mentioned both by Littleton and 
 Coke, it appears to be a general rule, that the remitter shall take effect, though 
 the estate which made the remitter is voidable; as if it be taken from an infant, a 
 feme covert, or upon condition. See Com. Dig. tit. Remitter, B. 1. — [Note 307.]
 
 L. 3. C' 12. Sect. 671. 672. Of Remitter. [353. b. 354. a. 
 
 28. 
 
 " \\fIIEN any tiling shall passe from the wife covert, &c. by 
 
 force of a fine, &c." And of this opinion is [<l] Littleton Kl J 6 B. 4 
 in our bookes. 42 E ' 3 ' c " 
 
 [*] Therefore if the husband and wife be tenants in speciall 3 H. 6. 42. 
 tayle, and they levy a fine at the common law, and after the 20 E. 3. tit. 
 husband and wife take back an estate to them and their heires ; p'V gg ].;' 3 ' 4 -' 
 in this case the estate tayle is not barred ; and yet against a fine 46 e. 3. o. 
 levied by hersclfe she cannot be remitted, because thereupon 
 she was examined : but in that case if the land descend to her 
 issue, he shall be remitted (1). 
 
 Sect. 671. 
 
 A LSO if tenant in taile discontinue the taile, and hath '| issue a 
 daughter, and dieth, and the daughter being of full age taketh hus- 
 band, and the discontinuee make a release of this to the husband and 
 wife for terme of their lives, this is a remitter to the wife, and the wife 
 is in by force of the taile, causa qua supra, $c. 
 
 « AND the daughter being of full age taketh husband, &c." 
 "^ Here it appeareth, that her full age when she tooke baron 
 is not materiall, but her coverture at the taking backe of the 
 estate. And so note a diversitie betwecne a remitter and a dis- 
 cent : for if a woman be disseised, and being of ful age taketh ( A nt. 216.) 
 husband, and then the disseisor dieth seised, this discent shall 
 binde the wife, albeit she was covert when the discent was cast, 
 because she was of full age when she tooke husband, as appeareth 
 before in the Chapter of Discents. But albeit the wife that 
 hath an ancient right, and being of full age, taketh a husband, 
 and the discontinuee letteth 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. 
 
 o 
 
 j-354.1 m~ Sect, 672. ( Hob - m) 
 
 ALSO if land be given to the husband and to his wife, to have and 
 
 to hold to them and to the heirs of their two bodies begotten, and after 
 
 the husband alien the land in fee, and take backe an estate to him and to his 
 
 wife 
 
 J issue not in L. and M. or Roh. 
 
 (1) Since Littleton wrote, several statutes have been passed, which have 
 given rise to a great extension of the doctrine respecting alienations by hus- 
 bands of their wives estates. These are chiefly the statutes of the 4 II. 7, 
 respecting the force and effect of fines, the 27 H. 8, for transferring uses into 
 possession, and the 32 II. 8, for preserving the estates of wives against the 
 alienations of their husbands. The reader will find the effect of these statutes 
 upon the doctrine of remitter, investigated in a very copious and masterly man- 
 ner in lord chief justice Hobart's account of his argument on giving judgment 
 in the case of Duucombe v. Wingfield. See his Hep. p. 25-i. — [Note 308.]
 
 354. a. 354. 1).] Of Remitter. L. 3. C. 12. Sect. 673. 
 
 wife for terme of their tivo lives ; in this case this is a remitter in deed to 
 the husband and to his wife mauger the husband. For it cannot, be a 
 remitter in this case to the wife, unlesse it be a remitter to the husband, 
 because the husband and wife are all one same person in laiv, though the 
 husband be stopped to claim it. * And therefore this is a remitter against 
 his owne alienation and reprisel, as is said before "j\ 
 
 HERE it appearcth, that the husband against his own aliena- 
 tion, if he had taken the estate to him alone, could not 
 have been remitted. But when the estate is made to the hus- 
 band and wife, albeit they be but one person in law, and no 
 (Hob. 255.) moieties betweene them : yet for that the wife cannot be remitted 
 
 in this case, unlesse the husband be remitted also, and for that 
 remitters, as bath been often said, are favoured in law, because 
 thereby the more ancient and better rights are restored againe; 
 therefore in this case, in judgment of law, both husband and 
 wife are remitted; which is worthy of great observation. 
 
 Sect. 673. 
 
 A LSO, if land be given to a woman in taile, the remainder to another 
 in taile, the remainder to the third in taile, the remainder to the 
 fourth in fee, andthe woman taketh husband, and the h usband discontinue 
 the land in fee ; by this discontinuance all the remainders are discontinued. 
 For if the wife die without issue, they in the remainder shall not have any 
 remedy but to sue their writs of formedon in the remainder, 
 
 41 E. 3. 17. 
 
 41 Ass. 1. 
 36 Ass. p. 4 
 
 when jggg^ it comes to their times % But if after such discon- ["854.1 
 ti nuance, an estate be made to husband and wife for terme I b. J 
 of their two lives, or for terme of another man's life, or other 
 estate, gc.for that this is a remitter to the wife, this is \. also a remitter 
 to all them in the remainder. For after that the wife which is in her 
 remitter be dead without issue, they in the remainder may enter, §y. 
 without any action suing, $c. In the same manner is it of those which 
 have the reversion after such entaile %. 
 
 J ITTLETON having spoken of remitters to the issue in 
 taile, who is privie in blood, and to the wife, who is privie in 
 person, now he speaketh of remitters to them in reversion or 
 remainder expectant, upon an estate taile, who are privie in 
 estate. And this case proveth that the wife is remitted pre- 
 sently ; for the equitie of the law rcquireth, that as the discon- 
 tinuance of the estate in taile is a discontinuance of the reversion 
 or remainder ; so, that the remitter to the estate in taile should be 
 a remitter to them in the reversion or remainder. 
 44 Ass. p. 15. Tenant for life the remainder to A. in taile, the remainder to 
 
 44 E. 3. 30. ft i n f ee> tenant for life is disseised, a collaterall ancestor of A. 
 
 421 R 3 1 Grt b 145. releaseth with warrantie and dieth, whereby the estate taile is 
 W. Jones,'l99.j barred; the tenant for life rc-entreth, the disseisor hath an 
 20 E. 3. Aid. 29. estate 
 
 * And therefore not in L. and M. f &c. added in L. and M. and Rob. 
 or R on< I also not in L. and M. or Rob. 
 
 f &c. added in L. and M. and Rob. % &c. added iu L. and M. aud Roh.
 
 L. 3. C. 12. Sect. 674 675. Of Remitter. [354, b. 
 
 estate in fee simple determinable upon the estate taile, and 
 the remainder of B. is revested in him; and so note in this case 
 the estate for life and the remainder in fee are revested and re- 
 mitted, and an estate of inheritance left in the disseisor. If a 
 fine be levied sur grant ct render to one for life or in taile, the 
 remainder in fee, if tenant for life, or in taile, execute the 
 estate for life or in taile, this is an execution of the remainder. 
 
 A gift in taile is made to B. the remainder to C. in fee, B. Vid. PI. Com. 
 discontinued and taketh backe an estate in taile, the remainder -Jf* ? 1 ^ l ol 'Aq 
 in fee to the king by deed inrolled; tenant m taile clieth, his - m Walsingham's 
 issue is remitted, and consequently the remainder, as Littleton case. 17 Eli/.. 
 here saith ; and the diversity is [«] betweene an act in law, for ^ ie £ 3 **^ 
 that may devest an estate out of the king, and a tortious act, or ^ it aesceit,' 28. 
 entry, or a false and a feined recovery against tenant for life 49 E. 3. L6. 
 
 or in taile, which shall never devest any estate, remainder, or W| ei f, Di "' 
 
 „ , , . _ 7 t -n , i i x-ii btanonl s case, 
 
 reversion out of the king. [/>] But a recovery by _ good title lib 8 fol 76 b- 
 
 against tenant for life, or in taile, where the remainder is to [b] Cholmley's 
 
 the king by defeasible title, shall devest the remainder out of "^'^ie 53 * 
 
 the king, and restore and remit the right owners (1). le Roy, 61. 
 
 22 E. 
 
 i , 
 
 Sect. 674, 675. 
 
 A LSO, if a man let a house to a woman for terme of her life, saving 
 the reversion to the lessor, and after one sueafeyned and false action 
 against the woman, and recovereth the house against her by default, so 
 as the woman may have against him a quod ei deforceat, according to 
 the statute of Westm. 2. now the reversion of the lessor is discontinued. 
 so that he cannot have any action of waste. But in this case if the 
 ivoman take husband, and he which recovereth let the house to the hus- 
 band and his wife for terme of their two lives, the wife is in her remitter 
 by force of the first lease. 
 
 Sect. 675. 
 
 A NB if the husband and wife make ivaste, the first lessor shall hare 
 a writ of wast against them, for that inasmuch as the wife is in her 
 remitter, he is remitted to his reversion. But it seemeth in this case, if 
 hee that recovereth by the false action, will bring another writ of waste 
 against the husband and his ivife, the husband hath no other remedie 
 against him, but to make default to the grand distresse, $c. and cause the 
 wife to be received, and to plead this matter against the second lessor, 
 and shew how the action wherby hee recovered was false andfained in 
 law, £c. so the wife may bar him (issint le feme poit * luy barrer, &c.) 
 
 "A FEYXED 
 * luy not in L. and 31. or Roh. 
 
 (1) VI. Thus it may be laid down as another general rule, that a remitter 
 to the particular estate is <i remitter to him in the reversion or remainder. See 
 Com. Dig. tit. llemitter, B. 5.— [Note 309.]
 
 354. b. 355. a.] Of Remitter. L. 3. C. 12. Sect, 675. 
 
 (5 Rep. 85. " \ FEYNED and false action:' 1. Actio f eta et falsa, but 
 
 2 Inst. 350. -^- L hereof Littleton speaketh hiruselfe in this Chapter. 
 
 11 Rep. 62.) 
 
 r 1 W 2. cap. 4. " Quod ei deforceat," is a writ that is given by [c] statute to 
 
 (Ant. 331. b.) any tenant for life or in tayle upon a recovery by default 
 
 against them in a praecipe, and lyeth against the 
 
 O^F" recoveror and his heires, in which case the par- r355.~| 
 
 Brae ton, lib. 4,_ ticular tenant was without remedie at the common law, \_ a. J 
 
 "' ,7 ' ™ e L' ■■ lb « 5 ' because bee could not have a writ of right. And it is 
 
 °jjj£ 1l\ called a quod ei deforceat, for that they are part of the words of 
 
 7 b' 3. 62. that writ, viz. Praecipe A. quod, &c. reddat B. unum mesuagium, 
 
 F. N. B. loo. ^ quod clamat esse jus et maritaqium sit inn, et quod idem A. 
 '6 Rep. 8. b.) . . * J -J ' -L 
 
 Cro. Jac. 292. ei injuste deforceat. 
 
 Cro. Car. 178. 441.) 
 
 (F. N. B.l55.b.) "Recovereth, &c. by default:' There hath beene a question 
 in our bookes upon these words (by default) : as for example, 
 whether a recoverie had by default in an action of waste against 
 tenant in dower, or by the courtesie, a quod ei deforceat lyeth 
 
 W. 2. cap. 4. by the said statute. And divers hold opinion, that in that case 
 no quod ei deforceat lieth, for that judgement is not given by 
 default; for notwithstanding the default, there goeth out a writ 
 to enquire de vasto facto, et quod vastum praedictum A. (the 
 defendant) fecit ; so as the defendant may give evidence, and 
 the jurors may finde for the defendant, that no waste was done : 
 as in the assise albeit it bee awarded by deiault, yet may the 
 tenant give evidence, and the recognitors of the assise may 
 iinde for the tenant; and therefore in those cases, the defendant 
 
 F. N. B. fol. or tenant non a mitt it per defaltam, as the statute and Littleton 
 
 155. E. speaketh, and they cite F. N. B. in the point (1). 
 
 Secondly, 
 
 (1) Co. MSS. 215, p. 33 Eliz. Elmer v. Thackers. The case -was this. 
 Elmer and his wife, tenant in dower, brought quod ei deforceat versus 
 W. Thacker, whopleaded, that 30 Eliz. he brought icaste against the demandants 
 icho appeared, and upon nihil dieit W. Thacker recovered damages and had 
 judgment. The demandants replied, uul wast fait. The tenant demurred in 
 law; and these points were moved, 1st, Whether quod ei deforceat lies upon 
 recovery by defa nit against tenant in dower in waste. 2d, Adm itting that it dors, 
 whether quod ei deforceat lies upon the recovery hy nihil dieit, as this case is. 
 As to the second point, the whole court resolved clearly, that quod ei deforceat 
 does not lie ; for in as much as the judgment upon nihil dieit is after appear- 
 ince, there the default is not the cause of the judgment ; and the statute says, 
 per defaltam : and for this reason judgment was given against the demandant, 
 as appears afterwards in page 356. But as to the \st point it was objected, that 
 quod ei deforceat does not lie upon default of tenant in dower in wasts, as is the 
 ■ase here ; for if it should lie in th is ease, he shall avoid the verdict of twelve men , 
 rhieli was not the intention of the statute, but only to relieve the tenant where he 
 makes default; therefore, in as much as the tenant, notwithstanding the default, 
 might give evidence to the jury, then every person in policy might make default. 
 if afterwards he might prevail upon evidence to have quod ei deforceat: and the 
 reason of F. K. B. is, that the verdict has found waste. 2 Hen. 2. If in waste 
 the jury fnd falsely, attaint lies, and 21 'lien. 6. 56. 34 lien. 6. 12.; so where 
 the assise is awarded for default, yet the tenant may have attaint, if it be found 
 against him by false oath. 17 Ed. 2. Attaint, 89. 34 Ben. 6. J. Prior re- 
 covers in waste, and has a writ of inquiry in waste, and the sheriff returns the 
 waste 20 marks, and awards that he shall recover the place toasted, and treble 
 
 damages, 
 
 c 
 
 w
 
 L. 3. C. 12. Sect. 675. Of Remitter. [355. a. 355. b. 
 
 Secondly, they hold that a quod ei deforccat licth where the 2 H. 4. 2. 
 tenant can have no reinedie by attaint; but in this case (say 21 H-6..56. 
 they) an attaint doth lie. 3 n/fi.W. 
 
 22 E. 3. L9. 
 
 Thirdly, they hold, that in an action of waste, although it be (3 Rep. 85.) 
 brought against a tenant in dower, or tenant by the courtesie 
 that have a freehold, yet the dammages are the principall ; for 
 they were recoverable against tenant in dower and by the cour- 
 tesie by the common law; and the statute of Glocester 
 [35 5. "I gave figg* the place wasted but for a penaltie, so as the 
 b. J nature of the action (say they) remaineth still to bee (7 Rep. 6S. b.) 
 personall, for that the dammages are the principall : 
 \>T\ and in proofe hereof they cite divers authorities in law. Kl 34 H. C. 7. 
 And if two bring an action of waste, the release of one of them ?7 & * 3 g E 3 
 is a good barre against the other, [e] and so resolved by the [ e ] 9 H. 5.15. 
 whole court; which proveth (say they) that the dammages are 30 H. 6. tit. 
 the principall: for if the land were the principall, the release Bar - ° 9 - 
 of one of them should not barre the other, no more than in an 
 assise, a writ of ward, an eject ioue firmx, &c. 
 
 Lastly, they say, that in actions where damages are to be 
 recovered, and the land is the priucipall, the demandant never 
 counteth to dammages, and yet shall recover them : but in an 
 action of waste the plaintifle counteth to his dammage; and if 
 the, dammages be the principall, then cleerely no quod ei defor- 
 ccat lieth. 
 
 Others doe hold the contrarie : and as to the first they say, that 
 albeit that in the writ of waste, judgement is not only given 
 upon the default, yet the default is the principall, and the cause 
 of awarding of the writ to enquire of the waste as an incident 
 thereunto : and the law alwayes hath respect to the first and 
 principall cause; and therefore upon such a recoverie [*] a writ [*] 17 e. 3. 58. 
 of deceit lieth ; and that writ lieth not but where the recoverie 29 E. 3. 42. 
 is by default. So in an action of waste against the husband and ^ ^ 4. 4.' 
 wife, upon the default of the husband, the wife shall be received; 19 e. 2. 
 and yet the statute there speaketh also, per defaltam. So upon Bisceit, 50.^ 
 such a recoverie in waste against the baron and feme by default, 3 j f ' 4 ^Pj *■ 
 tiie wife shall have a cut in vita by the statute; and it speaketh w. 2. en. 3. ' 
 where the recoverie is per defaltam. And albeit the defendant 9 E. 4. 10. 
 may give in evidence, if he knoweth it ; yet when he makes 
 default, the law presumeth he knoweth not of it, and it may be 
 that he in truth knew not of it; and therefore it is reason, that 
 seeing the statute, that is a beneficiall statute, hath given it 
 him, that he be admitted to his quod ei deforccat, in which writ 
 
 the 
 
 damages, and that he shall hare execution for the damages immediately, licet 
 cesset execution for the thin;/ wasted till the coUusion should l< inquired info, 
 therefore the damages are the principal; for it is no where fovnd that execution 
 should be awarded of the. accessor;/ before the principal: and for this reason, 
 VI Rich. 2. Estrepement 6. judgment shall not be given in the estrepement, 
 because it is only the accessory, until judgment shall be given in the principal 
 plea. And in Elmer's case, ante 855. it was resolved, that this icrit lies upon 
 recovery by default in waste against tenant in dower, or any other tenant for 
 life.— Lord Not. MSS.— [Note 310.]
 
 355. b.] Of Kemitter. L. 3. C. 12. Sect. 675- 
 
 *] E. 3. 8. b. the truth and right shall be tried. And so it is of a reeoverie by 
 
 ^ H. 4. 2. default in an assise ; albeit the recognitors of the assise give a 
 
 44E 342 verdict, a quod ei deforceat lieth. And all this as to this point 
 
 Br. tit. Quod ci was resolved by the whole court of common pleas; and so the 
 
 deforc. 4 Pasch. doubt in 41 E. 3. 8. well resolved. Nota, if tenant for life 
 
 ??„?k x*"t.j make default after default, and he in the reversion is received 
 
 1 1 l> inter _cj ci» 
 
 Elmer & El. sa an ^ plead to issue, and it is found by verdict for the demandant, 
 feme, ten. en the default and the verdict are causes of the judgement ; and 
 dower demand- y et t } ie tenant shall have a quod ei deforceat. 
 ants, & H n. J 2 J 
 
 Thacker ten. in quod ei deforceat. (Cro. Eliz. 263.) 
 
 As to the second objection, that the defendant may have an 
 [/] 33 E. 3. attaint. First, it was utterly denied, of the other part, [/] that 
 Quod ei deforc. an attaint did lie in this case ; for though it be taken by the 
 15 g U y j^ e j ' oath of twelve men, yet it is but an enquest of office, whereupon 
 1. 5. c. 21. n° attaint did lye on either partie, as upon an enquirie of collu- 
 
 48 E. 3. 19. sion, although it be by one jurie, nor upon a verdict of quale 
 
 33 h 6 25 J ns ' Secondly, admitting that an attaint did lie in that case, yefc 
 39 H. 6. 1. it followeth not ex consequent! , that a quod, el deforceat did not 
 F. N. B. 107. lie ; [g] for if an assise bee taken by default, a quod ei deforceat 
 
 au ^'t E p9 2 ' ^ot\\ > an< ^ y et ^ ie V ar ^ e ma y nave an attaint; for this is no 
 
 21 il. G. 56. enquest of office, but a recognition by the recognitors of an assise, 
 
 34 II. 6. 12. who were returned the first day, and not returned upon the 
 m C i°s/ 14 ' awarding of the assise by default. And as to the second objection, 
 P. jr. B.107. C. °^ this opinion was the whole court in Edward Elmer's case above 
 6 Kep. 8. b. mentioned. As to the third objection, that the damages should bee 
 11 Kep. 5.) tlie principal!, because they were at -the common law; that is an 
 
 argument (say the other side) that they are more antient, but not 
 that they are more principall ; and treble damages were not at 
 the common law (for the common law never giveth more dam- 
 mage than the losse amouuteth unto), but are given by the sta- 
 tute of Glocester; but the place wasted is worthier being in the 
 realtie, than dammages that be in the personaltie: Et omne ma- 
 jus dignum trahit ad se minus dignum, quamvis minus dignum 
 sitantiquius et a digniori debet fieri denomination And it is con- 
 34 H. 6. 7. fessed, that in an action of waste against tenant for life, or for 
 
 W;..-t. 50. yeares, the place wasted is the principall, because the statute of 
 
 Glocester doth give the place wasted and treble dammages at one 
 time; for no prohibition or action of waste lay against them at 
 the common law; and in an action of waste, if the defendant 
 confesse the action, the plaintife may have judgement for the 
 place wasted, and release the dammages; which proveth (and so 
 Fitzherbert collecteth) that the dammages are not the principall : 
 (10 Rep. 115. for a man shall never release the principall and have judgement 
 \ ^ eo ' 2 ?J\ °f the accessorie : and an action of waste against tenant for life 
 
 Kep. 44.) • ,, .. . i • j ., ,, 
 
 is as reail as an action against tenant in dower. And as to the 
 
 case of 9 H. 5. cited on the other side, it was answered, that it 
 
 was an action in the tenuit, which is only in the personaltie, ami 
 
 then the release of the one doth bar both; neither could sum- 
 
 [K] 6 E. 3. 47. mousand severance lie in that case; [A] but in an action of waste 
 
 48 E. 3. 19. (j n tlio tenet), cither against tenant for life or for veares, the 
 
 Ant 139 a release of the one doth not barre the other; and in both those 
 
 285. a.) cases summons and severance doth lie: and this pointwas also 
 
 resolved accordingly in Edward Elmer 's case. But when these 
 
 three points were resolved by the court for the demandant, then 
 
 the councell of the tenant moved in arrest of judgement another 
 
 point, viz. that the judgement was given upon a nihil diclt, which 
 
 is
 
 L. 3. C. 12. Sect. 675. Of Kemitter. [355. b. 356. a. 
 
 is alwayes after appearance, and not per defedtam; and there- 
 upon judgement was stayed (t). 
 [356."! fl®*" But to return to Littleton. Here lie openeth a (8 Rep. G2. 356. 
 a. secret of law; for the cause of this remitter is, for that F. X. B. 155. B. 
 
 L J , n '■,.„. ,, . • i . i 7 • 2 lust. 3o(J.) 
 
 the tenant for life in this case might have a quod ei 
 de/orceat, for so Littleton saith : so as she may have a quod ei 
 deforceat: Now it appeareth by our bookes, that the tenant for 
 life at the common law was remediless, because he could not 
 have (as hath beene sayd) a writ of right; and consequently the 
 feme covert in this case could not be remitted by the taking of 
 an estate to her husband and her, because her right was remedi- 
 lcsae, aiid could have no action. But when an act of parliament y;de for ftfl 
 or a custome doth alter the reason and cause thereof, thereby the cases np on thia 
 common law it selfe is altered, if the act of parliament and cus- ground, 14 11. 7. 
 tome be pursued; for Alterata causa et ratione leg is, alteraturet \\'^* 8 "b!*' 
 
 Aid. 35 H. 6. Gard. 72. 29 E. 3. 5. per Wilbie Custome. Lib. 3. fol. 86. 
 Justice Wiudhaui's case, a. & b. 
 
 lex, 
 
 (1) Sir Edward Coke, in his commentary on the statute of Gloucester, 
 2 Inst. 286. observes that regularly in personal and mixed actions damages 
 were to be recovered at the common law; but that in real actions no damages 
 were to be recovered at the common law, because the court could not give the 
 demandant that which he demanded not; and the demandant in real actions 
 demanded no damages either by writ or count. The assize was a mixed action : 
 and therefore if upon the trial the demandant made out his title, his seisin, and 
 his disseisin by the tenant, he had judgment to recover his seisin and his 
 damages for the injury sustained. But the damages in these cases were 
 awarded against the disseisors only, and not against their alienees or tenants. 
 The statute of Marleberge, 52 Hen. 8. c. 16. gave damages in a writ of mort- 
 anncestor against the chief lord. The statute of Gloucester, 6 Ed. 1. c. 1. 
 was a considerable extension of the law of damages. It ordained, that if the 
 disseisor should alien the lands, and should not have whereof damages might 
 be levied, the person into whose hands the tenements came should be charged 
 with the damages, so that each should answer for the time he held them; that 
 the disseisee should recover damages on a writ of entry sur disseisin against 
 him who was found tenant against the disseisor: that damages should for the 
 future be recovered in a writ of mortauncestor, as in one of novel disseisin; 
 and also in writs of cosinage, aiel, and besaiel; and generally, that damages 
 should in all cases be rendered where the land was recovered against a man 
 upon his own intrusion, or his own act. The statute then mentions, that till 
 that time damages had been taxed only to the value of the issues of the land: 
 it was therefore provided, that a demandant in future should recover the costs 
 of the writ purchased, together with the damages, not only in the above in- 
 stances, but generally in cases where he was entitled to recover damages. 
 Though this statute only mentions the costs of the writ, the construction of it 
 has been extended to the whole expense of carrying on the suit. Before this 
 statute the justices in eyre used, where the plaintiff obtained a verdict, to 
 compute the expenses of the suit, and in assessing damages, assessed a sum 
 sufficient to satisfy that expense as well as the damages. The statute of 
 Marlbridge gave costs in particular cases to the defendant; so that it is a mis- 
 take to say, that the statute of Gloucester was the first statute by which costs 
 were given: See Sayer's Law of Costs, p. 8. The general law of costs still 
 rests on the statute of Gloucester; so that where costs were not recoverable 
 before that statute, they are not recoverable now, unless in those cases where 
 they have been given either by the statute of Gloucester or by some subse- 
 quent statute. — [Note 311.]
 
 3o6. a.] Of Remitter. L. 3. C. 12. Sect. 675. 
 
 lex, et ccssante causa seu rafione hffis cessat et lex : as in this case 
 the statute of W. 2. giving reraedie to this feme tenant for life, 
 in this it giveth her abilitie to bee remitted, because her right is 
 not now remedilesse, but she hath an action to recover it. 
 
 And Littleton warily putteth his case, that the recoverie was 
 
 had against the feme while she was sole; for there was a time 
 
 when it was a question, whether a recoverie being had by default 
 
 against the husband and wife (the wife being tenant for life) the 
 
 said statute gave a quod ei deforceat to the husband and wife, for 
 
 that the statute gave it against tenant in dower and tenant for 
 
 life, &c. and here the husband is not tenant for life, but seised 
 
 in the right of his wife, and therefore out of the statute: and of 
 
 [v] 4 E. 3. 3. 38. this opinion is one [</] booke; but (Apices juris non sunt jura, 
 
 33 E. 3. _ et pariim, differunt quae, re concordant) the contrarie hath beene 
 
 5 e'T'I' °" adjudged, and so that point is now in peace; and the like in 
 
 F. X. B. 156. A. case of receit for him in reversion. But if the husband and wife. 
 
 5 E. 3. 5. lose by default, and the husband die, the wife shall not have a 
 
 F X B 156 C ( l"°d ei ' deforceat; for a cui in vita is given to her in that case by 
 
 33 H. 6.46. ' ' a former statute, viz. W. 2. cap. 3. These things are worthy of 
 
 2 E. 4. 11. due observation, and points of excellent learning; and Littleton 
 
 19 E. 4. 2. j n our k 00 ]j es S peakes of another kinde of quod ei deforceat at 
 
 the common law, upon a disseisin, which you may read. But 
 
 now let us heare him in his booke. 
 
 45 E. 3. 21. " The reversion is discontinued, so that he cannot have any 
 
 p 4 -v' t? ? 'r' 35 ' act i° n of waste." Here it appeareth, that when the reversion is 
 
 23 H 8 tit' devested, the lessor cannot have an action of waste, because the 
 
 Wast. Br. 138. writ is, that the lessee did waste ad exha redationem of the lessor. 
 
 ( Cro - c ^_ r - 405 - and that inheritance must continue at the time of the action 
 
 334 b ) " a ' brought. And it is to bee observed, that in an action of waste 
 
 brought by the lessor against the lessee, the lessee in respect of 
 
 the privitie cannot plead generally, riens en le reversion, viz. 
 
 [7j] 46 E. 3. 20. [/*] that the lessor hath nothing in the reversion, but he mu^t 
 
 8 H. 6. 17. shew how and by what meanes the reversion is devested out of 
 
 him; and this holdeth (as hath been said) bctweene the lessor 
 
 and the lessee; but if the grantee of a reversion bringeth an 
 
 action of waste, the lessee may plead generally, that he hath 
 
 (Ant. 54. a. nothing in the reversion. And yet in some speciall cases au 
 
 Mo. 52. action of waste shall lie, albeit the lessor had nothing in the 
 
 reversion at the time of the waste done. As if tenant for life 
 
 make a feoffment in fee upon condition, and waste is done, and 
 
 after the lessee re-enter for the condition broken; in this case the 
 
 (F. N. B. 112. b.) lessor shall have an action of waste. And so if a bishop make 
 
 a lease for life or yeares, and the bishop die, the lessee, the fee 
 
 being void, doth waste, the successor shall have an action of 
 
 waste. So if lessee for life be disseised, and waste is done, the 
 
 lessee re-enter, an action of waste shall be maintained against 
 
 the lessee; and so in like cases: and yet in none of these cases 
 
 the plaintiffe in the action of waste had any thing in the rev r- 
 
 p sion at the time of the waste made; but these especiall eases 
 
 have their severall and especiall reasons, as the learned reader 
 
 will easily finde out. 
 
 Here note, that albeit the action be false and feigned, yet is 
 
 the recoverie so much respected in law, as it worketh a discon- 
 
 [t] 5 Ass. pi. 3. tinuance. [ i] But if tenant for life suffer a common recoverie. 
 
 6 E - 3 - or any other recoverie by covine and consent betweene the 
 
 Ent. Cong. 42. J J 
 
 15 B. 3. Age, 95. 21 E. 3. 18. per Finchden. 22 E. 3. 2. b. Lib. 1. fol. 15. 
 
 Sir William Pelham's case. 14 El. cap. 8. 
 
 tenant
 
 L. 3. C. 12. Sect. 676-77. Of Remitter. [356. a. 356 
 
 tenant for life and the recoveror, this is a forfeiture of his 
 estate, and he in the reversion may presently enter for the 
 forfeiture. Since our author wrote, the statute of 14 El. cap. 0, 
 hath beene made concerning this matter, which is to be con- 
 sidered [&] and hath beene well construed and expounded, and [k] Lib. 3. 
 needs not here to be repeated. io h 60 - . .. 
 
 And it is to be observed, that although the discontinuance 1J- ' 
 groweth by matter of record, yet the remitter may be wrought 
 by matter in paiis : and of the residue of these two Sections 
 sufficient hath beene said before. 
 
 [ 8 b 6 -] »o» Sect. 676. EStSt^ 
 
 A LSO, if the husband discontinue the land of his wife, and after taJeeth 
 baeke an estate to him and to his wife, and to a third person for 
 terme of their lives, or in fee, this is no remitter to the wife, but as to the 
 moitie (ceo * n'est un remitter a la feme, forsque quant a la moity) ; and 
 for the other moitie she must after the death of her husband sue a writ 
 of cui in vita.f 
 
 " rp HIS is no remitter but as to the moitie, Sc." Albeit there 44 E. 3. 17. 
 
 -* , is authorise in our bookes to the contrarie, yet the law JJ^JjJ" 
 is taken as Littleton here holdeth it, and as before it appeareth in V id.Secfc G G6. 
 the like case in this Chapter, and for the reason therein ex- 
 pressed. 
 
 Sect, 677. 
 
 A LSO, if the husband discontinue the land of his wife, and goeth 
 
 beyond sea, and the discontinue let the same land to the wife for 
 
 terme of her life, and deliver to her seisin ; and after the husband com- 
 
 meih backe, and agreeth to this liverie of seisin, this a remitter to the 
 
 wife: and get if the wife had beene sole at the time of the lease made 
 
 to her, this should not be to her a remitter. But inasmuch as she was 
 
 covert baron at the time of the lease, and liverie of seisin made unto 
 
 her, albeit she taketh only the liverie of seisin, this was a remitter to 
 
 her because a feme covert shall be adjudged as an infant within age in 
 
 such a case, (j-c. Quaere in this case if the husband when hce comes 
 
 backe, will disagree to the lease and livery of seisin made to his wife in 
 
 his absence, if this shall ouste his wife of her remitter, or not, $c. (si J 
 
 ceo oustera son feme de son remitter, || ou nemy, &c.) 
 
 " A A T Z> after the husband commeth backe and agreeth, &c." In 15 B. 4.1.b. 
 
 -^ this case the estate is in the feme covert presently by the \ n ; r " 16 ; b 
 liverie before any agreement by the husband ; and of this opinion gg e. ;>. 30. 
 is Littleton in our bookes. 27 H - 8 - 2i - 
 
 " Goeth 
 
 * n ' st — est, L. and M. and Roh. \\ ou nemy, &c. not in L. and M. or 
 f dr. added in L. and M. and Roh. Roh. 
 J ceo — jeo, L. and M. and Roh.
 
 356. h 357. a] Of Remitter. L. 3. C. 12. Sect. 678. 
 
 (4 Inst. 146.) " Goeth beyond sea." If hee had beene within the realinc, it 
 
 doth not alter the case. 
 
 " Quaere in this case if the husband, &c." Here is a question 
 moved by Littleton, whether the disagreement of the husband 
 shall ouste the wife of her remitter. And it seeineth that the 
 disagreement shall not devest the remitter. 
 
 First, because the state made to the wife which wrought the 
 remitter is banished and wholly defeated, and therefore no dis- 
 agreement of the husband can devest the state gained by the 
 lease, which by the remitter was devested before. 
 
 Secondly, for that the law having once restored her antient 
 and better right, will not suffer the disagreement of the 
 husband to devest it out of her, and to revive the JS®" ["357."] 
 discontinuance, and revest the wrongfull estate in the |_ a. J 
 discontinuance. 
 
 Thirdly, for that remitters tending to the advancement of 
 ancient rights are favoured in law. 
 4] E 3 is. And so it is for the same causes, if the wife survive her hus- 
 
 (Plo. 114. b.) band, she cannot claime in by the purchase made during the 
 coverture; but the law adjudge th her in her better right. But 
 18Eliz _ if both estates be waiveable, there albeit the wife prima facie is 
 
 Dier,351. remitted; yet after the decease of her husband she may elect 
 
 which of the estates she will. As if lands be given to the hus- 
 band and wife and their heires, the husband make a feoffment in 
 fee, the feoffee giveth the land to the husband and wife and the 
 (2 Rep. 37. heires of their two bodies, the husband dieth ; in this case the 
 
 3 Rep. 26. b. w j fe may e j ect w ] a i c ] 1 f the estates shee will ; for both estates 
 2 1 Roll. Abr. 421, are waiveable, and her time of election and power of wayver 
 :l'l\ ;2:'.. ' accrewed to her first after the decease of her husband. If lands 
 
 9 Rep. 140. b. ^e given to a man and the heires females of his body, and lie 
 Ante" 246. a. 348. niaketh a feoffment in fee, and take backe an estate to him and 
 :; Leon. 2.) ' his heires, and dieth, having issue a daughter, leaving his wife 
 (jrossement citsi-int with a sonne(A) and dieth, the daughter is 
 remitted ; and albeit the sonne be afterward borne, he shall not 
 devest the remitter (1). 
 
 Sect. 678. 
 
 ALSO, if the husband discontinue the lands of his ivife, and the dis- 
 
 continuee is disseised, and after the disseisor letteth the same lands to 
 
 the husband and wife for terme of life, this is a remitter to the wife. But 
 
 (A) Here the tcords « and dieth," are repeated, and appear to' he printed by mhtalce. 
 
 (1) VII. The remitter defeats the wrongful estate immediately without entry ; 
 yet where both estates are waveable by a wife, without prejudice to a third 
 person, she may wave which she pleases. But if a third person is interested, 
 she must take her ancient estate. Thus, if there be a feoffement to the husband 
 and wife in tail, remainder to A. the husband discontinues, and takes back an 
 estate to him and his wife in tail, remainder to B. though the wife in respect 
 to herself may take either the original estate tail, or the estate tail created by 
 the feoffment, both the estates being after marriage ; yet she ought to take 
 the first, being for the benefit of A. the rightful remainder-man. Hob. 17. 255. 
 —[Note 312.]
 
 L. 3. C. 12. Sect. 678. Of Remitter. [357. a. 357. b. 
 
 if the husband and his wife tvere of covine X and consent that the dis- 
 seisin should be made, then it is no remitter to the wife, because she is 
 a disseiseresse. But if the husband were of covin and consent to the 
 disseisin, and not the wife, then such lease made to the wife is a remit- 
 ter, for that no default was in the wife. 
 
 " A ND after the disseisor letteth the same lands, &c." Note, 18 E. 4.2. b. 
 
 so much are remitters favoured in law, that the state made ( F - N< B - 9S - °0 
 by the disseisor (which comuieth to the laud by wrong, and upon 
 whom the entry of the discontinuec is lawfull) doth remit the 
 wife, and devesteth all out of the discontinuee, albeit he hath a 
 warrantie of the land. 
 
 "But if the husband and wife were of covine and consent, c£r." 18 E. 4. ubi 
 Here it appeareth that covin and consent of the husband and su P ra - 
 wife doth hinder the remitter of the wife ; for covine and con- (3 Rep. 71.) 
 sent in many cases to do a wrong, doth choak a mere right, and 
 the ill manner doth make a good matter unlawfull. 
 
 "Covine." Covina, commeth of the French word ( P1 - 9 om : 54 ?- ) 
 r357.1 Odnvine, and is a secret assent J3@= determined in the ™sl imhlshe * 
 b. hearts of two or more to the defrauding and prejudice (Ant. 35. a. 
 
 of another. 4 Rep. 82. b. 
 
 F. N. B. 98. D.) 
 
 A woman is lawfully intitlcd to have dower, and she is of 44 E. 3. 46. 
 covine and consent, that one shall disseise the tenant of the land, ** Aa^g " 
 against whom she may recover her lawfull dower, all which is 19 H g 12# 
 done accordingly; the tenant may lawfully enter upon her, and 18 H. 8. 5. 
 avoid the recovery in respect of the covine. But if a disseisor, 1*3 J 1- ,^' 
 intruder, or abator, doe endow a woman that hath a lawfull title | 3 ^ ep ' 7 ; 
 of dower, this is good, and shall binde him that right hath, if pio. 51. a. ja. 
 there were no such covine or consent before the disseisin, abate- Ant - a5 - a -) 
 meat, or intrusion. 
 
 And so it is in all cases where a man hath a rightfull and just 41 Ass. p. 28. 
 cause of action ; yet if he of covine and consent doe raise up a 25 Ass. p. 1. 
 tenant by wrong against whom he may recover, the covine doth 15 ^ \'±\ a- 
 suffocate the right, so as the recovery, though it be upon a good 12 Ass. p. 10. 
 title, shall not binde or restore the demandant to his right. 
 
 If tenant in taile and his issue disseise the discontinuee to the 11 e. 4. 2. 
 use of the father, and the father dieth, and the land descendeth j-j E. 1. 23. 
 to the issue, he is not remitted against the discontinuee in respect .,., H " ( ." '" 
 he was privie and partie to the wrong : but in respect of all others 12 h. L 21. b. 
 he is remitted, and shall dcraigne the first warrantie. And so note 
 a man may be remitted against one, and not against another. 
 
 A. and B. joynteuants be intitlcd to a reall action against the 
 heire of the disseisor, A. cause the heire to be disseised, against 
 whom A. and B. recover and sue execution. B. is remitted, for 
 that he was not partie to the covine, and shall hold in common 
 with JL; but J., is not remitted, for the reason that Littleton 
 here sheweth. 
 
 "Because she is a disseisoresse." Nota, it is regularly true, J-g- B.179. &. 
 that a feme covert cannot be a disseisoresse by her commande- 35 A ' SS .Y 
 
 44 E. 3 9. 23. 13 Ass. 1. Temps E. 1. Waste, 128. 18 Ass. p. 7. 21 E. i. 53. 
 21 H. 7. 35. 3 II. 4. 17. (1 Roll. Abr. 278. 600. F. N. B. 117. G.) 
 
 ment 
 I and — or, L. and M. and Eoh.
 
 357. I). 358. a.J Of Remitter. L. 3. C. 12. Sect. 679-80. 
 
 merit or procurement precedent, nor by her assent or agreement 
 subsequent; but by ber actuall entry, or proper act, she may be 
 a disseisoresse. And therefore some doe bold that Littleton must 
 be intended, that the husband and wife were present when the 
 disseisin was done ; and others doe hold that Littleton is good 
 law, albeit she were absent ; for that if her procurement or 
 agreement be to doe a wrong, to cause a remitter unto her in 
 this speciall case, she shall faile of her end, and remitted she 
 shall not be : but in this speciall case she shall be holden as a 
 disseisoresse by her covine and consent quatenus to hinder the 
 remitter. And here it appeareth, that albeit the husband be of 
 covine and consent, &c. ; yet if the wife were not of covine and 
 consent also, she shall be remitted, because, as Littleton saith, 
 there was no default in the wife. 
 
 (4 Rep. 52.) Sect. 679. 
 
 A LSO, if such discontinues make an estate of freehold to the husband 
 and ivife by deed indented upon condition, scilicet, reserving^ to the 
 discontinue a certaine rent, and for default of payment a re-entrie,and 
 for that the rent is behind the diseontinuee enter; then for this entrie the 
 wife shall have an assise of novel disseisin, after the death of her hus- 
 band against the diseontinuee, because the condition was altogether 
 taken aivay, inasmuch as the wife was in her remitter; yet 
 the husband with his wife Jigf* cannot have an assise, be- T358.1 
 cause the husband is estopped, $-c. L a J 
 
 PL Com. in 1 T is hereby to be observed, that the wife is presently remitted 
 Amy Towns- \ aQ( j tuat tue conditions, and rents, and all other things an- 
 i2 D R.' S 2? aSe ' nexed to, or reserved upon the state (that is vanished and 
 tit. Remitter, 12. defeated by the remitter) are defeated also (1). 
 
 i&% Sect. 680, 681. 
 
 A LSO, if the husband discontinue the tenements of his wife, and take 
 backe an estate to him for life, the remainder after his decease to his 
 wife for terme of her life; in this case this is no remitter to the ivife during 
 the life of the husband, for that during the life of the husband the wife 
 hath nothing in the freehold. But if in this case the wife surviveth the 
 husband, this is a remitter to the wife, because a freehold in law is cast 
 upon her against her will (rnaugre le soen * ). And inasmuch as she 
 
 cannot 
 
 * soen — feme, Paper MS. 
 
 (1) VIII. The remitter defeats entirely the wrongful estate, and consequently 
 , r, ,ry thing annexed to or issuing out of it. See ant, Sect. 659. 665. 666. and 
 post. Sect, 686, 687. But an estate made of the land itself by him who is 
 remitted, as a lease for years, is not defeated by the remitter. — See Com. Dig. 
 tit. Remitter, B. 2. — [Note 313.]
 
 L. 3. C. 12. Sect. 681, 682. Of Remitter. [358. a. 358. b. 
 
 cannot have an action against any other person, and against her selfe 
 shee cannot have any action, therefore she is in her remitter. For in 
 this case, although the wife doth not enter into the tenements, yet a 
 stranger which hath cause to have an action, may sue his action against 
 the wife for the same tenements, because shee is tenant in law, albeit 
 that she be not tenant in deed. 
 
 beet. bbl. (Pio.«6.'b.) 
 
 JpOR tenant of freehold in deed is he, who, if hee be disseised of the 
 
 freehold (s'il soit disseisee de f franktenement), may have an assise: 
 
 but tenant of freehold in law before his entrie \. in deed shall not have an 
 
 assise. And if a man % be seised \\ of a certain land, § and 
 [358.1 hath issue a sonnewho taketh wife, and \CT the father dieth 
 L b - J seised, and after the Sonne dies before any entrie made by him 
 
 into the land, the wife of the sonne shall be endowed in the 
 land and yet he had no freehold in deed, but hee had a fee and freehold 
 in late. And so note, that a praecipe quod reddat may has well be main- 
 tained against him that hath a freehold in law, as against him that hath 
 the freehold in deed. 
 
 HERE five things are to be observed. First, that a remain- i« n. 8. 8. ^ 
 der expectant upon an estate for life worketh no remitter, ( ep- 
 but when it falls in possession ; for before his time he can have 
 no action, and no freehold is in him. Secondly, though the Vide^Sect. U?- 
 woman might waive the remainder, yet because she is presently fo ™ c 2 o6.'237. 
 by the death of the husband tenant to the praecipe, it is within Brittonj 83. b. 
 the rule of remitter, and her power of waiver is not materiall. Fleta, lib. 3. 
 Thirdly, that a freehold in law being cast upon the woman by JJJjjIi. b. 
 act of law without anything done or assented to by her, doth 2 30. a. 
 remit her, albeit she be then sole and of full age. Fourthly, Cro Car. 338. 
 that a praecipe lyeth against one that hath but a freehold in law. IIob - 2u0 ) 
 Fifthly, that a woman shall be endowed where the husband hath 
 the inheritance, and but a freehold in law, as hath been said in 
 the Chapter of Dower. 
 
 Sect, 682. 
 
 A LSO, if tenant in taile hath issue two sons of full age, and he letteth 
 the land tailed to the eldest son for term of life, the remainder to 
 the younger son for terme of his life, and after the tenant in taile dieth ; 
 in this case the eldest sonne is not in his remitter, because hee tooke an estate 
 of his father. But if the eldest die without issue of his bodie, then this 
 is a remitter to the younger brother, because he is heire in taih% and « 
 
 freehold 
 
 f son added in L. and M. and Roh. \\ in fee added in. L. and M. and 
 
 1 in deed, not in L. and M. or Roh. Roh. 
 
 X bee not in L. and M. or Roh. § and not in L. and M. or Roh.
 
 358. b. 359. a.] Of Remitter. L. 3. C. 12. Sect, 683, 684. 
 
 freehold in Into is escheated (A), and east upon him by force of the 
 remainder (et tin franktenementr en le ley est escheate, et jecte sur luy 
 per force de le remainder) and there is none against whom he may sue 
 his action*. 
 
 [a] 12 E. 4. 20. r\J? this opinion is [a] Littleton in our bookes; and of this 
 
 V/ sufficient bath beene said in the next Section before. See 
 
 [J] Sect. 6S4, hereafter [b] some explanation hereof. 
 685. 
 
 (2 Roll. Abr. ^ Sect 683< [359. J 
 
 TN the same manner it is where a man is disseised, and the disseisor 
 
 dieth seised, and the tenements descend to his heire, and the heir of 
 
 the disseisor make a lease to a man of the same tenements for term ofr 
 
 life, the remainder to the disseisee for terme of life, or in taile, or in 
 
 fee, % the tenant for life dieth, now this is a remitter, to the disseisee, $c. 
 
 causa qua supra, \. cfc. 
 
 AND this standeth upon the same reason that the cases in 
 the two Sections precedent doe. See the next Section 
 
 following. 
 
 Sect. 684. 
 
 § ^C~OTE, if tenant in taile infeojfe his sonne and another by his d< 
 
 of the land intailed, in fee and livery of seisin is made to the other 
 according to the deed, \\ and the son not knowing of this agreethnot to the 
 feoffment (et le fits rien conusant de ceo \ agreea a le feoffment), and 
 after hee ivhich tooJce the livery of seisin dieth, and the son doth not 
 occupie the land, nor taketh any profit of the land during the life of the 
 father, and after the father dieth, now this is a remitter to the sonm . 
 because the freehold is cast upon him by the survivor ; and no default 
 wus in him, because he did never agree, $c. in the life of his father, and 
 he hath none against whom he may sue a writ of formedon, <fc 
 
 * ] T should seeme by this marke, that this was an addition to 
 -1 Littleton; but it is of Littleton's owne worke, and agreeth 
 with the originall, saving the originall begun this Section thus ; 
 Aim if tenant in taile, &c. 
 
 "By 
 
 * &c. added in L. and M. and Roh. § Note— Also L. and M. and Roh. 
 
 f his added in L. and M. and Roh. || and not in L. and M. or Roh. 
 
 X and added in L. and M. and Roh. \ ne added in L. and 31. and Roh, 
 I &c. not in L. and M. or Roh. 
 
 (A) Here the word "escheated" is used in a general sense, and signifies "fallen to;" 
 though not by way of escheat in the strict legal meaning of the term. Mr. Bitso thinks 
 the translation should hare been " a freehold in law is eschewed (fallen to) and cast 
 upon him." See hi* Introd.p. 114.
 
 L. 3. C. 12. Sect. 685. Of Remitter. [359. a. 359. b. 
 
 "By his deed, &c." Here Littleton materially addeth by his ( An t. 49. b. 
 deed ; for if a man intendeth to [6] make a feoffment by parol ^-j x'emps h 8 
 to A. and B. and he and B. come upon the land, A. being Feoffments. 
 absent, and make livery to B. in the name both of B. and A. and Br. 72. 
 to their heires, this shall enure onely to B. ; for neither can a ^ ^ ^ * 
 man absent take livery, nor make livery, without deed. 15 e. 4. 18. 
 
 18 E. 4. 12. 22 H. 6. 12. 
 
 " And livery of seisin is made to the other according to the deed, (9 Rep. 136.) 
 &c." Note livery being made to one according to the deede, (Ant. 49. b.) 
 enureth to both, because the deed whereunto the livery re- 
 ferreth is made to both ; for the rule is, that Verba relata hoc 
 maxime operantur per referentiam ut in eis in esse videntur. 
 
 tS 59.1 Oif u And the son not knowing of this agreeth not to 
 b. J the feoffment." Here it appeareth, that if the sonne 
 be conusant, and agreeth to the feoffment, &c. this is 
 no remitter to him. And therefore if the feoffment were made 
 by deed indented, and the sonne with the other sealeth the coun- 
 terpart, and then the feoffee maketh livery to the other accord- 
 ing to the deed, and the other dieth, the son is not remitted, 
 because he was conusant of a feoffment, and agreed to the 
 same ; and Littleton saith in the case that he putteth, that there 
 was no default in the son, because he agreed not to the feoffment 
 in the life of the father ; and so it seemeth, that if A. be seised Vid. Sect. 682. 
 in taile, and have issue two sons, and by deed indented betweene 
 him of the one part, and the sons of the other part, maketh a 
 lease to the eldest for life, the remainder to the second in fee, 
 and dieth, and the eldest son dieth without issue, the second son 
 is not remitted, because he agreed to the remainder in the life 
 of the father, or if the like estate had been made by parol, if in 
 the life of the father the tenant for life had beene impleaded, and 
 made default, and he in the remainder had beene received, and 
 thereby agreed to the remainder, after the death of the father 
 and the eldest son without issue, the second son should not be 
 remitted, because he agreed to the remainder in the life of the 
 father ; all which is well warranted by the reason yielded by 
 our author in this Section. 
 
 Sect. 685. 
 
 T?OR if a man be disseised of certaine land, and the disseisour make a 
 deed of feoff ement whereby he infeoffeih B. C. and D. and liverie of 
 seisin is made to B. and C. but D. was not at the liverie of seisin, nor ever 
 agreed to the feoffment, nor ever would take the profits, $c. and after B. 
 and C. die, and D. survive them, and the disseisee bringeth his writ upon 
 disseisin in the per against D. hee shall shoiv all the matter (* il monstra 
 tout le matter), f how he never agreed to the feoff ement, and hee shall 
 discharge himself e of damages, so as the demandant shall recover no 
 
 dammages 
 
 * il — mesme celuy D., L. and M. f and added in L. and M. and 
 and Roh. Roh. 
 
 Vol. II.— 42
 
 359. b. 360. a.] Of Remitter. L. 3. C. 12. Sect. 686, 687. 
 
 dammages against him, although he be tenant of the freehold of the land. 
 And yet the statute of Gloucester, J cap. 1. will, that the disseisee shall 
 recover dammage in a writ of entrie founded upon a disseisin (en briefe 
 de entre, foundue sur § disseisin) against him which is found 
 tenant. And this is a proof e in the other case g@ n> that for as- ["360.1 
 much as the issue in taile came to the freehold, and not by this L a. 
 act (et || nemy per son fait) nor by his agreement, but after the 
 death of his father (f mes apres la mort son pier), therefore this is a 
 remitter to him, inasmuch as he cannot sue an action of formedon 
 against any other person, Sec. 
 
 (8 Rep. l. ^THIS case standeth upon the same reason that the next 
 
 ?6™" mwi. X P recedent case doth - 
 
 115. a. Plo. 365. " Against him tvhich is found tenant, &c." Here it appeareth, 
 that acts of parliament are to be so construed, as no man that is 
 innocent or free from injurie or wrong, be by a literall con- 
 struction punished or endamaged ; and therefore in this case, 
 albeit the letter of the statute is generally to give dammages 
 against him that is found tenant, and the case that Littleton here 
 putteth D. being survivor, is consequently found tenant of the 
 land ; yet because he waived the estate, and never agreed to the 
 feoffment, nor tooke any profits, he shall not be charged with 
 the dammages. 
 
 £**• Abr - Sect. 686, 687. 
 
 ALSO, if an abbot alien the land of his house to another in fee, and 
 the alienee by his deed charge the land with a rent-charge in fee, and 
 after the alienee infeoffe the abbot with licence, to have and to hold to the 
 abbot and to his successors forever, and after the abbot die, and another 
 is chosen and made abbot ; in this case the abbot that is the successor, 
 and his covent, are in their remitter, and shall hold the land discharged, 
 because the same abbot cannot have an action, nor a writ of entre sine 
 assensu capituli, of the same land against any other person (pur ceo que 
 mesme l'abbe, ne poit aver ascun action, \ ne briefe d 'entre sine assensu 
 capituli, de mesme la terre envers nul auter person). (1) 
 
 Sect. 687. 
 
 TN the same manner it is, where a bishop or a deane, or other such 
 person alien, $c. without assent, Sfc. and the alienee charge the land, 
 
 £e. 
 
 % cap. 1. not in L. and M. or Roh. || ceo added in X. ond M. and Rch. 
 § le novel added in L. and M. and f mes — que, L. and 31. and Roh. 
 Roh. ^[ ne de, L. and M. and Roh. 
 
 (1) Here Littleton begins to treat of remitter to bodies politic. — [Note 314.]
 
 L. 3. C. 12. Sect. 688. Of Remitter. [360. b. 361. a. 
 
 §c. and after the bishop takes bacJce an estate of the same 
 
 [3G0.1 land by licence, to him and his Jg@ Q ' sitccessours, and after the 
 D - J bishop dieth ; his successor is in his remitter, as in right of 
 his church, and shall defeat the charge, §c causa qua supra. 
 
 OUR author having spoken of remitters to singular or naturall 
 persons, as issues in taile, and to feme coverts, and to their 
 heires, and to them in reversion or remainder, and their 
 heires ; now he speaketh of remitters to bodies politike and in- 
 corporate, as to abbots, bishops, deanes, &c. And as discents 
 doe remit the heire which comes in the per, so succession doth 
 remit the successor, albeit he cometh in the post. And so in 
 other cases where the issue in taile of full age shall be remitted, 
 there in the like case shall the successor be remitted also, and 
 defeat all meane charges and incumbrances. 
 
 " With licence," &c. That is, of the king and the lords im- 
 mediate and mediate, to dispense with the statutes of mortmaine ; 
 whereof see more before, Sect. 140. 
 
 Sect. 688. 
 
 A LSO, if a man sue a false action against tenant in taile, as if one 
 will sue against him a writ of entrie in the post, supposing by his 
 writ that the tenant in taile had not his entrie but by A. of B. who dis- 
 seised the grandfather of the demandant, and this is false, and he re- 
 covereth against the tenant in taile by default, and such execution, and 
 after the tenant in taile dieth, his issue may have a ivrit of formedon 
 against him which recovereth ; and if he will plead the recoverie against 
 the tenant in taile, the issue may say, that the said A. of B. did not dis- 
 seise the grandfather of him which recovered, in manner as his writ sup- 
 pose, and so he shallfalsifie his recovery (et issint il fauxera * le recoverie). 
 And admit this were true, that the said A. of B. did disseise the grand- 
 father of the demandant which recovered, and that after the disseisin, 
 the demandant, or his father, or his grandfather by a deed 
 |~361. ~| had released to the tenant in taile all the right which hee had 
 L a - J in the g@ D> land, §c. and notwithstanding this hee sucth a writ 
 of entrie in the post against the tenant in taile, in maimer as 
 is aforesaid, and the tenant in taile plead to him that the said A. of B. 
 did not disseise his grandfather, in such manner as his writ suppose ; 
 and upon this they are at issue, and the issue is found for the demandant, 
 whereby he hath judgment to recover^ and sueth execution; and after the 
 tenant in taile dieth, his issue may have a writ of formedon against him 
 that recovered; and if he will plead the recovery by the action tried 
 against his father § who was tenant in taile, then he may shew and plead 
 the release made to his father, and so the action which was sued, feint in 
 
 law\. 
 
 11 HE 
 
 * le — son, L. and M. and Roh. f &c. added in L. and M. and 
 
 § who was, not in L. and M. or Roh. Roh.
 
 381. a. 361. b.j Of Remitter. L. 3. C. 12. Sect. 689, 690. 
 
 » TTE recovereth against tlie tenant in taile by default." Lit- 
 
 [c] 12 E. 4. 19. -*-*■ tleton addeth (by default) because if the [c] recovery passed 
 
 13 E. 4. 3. udou an issue tried by verdict, he shall never falsifie in the 
 7 II 4. 17. ' point tried, because an attaint might have been had against the 
 
 14 II. 7. 10, 11. jurors; and albeit all the jurors be dead, so as the attaint doe 
 28 Ass. 32. 52. f a il e> y e t the issue in taile shall not falsifie in the point tried, 
 10 11**6. 5. which, untill it be lawfully avoided, pro veritate acclpltur. As 
 19 H. 6. 39. if the tenant in taile be impleaded in a formedon, and he tra- 
 Brooke, tit. verseth the gist, and it is tried against him, and thereupon the 
 R^niorfa w demandant recover ; in this case the issue in taile shall not 
 
 rtocoverie, so. . • ■« . i e -\ • n -\ i_ 
 
 l-j II. 6. 28. falsifie in the point tried; but he may falsine the recovery by 
 
 34 II. o. 2. an y other matter; as that the tenant in taile might have pleaded 
 a collatcrall warrantie, or a release, as Littleton here putteth 
 
 Fauxef.de the case, or to confesse and avoid the point tried. And Lit- 
 
 Reuoverie, 27. tleton s case holdeth not only in a recovery by default, whereof 
 
 iJEUrtlRe he speaketh, but also upon a nihil dicet, or confession or de- 
 
 443.) murrer. 
 
 Sect, 689. 
 
 AND it seemeth, that a faint action is as much to say in English a 
 fained action, that is to say such an action as albeit the words of the 
 writ be true, yet for certaine causes hee hath no cause nor title by the laio 
 to recover by the same action. And a false action is, where the words of the 
 writ bee false. And in these two cases aforesaid, if the case were 
 such, that after such recovery, and execution J^g 01 thereupon [~361.1 
 done, the tenant in tayle had disseised him that recovered, and l_ D - J 
 thereof died seised, whereby the land descended to his issue, this 
 is a remitter to the issue, and the issue is in by force of the taile ; and for 
 this cause I have put these two cases precedent, to enforme thee (my sonne) 
 that the issue in taile by force of a discent made unto him after a recovery 
 end execution made against his ancestour (apres un recovery et execution 
 * fait envers son auncester), may be as well in his remitter, as he should 
 be by the discent made to him after a discontinuance made by his ances- 
 tour of the entayled lands by feoff ment in the countrie, or otherwise, §c. 
 
 HERE Littleton explaineth what a faint action is, and what a 
 false action is, which is plaine and perspicuous. And here 
 it is to be observed, that a remitter may be had after a recovery 
 upon a faint action by a disseisin and a discent, as well as by a 
 discent after a discontinuance by a feoffment, &c. 
 
 Sect. 690. 
 
 A LSO, in the cases aforesaid, if the case ivere such, that after that 
 
 the demandant have judgment to recover against the tenant in tayle, 
 
 and the same tenant in tayle dieth before any execution had against him, 
 
 whereby the tenements descend to his issue, and he who recover •ethsueth a 
 
 scire 
 
 * ent added in L. and M. and Boh.
 
 L. 3. C. 12. Sect, 690. Of Remitter. [361. b. 362. a. 
 
 scire facias out of the judgement to have execution of the judgement 
 against the issue in taile, the issue shal plead the matter as aforesaid; 
 and so prove that the f said recovery was false or faint in law, and so 
 shall barre him to have execution of the judgement J. 
 
 HERE it appeareth, that if a judgement be given against a 28 Ass. 32. 
 tenant in taile upon a faint or false action, and tenant in taile 34 Ass. pi. 7. 
 die before execution, no execution can be sued against the issue jj 5* 3 - gjP' 95 " 
 in tayle. But if in a common recoverie judgement bee had against 7 jj. 4. 17. 
 tenant in tayle where he voucheth, and hath judgement to recover 33 E. 3. 
 over iu value, albeit the tenant in tayle dyeth before execution, f-J 1 ^ 16 ^ ."/" 31 ' 
 yet the recoveror shall execute the judgement against the issue in 10 h! 6." 6. ' 
 tayle in respect of the intended recompence ; and for that it is the 12 E. 4. 30. 
 common assurance of the realme, and is well warranted [77] by i«5r.^" 1L 
 our bookes, and was not invented by justice Choke, who was a D j er 3 ' 76 
 
 grave and learned judge in the time of E. 4. (as some Lib. foL 106. 
 r36-2."| hold by tradition); but it may bee J8@~ that it was Shelley's case, 
 |_ a. I upon former authorities and opinions of judges dis- , c ' ro °^' r gg g 
 covered by him, assented unto by the rest of the judges, pio. 14.) 
 
 See hereafter 
 Sect. 709. 15 E. 3. Briefe, 324. 42 E. 3. 53. 44 E. 3. 21. 48 E. 3. 11. 1 E. 4. 5. 
 5 E. 4. 2. [d] 12 E. 4. 20. Dier, 23 Eliz. 376. Lib. 10. fol. 37, 38. in Mary Turl- 
 ington's case. 
 
 If a recoverie bee had against tenant for life without consent 5 Ass. 3. 5 E. 3. 
 or covine, though it be without title, and execution be had, and Eptre Con s- 42. 
 tenant for life dieth, the reversion or remainder is discontinued, 1( !' gi^ViUiam 
 so as he in the reversion or remainder cannot enter; but if such Peiham's case, 
 a recoverie be had by agreement and covine betweene the de- (6 Rep. 8. b. 
 mandant and the tenant for life, then, as hath beene said, it is a Ant - 3oG - *•> 
 forfeiture of the estate for life, and he in the reversion or re- 
 mainder 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 as- 
 surance, whereof the law taketh knowledge. Since Littleton 
 wrote, there were two statutes [e] made for the preservation of re- j- e -j 32 n. s. 
 mainders and reversions expectant upon any manner of estate for cap. 31. 
 life; the one in 32 //. 8. the other in 14 Eliz. : but 32 II. 8. f| e ^ iz jJJ p ' S ' 
 extended not to recoveries, when tenant for life came in as lo^Rep.W.) 
 vouchee, etc. and therefore that act is repealed by 14 Eliz. and 
 full remedic' provided for preservation of the entrie of them in 
 reversion or remainder. But the statute of 14 Eliz. extendeth 
 not to any recovery, unless it be by agreement or covine. Se- 
 condly, [/] if there be tenant for life, remainder in taile, the r/] Lib. 3. 
 reversion or remainder in fee, if tenant for life be impleaded by fol. 60, 61. 
 agreement, and he vouche tenant in taile, and he vouch over the LincolneCo 
 
 1 ,.ini 1 • i lego case. 
 
 common vouchee, this shall barre the reversion or remainder in 
 fee, although he in the reversion or remainder did never assent 
 to the recovery; because it was not the intent of the act to ex- 
 tend to such a recovery, in which a tenant in taile was vouched ; 
 for he hath power by common recovery, if he were in possession, 
 to cut off all reversions and remainders. And so if tenant for life 
 had surrendered to him in remainder in taile, he might have 
 barred the remainders and reversions expectant upon his estate. 
 Thirdly, where the proviso of that act speaketh of an assent of 
 
 record 
 
 f said not in L. and M. or Rob. J &c. added in L. and M. and Roh.
 
 362. a. 362. b.] Of Remitter. L. 3. C. 12. Sect. 691. 
 
 record by him in reversion or remainder, it is to be understood, 
 that such assent must appeare upon the same record, either upon 
 a voucher, aid prier, receit, or the like ; for it cannot appeare of 
 
 (2 Roll. Abr. record, unlesse it be done in course of law, and not by any 
 
 23. 146.) extrajudicial! entrie, or by memorandum. 
 
 Sect. 691. 
 
 A LSO, if tenant in taile discontinue the taile, and dieth, and his issue 
 bringeth his writ o/formedon against the discontinuee (being tenant 
 of the freehold of the land) and the discontinuee plead that he is not 
 tenant, but utterly disclaymeth from the tenancy in the land ; in this 
 case the judgement shall be, that the tenant goeth without day, and after 
 such judgement the issue in the tayle that is demandant may enter into 
 the land, notwithstanding the discontinuance, and by such entrie hee 
 shall be adjudged in his remitter. And the reason is, for that if any 
 man sue a praecipe quod reddat against any tenant of the freehold, in 
 which action the demandant shall not recover damages, and the tenant 
 ■pleads nontenure * or otherwise disclaime in the tenancie, the demand- 
 ant cannot averre (ne poit averrer)Ats writ,^ and say that hee is tenant, 
 as the writ supposeth. And for this cause the demandant after that 
 judgement is given that the tenant shall goe without day, may enter 
 into the tenements demanded, the which shall bee as great an advantage 
 to him in law, as if he had judgement to recover against the tenant, and 
 by such entrie hee is in his remitter by force of the entaile. But where 
 the demandant shall recover damages against the tenant, there the de- 
 mandant may averre, that he is tenant, as the writ supposeth, and that 
 for the advantage of the demandant to recover his dammages, or other- 
 wise he shall not recover his dammages, which are J or were given to 
 him by the law. 
 
 (Doet. Pla. 133.) Tl ERE it appcareth, that upon the plea of nontenure, or of 
 ItniWa disclaimer of the tenant in a formedon in the discender, 
 
 6 E. 3.8. ' albeit the expresse judgement be that the tenant shall goe with- 
 
 4 E. 4. 38. out day, yet in j udgement of law the demandant may enter accord- 
 (3 Rep. 26.) j Q g tQ t k e ti t i e f hi s wr it, and bee seised in tayle, notwithstand- 
 Vi'aJ Bracton, i Q g <-be discontinuance. And here, Littleton saith, the demandant 
 lib. 5. fol. 43l', shall be adjudged in his remitter ; where he taketh remitter in 
 4:;2. A 414. a large sense: for in this case the demandant hath not two 
 Brxtton, cap. . j^ts, but hath onely one antient right, and restored to the same 
 
 by course of law : and so remitter here is taken for a recon- 
 tinuance of the right. 
 
 0£/~ l( In which action the demandant shall not recover r36£J.~| 
 
 damages." Here is to bee observed, that iu such a prse- |_ b. | 
 
 cipe where the demandant is to recover dammages, if 
 
 [/•]13H. 7. 28. the tenant pleade non-tenure or disclaime, [/] there the de- 
 
 86 H. 6.29. uiandant may averre him to be tenant of the land, as his writ 
 
 fnWf' suppose for the benefit of his damages, which otherwise he should 
 
 5 e'. 4.' 1. ' 6 E. 3. 8. (7 Rep. 40.) 
 
 lose, 
 
 * or — out) L. and M. and Roh. J or were not in L. and M. or Rob. 
 
 f and say, not in L. and M. or Roh.
 
 L. 3. C. 12. Sect. 692. Of Remitter. [362. b. 363. a. 
 
 lose, or pray judgement and enter. [#] But where no damages [g] 8 E. 3. 401. 
 
 are to bee recovered, as in zformedon in the discender, and the 24 E. 3. 9.^ ^ 
 
 like, there hee cannot averre him tenant, but pray his judge- 7 H " 6 ' 17 ' 
 
 ment and enter, for thereby hee hath the effect of his suite : Et 5 E. 4. 1. 
 
 frustrafitper plura, quod fieri potest per pauciora. Doft* Plaf 49 ) 
 
 " Averrer." To averre or avouch, or verifie, verificare, 
 whereof commeth verificatio, an averment; and is so said as well 
 in English as in French ; and is two-fold, viz. generall and par- 
 ticular. A generall averment, which is the conclusion of every 
 plea to the writ, or in barre of replications and other pleadings (Ant. 303. a.) 
 (for counts or avowries in nature of counts need not be averred) 
 containing matter affirmative, ought to bee averred, et hoc 
 paratus est verificari, &c. Particular averments are, as when 
 the life of tenant for life, or tenant in taile, are averred; and 
 there, tho' this word (verificare) be not used, but the matter 
 avouched and affirmed, it is upon the matter an averment. 
 And an averment containeth as well the matter as the forme 
 thereof. 
 
 " That the tenant shall goe without day." Quod tenens eat sine (9 Rep. 7 
 die. This is the entrie of the judgement in that case, that the feuL - 65 -< 51u ^ 
 tenant shall goe without day, that is, to be discharged 
 
 [363.1 of further attendance; and this isfigT 1 sometimes finall 
 a. I for that action, whereof Littleton here putteth an exam- 
 ple ; and sometime temporarie, whereof Littleton also 
 hath put an example : as when excommengement is pleaded in Vid. Sect. 201. 
 disabilitie of the plaintiffe or demandant, there the award is, that ( 8 Re P- 68 -) 
 the tenant or defendant shall goe without day ; and yet when the 
 demandant or plaintiffe have purchased his letters of absolution, 
 upon shewing them to the court, he may have a resummons or 
 reattachment to recontinue the cause againe. But it is to be 
 knowne, that when judgement is given for the tenant or defendant 3 H. 4. 2. 11. 
 upon a plea in barre, or to the writ, &c. the judgement is all one, 
 viz. quod tenens, or defendens eat inde sine die, and shall have 
 reference to the nature and matter of the plea, and so be taken 
 either to goe in barre, or to the writ. So when judgement is (Ant 135. b.) 
 given against the plaintiffe, either in barre of his action, or in 
 abatement of his writ, &c. the judgement is all one, viz. nihil 
 capiat per breve; and it appeareth by the record whether the plea 
 did goe in barre, or to the writ. And the cause of the judge- 
 ment is never entred in the record in any case ; for that upon 
 consideration had of the record it appeareth therein. 
 
 OLCL. UtJ^. j Rol i. Abr. 631. 
 
 fDoct. Pla. 133.) (3 Lev. 330.) 
 
 A LSO, if a man be disseised, and the disseisor die, his heire being in 
 by discent, now the entrie of the disseisee is taken away ; and if the 
 disseisee bring his writ of entrie sur disseisin in the per, against the heire, 
 and the heire disclaime in the tenancie, £c. the demandant may averre his 
 writ that hee is tenant as the writ suppose, if he will, to recover his dam- 
 mages: but yet if hee will relinquish the averment, $c. he may lawfully 
 enter into the land because of the disclaimer, notwithstanding that his 
 
 entrie
 
 363. a. 363. b.] Of Remitter. L. 3. C. 12. Sect. 693. 
 
 entrie before was taken away. And this was adjudged before my mas- 
 ter sir R. Danby, late chief e justice of the common place, $c. and his 
 companions, §c. 
 
 u A LSO if a man be disseised, &c." Albeit in this case, and 
 -^ in the case before, the entrie of the demandant in his owne 
 act, and the demandant hath no expresse judgement to recover, 
 36 H. 6. f. 29. yet shall he be remitted ; because he in judgement of the law- 
 shall be in according to the title of his writ, and by his entrie 
 defeat the discontinuance, and consequently is remitted to his 
 antient estate. 
 5 E. 4. 41. " Sir Robert Danby," knight, was a gentleman of an ancient 
 
 4 E. 4. 38. an( j f a j re descended family, and chiefe-justice of the court of 
 
 common-pleas; a grave, reverend, and learned judge, 
 O^T of whom our author speaketh herewith very great r363.1 
 reverence, as you may perceive. And here is to be [_ b. J 
 noted how necessarie it is, after the example of our 
 author, to observe the judgements and resolutions of the sages 
 of the law. 
 
 Sect. 693. 
 
 A LSO, where the entrie of a man is congeable, although that he takes 
 an estate to him when hee is of full age for terme of life, or in taile, 
 or in fee, this is a remitter to him, if such taking of the estate be not by 
 deed indented, or by matter of record, which shall conclude or estop 
 him (que * concludera ou estoppera). For if a man be disseised, and 
 takes backe an estate from the disseisor ivithout deed, or by deed poll, 
 this is a remitter to the disseisee ( Car si home soit disseisie, et t reprent 
 estate de le disseisor sans fait, on per fait" polle, ceo est J un remitter 
 al disseisee), || §c. 
 
 29 Ass. p. 26. TTERE appeareth a diversitie betweene a right of entrie and 
 
 43 As?, p. 3. XI a right of action ; for if a man of full age having but a right 
 
 ^hV 19° °*" act i° n takcth an estate to him, hee is not remitted : but where 
 
 40 E. 3. 43. hee hath a right of entrie, and taketh an estate, he by his entrie 
 
 (Sect. 683.) i s remitted, because his entrie is lawfull. And if the disseisor 
 
 ^ A °t > 49 6 i> m ^ eo ^ e tne disseisee and others, the disseisee is remitted to the 
 
 350. a.) whole, for his entrie is lawfull : otherwise it is if his entrie were 
 taken away. 
 
 8 R. 2. Quar. " Where the entrie is congeable." A. is disseised of a mannor, 
 
 imp. 199. whereunto an advowson is appendant, an estranger usurpes to the 
 
 c tt \ i advowson, if the disseisee enter into the mannor, the advowson is 
 
 8 H. o. 17. .,. 1*1 lii • aj 
 
 21 II. 6. 2. recontinued againe, which was severed by the usurpation. And 
 
 3 II. 4. 8. s0 it is if tenant in tayle be of a mannor whereunto an advow- 
 
 3"H 6 is' 16 son is appendant, the tenant in taile discontinueth in fee, the 
 26 II. 8. 4. F. N. B. 36. f. & 35. b. (3 Rep. 3. b. Sect. 661.) 
 
 discontinuee 
 
 * luy added in L. and 31. and Roh. J un — bon, L. and M. and Roh. 
 f reprent — ent prent, L. and M. and \\ &c. not in L. and M. or Roh. 
 Roh.
 
 L. 3. C. 12. Sect. 694, 695. Of Remitter. [363. b. 364 a. 
 
 discoatinuee granteth away the advowson in fee, and dietb, the 
 issue in tayle recontinueth the mannor by recoverie, he is thereby 
 remitted to the advowson ; and in both cases hee that right hath 
 shall present when the church becomraeth voyd. 
 
 The patron of a benefice is outlawed, and the church becom- 22 Ass. p. 33. 
 tneth voyd, an estranger usurpeth, and six moneths passe, the Theobald Grin- 
 king doth recover in a quare impedit, and remove the incumbent, v ii e . 
 &c. the advowson is recontinued to the rightfull patron. And (3 Rep. 3.) 
 so note a diversitie bctweene a recontinuance and a remitter; 
 for a remitter cannot be properly, unlesse there be two titles; 
 but a recontinuance may be where there is but one. 
 
 "By deed indented, &c." Here it appeareth that if the dis- 13 n. 4. 5. 
 
 seisor by deed indented make a lease for life, or a gift in taile, ^ *[• *• g * 
 
 or a feoffment in fee, whereunto liverie of seisin is requisite ; 12 h. 4. 19. 
 
 yet the deed indented shall not suffer the liverie made according 35 Ass. 8. 
 
 to the forme and effect of the indenture, to work any remitter ^ Ass. 3^ 
 
 to the disseisee, but shall estop the disseisee to claime his former 43 b. 3.17. 
 
 estate ; and if the disseisor upon the feoffment doth reserve any Parker's case, 
 
 rent or condition, &c. the rent or condition is good; and the i 4 s ^' 3 ' 10 
 
 reason wherefore a deed indented shall conclude the taker more 2 i H. 6. 2. 
 than a deed poll, is, for that the deed poll is only the deed of Per Paston. 
 the feoffor, donor, and lessor ; but the deed indented is the deed 8 H- c 6 o " ti 1 g ^ ere 
 
 of both parties, and therefore as well the taker as the giver is Jq Roll Abr " 
 
 concluded. 863. 878. 
 
 " Or by matter of record." As by fine, deed indented and in- 
 rolled (A), and the like. 
 
 4 Rep. 52.) 
 
 [ 3 ^-J b@t Sect, 694. 
 
 A LSO, if a man let land for terme of life to another, who alieneth to 
 another in fee, and the alienee make an estate to the lessor, this is a 
 remitter to the lessor, because his entrie was eongeable, * <fc. 
 
 This is evident enough upon that which hath bcene said. 
 
 Sect, 695. ( Hob - 256 -> 
 
 A LSO, if a man be disseised, and the disseisor let the land to the dis- 
 seisee by deed pol, or without deed, for terme of yeares, by which the 
 disseisee entreth, this entrie is a remitter to the disseisee. For in such case 
 where the entrie of a man is eongeable, and a lease is made to him, albeit 
 that he claimeth by words in paiis, that he hath estate by force of such 
 lease, or saith openly, that he claimeth nothing in the land but by force of 
 
 such 
 
 * dx. not in L. and M. or Roh. 
 
 (A) Vid. ante 251. b. where lord Coke makes a distinction between a matter of record, as 
 a fine, and a deed recorded, as a deed inrolled. See also ante 362. a.
 
 364. a. 364. b.] Of Remitter. L. 3. C. 12. Sect. 696. 
 
 such lease, yet this is a remitter to him, for that such disclaimer in paiis 
 (tiel f disclaimer en le paiis) is nothing to the purpose. But if hee dis- 
 claime in court of record, that he hath no estate but by force of such 
 lease, and not otherwise, then is he concluded (Mes s'il % disclaimer en 
 court de record, que il || n'ad estate forsque per force de tiel lease, et 
 nemy auterment, donque il est conclude,) $c. 
 
 (3 Rep. 25.) TT ERE appeareth a diversitie between a claim in paiis of an 
 J---L estate, and a claiine of record, for a claim in paiis shall not 
 hinder a remitter. Otherwise it is of a claime of record, because 
 that doth worke a conclusion. 
 
 Sect. 696. 
 
 ALSO, if two joyntenants seised of certaine tenements in fee, the one 
 being of full age, the other within age, bee disseised, * $c. and the 
 disseisor die seised, and his issue enter, the one of the joyntenants being 
 then within age, and after that he commeth to full age, the heire of the 
 disseisor letteth the tenements to the same joyntenants for terme of their 
 4- two lives, this is a remitter {as to the moietie) to him that was within 
 age, because hee is seised of the moietie which belongeth to him in fee, 
 for that his entrie was congeable. But the other joyntenant hath in the 
 other moity an estate for terme of his life by force of the lease, because 
 his entry ivas taken away, Sfc. 
 
 (2 Inst. 308.) T7 ERE note a diversitie worthy the observation, that where 
 ■A--*- joyntenants or coparceners have one and the same remedie, 
 if the one enter, the other shall enter also : but 
 UST" where remedies bee severall, there it is otherwise. r364.~| 
 10 H. 6. 10. As if two joyntenants or coparceners joyne in a reall L D - 
 19 w' fi' 4 - 5 ' action, where their entrie is not lawfull, and the one is 
 Ent. Cone. 54. summoned and severed, and the other pursueth and recovereth 
 the moitie, the other joyntenant or coparcener shall enter and 
 take the profits with her, because their remedie 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 recover her moitie, the other shall not enter with her, 
 because their remedies were severall (A) : and yet when both 
 have recovered, they are coparceners againe. So here in this 
 case that Littleton putteth, the two joyntenants have not equall 
 remedie ; for the infant hath a right of entrie, and the other a 
 right of action ; and therefore the infant being remitted to a 
 moitie, the other shall not enter and take the profits with her. 
 
 If 
 
 f disclaimer — clayme, L. and M. \\ n'ad — ad, L. and M. and Roll, 
 
 and Roh. * &c. not in L. and M. or Roh. 
 
 | disclaimer — clayme, L. and M. \. two not in L. and M. or Roh. 
 and Roh. 
 
 (A) The reason for which their remedies were several is explained ante 164. a. In com- 
 menting upon the statute of Gloucester, cap. 6. lord Coke observes, that if two coparceners be 
 disseised, the one hath issue and die, the aunt and the niece shall not join, for they hare not 
 one right, but several, and therefore they must have several actions, but when they have 
 recovered they shall hold in coparcenary. 2 Inst. 308.
 
 L. 3. C. 13. Sect. 697. Of Warrantie. [361 b. 365. a. 
 
 If A. and B. joyntenants in fee, be disseised by the father of 
 A. who dieth seised, his sonne and heire entreth, he is remitted 
 to the whole, and his companion shall take advantage thereof. 
 Otherwise here in the case of Littleton, for that the advantage is 
 given to the infant, more in respect of his person than of his 
 right; whereof his companion shall take no advantage. But if 
 the grandfather had disseised the joyntenants, and the land had 
 descended to the father, and from him to A. and then A. had 
 died, the entrie of the other should be taken away by the first 
 discent; and therefore he should not enter with the heire of A. 
 
 But here in the case of Littleton, if after the discent the other Vide 35 As?, 
 joyntenant had died, and the infant survived, some say that he p " u ltn 
 should have entred into the whole, because hee k now, in judge- 
 ment of law, solely in by the first feoffment, and he claimeth 
 not under the discent. 
 
 Chap. 13. Of Warrantie. Sect. 697. 
 
 TTis commonly said, that there bee three warranties, scilicet, warrantie 
 lineall, warrantie collaterall, and warrantie that commence by dissei- 
 sin. And it is to be understood,, that before the statute of Gloucester all 
 warranties tvhich descended to (B) them which are heires to those who 
 made the warranties, were barres to the same heires to demand any lands 
 or tenements against the warranties, except the warranties which com- 
 mence by disseisin ; for such warrantie was no barre to the heire, for that 
 the warrantie commenced by wrong, viz. by disseisin. 
 
 "TTis commonly said." Here by the opinion of Littleton, Vide Sect. 288. 
 communis opinio is of authoritie, and stands with the (Vaughan, 375.) 
 
 T365. ~| ru l e °f law, ^4 communi ohservantia not est 8&T rece- (i Rep. 1.) 
 a. I dendum: and againe, Mineral mutanda sunt quae, cer- 
 tain habuerunt interpretaiionem. 
 Here our author beginncth this Chapter with an exact division 
 
 of warranties. A warrantie is a covenant reall annexed to lands 
 
 or tenements, whereby a man and his heires are bound to Bract, lib. 2. 
 
 warrant the same ; and cither upon voucher, or by judgement fol. 37. Lib. 5. 
 
 in a writ of warrantiae cartas to yeeld other lands and tenements £1-380,381. 
 
 (which in old bookes is called in excambio) to the value of those Gi anv ill. lib. 3. 
 
 that shall bee evicted by a former title, or else may bee used by eap. 1, 2. 3. 
 
 c i mi /i\ Lib. 7. ea. 2, 3. 
 
 way of rebutter (1). ,., q .' 
 
 J n. ' it T> 1 i >> JjM). J. III. *. 
 
 hebouter, Britton> ca . 10 5. 
 fol. 249, 250, &c. & fol. 88. 106. b. 190, 197. Flota, lib. 5. cap. 15. Lib. 0. cap. 23. 
 Mirr. cap. 2. § 17. 38 E. 3. 21. 45 E. 3. 18. 
 
 (B) Vid. ante Sect. 601, and the note under (A) there. 
 
 (l)The doctrine of warranty was formerly one of the most interesting and 
 useful articles of legal learning; but the effect and operation of warranties 
 having by repeated acts of the legislature, been reduced to a very narrow 
 compass, it is become in most respects a matter of speculation rather than of
 
 365. a.] Of Warrantie. L. 3. C. 13. Sect. 697. 
 
 (Ant. 303. b. « Rebouter," is a French word, and is in Latine repellere, to 
 
 2 Roll. Abr. ropell or barre ; that is, in the understanding of the common law, 
 
 Cro'. Jac. 4.) the action of the heire by the warrantie of his ancestor ; and this 
 
 use. In some instances, however, warranties have still a powerful influence on 
 our landed property; and there is no part of our jurisprudence to which the 
 ancient writers have more frequently recourse to explain and illustrate their 
 leo-al doctrines. Hence abstruse, and in most respects obsolete, as the learning 
 respecting it unquestionably is, it continues to deserve the attention of every 
 person who wishes to obtain accurate notions of those branches of our laws, 
 which are more immediately connected with the doctrines that respect the 
 alienation of landed property. 
 
 In the civil law warranty is defined, the obligation of the seller to put a stop 
 to the eviction, and other troubles which the buyer suffers, in the property pur- 
 chased. Eviction is defined to be the loss which the buyer suffers, either of 
 the whole thing that is sold, of a part of it, by reason of the right which a 
 third person has to it. The other troubles are those which, without touching 
 the property of the thing sold, diminish the right of the purchaser ; as if any 
 one pretends a right to the usufruct of the lands sold, to a rent issuing out of 
 them, to a service, or any other thing of the like nature. The buyer being thus 
 evicted or troubled in his possession, has his recourse to the seller to warrant 
 him. This warranty is either in lav:, being that security which every seller is 
 bound to give for maintaining the buyer in the free possession and enjoyment 
 of the thing sold, although the sale makes no mention of it; or in deed, being that 
 kind of particular or conventionary warranty, which the seller and buyer 
 regulate among themselves. See Domat. 1. i. tit. 2. § 10. By the practice of 
 the Roman law, the buyer might, immediately after the eviction or trouble, 
 give notice of it to the seller, who then, if he thought proper, might make 
 himself a party to the action, and defend it ; but till the sentence was pro- 
 nounced, the buyer could not bring his action of warranty against the seller ; 
 and the action was brought before the judge of the place in which the seller 
 was domicilated. But the practice is different in the courts of law in France. 
 There tire buyer, when he gives notice of the action to the seller, may bring 
 his action of warranty against him before the judge, before whom the. original 
 action is brought; and if he cannot defend the action, the judge condems him 
 to indemnify the seller, by the same sentence by which he pronounces in favour 
 of the plaintiff in the original cause. See Fothier Traite des Contracts de 
 Ycnte, partie 2. c. 1. sect. 2. art. 5. § 2. The first warrantor may call upon 
 another to warranty; he in the same manner may call upon a third. But to 
 prevent the delays which must unavoidably ensue from multiplying warranties, 
 a fourth warrantor is not permitted to intervene, except in particular circum- 
 stance. The degrees also must be observed. ' Each person must vouch his own 
 immediate warrantor, as it is not lawful for him to vouch any of the ulterior 
 warrantors. After the warrantor has entered into the warranty, the person 
 warranted may either proceed in his defence jointly with the warrantor, or leave 
 the cause to him solely. The sentence binds them both equally. _ If the par- 
 son against whom the action is brought be evicted or troubled in his posses- 
 sion by the sentence of the judge, he has a claim upon the warrantor for a com- 
 plete indemnification. Sometimes the precise sum to be paid by way of indemnity 
 is fixed and agreed to by the parties upon the making of the contract ; but 
 penal obligation of this nature are greatly discountenanced by the laws of 
 France. It is always in the breast of the judge to moderate or increase them; 
 but they cannot be increased either by the express contract of the parties, or 
 the equity of the judge, to more than double of the property evicted. See 
 Traite des Evictions et de la Garantie Formelle, par Mom. Berthelot, 2 vol. 
 
 oct. Paris, 1781. 
 
 ' The
 
 L. 3. C. 13. Sect. 697. Of Warrantie. [365. a. 
 
 is called a rebut or repell. [c] Britton saith, Garranter en un W Britton, foL 
 sence signifie a defender son tenant en sa seisin, et en aider sence 
 sixjnifie que si il ne le defende, que le y arrant luy soit tenue a 
 
 eschanges, 
 
 The warranty treated of by Littleton in this Chapter, is evidently of feudal 
 extraction, being derived from the obligation which the lord was under, by 
 that system of polity, to defend his tenants title to the land against all claim- 
 ants. If the tenant was evicted, the lord was bound to make him a recom- 
 pense, by giving him lands of equal value to those evicted from him. The 
 doctrine and practice of warranty, in the early ages of the feudal law, is thus 
 set forth in the book of the Fiefs, tit. 25. It is there stated that a vassal held 
 a fief from the lord, and being disturbed in his possession of it, called upon 
 the lord to defend him. The lord refused to appear before the judge, by 
 which the vassal lost his cause. The vassal thereupon demanded a recom- 
 pense from the lord. The lord said in answer that the vassal never held the 
 fief, nor received the investiture of it from him. The vassal replied, that he 
 held the fief from the lord, and had been invested with it by him ; that he had 
 called upon the lord to defend the possession on the trial, and that the lord 
 did not then deny the lands being held of him. All this the vassal proved 
 by proper witnesses. Upon this case it was held, that when a vassal is dis- 
 turbed in the possession of his fief, if he calls on the lord to defend him, and 
 it appears on the trial that the lord invested him with a fief that did not 
 belong to him, the lord is bound either to give him another fief of equal value, 
 or the price of it in money; and that he is bound to do this as soon as it 
 clearly appears that the vassal will be evicted of the fief; but that if the lord 
 denies that the fief is held of him, and that the vassal, or any of his ancestors, 
 were invested with it by him, and the vassal proves those facts, either by an 
 instrument properly authenticated, or by the peers of the court, the lord must 
 give him another fief 5 or may be put to his oath, that neither the vassal nor 
 any of his ancestors held the fief from, or were invested with it by him, or any 
 of his ancestors. If the lord does this he is to be acquitted. — Sir Martin 
 Wright seems to question whether the lord's obligation to protect or defend 
 the feudatory, made him anciently liable upon eviction (without any fraud 
 or defect in him) to compensate the loss of the fief. He observes, that it 
 can hardly be imagined that while feuds were precarious, and held at the will 
 of the lord, or indeed, that while they were generously given, without price 
 or stipulated render, the lord should be subject to such a loss; especially since 
 it is likely that the lord's obligation upon eviction rather prevailed upon the 
 reason of contracted and improper feuds, than from the nature of a pure 
 original feud. He observes, that none of the ancient feudists make any such 
 distinction but that all of them suppose the lord's obligation upon eviction to 
 have been general ; yet he asserts they must be understood to speak of the 
 times in which they wrote, when improper feuds chiefly prevailed. See 
 Introduc. to the Law of Tenures, pp. 38, 39, 40.— Upon a principle similar to 
 that upon which this distinction is grounded, it seems to have been formerly 
 made a question by the writers on the feudal laws of the German and Italian 
 states, whether investiture alone, without any express promise or undertaking 
 on the part of the lord, entitled the tenant to claim an equivalent from the lord, 
 in case of eviction, llosentall, a German feudist of great authority, has stated 
 this question, and the authorities upon which the two opposite opinions re- 
 specting it are founded. He mentions it to be his own opinion, that investiture 
 alone, without any promise, entitled the tenant to an equivalent ; and he says, 
 that the greatest part of those who maintain the opposite opinion, admit that 
 the lord, though he has made no promise, is bound to give an equivalent, if 
 the fief were originally granted for services done; or otherwise in the way of 
 remuneration. Rosentall Tractatus et Synapsis totius Juris fhidalis, Coll. 
 
 Allob.
 
 365. a.] Of Warrantie. L. 3. C. 13. Sect. 697. 
 
 [d\ Bract, lib. 5. exchanges, et defaire son gree a la villaunce. [d] Bracton saith, 
 foL 380. Warrantizare nihil aliud est, qudm defendereet acquietare tenetem 
 
 [e] Fleta, lib. 5. qxiiwarrantumvocavitinseisindsud. [e] Fleta saith, Warrant i- 
 cap. 15. (A). zare nihil aliud est qudm possidcntem vocantem defendere et ac- 
 quietare in sud seisind vel possessione erga petentem, &c. et tenens 
 Lib. 4. fol. 81. de re warranti excambium habebit ad valentiam. 
 ?l? k v S B aS i34: ^ fc 1S to ^ e 0Dserve d that there be two kiude of warranties, 
 
 jj \ x that is to say, warrantia expressa et tacita, vulgarly said warran- 
 
 tie in deed, because they be expressed; and warranties in law, be- 
 cause the law doth tacitly imply them. And this division of 
 warranties that Littleton here speaketh of, he inteDdeth of war- 
 ranties 
 
 (A) This reference to Fleta is very incorrect. See Fleta, lib. 6. cap. 23. § 2. 
 
 Allob. 1610. vol. 1. 469, 470. — In a more recent publication, expressly on 
 the subject of gratuitous fiefs, it is held, that the lord is bound to defend the 
 fief, and to give the tenant an equivalent, if it is evicted from him. The 
 author states the objection made by sir Martin Wxight ; and in answer to it 
 observes that the feudal contract and connection between the lord and tenant 
 is such, as distinguishes it from a voluntary donation, and necessarily includes 
 this obligation upon the lord. See Petri Schultzii Dissertatio de Feudo Gratise 
 inJenichen Thesaurus Juris feudalis, Francofurti ad Maenum, torn. 2. 556. 567. 
 568. It should seem that with us anciently, every kind of homage, when received, 
 but not before, bound the lord to acquittal and warranty ; that is, to keep the 
 tenant free from distress, entry, or other molestation, for services due to the 
 lords paramount, and to defend his title to the lands against all others ; but 
 that in subsequent times, the implied acquittal and warranty were peculiar to 
 that species ot' homage which is known by the appellation of homage ancestrel. 
 See ant. 67. b. note 1. 105. a. note 1. In another material quality, the warranty 
 annexed to homage ancestrel differed from express warranty. In the case of 
 express warranty the heir was chargeable only for those lands which he had 
 by descent from the ancestor who created the warranty. But in the case of 
 homage ancestrel the tenant was not driven to recover in value only those 
 lands which the lord had from that ancestor who created the warranty ; that 
 would be impossible, as it was essential to homage ancestrel, that the seigniory 
 should have been created before time of memory. It being therefore impossi- 
 ble to ascertain which lands descended from the ancestor who made the grant, 
 the law charged all the lands. See ant. 102. b. But defence and recompense 
 were not the only benefits which the tenant derived from the lord's warranty; 
 it rebutted or repelled the lord from claiming the land itself, or any profit or 
 right from it, but those which under the feudal contract were due to him as 
 lord, according to the fundamental maxim of the doctrine of fiefs, Homagium 
 repellit p>erquisitum. Such appear to be the outlines of the system of warranty 
 in the early ages of the feudal law. The practice of subinfeudation necessarily 
 occasioned a considerable extension of it. It was totally inhibited by the 
 statute made in the 18th year of Edward I. commonly called the statute quia 
 emplores terrarum. That statute had a particular influence both on the practice 
 and the doctrine of warranty. The free alienation of property which is au- 
 thorized necessarily put an end to the homage ancestrel, and consequently to 
 the implied warranty annexed to it. To remedy this, if the lord aliened, the 
 tenants, before they »attorned to the new lord, required a new warranty from 
 him ; if the tenant aliened, it was with an express clause of warranty. This 
 gave the new tenant the benefit of the lord's obligation to warrant the old 
 tenant : as the new tenant might vouch the old tenant, and he in his turn might 
 deraign the lord. This subject will be pursued, and an attempt will be made 
 to investigate and explain the grounds of the distinction between lineal and 
 collateral warranty, in note 2. 373. b. — [Note 315.]
 
 3 
 
 L. 3. C. 13. Sect. 697. Of Warrantie. [365. a. 365. b. 
 
 ranties in deed. And of warranties in law, more shall be said Vid. Sect. 733. 
 
 hereafter in this Chapter. As for promises or contracts annexed Lj^gjJ^j 
 
 to chattells reall or personall, they are not intended by our au- Cro ' j^ ^ 
 
 thor in his said division, but only warranties concerning free- Ant. 101. b. 
 
 holds and inheritances. f S'lLReJi 
 
 316. Cro. jac. 
 
 "Be/ore the statute of Gloucester." This statute was made at 386. 3 Bulst. 95. 
 a parliament holden at Ghcester in the sixth yeare of the reigne Popji. 143. 
 of king E. 1, and therefore it is called the statute of Ghcester. JjJJJJ- 60 ' 
 
 3 Mod. 261. 
 
 " Were barres to the same heires to demand any lands, &c." S. C. Shower, 
 
 For the statute, as hath beene said, being made in 6 E. 1, was yft gjjjjjj^ 
 
 before the statute of don-is conditionalibus, which was enacted 725 & 727, Ac' 
 
 13 Edward 1, when all states of inheritance were fee simple. (2 Inst. 293.) 
 
 But after the statute of 13 Edward 1, the heire in tayle is not f'^T.'b?'' 4 ' 
 
 barred by the warrantie of his ancestor, unlesse there be assets, F1 ^ ta ~ y b / 5 _ 
 
 as shall be said hereafter more largely in this Chapter. cap. 34. 7 E. 3. 
 
 Garr. 47. 
 
 By the statute of Ghcester foure things are enacted. (8 Rep. 52, 53.) 
 
 First, that if a tenant by the curtesie alien with warrantie 
 and dieth, that this shall bee no barre to the heire in a writ of 
 mordanccster, without assets in fee simple j and if lands or tene- 
 ments descend to the heire from the father, he shall be barred, 
 
 having regard to the value thereof. 
 [~ 36 5.1 (KT Secondly, that if the heire, for want of assets 
 b. J at that time descended, doth recover the lands of his 
 mother by force of this act, and afterwards assets 
 descend to the heire from the father, then the tenant shall reco- 
 ver against the heire the inheritance of the mother by a writ of 
 false judgement, which shall issue out of the record, to resum- 
 mon him that ought to warrant, as it hath been done in other 
 cases, where the heire being vouched commeth into the court, 
 and pleadeth that he hath nothing by discent. 
 
 Thirdly, that the issue of the sonne shall recover by a writ of 
 cosinage, aiel, and besaiel. 
 
 And lastly, that the heire of the wife, after the death of the 
 father and mother, shall not bee barred of his action to demand 
 the heritage of the mother by writ of entrie, which his father 
 aliened in the time of his mother, whereof no fine was levied in 
 the king's court. 
 
 Concerning the first, there be two points in law to be observed. (Ant. 54. b.; 
 First, albeit the statute in this article name a writ of mordan- 
 cester, and after writs of cosinage, aiel, and besaiel [e] ; yet a ^ n E 2 . tit. 
 writ of right, a formedon, a writ of entry ad communem legem, Garr. 83. 
 and all other like actions, are within the purview of this statute; j 8 E p 3 :, G 5 a 1 rr,(53 ' 
 for those actions are put but for examples. P1 q 01 ^ 1 {q < 
 
 7 E. 3. 53. Temps E. 1. Garr. 87. 
 
 Secondly, where it is said in the said act (if the tenant by the 27 E. 3. 8, 9. 
 courtesie alien,) yet his release with warrantie to a disseisor, &c. J 4 . E - *r*J*' 5 - 
 is within the purview of the statute, for that it is in equall mis- Mar.' 14 8?a .° 
 chiefe ; and if that evasion might take place, the statute should 
 have beene made in vaine. 
 
 If tenant by the courtesie be of a seigniorie, and the tenancic 
 escheate unto him, and after he alieneth with warrantie, this shall 
 not binde the issue, unlesse assets descend ; for it is in equall mis- 22 Ass. 9 <fc 37. 
 chiefe. But notwithstanding this statute, if feme tenant in dower Temps E. 1. 
 
 had ° ar - 86 -
 
 365. b.] Of Warrantie. L. 3, C. 13. Sect. 697. 
 
 had aliened in fee with warranty and died, the warranty had 
 [o] 11 H. 7. hound the heire untill the statute [o] of 11 77. 7, since our au- 
 cap. 20. thor wrote : hy which statute the heire may enter, notwithstand- 
 
 (JV 0St - i^ 80, a- ing such warrantie. 
 
 But note, there is a diversitie hetweene a warranty on the 
 part of the mother, and an estoppell; for an estoppell of the 
 part of the mother shall not binde the heire, when hee claimeth 
 18 E. 3. 9. f rom t^ e father : as if lands bee given to the husband and wife, 
 
 and to the heires of the husband, the husband make a gift in 
 (Hob. 31. taile, and dieth, the wife recovereth in a cui in vitd against the 
 
 8 Rep. 54. a.) donee, supposing that she had a fee simple, and make a feoffement 
 and dyeth, the donee dyeth without issue, the issue of the hus- 
 band and wife bring a formedon in the reverter against the 
 feoffee ; and notwithstanding that he was heire to the estoppell, 
 and the mother was estopped, yet for that he claimed the land 
 as heire to his father, hee was not estopped. Note, that warran- 
 ties are favoured in law, being part of a man's assurance; but 
 estoppels are odious. 
 21 R. 2. If a feme heire of a disseisor infeoffeth me with a warrantie, 
 
 fo'tf^Tb an( ^ marr "i etn with the disseisee, if after the disseisee bring a 
 776, ° ' praecipe against me, I shall rebut him, in respect of the warran- 
 
 8 Rep. 53. b. tie of his wife, and yet he demandeth the land in another right. 
 Ant. 326. a. And so if the husband and wife demand the right of the wife, a 
 4 4 fc] warrantie of the collaterall ancestor of the husband shall barre. 
 
 I Leo. 261. If a woman had beene tenant for life, the remainder or rever- 
 
 sion to her next heire, and the woman had aliened in fee and 
 died, this warrantie had barred her heire in remainder or rever- 
 
 II H. 7. cap. 20. sion; but this is partly holpen by the said act of 11 H. 7, viz. 
 Fid. Sect. 595. wuere the woman hath any estate for life of the inheritance or 
 of 11 H. 7. c. 20. purchase of her husband, or given to her by any of the ances- 
 well expounded, tors of the husband, or by any other person seised to the use of 
 Lib. 1. fol. 176. hgj. husband, or of any of his ancestors, there her alienation, 
 Miidmaye's° ny release, or confirmation with warrantie, shall not binde the heire. 
 
 case. 3 & 4 Ph. & Mar. Dier, 146. Lib. 3. fol. 59, 60, 61, 62. Lincolne Coll. case. 
 PI. Com. fol. 56. 20 Eliz. Dier, 362. Doct. & Student, 55. 8 Eliz. Dier, 248. 19 
 Eliz. Dier, 354. 21 Eliz. ibid. 362. Lib. 3. fol. 50, 51, sir George Browne's case. 
 Lib. 5. fol. 79. Fitzh. case. 27 U. 8. 23. 
 
 To the authorities quoted in the margent, which may serve as 
 
 commentaries upon the said statute, I will only adde two cases. 
 
 [/] Mich. 13 The one was [/] A man seised of lands in fee levied a fine to 
 
 Jac. inter Har- the use of himselfe for life, and after to the use of his wife, and 
 
 ley & West in £. t ^ h e j res males of her body by him begotten for her ioin- 
 ejectione firmae . . ' ' . , P .„ . . , «L 
 
 in Communi ture, and had issue male, and atter he and his wife levied a tine, 
 
 Banco. Lincoln, and suffered a common recovery, the husband and wife died, and 
 the issue male entred by force of the said statute of 11 H. 7. 
 And it was holden by the justices of assize (the case comming 
 downe to be tried by nisi prius), that the entry of the issue 
 male was lawfull (A) : and yet this case is out of the letter of the 
 statute ; for she neither levied the fine, &c. being sole, or with 
 any other after-taken husband, but is by herselfe with her hus- 
 band that made the joynture. Scd qui hceret in literdhseret in 
 cortice ; and this case being in the same mischiefe, is therefore 
 within the remedy of the statute, by the intendment of the 
 makers of the same, to avoid the disherison of heires who were 
 
 provided 
 
 (A) This determination was over-ruled by the case of Kirkham v. Thompson, Cro. Jac. 474. 
 See also Whately v. Kemp, cited 2 Ves. sen. 358.
 
 L. 3. C. 13. Sect. 697. Of Warrantie. [3Q5. b. 366. a. 
 
 provided for by the said joynture, and especially by the husband 
 
 himselfe that made the joynture, which (as it was said) is a 
 
 stronger case than the example set downe in the sta- 
 
 [366.1 tute. The other was, [</] A man seised of fig?" lands [g] p ;lS cb. 
 a. J in the right of his wife, and they two levie a fine, and 17 Eliz - 
 
 the conusee grant and rendereth the land to the bus- ^ °^ ^ 
 band and wife in speciall tayle, the remainder to the right heires of 115.' a. Post. 
 the wife, they have issue, the husband dyeth, the wife taketh 369. a. 381. a. 
 another husband, and they two levie a fine in fee, and the issue p l , 2 ,' 
 entcreth, this is directly within the letter of the statute, and yet Dyer, 64. b. 
 it is out of the meaning; because the state of the land moved Jo. 31. Hob. 332. 
 from the wife, so as it was the purchase of the husband in letter, ^n E 'i^ 2 ' 
 and not in meaning. But where the woman is tenant for life, by Ben. 40. 
 the gift or conveyance of any other, her alienation with war- 2 lust. 681. 
 rantie shall bind the heire at this day. So if a man bee tenant ^//p^' ^'i* 
 for life (otherwise than as tenant by the courtesie) and alien in 32 21 1>. Cro." 
 fee with warrantie, and dieth, this shall at this day bind the heire Car. 244. pi. 464. 
 that hath the reversion or remainder by the common law not Com Banco > 
 holpen bv any statute. But all this is to be understood, unlesse wn i c h I myse'lfe 
 the heire that hath the reversion or remainder doth avoid the heard and 
 estate so aliened in the life of the ancestour; for then the estate °i >S n r T 1 ed ;. 
 being avoided, the warranty being annexed unto the estate, is 141. °Moor F 93.) 
 avoided also ; whereof more shall be said in this Chapter in his Sect. 725. ' 
 proper place. And therefore it is necessary for the heire in such ( l Re P- 66 - 
 cases to make an entry as soone as he hath notice or probable 38 g bi 
 suspicion of such alienation. 10 Rep. 95. 
 
 As to the second clause of the statute of Gloucester, there are 
 two points of law to be observed. 
 
 First, that by the expresse purview of the statute, if assets doe pi, com. Ful- 
 after discend from the father, then the tenant shall have recovery merstone's case, 
 or restitution of the lands of the mother. But in aformedon, if j^- a - 
 at the time of the warrantie pleaded no assets be discended, g yIU ' s ' cas0 . 
 whereby the demandant recovereth, if after assets discend, there 
 the tenant shall have a scire facias for the assets, and not for the 
 land entailed. And the reason hereof is, that if in this case the 
 tenant should be restored to the land intailed, then if the issue in 
 taile aliened the assets, his issue should recover in a formedon ; 
 and therefore the sages of the law, to prevent future occasions of 
 suits, resolved the said diversitie in the cases abovesaid, upon 
 consideration and construction of the statute of Gloucester, and 
 of the statute de donis conditionalibus. 
 
 Secondly, it is to bee observed, that after assets discended, the 
 
 recoveric shall bee by writ of judgement, which shall issue out of 
 
 the rolle of the justices, &c. And here two things are to be 
 
 declared and explained. First, by what writ, &c. and that is Lib. 8. fol. 53. 
 
 cleere, viz. by scire facias. But the second is more difficult; 54 : Sym's case. 
 
 and that is, upon what manner of judgement the scire facias is to 5?. , , " „„ :1IV 
 
 1 1 n . , Je> .. , ," / . , bhipley 8 case, 
 
 be grounded : tor explanation whereot it is to be understood, that (Doct. Pla. 180.) 
 
 if the tenant will have benefit of the statute he must plead the (2 Cro. 15 Ant.) 
 
 warrantie, and acknowledge the title of the demandant, and 33, a< 32<5, a ^ 
 
 pray that the advantage of the statute may bee saved unto him, 
 
 and then if after assets discend, the tenant upon this record shall 
 
 have a scire facias : and if assets discend but for part, he shall 
 
 have a scire facias for so much. But if the tenant plead the 
 
 warrantie, and plead further that assets discended, &c. and the 
 
 demandant 
 
 Vol. II.— 43
 
 366. a. 366. b.] Of Warrantie. L. 3. C. 13. Sect. 697. 
 
 demandant taketh issue that assets discended not, &c. which 
 issue is found for the demandant, whereupon he recovereth, the 
 tenant, albeit assets doe after discend, shall never have a scire 
 facias upon the said judgement; for that by his false plea he 
 hath lost the benefit of the said statute. 
 
 Touching the third, sufficient hath been spoken before. For 
 the last, it is to be observed, that if the husband be seised of 
 lands in the right of his wife, and maketh a feoffment in fee with 
 warrautie, the wife dieth, and the husband dieth, this warrantie 
 shall not binde the heire of the wife without assets, albeit the 
 husband be not tenant by the curtesie. But of this you shall 
 reade more hereafter. 
 
 In the meane time know this, that the learning of warranties 
 is one of the most curious and cunning learnings of the law, and 
 of great use and consequence (1). 
 
 8 E. 2. tit. 
 Gar. 81. 
 18 E. 3.51. 
 
 Vide Sect. 726. 
 
 (2Roll.Abr.774. 
 Hob. 14. 28. 
 2 Saund. 183.) 
 
 " To demand any lands or tenements." A warrantie may not 
 only be annexed to freeholds, or inheritances corporeall, which 
 passe by livery, as houses and lands, but also to freeholds or 
 inheritances incorporeall, which lye in grant, as advowsons ; and 
 to rents, commons, estovers, and the like, which issue out of 
 lands or tenements. And not onely to inheritance in esse, but 
 also to rents, commons, estovers, &c. newly created. As a man 
 (some say) may grant a rent, &c. out of land for life, in tayle, or 
 in fee with warrantie ; for although there can be no title pre- 
 cedent to the rent, yet there may be a title precedent to the land, 
 out of which it issueth before the grant of the rent, which rent 
 may bee avoided by the recovery of the land ; in which case 
 the grantee may help himselfe by a warrantia cartse, upon the 
 especiall matter. And so a warrantie 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, this exchange is 
 good, and every exchange implyeth a warrantie in law. And so 
 a rent newly created may be granted for oweltie of partition. 
 
 101. b. 308. 
 
 nota. Post. 389. a.) 
 
 jgg^~ A man seised of a rent secke issuing out of the 
 mannor of Dale, taketh a wife, the husband releaseth 
 to the terre-tenant, and warranteth tenemcnta prse- 
 dicta, and dieth, the wife bringeth a writ of dower of the rent, 
 the terre-tenant shall vouche, for that albeit the release enured 
 by way of extinguishment, yet the warrantie extended to it ; aud 
 by warranting of the land, all rents, &c. issuing out of the laud, 
 that are suspended or discharged at the time of the warrantie 
 created, are warranted also. 
 
 2 H. 4. 13. 
 
 30 H. 8. Di. 41. 
 Temps. E. 1. 
 Admesurement, 
 16. 32 E. 1. 
 Voucher, 294. 
 30 E. 1. 
 Exchauge, 16. 
 9 E. 4. 
 15 E. 4. 9. 
 29 Ass. 13. 
 (F. N. B. 134. 
 Ante, 50. b. 
 
 741. 
 
 Vide Sect. 
 45 E. 3. 
 Voucher, 72. 
 
 9 E. 3. 78. 
 18 E. 3. 55. 
 :;0 E. 3. 30. 
 21 H. 7. 9. 
 3 H. 7. 4. 
 7 H. 4. 17. 
 
 10 E. 4. 9. b. 
 21 E. 4. 26. 
 14 H. 8. 30 H. 8. 
 Dier, 42. (2 Roll 
 
 [ 8 H 
 
 Abr. 744.) 
 
 Sect. 
 
 (1) Upon the alterations, made by the statute law in the doctrine of war- 
 ranty, see notes 1 and 2. 373. b.
 
 L. 3. C. 13. Sect. 698. Of Warrantie. [366. b. 
 
 Sect. 698. 
 
 T\TARRANTIE that commences by disseisin is in this manner: as 
 where there is a father and a son, and the Sonne purchaseth, $c 
 and letteth the land to his father for terme of yeares, and the father 
 by his deed thereof infeoffeth another in fee, and bindes him and his heires 
 to warrantie, and the father dies, whereby the warrantie descendeth to 
 the son, this warrantie shall not barre the sonne ; for notwithstanding 
 this warrantie the sonne may well enter into the land, or have an assise 
 against the alienee if he will, because the warrantie commenced by disseisin : 
 for when the father which had but an estate for terme of yeares, made a 
 feoffment in fee, this was a disseisin to the sonne of the freehold which 
 then was in the sonne. In the same manner it is, if the sonne letteth 
 to the father the land to hold at will, and after the father make a feoff- 
 ment with warrantie, §c. And as it is said of the father, so it may be 
 said of every other ancestor, §c. In the same manner is it, if tenant by 
 elegit, tenant by statute merchant, or tenant by statute staple, make a 
 feoffment in fee with warranty, f t his shal not bar the heire which ougM 
 to have the land, because such warranties commence by disseisin. 
 
 TKTARRANTIE, that commences by disseisin, &c." (1) It (Doct. & Stud. 
 
 is called a warranty that commenceth by disseisin, because 155 - a - b -) 
 regularly the conveyance whereunto the warranty is annexed 
 doth worke a disseisin. 
 
 In this Section Littleton putteth five examples of a warrantie 
 commencing by disseisin, viz. of a feoffement made with warranty 
 by tenant for yeares, by tenant at will, by tenant by elegit, by 7 E 3> 41> 
 tenant by statute merchant, and by tenant by statute staple : all 43 E. 3. 17. 
 these and the other examples that Littleton putteth of this kinde yid^' lectin 
 of warranties in the succeeding Sections, have foure qualities. (2 Inst. 154. 
 
 1 Roll. Abr. 663. 3 Rep. 37.) 
 
 First, that the disseisin is done immediately to the heire that & M ?g b 
 is to be bound; and yet if the father bee tenant for life, the Fits'herbert's ' 
 
 case. (Cro. Car. 483. 2 Roll. Abr. 741.) 
 remainder 
 
 ■j" &c. added in L. and M. and Roh. 
 
 ([) As to warranties commencing by disseisin: — Lord chief baron Gilbert 
 divides wrrranties into two sorts : first, those commencing by disseisin or 
 wrong; and secondly, binding warranties. The first are where the ancestor 
 that makes the warranty is partner to the wrong; and such warranties are not 
 obliging, because it cannot be presumed that one who is so unjust as to do 
 wrong, will be so just as to leave a recompense to his heir ; wherefore such 
 contracts are wholly rejected as collusive, and founded on no consideration. 
 In the Ancien Coutumicr de Nbrmandie, ch. 96. it is said, that in a writ of 
 nouvelle disseisine there is no vouching to warranty; because it it not to be 
 suffered that any one should retain the possession of another, either by him- 
 self, or by the means of another, or that he should disturb it by his foolish 
 hardihood; and whoever does so ought to restore it. — [Note 316.]
 
 366. b. 367. a.] Of Warrantie. L. 3. C. 13. Sect. 698. 
 
 remainder to the sonne in fee, the father by covine and consent 
 maketh a lease for yeares, to the end that the lessee shall make 
 a feoffement in fee, to whom the father shal release with warran- 
 tie, and all is executed accordingly, the father dyeth, this 
 warrantie shall not binde, albeit the disseisin was not done imme- 
 diately to the sonne ; for the feoffement of the lessee is a disseisin 
 31 E. 3. tit. to the father, who is particeps criminis. So it is if one brother 
 
 Ga ™ tie ' 23, make a gift in tayle to another, and the uncle disseise the donee, 
 ( ep. . a.; and enfeoff^ another with warrantie, the uncle dieth, and the 
 (2 Roll. Abr. warrantie descendeth upon the donor, and then the 
 772, 773.) donee dyeth without figip issue, albeit the disseisin was [~367. 1 
 
 Ant. 32. a. 56, a. ^ Qne to t k e d onee and not to the donor, yet the war- |_ a. J 
 F. N. B. 149. c. rantie shall not binde him. The father, the sonne, and a 
 
 third person are joyntenants in fee, the father maketh a feoffment 
 in fee of the whole with warrantie, and dieth, the sonne dieth, 
 the third person shall not only avoyd the feoffement for his owne 
 part, but also for the part of the sonne; and he shall take ad- 
 vantage that the warrantie commenced by disseisin, though the 
 disseisin was done to another. 
 (Cro. Car. 483.) The second qualitie appearing in Littleton's examples is, that 
 the warrantie and disseisin are simul et semel, both at one and 
 M 19 H. 8. 12. the same time, [y] And yet if a man commit a disseisin of intent 
 Lib. 5. fol. 79. b. to make a feoffment in fee with warrantie, albeit he make the 
 F ^ xh - case - feoffment many years after the disseisin, notwithstanding be- 
 2 Rep. 78. ' a " cause the warrantie was done to that intent and purpose, the 
 Post. 369. a. law shall adjudge upon the whole matter, and by the intent 
 
 371, a * „, couple the disseisin and the warrantie together. 
 
 9 Rep. 81. a. r 
 
 fllep. 1 78 b ' The third quality is, that the warrantie that commenceth by 
 
 disseisin by all these examples (if it should binde) should binde 
 as a collaterall warrantie, and therefore commencing by disseisin 
 shall not binde at all. 
 
 (1 Leon. 304. " Shall not bar the heire, &c." For by the authorise of our 
 
 305. Cro. Car. author himself, a lessee for yeares may make a feoffment, and by 
 
 Vide Sect. 611. h* 8 feoffment a fee simple shall passe; so as albeit as to the lessor 
 
 699. Bract, fol. it worketh by disseisin, yet betweene the parties the warrantie 
 
 216. 223, 224. annexed to such estate standeth good; upon which a feoffee 
 
 i7 le i a '2 lb Britton' ma y vouch the feoffor or his heires, as by force of a lineall 
 
 cap. Disseisin. ' warrantie. And therefore if a lessee for years, or tenant by 
 
 50 E. 3. 12. b. elegit, &c. or a disseisor incontinent make a feoffment in fee with 
 
 7 E 3 ' li warrantie, if the feoffee be impleaded, hee shall vouch the feoffor, 
 
 14 E. 3. Feoff- and after him his heire also; because this is a covenant reall, 
 
 ments et faits, which binde him and his heires to recompence in value, if they 
 
 Issue 1 36 E 3 ' nave assets by discent to recompence; for there is a feoffment 
 
 4 E. 2. Briefe de facto, and a feoffment de jure : [*] and a feoffment de facto 
 
 790. 19. E. 2. made by them that have such interest or possession as is afore- 
 
 43 E 4 3°'" sa ^> * s S 00( * betweene tne P art i es > an( l against all men but only 
 
 17 E. 3. 41. against him that hath right. And tharefore if the lord be gar- 
 
 43 E. 3. Diss. 5. deine of the land, or if the tenant maketh a lease to the lord for 
 
 3 E - 4 - 17 - yeares, or if the lord be tenant by statute merchant or staple, 
 
 10 e! L is! or by elegit of the tenancie, and make a feoffment in fee, hee 
 
 F. N. B. 201. hereby doth extinguish his seigniorie, although having regard to 
 
 Lib. 3. fol. 78. in tbe lessor j t is a disseisin. 
 
 Fermor s case. 
 
 [*] Temps E. 1. Counterplea de Voucher, 126. 50 E. 3. ibidem, 124. 
 Vide W. 1. cap, 48. in the second part of the Institutes. (10 Rep. 95. 
 2 Roll. Abr. 740.) 
 
 The
 
 L. 3. C. 13. Sect. 699, 700. Of Warrantie. [367. a. 367. b 
 
 The fourth qualitie is a disseisin ; but that is put for an 
 example; and the rather, for that is most usual and frequent: 
 but a warrantie that commenceth by abatement or intrusion 
 (that is, when the abatement or intrusion is made of intent to 
 made a feoffment in fee with warrantie,) shall not binde the 
 right heire, no more than a warranty that commenceth by 
 disseisin, because all doe commence by wrong. And so it is 
 if the tenant dieth without heire, and an ancestor of the lord 
 enter before the entrie of the lord, and make a feoffment in 
 fee with warrantie, and dieth, this warrantie shall not binde the 
 lord, because it commenceth by wrong, being in nature of an 
 abatement. Et sic de similibus (1). 
 
 Sect. 699. 
 
 A LSO, if a gardeine in chivalrie, or gardeine in socage, 
 
 t 3 67.1 make a feoffment in fee, or in fee taile, or for life, with 
 
 b. J warrantie, §c. such warranties are not barres to the heyres to 
 whom the lands shall bee descended, because they commence by 
 disseisin. 
 
 HERE Littleton addeth the case of gardeine in chivalrie, 16 E. 3. Gar. 20. 
 and gardeine in socage, and gardeine because nurture is 43 |f' 3 \ 
 also in the same case. and the books 
 
 abovesaid. Vide Sect. 698. (3 Rep. 37.) 
 
 Sect. 700. 
 
 ALSO, if father and sonne purchase certaine lands or tenements, to 
 have and to hold to them joyntly, $c. and after the father alien 
 the whole to another (et puis le pier alien * l'entier a un auter), and 
 binde him and his heires to warrantie, $c. and after the father dieth, this 
 warrantie shall not barre the sonne of the moitie that belongs to him of 
 the said lands or tenements, because as to that moitie which belongs to 
 the sonne, the warrantie commences by disseisin, $c. 
 
 * l'entier — l'entierte, L. and M. and. Roh. 
 
 (1) The editor in note 1, to page 330. b. has (he fears too prolixly) 
 attempted to explain the difference betwecne actual disseisin and disseisin by 
 election, to prove that the disseisin produced by the feoffment, however 
 slender or tortious the estate of the feoffor may be, is an actual disseisin. It 
 is submitted to the reader, that what he has said on that subject is confirmed 
 by what Littleton says in this Section, and lord Coke's commentary upon it. 
 The discussion, in the note above referred to, of the operation of a feoffment 
 and the discussion in note 1, p. 271. b. of the operation of conveyances deriving 
 their effect from the statute of uses, will perhaps assist the reader in form- 
 ing accurate notions of the difference in the operations and effect of feoff- 
 ments, fines, common recoveries, bargains and sales, releases and wills. — 
 [Note 317.]
 
 367. b. 368. a.] Of Warrantie. L. 3. C. 13. Sect. 701. 
 
 13 Ass. 8. "flTO have and to hold to them joyntly , &c." This is to bee 
 
 \ 3 E - 3- intended of a joynt purchase in fee ; for if the purchase 
 
 22 H. 6*. 5l/ were to the father and the sonne, and the heires of the sonne, 
 
 8 H. 7. 6. and the father maketh a feoffment in fee with warrantie, if the 
 
 (5 Rep. 79.) sonne entreth in the life of the father, and the feoffee re-enter, 
 
 the father dieth, the sonne shall have an assise of the whole ; 
 
 and so is the booke of 22 H. 6. to be understood. But if the 
 
 sonne had not entered in the life of the father, then for the 
 
 father's moitie it had beene a barre to the sonne, for that 
 
 (Post, 393. a.) therein he had an estate for life; and therefore the warrantie 
 
 as to that moitie had beene collaterall to the sonne, and by 
 
 (1 Rep. 66.) disseisin for the Sonne's moitie ; and so a warrantie defeated in 
 
 part, and stand good in part. And this appeareth by the 
 
 example that Littleton hath put. But if the purchase had 
 
 been to the father and sonne, and to the heires of the father, 
 (F.N.B.192.a.) ^^ ^ ^^ of the g(mne Jq ^ jj fe of ^ f at h er) as to the 
 
 avoydance of the warrantie, had not availed him, because his 
 father lawfully conveyed away his moitie (1). 
 Temps. E. 1. If a man f f u ll a g e and an infant make a feoffment in fee 
 
 39°E Ch 3 2 2°6 7 w * tn warrantie, this warranty is not void in part, and good in 
 
 John London's part ; but is good for the whole against the man of full age, 
 case, 14 H. 6. an d voyd against the infant ; for albeit the feoffment of an 
 Pl R d P 66 2 'b infant passing by liverie of seisin be voydable, yet his warrantie, 
 5 Rep.' 119.) ' which taketh effect only by deed, is meerely voyd. 
 
 m* Sect. 701. [ 3 f 8 ] 
 
 ALSO, if A. of B. bee seised of a mese, and F. of G. that no right 
 hath to enter into the same mese, claiming the said mese, to hold to him 
 and to his heires, entreth into the sayd mese, but the same A. of B. is then 
 continually abiding in the same mease; in this case the poss ession of the 
 freehold shall bee always adjudged in A. of B. and not in F. of G. 
 because in such case where two bee in one house, or other tenements, arid 
 the one claimeih by one title, and the other by another title, the law shal 
 adjudge him in possession that hath right to have the possession of the same 
 tenements. But if in the case aforesayd, the said F. of G. made a feoff- 
 ment to certaine barrettors and extortioners in the countrie, to have main- 
 tenance 
 
 (1) It is greatly to be regretted, that sir Edward Coke has not expressed 
 himself more fully on the subject hinted at by him in this note, the defeating 
 of the warranty by the heir's entry or claim in the ancestor's lifetime. It is 
 thus mentioned by lord chief-baron Gilbert, Ten. 135. The heir was pre- 
 sumed to receive a recompense, and therefore was barred if he did not claim 
 during the life of his ancestor ; and this was the more reasonable, because 
 such recompenses were anciently in lands, which did of right descend to the 
 heir; and if the ancestor did alien them, the heir must claim his own during 
 the life of his ancestors, otherwise he could never claim it, inasmuch as this 
 was the whole time of limitation for the heir to challenge his own in this case; 
 and if he slipped that time, he was barred forever, inasmuch as there might be 
 secret conveyances to alien the recompense for the benefit of the heir, which 
 might turn to the prejudice of the purchaser. — [Note 318.]
 
 L. 3. C. 13. Sect. 701. Of Warrantie. [368. a. 368. b. 
 
 tenance from them of the sayd house, by a deed of feoffment with war- 
 rantie, by force whereof the said A. of B. dare not abide in the house, 
 but goeth out of the same (per force de quel le dit A. de B. ne osast pas 
 demurrer en le mease, roes * alast hors de le mease,) this warrantie 
 commenceth by disseisin, because such feoffment ivas the cause that the 
 sayd A. of B. relinquished the 2>ossession of the same housef. 
 
 " JJTIIERE two bee in one house, &c. and the one claim eth by (Ant. 194. a. 
 
 one title, and the other by another title, &c." For the 2 **> *• 1 Roll- 
 , . r. . • tj 'J Abr. 661, 662. 
 
 rule is, Duo non possunt in solid o unam rem possidere. piowd. 233. b.) 
 
 19 H. 6. fol. 28. b. per Newton. (Siderf. 385. a. Ant, 180. b. 181. a.) 
 
 These words of our author be significant and materiall :[A] [h] 17 E. 3. 59. 
 for if a man hath issue two daughters, bastard eigne and mulier n Ass. p. 23. 
 puisne, and die seised, and they both enter generally, the sole ( 8 ^_" ^ b 
 possession shall not be adjudged only in the mulier, because they Hob. 120. 
 both claime by one and the same title ; and not one by one title, Ant. 189. 244. 
 and the other by another title, as our author here saith. ^t^&aseT"" 
 
 [i] If the tenaunt in an assise of an house desire the plaintiffe r t -j pj_ Com. 91. 
 to dine with him in the house, which the plaintiffe doth accord- the parson of 
 ingly, and so they bee both in the house ; and in truth one pre- Hone y Lane s 
 tendeth one title, and the other another title ; yet the law in this ( Ant ' 245. b. 
 case shall not adjudge the possession in him that right hath ; Plowd. 93. a. b.) 
 because our author here saith, hee claimed not his right, and it 
 should be to his prejudice if the law should adjudge him posses- 
 sion ; and a trespasser hee cannot bee, because hee was invited 
 by the tenant in the assize. 
 
 "Barrettors." A barrettor is a common moover and exciter, See the Indite- 
 or maintainer of suits, quarrels, or parts, either in courts, or else- ment of a com- 
 where in the countrey. In courts, as in courts of record, or not n ^ on 1 ^" e ^' 
 of record ; as in tfoe countie, hundred, or other inferior courts. & 32. 
 In the countrie in three manners : first, in disturbance of the 40 E. 3. 33. 
 peace : secondly, in taking or keeping of possessions of lands in else de Barre- J ' 
 controversie, not only by force, but also by &&*" sub- tr ; e . 
 
 [3 68. ~| tiltie and a deceit, and most commonly in suppression (3 Inst. 175. 
 b. J of truth and right : thirdly, by false inventions, and 3 Roff Abr 355 ) 
 sowing of calumniations, rumors, and reports, whereby (i Roil. Abr. 
 discord and disquiet may grow betweene neighbours. 353.) 
 
 "Barretor" is derived of this word (barret) which signifieth 33 E. 1. Stat, de 
 not only a wrangling suit, but also such brawles and quarrels in Conspiracy. 
 
 J ° °„ ' . . *■ Lib. 8 ubi supra. 
 
 the countrey as are aloresaid. (3 R ep . 36.) 
 
 "Extortioners." Extortion in his proper sense, is a great mis- p. Com. fol. 64. 
 prision, by wresting or unlawfully taking by any officer, by colour Ll J>- IJjj- fo1 - Ml, 
 of his otb.ee, any money or valuable thing ot or iroin any man, cage _ 
 either that is not due, or more than is due, or before it be due ; (3 Inst. 149.) 
 quod non est debitum, vel quod est ultra debitum, vel anietempus 
 quod est debitum : for this is to be knowne, that it is provided by 
 the [/] statute of W. 1, that no sheriffe, nor any other minister W ^ fj ^ 2 ^ 
 
 42 E. 3. 5. 27 Ass. 14. PL Com. 68. (2 Roll. Abr. 32. 
 
 Of 
 * se en, added in L. and M. and Boh. f &c. added in L. and M. and Rob.
 
 368. b.J Of Warrantie. L. 3. C. 13. Sect. 701. 
 
 of the king, shall take any reward for doing of his office, but 
 only that which the king alloweth him, upon paine that hee shall 
 render double to the partie, and be punished at the king's plea- 
 sure. And this was the antient common law, and was punish- 
 able by fine and imprisonment ; but the statute added the afore- 
 said penaltie. But some latter statutes having permitted them 
 (Plowd. 465. to take in some cases ; by colour thereof the king's officers and 
 Noy, 111. ministers, as sheriffes, coroners, escheators, feodaries, gaolers, 
 
 2S R H ^c "lO anc * tDe ^ e » ^ 0e °fi exi & in most cases ; and seeing this act yet 
 33 III 6. 22. standeth in force, they cannot take any thing but where and so 
 21 H. 7. 17. farre as latter statutes have allowed unto them. But yet such 
 ve"^ Cor 372 reasonable fees as have been allowed by the courts of justice of 
 antient time to inferiour ministers and attendants of courts for 
 their labour and attendance, if it be asked and taken of the sub- 
 ject, is no extortion, 
 [n] nil. 13 Jac. And all this was resolved \n\ by the whole court of king's 
 Reg. bench, betweene Shurley plaintiffe, and Packer deputie of one 
 
 of the sheriffes of London, in an action, upon the case in the 
 king's bench. 
 
 See the statute of 21 H. 1 cap. 5. setting downe the fees of 
 
 ordinaries, registers, and other officers, in certaine cases, and 
 
 many other statutes; as for example, the statute of 19 //. 7. 
 
 cap. 8. against taking of shewage (that is, taking of any thing 
 
 for shewing of wares and merchandises that be truly customed 
 
 to the king before) and the like. 
 
 PI Com. in Of this crime it is said, that it is no other than robberie ; and 
 
 Dine and Man- another saith, that it is more odious than robberie ; for robberie 
 
 ningham's case. j s apparent, and hath the face of a crime ; but extortion puts on 
 
 Mir. cap. 5. I . t h e v j sure f ver ture, for expedition of justice, and the like; 
 
 and it is ever accompanied with the grievous sinne of perjurie. 
 7 E 4 21. -^ ut l ar g e ly extortion is taken for any oppression by extort 
 
 power, or by colour or pretence of right ; and so Littleton taketh 
 it in this place. Extortio is derived from the verbe extorqueo; 
 and it is called crimen expilation is, or concussionis : and here 
 barretors and extortioners are put but for examples ; for if the 
 feoffement be made to any other person or persons, the law is 
 all one. 
 
 (3 Inst. 175. "To have maintenance from them." Maintenance, manute- 
 
 2 Inst. 212 - nentia, is derived of the verbe manutenere, and signifieth in law 
 
 S^ e! 2l2 213. a taking in hand, bearing up or upholding of quarrels and sides, 
 Noy, 52.) to the disturbance or hindrance of common right : Culpa est rei 
 
 se immiscere ad se non pertinenti ; and it is twofold, one in the 
 countrey and another in the court. For quarrels and sides in 
 [i] 1 E. 3. c. 14. the court [k] the statutes have inflicted grievous punishments. 
 20 E. 3. p u t this kinde uf maintenance of quarrels and sides in the coun- 
 
 i>l P Mich' 7 Jac. tre J ls punishable only at the suit of the king, [r] as it hath beene 
 in the Starre- resolved. And this maintenance is called mamitenentia, or manu- 
 Chamber. tentio ruralis, for example, as to take possessions, or keepe pos- 
 
 (Doc. Pla.240.) gess i onS) w h e reof Littleton here speaketh, or the like (1). 
 
 The 
 
 (1) Whether an attorney's laying out money for his client be maintenance, 
 see Pierson v. Hughes, Freeman, 71. 81. — By the ancient Roman law, there 
 were few cases in which a person was admitted to plead by an attorney, 
 according to the rule, Nemo alieno nomine lege agere potest. Recourse was 
 
 therefore
 
 L. 3. C. 13. Sect. 701. Of Warrantie. [368. b. 3G9. a. 
 
 The other is called curialis, because it is done pendente placito 
 in the courts of justice; and this was an offence at the common 
 law, and is threefold. 
 
 First, to maintaine to have part of the land, or any thing out 33 E. 1 Stat 2. 
 of the land, or part of the debt, or other thing in plea or suit; '" fi ? e " .„„ 
 and this is called cambipartia, champertie. 6 e. 3.' 33. ' 
 
 22 H. 6. 7. 9 H. 7. 22. (2 Roll. Abr. 114.) 30 Ass. 5. 19 E. 4. 3. 20 II. 6. 12. 
 34 H. 6. 2. 11 H. 6. 11. 8 H. 5. 8. 10 E. 4. 19. W. 1. cap. 25. 28 W. 2. cap. 
 49. Artie, super Cart. cap. 11. F. N. B. 171, 172. Mirror, cap. 1 § 5. (Mo. 6. 
 Ant. 157. Hob. 294.) 
 
 The second is, when one maintaineth the one side, 
 
 t369.~] without having any part of the thing in B@T plea, or 
 a. J suit; and this maintenance is twofold, general main- 
 tenance, and speciall maintenance ; whereof you shall 
 reade at large in our bookes, which were too long here to be in- 
 serted. 
 
 The third is when [VI one laboureth the iury, if it be but to [«] 13 H. 4. 16. 
 appeare, or if he instruct them, or put them in feare, or the ?j ^ 6 " j 
 like, he is a maintainer, and he is in law called an embraceor, 37 H " c\ 31> " 
 and an action of maintenance lyeth against him ; and if he take 
 money, a decies tantum may be brought against him. And 
 whether the jury passe for his side or no, or whether the jurie 
 give any verdict at all, yet shall he be punished as a maintainer 
 or embraceor either at the suit of the king or partie. 
 
 Here in this case that Littleton putteth, the feoffment is void 
 by the statute [a] of 1 R. 2 ; for thereby it is enacted, that ^ j R 2 . 
 feoffements made for maintenance shall be holden for none, and cap. 9. Vid. 
 of no value, so as Littleton putteth his case at the common law; 27 H - 2 - fol> 23, 
 for he seemeth to allow the feoffement, where he saith such feoff- 
 ment was the cause, &c. : but some have said that the feoffment 
 is not voide betweene the feoffor and feoffee, but to him that 
 right hath. 
 
 Now, since Littleton wrote, there is a notable statute [&] made [&] 32 H. 8. 
 in suppression of the causes of unlawfull maintenance (which is ca P- 9 - 
 the most dangerous enemie that justice hath), the effect of which ( ow • 
 statute is, 
 
 First, that no person shall bargaine, buy, or sell, or obtaine (2 Roll. Abr. 
 any pretended rights or titles. 113, H4. 
 
 Secondly, or take, promise, grant or covenant to have any Hob - 115- ) 
 right or title of any person in or to any lands, tenements, or 
 hereditaments; but if such person which so shall bargaine, &c. 
 their ancestors, or they by whom he or they claime the same, 
 have beene in possession of the same, or of the reversion or re- 
 mainder thereof, or taken the rents or profits thereof by the 
 space of one whole yeare, &c. upon paine to forfeit the whole 
 value of the lands, &c. and the buyer or taker, &c. knowing the (l Leon. 167. 
 same, to forfeit also the value. ?,08. , .„ , 
 
 Thirdly, Plowd - 89 - a - ) 
 
 therefore had to a fiction at law, by which it was supposed that the property 
 of the thing in contest was made over to the attorney. The consequence was, 
 that the proceedings were carried on in the name of the attorney, and even 
 the sentence passed upon him. Hence he was called the dominus litis. See 
 Borhmer de dominio litis, I. 12. Pothicr Pandecta Jastinianea', lib. 3. tit. 3. 
 § 2.— [Note 319.]
 
 369. a.] Of Warrantie. L. 3. C. 13. Sect. 701. 
 
 Thirdly, provided that it shall be lawfull for any person, being 
 in lawfull possession, by taking of the yearely farrae, rents or 
 profits, to obtaine and get the pretenced right or title, &c. of 
 any lands whereof he or they shall be in lawfull possession. 
 
 For the better understanding of which statute, you must ob- 
 serve, that title or right may be pretenced two manner of wayes : 
 (l Cro. 232, First, when it is meerely in pretence or supposition, and no- 
 
 PLCom. fol. 80. thing in verity _ _ 
 
 <fcc. Partridge's becondly, when it is a good right or title in verity, and made 
 case. pretenced by the act of the partie ; and both these are within 
 
 the said statute : for example, if A. be lawfull owner of land, and 
 is in possession, B. that hath no right thereunto granteth to, or 
 contracteth for the land with another, the grantor and the grantee 
 (albeit the grant be meerely void) are within the danger of the 
 statute ; for B. hath no right at all, but only in pretence. If A. 
 be disseised in this case, A. hath a good lawfull right; yet if A. 
 being out of possession, granteth to, or contracteth for the land 
 with another, he hath now made his good right of entrie pre- 
 tenced within the statute, and both the grantor and grantee 
 within the danger thereof. A fortiori of a right in action. 
 Quod nota. 
 
 It is further to be knowne, that a right or title may be consi- 
 dered three manner of wayes. 
 
 First, as it is naked and without possession. Secondly, when 
 the absolute right commeth by release or otherwise to a wrong- 
 full possession; and no third person hath either jus proprietatis, 
 or jus possessionis. The third when he hath a good right, and 
 a wrongfull possession. As to the first, somewhat hath beene 
 said, and more shall be said hereafter. As to the second, taking 
 the former example, if A. be disseised, and the disseisee release 
 unto him (N), he may presently sell, grant, or contract for the 
 PL Com. Par- land, and need not tarrie a yeere; for it is a rule upon this sta- 
 sup S6 6 E. S <5. U 1 tute, that whosoever hath the absolute ownership of any land, 
 Brooke, tit. tenements, or hereditaments (as in this case the disseisor hath), 
 Maintenance, there such owner may at his pleasure bargaine, grant, or contract 
 (Cro Car 388 ^ or ^ ne land, for no person can thereby be prejudiced or grieved. 
 Plowd. 89. a.) And so if a man mortgage his land, and after redeeme the same; 
 or if a man recover land upon a former title, or be remitted to 
 an ancient right, he may at any time bargaine, grant, or con- 
 tract for the land, for the reason aforesaid. As to the third, if 
 in the case aforesaid the disseisor dieth seised, and A. the dis- 
 seisee entreth, and disseise the heire of the disseisor, albeit he 
 hath an antient right, yet seeing the possession is unlawfull, if 
 he bargaine or contract for the land before hee hath beene in 
 possession by the space of a yeare, he is within the danger of 
 the statute, because the heire of the disseisor hath right to the 
 possession, and he is thereby grieved, et sic de similibus : and 
 albeit he that hath a pretenced right (and none in verity) getteth 
 the possession wrongfully, yet the statute extendeth unto him 
 as well as where he is out of possession. 
 23 Eliz Dier Note, the words of the statute be (any pretenced right), there- 
 
 374. Pi. Com. fore a lease foryeares is within the statute; for the statute saith 
 Partridge's case, not (the right), but (any right), and the offendour shall forfeit 
 fo1 * 87- the whole value of the land. And where the statute speaketh 
 
 of rights in the plurall number, yet any one right is within the 
 [a] Mich. 30 & statute, [a] But yet if a man make a lease for yeares to 
 
 31 Eliz. 2811. 
 
 inter Finch & Cockham in Com. Banc. (Mo. 266.) (2 Roll. Abr. 114.) 
 
 another 
 
 (N) i. e. the disseisor.
 
 L. 3. C. 1 3. Sect. 701 . Of Warrantie. [369 . b. 
 
 another to the intent to trie the title in an ejectionse 
 
 [369.~| firmce, that is out of the statute, OCT because it is in 
 b. I a kinde of course of law ; but if it be made to a great 
 man, or any other to sway or countenance the cause, 
 that is within this statute. 
 
 Also the statute speakes (of any right or title to any land, &c.) 
 \l>~\ A customary right, or a pretence thereof to lands holden [b] Lib. 4. fol. 
 by copie, is within this statute. 26 - Co P lhold 
 
 The said proviso (which is rather added for explanation, than 6 E '$ tit 
 of any necessitie) extendeth only to a pretenced right or title, Maintenance, 
 and (A) to a good and cleare right; and therefore without Brooke, 38. 
 question, any that hath a just and lawfull estate may obtaine 
 any pretenced right by release or otherwise ; for that cannot be 
 to the prejudice of any : nay, as hath been said, a disseisor that (5 Rep. 60.) 
 hath a wrongfull estate may obtaine a release of the disseisee, 
 and that is not within the body of the act, and consequently 
 standeth not in need of any proviso to protect him. 
 
 And therefore [c] if there be tenant for life, the remainder [ c ] 34 II. 8. 
 in fee by lawfull and just title, he in the remainder may obtaine Dier > 62 - 
 and get the pretenced right or title of any stranger, not only for 
 that the particular estate and the remainder are all one, but for 
 that it is a meane to extinguish the seeds of troubles and suits, 
 and cannot be to the prejudice of any, as hath beene said. And 
 where the statute saith, (being in lawfull possession by taking 
 the yearely rent, &c.) those words are but explanatory, and put 
 for example ; for howsoever he be lawfully seised in possession, 
 reversion, or remainder, it sumceth though he never tooke profit. 
 But the matter observable upon this proviso, which is worthy of 
 observation, is, that if a disseisor make a lease for life, lives, or 
 yeares, the remainder for life, in tayle, or in fee, he in remainder 
 cannot take a promise or covenant, that when the disseisee hath 
 entred upon the land, or recovered the same, that then he should 
 convey the land to any of them in remainder, thereby to avoid 
 the particular estate, or the interest or estate of any other ; for 
 the words of the proviso be (buy, obtaine, get, or have by any 
 reasonable way or meane) and that is not by promise or covenant 
 to convey the land after entry or recovery ; for that is neither 
 lawfull, being against the expresse purview of the body of the 
 act, and not reasonable, because it is to the prejudice of a third 
 person. But the reasonable way or meane intended by the sta- 
 tute, is by release or confirmation, or such conveyances as amount 
 to as much : and this agreeth with the letter of the law, viz. the 
 pretenced right or title of any other person ; and rights and 
 titles are by release or confirmation, as by reasonable wayes and 
 meanes lawfully transferred and extinct: and the words of pro- 
 mise or covenant, &c. which are prohibited by the body of the 
 act are omitted in the proviso. 
 
 "Relinquished the possession, &c." This must be understood, (2 Rep. 31. 
 that before livery of seisin upon the feoffement, A. of B. de- Ant 48- b -l 
 parted out of the house ; for otherwise the livery and seisin 
 should be void, because A. of B. was in possession. And Lit- 
 tleton here saith, by a deed of feoffment, so as albeit the deed 
 were made before the departure it is not materiall ; but the de- 
 parture must be before the livery of seisin, for that doth worke 
 the disseisin. And yet that which Littleton saith is true, that 
 the feoffement was the cause that he relinquished his possession; 
 for otherwise he would not have done it. But 
 
 (A) Here the word "not" »ee»i« to be omitted btj mistake.
 
 369. b. 370. a.] Of Warrantie. L. 3. C. 13. Sect. 702, 703. 
 
 But admit that A. of B. had departed for any other cause, 
 yet if F. of G. enter and enfeoffe certaine harretors or extor- 
 tioners, or any other with warrantie, this is a warrantie that 
 commenceth by disseisin, for that the feoffement worketk a dis- 
 seisin. 
 
 Sect. 702. 
 
 ALSO, if a man which hath no right to enter into other tenements, 
 enter into the same tenements, and incontinently make a feoffement 
 thereof to others by his deed with warranty, and deliver to them seisin, 
 this warranty commenceth by disseisin, because the disseisin and feoffe- 
 ment ivere made as it were at one time. And that this is law, you may 
 see in a flee * M. 11 E. 3. in a writ of formedon in the reverter. 
 
 See before in fTHIS doth explaine that which hath beene said before. And 
 the Chapter of 1 albeit Littleton useth the words (and incontinently thereof 
 (^Rep?^.) make a feoffement) ; and that in this case of Littleton the dis- 
 46 E. 3. 6. seisin and feoffement were made (quasi uno tempore), yet if the 
 
 disseisin were made to the intent to make a feoffment with war- 
 rantie, albeit the feoffement be long after this (as hath 
 beene said) is a warrantie OCT that commenceth by r370.~| 
 disseisin. a. 
 
 [d] 31 E. 3. tit. « Mich. 11 E. 3." This is mistaken, and should be \d] 31 E. 
 arr. 28. ^ aQc j g0 j g ^ e originall, which case you shall see in Master 
 
 Fitzherbert' s Abridgement, for there is no booke at large of that 
 yeare. Hereby you may perceive that learned men looke not 
 only to the cases reported, but unto records, as you may see 
 Littleton did; for Fitzherbert put this case in print long after, 
 as elsewhere hath been shewed. 
 
 Sect. 703. 
 
 \WARRANTY lineall is, where a man seised of lands in fee maJceth 
 a feoffement by his deed to another, and bindes himself e and his 
 heires to ivarrantie, and hath issue and die, and the warranty descend 
 to his issue, that is a lineal warranty (Garranty lineal est, lou home 
 seisie tie terres en fee, f fait feoffement per son fait a un auter, et oblige 
 luy et ses heires a garranty, et ad issue et morust, et le garrantie dis- 
 cendist a son issue, ceo est lineal garranty). And the cause ivhy this is 
 called lineall ivarrantie, is not because the warranty descendeth from the 
 father to his heire (Et la cause pur ceo que J est dit lineal garrantie, n'est 
 pur ceo que le garranty discendist de le pier a son heire) ; but the cause 
 is, for that if no such deed with warrantie had been made by the father, 
 then the right of the tenements should descend to the heire, and the heire 
 should convey the discent from his father (et l'heire convey eroit le dis- 
 cent de || son pier), $c. 
 
 « WARRANTY 
 
 * M. 11. — anno xxxi. L. and M. J ceo added in L. and M. and Roh. 
 
 and Roh. || son — le, L. and M. and Roh. 
 
 f et added in L. and M. and Roh.
 
 L. 3. C. 13. Sect. 703. Of Warrantie. [370. a. 370. b. 
 
 " "WARRANTY lineall, &c." A warrantie lineall is a cove- (1 Rep. L) 
 
 nant reall annexed to the land by him which either was 
 owner, or might have inherited the land, and from whom his 
 heire lineall or collaterall might by possibilitie have claimed the 
 land as heire from him that made the warranty ; whereof Littleton (Post. 371. a. 
 himselfe putteth divers cases, which shall be explained in their 375 - a -) 
 proper places. And in this case put in this Section, Littleton 
 (once for all) sheweth, that the reason of the example here put, 
 is because if no such alienation with warrantie (for so is Littleton (3 Rep. 59.) 
 to be intended) had beene made, the very lands had descended ' Garr ' 5^ 
 to the heire, so as the case being put of lands in fee simple, the 
 alienation without the warrantie had barred the heire. And 
 note, that it is called a lineall warrantie (1) not because it must 
 descend upon the lineall heire ; for be the heire lineall or col- 
 laterall, if by possibilitie he might claime the land from him that 
 made the warrantie, it is lineall ; having regard to the warrantie, 
 and title of the land. And also it is called lineall, in respect 
 that the warrantie made by him that had no right or possibility 
 of right to the land, is called collaterall, in regard that it is col- 
 laterall to the title of the land. And it is also to be observed, 
 that in all the cases that Littleton hath put, or shall put, the 
 lineall or collaterall warranty doth binde the heire ; and there- 
 fore the successour claiming in another right shall not be bound 
 by the warrantie of any naturall ancestour. For which cause [c] [<■] 2 <" H. 6. 
 in a, juris utrum brought by a parson of a church, the collaterall Garr - 48 - 
 warrantie of his ancestour is no barre, for that he demandeth 
 the land in the right of his church in his politike capacitie, and 
 the warrantie decendeth on him in his naturall capacitie.fr/] But [d] 34 E. 3. 
 some have holden, that if a parson bring an assise, that a col- Garr - * 1 * 
 laterall warranty of his ancestour shall binde him ; and 
 
 [370.1 their reason is, for fi@T that the assise is brought of his 
 b. | possession and seisin, and he shall recover the meane 
 profits to his own use ; but seeing he is seised of the 
 freehold whereof the assise is brought in jure ecclesice, which is 
 in another right than the warrantie, it seemeth that it should not 
 he any barre in the assise. The like law is of a bishop, arch- 
 deacon, 
 
 (1) As to the distinction between lineal and collateral warranty: — By the 
 definitions given in this place of lineal warranty, it appears to be distinguished 
 from collateral warranty chiefly by this circumstance, that he on whom it 
 descends might possibly have claimed the land as heir to him that made the 
 warranty, and whether he claims as heir lineal or as heir collateral, the 
 warranty is equally lineal. But he must claim as heir ; for if an estate is 
 limited to the sons of any person successively in tail, and the eldest son aliens 
 with warranty, and dies without issue, the second son is heir at law to the 
 eldest son : he does not however claim as heir, but as purchaser, and therefore 
 the warranty is collateral to him. So if an estate is limited to the father 
 for life, and after his decease to the sons successively in tail, and the father 
 aliens with warranty and dies, the warranty descends on his eldest son and 
 heir; but as he claims as purchaser, not as heir, the warranty is collateral to 
 him. But though he must claim as heir, it is not necessary he should make 
 his title immediately as heir to him, (see Sect. 706.) neither is it necessary he 
 should derive from him alone. See Sect. 714. — An attempt will be made, 
 note 2, page 373. b. to explain the real distinction between lineal and collateral 
 warranty.— [Note 320.]
 
 370. l>.] Of Warrantie. L. 3. C. 13. Sect. 704. 
 
 deacon, deane, master of an hospitall, and the like, of their sole 
 possessions, and of the prebend, vicar, and the like. 
 
 [*] 45 Ass. 6. " And bindes Mmselfe and his heires." [*] King H. 3. gave a 
 
 pi E 'c 3 ' 56 234 b ' mannor t0 Edmund earle of Cornewall, and to the heires of his 
 
 A bbZ^bbi. ' hody saving the possibilitie of reverter, and died : the earle, 
 
 (8 Rep. 1. before the statute of W. 2 cap. 1. de donis conditionalibus, by 
 
 Ant. 19. b.) j ee( j g ave t jj e sa i(j mannor to another in fee with warrantie in 
 
 exchange for another mannor, and after the said statute in the 
 
 28 yeare of E. 1. dieth without issue, leaving assets in fee simple ; 
 
 which warrantie and assets descended upon king E. 1. as cosin 
 
 germaine and heire of the said earle, viz. son and heire of king 
 
 Henry the third, brother of Richard earle of Cornwall, father of 
 
 the said earle Edmund. And it was adjudged, that the king, as 
 
 Vide 27 H. 6. heire to the said earle Edmund, was by the said warrantie 
 
 Garr. 48. an( j assets barred of the possibilitie of reverter, which he had 
 
 Churn expectant upon the said gift, albeit the warrant and assets 
 
 descended upon the naturall body of king E. 1. as heire to a 
 
 subject; and king E. 1. claimed the said mannor, as in his 
 
 reverter injure coronas in the capacity of his body politike, in 
 
 Vide Sect. 711, which right he was seised before the gift. In this case, how by 
 
 7 TT 2 'h tq ^ e death °f tlie sa ^ ear * e Edmund without issue, the king's 
 
 9 Rep. 132. b. title ty reverter, and the warrantie and assets, came together, 
 
 (Vang! 379.) and that the warrantie was collaterall, yet the king shall not be 
 
 barred without assets, as a subject shall be ; and many other 
 
 things are to be observed in this case, which the learned reader 
 
 will observe (1). 
 
 (8 Rep. 51.) 
 
 Sect. 704. 
 
 J?OR if there be father and sonne, and the sonne 'purchase * lands in 
 fee, and the father of this disseiseth the sonne, and alieneth to ano- 
 ther in fee by his deed (et le pier de ceo disseisist son fits et f aliena a 
 un auter en fee per son fait,) and by the same deed binde him and his 
 heires to warrant the same tenements, £c. and the father dieth ; now is 
 the son barred to have the said tenements ; for he cannot by any suit, 
 nor by other meane of law, have the same lands by cause of the said 
 ivarrantie. And this is a collaterall warrantie ; and yet the ivarrantie 
 descendeth lineally from the father to the sonne. 
 
 Sect. 
 
 * lands — tenements, L. and M. and f ceo added in L. and 31. and Roh. 
 Roh. 
 
 (1) The king was in this case barred of the possibility of reverter descending 
 to him injure corona', by warranty and assets from a subject decending on his 
 body natural ; for in all likelihood those lands will descend to the same person 
 to whom the crown will descend, and consequently will be a good recompense 
 for the loss of the crown lands, but in the case of the parson, his successor can 
 have no benefit of what the predecessor has in his natural capacity. Hawk. 
 Abr. 474.— [Note 321.]
 
 L. 3. C. 13. Sect. 705-706. Of Warrantie. [371. a. 
 
 Sect. 705. 
 
 J) UT because if no such deed with warrantie had beene made, the sonne 
 in no manner could convey the title which hee hath to the tene- 
 
 t3 71 . "I mentsfrom his father unto him, inasmuch as his %C7* father had 
 a - J no estate in right in the lands; wherefore such toarrantie is 
 called collaterall warrantie, inasmuch as he that maketh the 
 warrantie is collaterall to the title of the tenements : and this is asmuch 
 to say, as hee to ivhom the warrantie descendeth, could not convey 
 to him the title which hee hath in the tenements by him that made the 
 warrantie, in case that no such warrantie were made. 
 
 HERE Littleton putteth an example, proving that it is not 5 E. 3. 14. 
 called lineall, because it descendeth lineally from the father ^6 E. 3. 6. 
 to the son ; for in this case the warrantie descendeth lineally, 8 R ' 2 ' 
 and yet is a collaterall warrantie. In this example you must Garr. 100. 
 intend that the disseisin was not of intent to alien with warrantie Vid - Sect - 7l6 - 
 to barre the sonne ; but here the dissesin being done to the 
 sonne, without any such intent, the alienation afterwards with 
 warrantie doth barre the sonne; because that albeit the warrantie 
 dotli lineally descend, yet seeing the title is collaterall, that is, 
 that the sonne claimeth not the land as heire to his father, there- 
 fore in respect of the title it is a collaterall warrantie. And 
 thus doth Littleton agree [e] with the authoritie of our bookes. [ e ] 46 E. 3. 6. 
 So as the diversities do stand thus. First, where the disseisin 5 E. 3. 14. 
 and feoffment are uno tempero, and where at severall times. ' " ' 
 
 Secondly, where the disseisin is with intent to alien with war- 
 rantie, and where the disseisin is made without such intent, and 
 the alienation with warrantie afterwards made. 
 
 Sect. 706. 
 
 ALSO, if there bee grandfather, father, and son, and the grandfather 
 is disseised, in whose possession the father releaseth by his deed with 
 warrantie, §c. and dieth, and after the grandfather dieth ; now the son 
 is barred to have the tenements by the ivarranty of the father. And this 
 is called a lineall warrantie, because if no such ivarranty were, the son 
 could not convey the right of the tenements to him, nor shew how hee is 
 heire to the grandfather but by means of the father. 
 
 HERE Littleton putteth an example where the son must 1 H. 4. 33. 
 claime the land as heire to his grandfather ; and yet because 35 E. 8. 
 hee cannot make himselfe heire to his grandfather but by his 
 father, it is lineall. 
 
 And it is to bee observed, that the warrantie in this case de- 
 scended upon the son, before the discent of the right, which hap- 
 pened by the death of the grandfather, in whom the right was. 
 Vide Littleton Cap. de Releases, and after in this Chapter, Sect. 
 707. and 741. 
 
 "The
 
 371. a. 371. b.J Of Warrantee. L. 3. C. 13. Sect. 707. 
 
 (3 Rep. 59. " The father releaseth by his deed with warrantie, &c." [f] It 
 
 Ant. 265. a. [$ to be knowne, that upon everie conveyance of lands tenements, 
 
 Post. 386.) Qr hereditaments, as upon fines, feoffments, gifts, &c. 
 
 [/] 14 E. 3. releases and. confirmations made to the O^T tenant of r371.1 
 
 Voucher, 108. triG i anc ^ a warr antie may bee made, albeit hee that L ^ J 
 
 18 E. i. ibid. 6." makes the release or confirmation, hath no right to the 
 
 10 e!3. 52. land, &c.j but some doe hold, that by release or confirmation, 
 
 21 E. 3. 27. where there is no estate created, or transmutation of possession, 
 
 44 E 3 a warrantie cannot be made to the assignee. 
 
 Cont. ie Vouch. 22. 12 H. 7. 1. Vide Sect. 733. 738. 745. (Post. 385. a. 
 
 Sect. 707. 
 
 A LSO, if a man hath issue two sonnes and is disseised, and the eldest 
 sonne release to the disseisor by his deed with warrantie, $c. and dies 
 without issue, and afterwards the father dieth, this is a lineall warrantie 
 to the younger sonne, because albeit the eldest sonne died in the life of 
 the father, yet by possibilitie it might have beene, that he might convey to 
 him the title of the land by his elder brother, if no such ivarrantie had 
 beene. For it might be, that after the death of the father the elder 
 brother entred into the tenements and died tvithout issue, and then the 
 younger sonne shall convey to him the title by the elder son (et donque le 
 puisne fits conveyera a luy le title per l'eigne * fits.) But in this case 
 if the younger sonne releaseth with warrantie to the disseisor, and dieth 
 tvithout issue, this is a collaterall warrantie to the elder son, because 
 that of such land as was the father s, the elder by no possibilitie can 
 convey to him the title by means of the younger son (Mes en tiel cas, si 
 le puisne fits relesse ove garrantie a le disseisor, et morust sans issue, 
 ceo est un collateral garrantie al eigne f fits, pur ceo que de tiel terre 
 que fuit al pier, l'eigne per nul possibilitie poit conveyer a luy le title 
 per meane de le puisne % fits). 
 
 35 E. 3. Gar. 73- TTERE Littleton putteth an example, where the heire that is 
 11 H.4. 33. XI to be barredby the warrantie, is not to make his discent by 
 (lRep. 66.) y m t ^ at ma( j e trie warr antie, as in the case before; and yet be- 
 cause by possibilitie he might have claimed by the eldest sonne, 
 if he had survived the father, and died without issue, and so the 
 younger brother might by possibilitie have beene heire to him, 
 the warrantie is lineall. 
 
 And here it is to be noted, that the warrantie of the eldest 
 sonne descended before the right descended; whereof more shall 
 be said hereafter, Sect. 741 ; and the opinion of Littleton in this 
 case is holden for law against the opinions in 35 E. 3. Gar. 73. 
 
 9 E. 3. 16. " But in this case if the younger sonne releaseth with ivarrantie, 
 
 38 E. 3. 21. &c." This warrantie in this case is collaterall to the eldest sonne, 
 46 E ' 9 3 p 26 ' oi anc * to tae issues of n * s Doclie 5 k ut if the eldest sonne dieth with- 
 ( 8 2 Ron. Abr ' out issue of his bodie, then the warrantie is lineall to the issues of 
 733.) the bodie of the youngest : and so the warrantie that was col- 
 
 laterall to some persons, may become lineall to others. 
 
 Sect. 
 
 * fits not in L. and M. or Roh. J fits not in L. and M. or Roh. 
 
 t fits not in L. and M. or Roh.
 
 I 3. C. 13. S. 708. Of Warrantie, [372. a. 372. b. 
 
 [T-] 
 
 *@r Sect, 708. 
 
 A LSO, if tenant in taile hath issue three sonnes, and discontinue the 
 tayle in fee, and the middle son release by his deed to the discontinuee, 
 and bind him and his heires to warrantie, $c. and after the tenant in 
 taile dieth, and the middle son dieth without issue, now the eldest sonne 
 is barred to have any recoverie by ivrit o/formedon, because the warrantie 
 of the middle brother is collaterall to him, inasmuch as hee can by no 
 meanes convey to him by force of the tayle any discent by the middle, 
 and therefore this is a collaterall warrantie. But in this case if the 
 eldest sonne die without issue, now the youngest brother may well have 
 a writ of formedon in the discender, and shall recover the same land r 
 because the warrantie of the middle is lineall to the youngest son, for 
 that it might bee that by possibilitie the middle might bee seised by force 
 of the taile after the death of his eldest brother, and then the youngest 
 brother might convey his title of discent by the middle brother. 
 
 HEREBY it also appeareth, that a warrantie that is colla- (Dr. and Stud. 
 terall in respect of some persons, may afterwards become g R ' £ 
 lineall in respect of others. Whereupon it followeth, [*] that Gar. 101. 
 a collaterall warrantie doth not give a right, but bindeth only a ^i 3 ^^. 44- 
 right so long as the same continueth ; but if the collaterall war- Taile * ^ ' 
 rantie be determined, removed, or defeated, the right is revived. 7 h. 5. 6." tit. 
 [/] And yet in an assise the plaintiffe hath made his title by a Ass. 359. 
 collaterall warrantie. Droit ' 29. 
 
 19 H. 6. 59. 21 H. 7. 40. 5 H. 7. 29. 3 H. 7. 9. b. [/] 16' Ass. p. 10. 
 
 27 Ass. 74. 29 Ass. 50. 43 Ass. 8. 14 H. 4. 13. 19 H. 6. 60. 
 
 " Barred" is a word common as well to the English as to the (Doct. Plac. 54.) 
 French, of which commeth the nowne, a bar, barra. It signifieth 
 legally a destruction for ever, or taking away for a time of the 
 action of him that right hath. And barra is an Italian word, and 
 signifieth barre, as we use it; and is called a plea in barre, 
 when such a barre is pleaded. Here Littleton putteth an example (Dr. and Stud. 
 of a barre of an estate taile by a collateral warranty. It is to be 56 - a -) 
 observed, that in some cases an estate taile may be barred by 
 some acts of parliament made since Littleton wrote; and in some 
 cases an estate taile cannot be barred, which might when Lit- 
 tleton wrote have been barred. For example, if tenant in tayle 4 H. 7. c. 24. k 
 levie a fine with proclamations according to the statute, this is *f*^J- \^ 
 a barre to the estate taile, but not to him in reversion or re- ( 
 mainder, if hee maketh his claime, or pursue his action within 
 five yeares after the state taile spent. 
 
 \b~\ If a gift be made to the eldest sonne, and to the heires of [J] Dalison, 
 his bodie, the remainder to the father and to the heires of his 2^ &_ 7 El. 
 bodie, the father dieth, the eldest son levieth a fine with pro- fo l. 8 4. lo' case- 
 
 clamations, and dieth without issue ; this shall barre de Fines. 
 r372.1 B@* the second sonne, for the remainder descended j 3 ^ ^'^ 
 J_ b. J to the eldest. # 9 R ep . io*4. ' 
 
 If tenant in taile be disseised, or have a right of piowd. 374. a. 
 action, and the tenant of the land levie a fine with proclama- 375. a.^ ^ 
 tions, and five years passe, the right of an estate taile is barred. N r o °y 46 * ' 
 
 If (Dyer, 3. b. 133.) 
 
 Vol. II.-4I
 
 372. b. ] Of Warrantie. L. 3. C. 13. Sect. 708. 
 
 [b] 26 H. 8. [b] If tenant in taile in possession, or that hath a right of 
 v?ij l s' <>n entr i e > bee attainted of high-treason, the estate taile is barred, 
 5 E. 6. c.°il " an d tue ^ an< ^ * s forfeited to the king; and none of these were 
 Staunf. PL barred when Littleton wrote. A lineall warrantie and assets wak 
 Coron. 18. a b arre to the estate taile when Littleton wrote; whereof more 
 
 shall be said hereafter. 
 
 [c] 12 E. 4. 9. [c] A common recoverie with a voucher over, and a judgment 
 Taltarum's case. to recove r in value, was a barre of the estate taile when Littleton 
 Sect 690 6Vant wrote. [(/] And of common recoveries there bee two sorts, viz. 
 Vid. Lib. 3. 'fol. one with a single voucher, and another with a double voucher, 
 5. Cupplediek's anc i that is more common and more safe j there may be more 
 97**106 ° ' " vouchers over. 
 
 Lib. 1 fol. 62. Capel's case. Lib. 2. fol. 16. 52. 74. 77. Lib. 6. fol. 41, 42. 
 Lib. 10. fol. 37. Marie Portington's case. (Ante 335. a.) 
 
 [e] 38 H. 8. [ e ] If the king had made a gift in taile, and the donee had 
 
 Taile, Br. 41. suffered a common recoverie, this should have barred the estate 
 555. 29 H. 8. taile in Littleton's time, but not the reversion or remainder in the 
 Dier, 52. king. And so if such a donee had levied a fine with proclama- 
 
 [/] 34 H. S. tions after the statute of 4 H. 7, this had barred the estate taile, 
 cap. 20. although the reversion was in the king (1). [/] But since Lit- 
 
 tleton wrote, a common recoverie had against tenant in taile of 
 the king's gift, or such a fine levied by him, the reversion con- 
 tinuing in the crowne, is no barre to the estate taile by the 
 statute of 34 H. 8. (2). And where the words of the statute be 
 (whereof the reversion or remainder at the time of such recoverie 
 had shall be in the king) these ten things are to be observed 
 upon the construction of that act (3). 
 
 First, 
 
 (1) 29 II. 8. Dy. 32. accord, tail barred, but not discontinued, because the 
 32 II. 8. cap. 36. was not then made. Note also, that 32 II. 8. cap. 36. excepts 
 reversion is in the king : so note the issue is barred by 4 II. 7. Hob. 382. for 
 tenant in tail by gift of the king. Lord Nott. MSS. — [Note 322.] 
 
 (2) Upon this act see Mr. Cruise's Essay on Recoveries, 2d ed. 255. and 
 5 Digest, ch. xiii. § 9. 
 
 (3) Nota, 34 H. 8. is not of force in Ireland, therefore the knowledge of the 
 common law in these points is necessary there. — B. being tenant in tail by gift of 
 king H. 8. of the' manner ofT. an. 14 Eliz. contracted with A. to convey it to him 
 and his heirs in consideration of a sxim of money, and the manner of assurance 
 was this: queen Eliz. in May 14 Eliz. grants her reversion to C. and D. and 
 their heirs ; June 14 Eliz. B. suffers a recovery to the use ofG. and D. and their 
 heirs; and in the same terme B. and A. levy a fine ofT. to C. and J), which they 
 grant, and render to A. ; and afterwards, in the same term, reconvey the rever- 
 sion by fine, &c. to queen Eliz. And now whether this estate to A. was a gift in 
 tail ex provisione from the queen, within the statute o/"34 H. 8. c. 20. was the 
 question between E. heir of the body of A. and F. who claimed by the fine levied 
 by the father of the said E. whose daughter he had married ; and it was held by 
 Berkeley that it was not, 1st, because the grant of the reversion to C. exjjresses 
 no intent of the queen to create an estate tail to A. : 2d, when the estate tail of B. 
 toas docked by the recovery, and upon the fine levied C. rendered the tail to A. 
 he might have rendered the fee simple if he had willed ; and he was the donor of 
 the estate tail, not the queen, except of the reversion afterwards rcconveyed : 
 3(7, this reversion reconvey ed was not in the queen her original reversion, but a 
 new reversion expectant upon the tail of A. {for the former tail was docked^) 
 wherefore A. cannot bar the reversion in the queen, but he may bar his own issue 
 notwithstanding 34 II. 8. : 4th, because although gift in tail by a subject may be 
 a provision of the king within the statute, nevertheless the intent should appear, 
 
 which
 
 L. 3. C. 13. Sect. 708. Of Warrantie. T372. b. 
 
 First, that the estate tail must bee created by a king, and 
 not by any subject, albeit the king be his heire to the reversion; 
 for the preamble speakes 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 realme), and the body 
 of the act referreth to the preamble. [#] And therefore if the [<?] Trin. 23 Eliz. 
 duke of Lancaster had made a gift in taile, and the reversion ^J^^f 
 descended to the king, yet was not that estate taile restrained BO ived in the 
 by that statute; and so of the like. Ooortof WmbIi. 
 
 Secondly, if the king grant over the reversion, then a recoverie Jig^^ise- 
 suffered will barre the state taile, because the king had no rever- man »' s case / 
 sion at the time of the recoverie. 
 
 Thirdly, if the king make a gift in taile, the remainder in taile, Lib. S.fol. 77, 
 or grant the reversion in taile, keeping the reversion in the g^^/case. 
 crowne, a recoverie against tenant in taile in possession shall ^ Roll. 394.) 
 
 neither 
 
 which is not the case here. Hales made two questions. I. What shall be said a 
 provision by the king within this statute, and this is question of law. II. Whe- 
 ther this shall be said to be such a provision, which is matter of fact. To the 
 first it seems, that if the queen be merely instrumental in procuring an estate 
 tail to be settled, but that the estate itself does not proceed either from the charge, 
 or from the bounty of the crown as a reward for service, it is no provision within 
 this statute ; and therefore it is to be seen, if in this case the entail was upon con- 
 tract between subject and subject, and if the queen were merely instrumental to 
 perfect the conveyance and save her own reversion, which is the second question, 
 and a question of fact. To the second, that this is not such a provision, there are 
 these presumptions : 1st, Nothing appears of record that such provision was in- 
 tended, which by Coke is here held to be necessary (but Hales doubted hereof.) 
 Id, No land, money, or other consideration, moved the queen to procure B. to 
 grant this estate tail to A. 3d, It does not appear that the queen took notice of 
 any service done by A. or of any favour intended by her to him. 4th, If the 
 queen had intended a provision within the statute, she might have caused C. to 
 convey the fee simple first to herself, and then have granted to A. in tail, bth, If 
 it was intended that A. should have an entail, ivhich should not be aprovision 
 within the statute, no one can contrive any other way than this to effect it. ^ 6th, It 
 appears that A. was to purchase, and that the queen should not be prejudiced, 
 nor any other person which is effected. — Nota, At the common law, if the king 
 grant lands in fee simple conditional, it was doubted if donee post prolem sus- 
 citatem might have aliened to bar his issue, Riley, 438. supra 19. b. but^ clearly 
 not to bar possibility of reverter in the king ; no, not though the alienation were 
 with warranty collateral, unless assets descended to the king. Ante, 19. b. and 
 370. in margine. Sed unde alienation without warranty or assets bars subject 
 donor, 4 H. 6. Rot. Pari. n. 51. Commons petition that feoffees who buy lands 
 of the king, tenant in taile may enjoy them against the king. Resp. le roy 
 s'avisera. — Note also after Wesim. 2. and before 34 II. 8. recovery or fine 
 barred the tail of gift by the king, not the reversion to the king; so that by the 
 wisdom of the common law, where the king raised the family, a kind of perpe- 
 tuity was intended ; for every man was discouraged to purchase from the donee, 
 for no act of his could bar the king's reversion or possibility of reverter, which 
 was a good way to preserve the memory of the king's boun ty. When this would 
 not do, upon the dissolution of monasteries, the crown having much land to be- 
 stow, began now to provide by 34 H. 8. that no alienation should bar the entail; 
 for there needed no law for the reversion, and no other way could preserve the 
 memory, &c. : and yet this is often eluded by a temporary grant of the rever- 
 sion by the king, and a reconveyance, &c. — Lord Nott. MSS. — [Note 323.]
 
 Lib. 2. fol. 15, 
 16. Wiseman's 
 case. Lib. 2. fol, 
 52. CLoluileye's 
 case. 
 
 (Mo. 115. 195. 
 2 Rep. 15. b. 
 1 Cro. 430.) 
 
 Lib. 2. fol. 16. 
 
 372. b. 373. a.] Of Warrantie. L. 3. C. 13. Sect. 708. 
 
 neither barrc the estate taile in possession by the exprcssp pur- 
 view of the statute, nor by consequence the state in remainder 
 or reversion ; for that the reversion or remainder cannot be 
 barred, but where the estate tail in possession is barred. 
 
 Fourthly, if a subject make a gift in taile, the remainder to 
 the king in fee, albeit the words of the statute be, (whereof the 
 reversion or remainder of the same, &c.) yet seeing the estate in 
 taile was not created by a king, as hath bcene said, the estate 
 taile may bee barred by a common recoverie. 
 
 Fifthly, if Prince Henrie, sonnc of Henrie the Seventh, had 
 made a gift in taile, the remainder to //curie the Seventh in fee, 
 which remainder by the death of Henrie the Seventh had de- 
 scended to Henrie the Eighth, so as he had the remaiuder by 
 discent ; yet might tenant in taile, for the cause aforesaid, barrc 
 the estate taile by a common recoverie. 
 
 Sixthly, the word (remainder) in the statute is novaine word ; 
 Wiseman's case, for the words of the preamble be, the king hath given or granted, 
 or otherwise provided to his servants and subjects. The word 
 (reversion) iu the body of the act hath reference to these words 
 (given or granted); and (remainder) hath reference to these 
 words (otherwise provided). As if the king in consideration of 
 money, or of assurance of land, or for other consideration by way 
 of provision, procure a subject by deed indented and inrolled, to 
 make a gift in taile to one of his servants and subjects for recom- 
 pence of service, or other consideration, the remainder to the 
 king in fee, and all this appeare of record ; this is a good provi- 
 sion within the statute, and the tenant in taile cannot by a com- 
 mon recoverie barre the estate taile. So it is, if the remainder 
 bee limited to the king in taile ; but if the remainder bee limited 
 to the king for yeares, or for life, that is no such remainder as it 
 is intended by the statute, because it is of no remainder of con- 
 tinuance, as it ought to be, as it appeareth by the preamble ; 
 and it ought to have some affiuitie with a reversion, wherewith 
 it is joyned. 
 
 Seventhly, where a common recoverie cannot barre the state 
 tail by force of the said statute, there a fine levied in fee in 
 taile, for lives, or ) T cares, with proclamations according to the 
 statutes, shall not barre the state taile, or the issue in 
 taile, where the reversion or Bgg~ remainder is in the [~37'3.~| 
 king, as is aforesaid, by reason of these words in the |_ a. 
 said act (the said recovery, or any other thing or things 
 hereafter to be had, done, or suffered by or against any such 
 tenant in taile to the contrary notwithstanding), which words 
 include a fine levied by such donee, and restraimth the same. 
 
 Eighthly, but where a common recovery shall barre the 
 estate taile, notwithstanding that statute, there a fine with 
 proclamations shall barre the same also. 
 
 Ninthly, where the said latter words of the statute be (had, 
 done, or suffered by or against any such tenant in taile,) the 
 sense and construction is, where tenant iu taile is partie or 
 privie to the act, be it by doing or suffering that which should 
 worke the barre, and not by meere permission, he being a 
 stranger to the act(l). 
 
 As 
 
 So resolved 
 Pasch.31Eliz 
 Hot. 1645, in 
 Notley's case 
 in Conimuni 
 Banco. 
 
 (S Rep. 77.) 
 
 (3 Cro. 430. 
 Cro. Eliz. 595. 
 Sid. 166. 
 4 Leon. 40. 
 Moor, 467.) 
 
 (1) 11 Car. Cro. obiter in Wi/at's case, tenant in (ail, reversion to the himj, 
 is disseised, entry to the issue is barred : which perhaps is so here, because in 
 both cases the taile is not barred. — Lord Nott. MSS. — [Note 324.]
 
 L. 3. C. 13. Sect. 709. Of Warrantie. [373. a. 
 
 As if tenant in tayle of the gift of the king, the reversion to So holden Trin. 
 the king expectant, is disseised, and the disseisor levie a fine, and ^ufata?" 
 five yeares passe, this shall barre the estate taile (2) ; and so if a glrat ' for ,i & Do- 
 collaterall ancestour of the donee release with warrantie, and ver in Communi 
 the donee suffer the warrantie to descend without any entry JJjJjjj ^ 
 made in the life of the ancestour, this shall binde the tenant in ( 2 ^l'LAbr. 
 tayle, because he is not party or privie to any act, either done or 773.) 
 suffered by or against him. 
 
 Tenthly, albeit the preamble of the statute extend onely to 
 gifts in taile, made by the kings of England before the act (viz. 
 hath given and granted, &c.) and the body of the act referrethto 
 the preamble (viz. that no such feigned recovery hereafter to 
 be had against such tenant in taile), so as this word (such) may 
 seeme to couple the body and the preamble together ; yet in 
 this case (such) shall be taken for such in equall mischiefe, or 
 in like case ; and by divers parts of the act it appeareth that the 
 makers of the act 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 taile without a 33 E. 3. Judge- 
 voucher, is no barre of any gift in taile. jTh.V 55*. 
 
 If tenant in taile the remainder over in fee cesse, and the lord 10 jj ' 6 5 '_ 
 recover in a cessavit, this shall not barre the estate taile, for the 14 E. 4. 0. b. 
 issue shall recover in aformedon; neither were either of these *? E. 4. 8.^ ^ 
 barres when Littleton, wrote. But let us now heare Littleton. pi. c' m. 237. 
 
 23 E. 3. 95. F. N. B. 23. 1. 
 
 Sect. 709. 
 
 A LSO, if tenant in taile discontinue the taile, and hath issue and dieth, 
 and the uncle of the issue release to the discontinuee with warrantie, 
 $c. and dieth without issue, this is a collateral warranty to the issue in 
 tayle, because the warranty descendeth upon the issue, that cannot con- 
 vey himself e to the entayle by meanes of his uncle. 
 
 THE 
 
 (2) Cro. Car. 430. Jones cited the case according to the report in this 
 place ; but it seems he was misled by this book. See the note immediately 
 following. — It seems to some that the case of Stratford and Dover above quoted 
 is not law; for in 2 Rep. 11. Magd. Coll. case, it is adjudged, that the fine does 
 not bar the college, not being parties, because the 13 Eliz. makes void all acts 
 which it suffers, and such sufferance extends to the act in which they are not par- 
 ties, by sir Orl. B. — And sir F. Moore, 467. reports the same case: and there 
 by Walmsley it is said, that this issue is only bound in the time the fine islevied, 
 but no other issue, and this by 34 H. 8.; hence it seems, that sir F. Moore or 
 lord Coke have mtsreported the case, for they are contrary to each other. Hi ote t 
 Mr. Palmer told Hen. Finch, afterwards lord Nottingham and chancellor, that 
 he attended Walter, ch'af baron upon a reference, and that Walter denied the 
 above case, and said, that the roll was contra, and the judgment there contra to 
 this report, and that he and Palmer went to the house of lord Cuke, then living, 
 and showed him the roll contra to his report in this place, and that he acknow- 
 ledged it, and said, that he trusted to Serjeant Bridgman' 8 report : whence it 
 appears, that sir F. Moore's report is the better, and there he reports it to have 
 been, 39 Eliz. Ro. 1914.— Lord Nott. MSS.— [Note 325.]
 
 373. a. 373. b.] Of Warrantie. L. 3. C. 13. Sect. 709. 
 
 fPl. Com. fol. fTHE reason wherefore the warrantie of the uncle having no 
 307. a. in Sha- 1 right to the land entailed shall barre the issue in tayle is, for 
 
 2R S n I Ab CaSe ' tnafc tlie ^ aw P resumet ^ tnat the uncle would not unnaturally dis- 
 7 45_°) ' herit his lawfull heire, being of his owne bloud, of that right 
 
 (Post. 374. b.) which the uncle never had, but came to the heire by another 
 (3 Rep. 59.) m eane, unlesse hee would leave him greater advancement. Nemo 
 preesumituralienamposteritatcmsvaepratulisse. And in this case 
 the law will admit no proofe against that which the law pre- 
 (Ante 6. b.) sumeth. And so it is of all other collaterall warranties; for no 
 
 man is presumed to doe any thing against nature. 
 [A-] 11 n. 4. 55. [&] And the like holdeth in some other cases; as if a rent be 
 io Eliz. Dier, behinde for twentie yeares, and the lord make an acquittance for 
 27L the last that is clue; all the rest are presumed to be paid; and 
 
 [?] 7 H. 4. 9. the law will admit no proofe against this presumption (3). [I] So 
 if a man be within the foure seas, and his wife hath a childe, the 
 law presumeth that it is the childe of the husband; and against 
 this presumption the law will admit no proofe (4). 
 |>] 3 E. 3. [»t] If a man that is innocent be accused of felony, 
 
 Corone, Staunf. an( ifor fear flieth from the same, OCT albeit he judicially ['373.1 
 acquitteth himselfe of the felonie, yet if it be found that L D - J 
 he fled for the felonie, he shall, notwithstanding his 
 innocence, forfeit all his goods and chattels, debts and duties; 
 for as to the forfeiture of them, the law will admit no proofe 
 against the presumption in law grounded upon his flight : and so 
 Bracton, lib. 1. in many other cases. But yet the geuerall rule is, Quod stabitur 
 cap. 9. prcesumptioni donee probetur in contrarium; but, as you see, it 
 
 hath many exceptions. 
 
 [n] Rot. Par- [»] It hath beene attempted in parliament, that a statute 
 
 liament, 50 E. 3. m ight be made, that no man should be barred by a warrantie 
 
 num. 77. collaterall, but where assets descend from the same ancestor ; 
 
 but it never tooke effect (1), for that it should weaken common 
 
 assurances (2). 
 
 Sect. 
 
 (3) This is to be understood of an acquittance under hand and seal, which 
 is an estoppel ; for if it be not under seal, the law will admit of proof to the 
 contrary : but an avowry for the last day's rent is no discharge for the former; 
 for by the avowry the avowant says so much is due, but discharges nothing, 
 no other rent being mentioned in the avowry, but that for which he acknow- 
 ledges the taking °he goods. See 1 Sid. 44. 1 Lev. 43. 1 Saund. 285, 286. 
 Lutw. 1173. Note to the- 11th edition. — [Note 326.] 
 
 (4) But see ant. 244. a. note 2. 
 
 (1) However, it hath been effected in our days ; for by 4 Ann. cap. 16. sect. 
 21. all warranties since the first day of Trinity Term, anno Dom. 1705, by any 
 tenant for life, of any lands, tenements, or hereditaments, coming or descend- 
 ing to any person in reversion or remainder, are void and of no effect ; and all 
 coflateral warranties made since then of any lands, tenements, or hereditaments, 
 by any ancestor who had no estate of inheritance in possession, the same is void 
 ao-ainst the heir. Note to the 11th edition. — [Note 327.] 
 
 (2) The reader will recollect, that previously to the statute de donis all 
 estates were held either in fee simple, iu fee simple conditional, for life, or for 
 years; and that estates tail, in the light in which we now consider them, had 
 not then an existence. If a person seised in fee simple aliened his estate, the 
 alienation was certainly binding upon both his lineal and his collateral heirs ; 
 his warranty therefore had effect so far as it entitled the alienee to vouch the 
 heir of the warrantor, and, in case of eviction, to claim a recompense from 
 
 him,
 
 L. 3. C. 13. Sect. 710. Of Warrantie. [373. b. 
 
 Sect. 710. 
 
 A LSO, if the tenant in tayle hath issue two daughters and dietli, and 
 
 the elder entreth into the whole, and thereof maketh a feoffment in 
 
 fee with warrantie, $c. and after the elder daughter dieth without issue ; 
 
 in 
 
 him, if any real assets descended upon him from the ancestor : but with respect 
 to the repelling or rebutting of the claim of the heir to the estate itself, as 
 the alienations of tenant in fee simple bound the heirs as effectually without 
 the warranty as with it, the warranty, in that respect, could have no operation. 
 As to the warranties of persons seised of estates held mfee simple conditional, 
 it has been observed before, p. 326. b. note 1. that the condition from which 
 that estate took its appellation did not suspend the fee from vesting in the do- 
 nee immediately by the gift; and therefore if he aliened before he had issue, 
 it not only was no forfeiture, but if afterwards he had issue, it was a bar to 
 them. Hence the warranty of a tenant in fee simple conditional had the same 
 effect with respect to his issue, as the warranty of tenant in fee simple absolute 
 had, upon those who claimed from him ; that is, with assets, it entitled the war- 
 rantee to vouch the issue as heirs at law of the ancestor; but in other respects 
 it had no operation, as the issue was bound by the alienation of the ancestor, 
 as effectually without warranty as with it. With respect to the donor or rever- 
 sioner, the alienations of tenant in fee simple conditional could not be binding 
 on him without assets, because he claimed to be in by title paramount. 
 
 As to the warranties of tenant for life or for years : in most cases they must 
 have been void, as commencing by disseisin. In those cases where they were 
 not void upon that account, it is to be observed that before the statute of uses 
 an estate of freehold could not be treated without livery of seisin ; and that as 
 the livery of seisin of tenant for life or for years was a forfeiture of the estate, 
 the reversion or remainder-man might enter immediately for the forfeiture ; 
 but if he did not enter during the life of the person aliening, the warranty 
 estopped him from entering afterwards. The reader will recollect, that if a dis- 
 seisor, abator, or intruder, died in the possession of the estate, his heirs so far 
 acquired a presumptive title to the estate, that the disseisee could no longer 
 restore his possession by entry, but was reduced to his action. By analogy to 
 this reasoning, and a rational extension of the principles on which it was founded, 
 the law supposed that the remainder-man or reversioner would have entered 
 for the forfeiture of the tenant for life or years, if an equivalent were not given 
 him : it was therefore presumed, that if he did not enter during the life of 
 such particular tenant, he had received from him an equivalent; and this pre- 
 sumption being admitted, he could not afterwards, with any colour of justice, 
 be allowed to claim the estate itself. 
 
 Such were the effects and operations of warranty at the common law. 
 The first material alteration in it was by the statute of Gloucester, 6 E. 1. 
 ch. 3. by which it was enacted, that the warranty of the father, tenant by the 
 courtesy, either in the life of his wife or afterwards, should not be a bar to the 
 heir without assets. The next statute which made any material alteration upon 
 the effect and operation of warranty, was the statute de donis. An attempt has 
 been made in note 1, page 326. b. and notes 1 and 2 to pages 327. a. to explain 
 in what manner, and by what construction of law, estates tail derived their 
 origin from that statute. It is obvious, that if the warranty of tenant in tail, 
 
 without
 
 373. b.] Of Warrantie. L. 3. C. 13. Sect. 710. 
 
 in this case the younger daughter is barred as to the one moietie, and as to 
 the other moietie sliee is not barred. For as to the moity which belong eth 
 to the younger daughter, slice is barred, because as to this * part shee cannot 
 
 convey 
 * part — moitie which belong eth to her, L. and M. and Ron. 
 
 without assets, had been permitted to be a bar of the estate tail, it would have 
 been in the power of every tenant in tail to have evaded that statute, and 
 barred his issue. By a kind of analogy, therefore, to what the legislature had 
 done in passing the stat. of Gloucester, the judges in their construction of the 
 statute de clonis, held, that the warranty of tenant in tail, without assets, should 
 not bind his issue ; but by the same analogy, and to prevent the circuity which 
 would arise if the issue had been permitted to recover the estate from the alienee, 
 and the alienee to recover the assets from the issue, they held the issue bound 
 by warranty with assets. — With respect to those in remainder or reversion — 
 it is to be observed, that the statute de donis extends only to the alienations 
 of tenants in tail ; the alienations, therefore, of tenants for life with warranty, 
 remained as they did at the common law, and therefore bound all upon whom 
 the warranty descended, either with or without assets. Neither did the statute 
 de donis restrain the alienations of tenant in tail, except so far as they pre- 
 vented the land descending upon the issue at his death, or reverting to the 
 donor for want of issue in tail. There is nothing in it which, either directly 
 or indirectly, restrains the tenant in tail from barring a remainder-man in tail, 
 by his warranty descending on him, unless perhaps it should be considered that 
 every particular estate in remainder is carved out of and a part of the reversion, 
 and consequently equally entitled to protection. As to a remainder-man in 
 tail, therefore, the operation of warranty in rebutting the heir, remained as it 
 was before the statute ; it barred him both with and without assets. This is 
 laid down and explained with great learning and force of argument by lord 
 chief justice Vaughan, in his argument in Bole v. Horton. See his Reports, 
 p. 360. The case there was, that William Vescy devised to John Vescy, his 
 eldest son, and the heirs male of his body ; and for want of such issue to Wil- 
 liam Vescy, another of his sons, and the heirs male of his body ; and for want 
 of such issue to his own right heirs. John, upon his father's death, entered, 
 and died, leaving issue only two daughters ; William then entered and aliened 
 with warranty, and died without issue. The question was, whether the war- 
 ranty rebutted the daughters. Lord chief justice Vaughan was of opinion that 
 the warranty, not being accompanied with assets, would not have barred his 
 own issues in tail, if there had been any, or the two daughters, who claimed 
 the reversion, both issues in tail and the reversioners being protected by the 
 statute de donis: but he admitted, that if there had been any intermediate 
 remainder in tail, the warranty would have rebutted all who claimed under that 
 remainder, a remainder in tail not being under the protection of the statute. 
 The only point before the court in this case was, upon the operation of the 
 warranty to rebut the reversioners. Upon this the court was divided ; the 
 chief justice and justice Archer were for the demandant; and justice Wyld 
 and justice Atkins for the tenant. The next statute which restrained the 
 operation of warranty was 11 Henry 7. ch. 20. by which the warranty of the 
 wife of her husband's lands, either with or without her succeeding husband, 
 was held to be void. The last statute which has been enacted for the purpose 
 of restraining the operation of warranty, is the 4 and 5 Ann. ch. 16. by which 
 all warranties of tenant for life are declared void ; and all collaterall warranties 
 of any ancestor who has not an estate of inheritance in possession, are declared 
 void against the heir. But this statute does not extent to the alienation of 
 tenant in tail in possession. The consequence is, that even at this day, if a 
 tenant in tail in possession discontinues his estate with warranty, it is a bar with 
 
 asset s
 
 L. 3. C. 13. Sect. 710. Of Warrantee. [373. b. 
 
 convey the diseent by meanes of her eldest sister, and therefore as to this 
 moitie, this is a collateral warrantie. But as to the other moitie, which 
 belongeth to her elder sister, the warrantie is no bar to the younger sister, 
 
 because 
 
 assets to his issue, and without assets to those in remainder. Supposing 
 therefore, the common case of a limitation to the first and other sons succes- 
 sively in tail male; if the first son, when in possession, levies a fine, that is a 
 discontinuance of the remainders to the other sons ; and by reason of the 
 warranty contained in the concord, it is a bar to them, eveu without assets. 
 It is the same if he executes a feoffment, and accompanies it with a warranty. 
 It remains to observe, that no warranty extends to bar any estate, either in 
 possession, reversion, or remainder, unless before, or, at least, at the time that 
 the warranty is made, it is divested or displaced. See Seymour's case, 10 Rep. 
 96. — These, it is presumed, are the general outlines of the doctrine of warranty. 
 The reader will observe, by what has been said on that subject, that at common 
 law. the operation of a warranty to rebut the heir could hold iu no case where 
 the heir claimed the estate warranted from the ancestor by descent; for, at the 
 common law, wherever the ancestor had the inheritance, he could alien it from 
 the issue ; therefore the warranty, as to the purpose of rebutter, was perfectly 
 inoperative. The statutes have made no alteration in these respects. Had it 
 been held that the statute de donis did not restrain the effect of the warranty to 
 rebut the issue, this principle would have been broken into, as the heir in that 
 case 'would have been rebutted by his ancestor's warranty from an estate which 
 he claimed to take from him by descent ; but as the contrary construction was 
 received, the principle remains as it did at the common law. The consequence 
 is, that without assets the ancestor's warranty never did, and does not now bind 
 the heir in any case, except where he takes by purchase ; and that when he 
 does take by purchase, it binds him either with or without assets, in every case 
 where the contrary has not beene enacted by statute. Upon inquiry it will be 
 found that the cases where the operation of warranty still prevails are reduced 
 to two ; the first, that by the construction of the statute de donis, the ancestor's 
 warranty binds the issues in tail with assets; the other, that, at common law, 
 the warranty of the ancestor, tenant in tail in possession, still continues (unless 
 the contrary can be supported on the ground before hinted at to bar those in 
 remainder without assets. It is observable, that all warranties are collateral, 
 so far as they are extraneous to the estate, and by way of contradistinction 
 to those rights, incidents, or qualities, which by their nature are inherent in, 
 annexed to, or issuing out of the estate which they accompany. In this sense 
 the word collateral frequently occurs in our law books. Thus, 1 Rep. 121. b. 
 an use at common law is said to be a trust or confidence, not issuing out of 
 land, but a thing collateral, annexed in privity to the estate. In the same sense 
 it is used in the well known distinction between powers relating to the estate 
 of the donee of the power and collateral powers. Thus, whether the warranty 
 descends lineally or collaterally, whether the estate and the warranty descend 
 from the same person or from different persons, and whether the warranty is 
 considered as to its operation of rebutting the heir, or of entitling the alienee 
 to vouch the warrantor, it is, in its nature, collateral to the estate which it 
 accompanies. If in some cases it bars the heir from claiming, and in others it 
 does not, it is only because the statute law has said, that in some cases where 
 by the common law it would have operated as a bar, it shall no longer have 
 that operation ; and if, by the statute de donis, the warranty of tenant in tail 
 did not bar the issue without assets, but barred it with assets, this is not from 
 any pre-established distinction between lineal and collateral warranty, but be- 
 cause the judges, upon the construction of the statute de donis, held the issues in 
 tail and the reversion should not be deprived of the estate by the indirect and 
 
 circuitous
 
 373. I).] Of Warrantie. L. 3. C. 13. Sect. 711, 712. 
 
 because she may convey her discent as to that moitie xohich belongeth to 
 her elder sister by the same elder sister, so as to this moitie which be- 
 longeth to the elder sister, the xoarrantii is lineall to the younger sister. 
 
 Sect. 711. 
 
 j^ND note, that as to him that demandeth fee simple by any of his 
 ancestors, he shall be barred by warrantie lineall which deseendeth 
 upon him, unlesse he be restrained by some statute. 
 
 Sect. 712. 
 
 T>UT hee that demandeth fee tayle by writ of formedon in discender, 
 
 shall not bee barred by lineall warrantie, unlesse he hath assets, by 
 
 discent in fee simple by the same ancestour that made the tvarrantie. But 
 
 collaterall warrantie is a barre to him that demandeth fee, and also to 
 
 him that demandeth fee tayle ivithout any other discent of fee simple, except 
 
 in 
 
 circuituous operation of warranty, when that statute had declared they should 
 not be deprived of it by the direct alienation of common law conveyances. — 
 The chief part of the observations offered to the reader of this note are grounded 
 on what was said by lord Vaughan in the argument above referred to ; he con- 
 cludes it by saying. " The doctrine of the binding of lineal and collateral 
 " warranties, or their not binding, is an extraction out of men's brains and 
 " speculations many scores of years after the statute de donis. — And if Little- 
 " ton (whose. memory I much honour) had taken that plain way in resolving 
 " his many excellent cases in his Chapter of Warranty, of saying the warranty 
 " of the ancestor doth not bind in this case, because it is restrained by the 
 " statute of Gloucester, or the statute de donis; and it doth bind in this case, 
 " as at the common law, because not restrained by either statute (for when 
 '* he wrote there were no other statutes restraining warranties, there is now 
 " a third, 11 H. 7.) his doctrine of warranties had been more clear and satis- 
 " factory than now it is, being intricated under the terms of lineal and 
 " collateral ; for that in truth is the genuine resolution of most, if not of all his 
 " cases ; for no man's warranty doth bind, or not, directly, and a priori, be- 
 " cause it is lineal or collateral; for no statute restrains any warranty under 
 " those terms from binding, nor no law institutes any warranty in those terms; 
 " but those are restraints by consent only from the restraints of warranties 
 " made by statutes." Vaugh. 375. — Lord Holt is also reported to have said, 
 " The true reason of collateral warranty was the security of purchasers, and 
 " for their encouragement; as also, for the establishing and settling the estates 
 " of such as were in by title, or descent cast; and this was the only security 
 " such persons could have at common law. And because the estate of such 
 " persons as are in by title are much favoured in law, there covenants that 
 " were for strengthening of them were favoured likewise. And in those days 
 " there was no need of lineal warranty; but, however the force of that is 
 " taken away by the statute de donis, and common recovery is not upon the 
 " supposition of recompense in value, and never was within the statute, but 
 " always as much out of it as if it were so mentioned by express words." And 
 this, he said, was my lord Hale's opinion, 12 Mod. 512. — [Note 328.]
 
 L. 3. C. 13. Sect. 712. Of Warrantie. [373. b, 374. a. 
 
 in cases ivhich are restrained by the statutes, and in other cases for cer- 
 taine causes, as shall be said hereafter (1). 
 
 " TTATH issue two daughters.'" If husband and wife, tenants 5 E. 2. Garr. 78. 
 
 in especiall tajle, have issue a daughter, and the wife die, Lib - ( 8 - foL41. 
 
 the husband by a second wife hath issue another daughter, and ym s case ' 
 
 discontinueth in fee and dieth, a collaterall ancestor of the (io Rep. 95.) 
 
 daughters releaseth to the discontinuee with warranty and dieth, 
 
 the warrantie descendeth upon both daughters, yet the issue in 
 
 taile shall bee barred of the whole ; for in judgement of law the (Ante 367. b.) 
 
 entrie warrantie descendeth upon both of them. (2 Cro. 217, 
 
 r 218.) 
 
 11 And the elder entreth into the whole, and thereof malceth a 
 feoffment, &c." Here it is to be understood, that when one co- 
 parcener doth generally enter into the whole, this doth not (Ant. 1S9. a. 
 devest the estate which descendeth by the law to the other, un- 2i ^-}>-) 
 lesse shee that doth enter claimeth the whole, and taketh the ^ cLpter'of 
 profits of the whole; for that shall devest the freehold in law of Decent, Sect. 
 the other parcener. 39S - 
 
 Otherwise it is after the parceners be actually seised, the 
 
 taking of the whole profits, or any claime made by the one, 
 
 cannot put the other out of possession without an 
 
 [374. "I fiSg°* actuall putting out or disseisin. And in this 
 a. J case of Littleton, when one coparcener entreth into 
 the whole, and maketh a feoffment of the whole, this 
 devesteth the freehold in law out of the other coparcener. 
 
 Now seeing the entrie in this case of Littleton devested not 
 the estate of the other parcener, if no further proceeding had 
 beene, then it is to be demanded, that seeing the feoffement doth 
 worke the wrong, and bee the wrong either a disseisin, or in na- 
 ture of an abatement, how can the warrantie annexed to that 
 feoffement that wrought the wrong be collaterall, or binde the 
 youngest sister for her part ? To this it is answered, that when 
 the one sister entreth in the whole, the possession being void, 
 and maketh a feoffment in fee, this act subsequent doth so ex- pi. Com. 543. 
 plaine the entry precedent into the whole, that now by construe- (5 Rep. 51. 
 tion of law she was only seised of the whole, and this feoffement Post 377, a ^ 
 can bee no disseisin, because the other sister was never seised ; 
 nor any abatement, because they both made but one hoi re to (Sect. 398. 
 the ancestour, and one freehold and inheritance descended to Post - 393 - b -) 
 them. So as in judgement of law the warrantie doth not com- 
 mence by disseisin or by abatement, and without question her 
 entrie was no intrusion. 
 
 Tenant in taile hath issue two daughters, and discontinueth 
 in fee, the youngest disseiseth the discontinuee to the use of 
 herselfe and her sister, the discontinuee ousteth her, against 
 whom she recovereth in an assise, the eldest agreeth to the dis- 
 seisin, as she may, against her sister, and becomes joyntenant 
 with her. And thus is the booke in the 21 Assise [«.] to be [»] 21 Ass. 
 intended, the case being no other in effect; but A. disseiseth P- 19 - 
 one to the use of himselfe and B., B. agreeth; by this he is (Ant ' 180 "^ 
 joyntenant with A. 
 
 "And 
 
 (1) The observations of Lord Vaughan on this Section, and the comment 
 upon it, deserve attentive perusal. See Vaugh. 375.
 
 374. b.j 
 
 3 E. 3. 22. 
 
 4 E. 3. 28. 50. 
 E. 3. 56. 
 7 E. 3. 54. 57. 
 
 9 E. 3. 16. 
 
 10 E. 3. 14. 
 15 E. 3. Garr. 
 27. 20 E. 3. 
 Ibid. 39. 
 
 25 E. 3. 50. 
 27 E. 3. 83. 
 41 E. 3. 
 Garr. 16. Mich. 
 3S E. 3. Coram 
 Rege, Abbot de 
 Colchester's 
 case. 45 Ass. 6. 
 PI. Com. 554. 
 19 E. 4. 10. 
 Vid. Sect. 703. 
 747. 
 
 (Moor, 96. 
 accord. Vaugh. 
 382, contra. 
 See Vaugh. 365.) 
 
 Of Warrantie. L. 3. C. 13. Sect. 712. 
 
 Fleta, lib. 2. ca. 
 65. Britt. 185. 
 4 E. 3. Gar. 63. 
 16 E. 3. Ass. 4. 
 43 E. 3. 9. 
 7 H. 6. 3. 
 11 H. 4. 20. 
 (2 Roll. Abr. 
 774, 775.) 
 
 24 E. 3.47. 
 (6 Rep. 56.) 
 
 [a] 31 E. 3. 
 Ass. 5. 13 E. 3. 
 Rocoverie in 
 value, 17. 
 Lib. 8. fol. 31. 
 Butler & Baker's 
 case. 
 
 [6] 14 E. 3. 
 Mesne, 7. 
 Registrem, 293. 
 [r] Fleta, lib. 2. 
 cap. 65. (N). 
 
 ] 
 
 And note, that as to him that demandeth fee V3Y4: 
 simple, &c." In these two Sections there are expressed [ b. 
 foure legall conclusions : 
 
 First, that a lineall warrantie doth binde the right of a fee 
 simple. 
 
 Secondly, that a lineall warrantie doth not binde the right of 
 an estate taile, for that it is restrained by the statute of donis 
 coiulitionalibus. 
 
 Thirdly, that a lineall warranty and assets is a barre of the 
 right in taile, and is not restrained (as hath beene said) by the 
 said act. 
 
 Fourthly, that a collaterall warranty made by a collaterall an- 
 cestor of the donee, doth binde the right of an estate taile, albeit 
 there be no assets ; and the reason thereof is upon the statute of 
 donis conditionalibus, for that it is not made by the tenant in 
 taile, &c. as the lineall warrantie is. 
 
 To this may be added, that the warranty of the donee in 
 taile, which is collaterall to the donor, or to him in remainder, 
 being heire to him, doth binde them without any assets. For 
 though the alienation of the donee after issue doth not barre 
 the donor, which was the mischiefe provided for by the act, yet 
 the warranty being collaterall doth barre both of them ; for the 
 act restraineth not that warranty, but it remaineth at the com- 
 mon law, as Littleton after saith : and in like manner the war- 
 ranty of the donee doth barre him in the remainder. 
 
 " Assets, (id est) quod tantundem valet," sufficient by discent. 
 
 Note, assets requisite to make a lineall warranty a barre must 
 have six qualities. First it must be assets (that is) of equall 
 value or more at the time of the discent. Secondly, it must be 
 of discent, and not by purchase or gift. Thirdly, as Littleton 
 here saith, it must be assets in fee simple, and not in taile, or 
 for another man's life. Fourthly, it must descend to him as 
 heire to the same ancestor that made the warranty, as Littleton 
 also here saith. Fifthly, it must be of lands or tenements, or 
 rents, or services valuable, or other profits issuing out of lands 
 or tenements, and not personall inheritances, as annuities and 
 the like. Sixthly, it must be in state or interest, and not in use 
 
 or 
 
 right 
 
 of actions or rights of entry, for they are no assets 
 until they be brought into possession, [a] But if a rent in fee 
 simple issuing out of the land of the heire descend unto him 
 whereby it is extinct, yet this is assets, and to this purpose hath 
 in judgement of law a continuance. 
 
 \b~\ A seigniory in fee almoigne is no assets, because it is not 
 valuable, and therefore not to be extended; and so it seemeth of 
 a seigniory of homage and fealty. But an advowson is assets, 
 whereof [c] Fleta saith ; "Item de ecclesiis quae ad donationem do- 
 mini pertinent quot sunt, et qua;, et ubi, ei quantum valeatquadiber 
 ecclesia per annum secundum veram ipsius wstimationem, et pro 
 marca solidos extendatur, ut si ecclesia centum marcus valeat per 
 annum adcentam solidos extendatur ad vocatio per annum (1). And 
 
 herewith 
 
 (N) See Fleta, lib. 2. cap. 71. g 10. 
 
 (1) Bro. Assets per Discent, 21. contra.
 
 L. 3. C. 13. S. 713, 14. Of Warrantie. [374. b. 375. a. 
 
 herewith agreeth Britton, and others have reckoned a shilling in Britton, fbl.185. 
 
 the pound ; and Britton added further, mes si la advowson duist Extent, manerii. 
 
 estre vendue, adonques sen-' le reasonable price solonque le value I^hV^'i 
 
 en un an a eel extent. Wherein it is to be observed, that anti- 33 e." 3.' 
 
 quitie did ever reckon by markes. Garr. 102. 
 
 Sect. 713. 
 
 ALSO, if land bee given to a man, and to the heires of his bodie be- 
 gotten, who taketh wife, and have issue a son betweene them, and 
 the husband discontinues the taile in fee and dieth, and after the ivife 
 releaseth to the discontinuee in fee with warrantie, §c- and dieth, and 
 the warranty descends to the son, this is a collaterall warrantie. 
 
 r rHIS case standeth upon the same reason that divers oilier 
 -I formerly put by our author doe, viz. that because the heire 
 claimeth only from the father per for mam doni, and nothing from 
 the wife, that therefore the warrantie of the wife is collaterall, 
 and the warrantie made by any ancestor male or female of the 
 wife bindeth ; and here the warrantie descendeth after the dis- 
 cent of the right. 
 
 1-375.] &sr Sect, 714. ( A 9 f e ^ 143 ; a - 
 
 I a . Ant. 187. a.) 
 
 T> UT if lands bee given to the husband and zvife, and to the heires of 
 their two bodies begotten, who have issue a son, and the husband 
 discontinue the taile and dieth, and after the wife release with warran- 
 tie and dieth, this warrantie is but a lineall warranty to the son ; for 
 the sonne shall not be barred in this case to sue his writ of formedon 
 unlesse that hee hath assets by discent in fee simple by his mother, be- 
 cause their issue in the writ of formedon ought to convey to him the right 
 as heire to his father and mother of their * two bodies begotten per formam 
 doni ; and so in this case the warrantie of the father and the ivarr antic 
 of the mother are but lineall warrantie to the heire, Sfc. 
 
 HERE is a point worthy of observation, that albeit in this 35 e. 3. tit. 
 case the issue in taile must claime as heire of both their Gar. 73. 
 bodies, yet the warrantie of either of them is lineall to the issue ; J. 2 Ro11 - A1,r - 
 and yet the issue cannot claime as heire to either of them alone, g^ 25V a ' 
 but of both. 
 
 If lands be given to a man and to a woman unmarried, and 
 the heires of their two bodies, and they intermarrie, and are 
 disseised, and the husband release with warrantie, the wife dieth, 
 the husband dieth, albeit the donees did take by moities, yet the 
 warrantie is lineall for the whole, because, as our author here 
 saith, the issue must in a formedon convey to him the right as 
 heire to his father and his mother of their two bodies engendred : 
 and therefore it is collaterall for no part. 
 
 Sect. 
 
 * two, not in L. and M. or Roh.
 
 375. a.&b.376. a.] Of Warranto. L. 3. C. 13. S. 715-16-17. 
 
 Sect. 715. 
 
 A ND note, that in everie case where a man demandeth lands in fee 
 taile by writ of formedon, if any of the issue in taile that hath pos- 
 session, or that hath not possession, make a warrantie, §c. if hee which 
 sueth, the writ of formedon might by any possibilitie, by matter which 
 might be en fait, convey to him, by him that made the war- 
 rantie per formam doni, * this is a J^P lineal warrantie, and r375.~j 
 not collaterall. L b. J 
 
 35 E. 3. Gar. 73. f\ F this sufficient bath beene said before, sed nunqudm nimis 
 ^J dicitur quod nunqudm satis dicitur ; for it is a point of great 
 use and consequence. 
 
 (Vaugh. 377.) , w le 
 
 (3 Rep. 51.) Sect. 71o. 
 
 (Yaugh. 367. 377.) 
 
 A LSO, if a man hath issue three sonnes, and giveth land to the eldest 
 sonne, to have and to hold to him and to the heires of his bodie be- 
 gotten, and for default of such issue, theremainder to the.middle sonne, 
 to him and to the heires of his bodie begotten, and for default of such 
 issue f of the middle sonne, the remainder to the youngest son, and to 
 the heires of his bodie begotten ; in this case, if the eldest % discontinue 
 the taile in fee, and binde him and his heires to warrantie, and dieth 
 without issue, this is a collaterall warrantie to the middle son, and shall 
 be a bar to demand the same land by force of the remainder ; for that 
 the remainder is his title, and his elder brother is collaterall to this title, 
 which commenceth by force of the remainder. In the same manner it 
 is, if the middle son hath the same land by force of the remainder, be- 
 cause his eldest brother made no discontinuance, but died without issue 
 of his bodie, and after the middle make a discontinuance with ivarran- 
 tie, §c. and dieth without issue, this is a collaterall ivarrantie to the 
 youngest son. And also in this case, if any of the said sonnes be dis- 
 seissed, and the father that made the gift, cj-c. releaseth to the disseisor 
 all his right § with warrantie, \ this is a collaterall warrantie to that 
 son upon whom the ivarrantie descendeth, causa qua supra. 
 
 BSP Sect. 717. [ 8 I 6 -] 
 
 AND so note, that where a man that is collaterall to the title, j and 
 releaseth this with warrantie, Sf-c. this is a collaterall warrantie. 
 
 HERE 
 
 * dec. added in.L. and M. and Rob. § tfec. added in L. and M. and Roh. 
 
 t of the middle sonne, not in L. and \ etc. added in L. and 31. and Rob. 
 
 M. or Roh. 4 & c ' added in L. and M. and Rob. 
 t son, added in L. and M. and Roh.
 
 L. 3. C. 13. Sect. 718. Of Warrantie. [376. a. 
 
 HERE it appearoth that it is not adjudged in law a collateral! 8 R. 2. 
 warrantie in respect of the bloud, for the warrantie may be S?J' \ : „„, 
 
 ,, ,, . i , , i i i. n ii , . via. oect. tvi. 
 
 collaterall, albeit the bloud be lineall; and the warrantie may 
 be lineall, albeit the bloud be collaterall, as hath beene said. 
 But it is in law deemed a collaterall warrantie, in respect that 
 he that maketh the warrantie is collaterall to the title of him 
 upon whom the warrantie doth fall; as by the example which 
 Littleton here putteth, and by that which hath beene formerly 
 said, is manifest. 
 
 Sect. 718. 
 
 A LSO, if a father giveth land to his eldest son, to have and to hold 
 ^ to him and to the heires males of his body begotton, the remainder 
 to the second sonne, fyc. if the eldest sonne alien eth in fee with warranty, 
 $e. and hath issue female, and dieth without issue male, this is no col- 
 laterall warranty to the second son, for he shall not bee barred of his 
 action of formedon in the remainder, because the warranty descended 
 (B) to the daughter of the eldest son, and not to the second sonne (ceo 
 n'est pas collaterall garrantie al second fits, f car il ne serra barre de 
 son action de formedon en le remainder, pur ceo que le garrantie dis- 
 cendist al file del eigne fits, et nemy al second fits); for every warrantie 
 which descends, descendeth to him that is heire to him who made the 
 warrantie, by the common law. 
 
 HERE is rehearsed a maxime of the common law, that every vid Sect. 3. 
 warrantie doth descend upon him that is heire to him that 603 - 735, 73(3, 
 made the warrantie, by the common law, as by this example it ,'f^ t 3O0 a# 
 appeareth. Cro. Eliz. 72.) 
 
 " To him that is heire to him who made the warrantie, by the 
 common law, &c." Hereupon many things worthy to be knowne 
 are to be understood. 
 
 [a] First, that if a man infeoffeth another of an acre of ground [ a ]40 E. 3. 14. 
 with warrantie, and hath issue two sons, and dieth seised of 
 another acre of land, of the nature of burrough English, the (Mod. Rep. 96. 
 feoffee is impleaded, albeit the warrantie descendeth only upon ■ - ■> 
 
 the eldest sonne, yet may he vouch them both; the one as heire 
 to the warrantie, and the other as heire to the land; for if he 
 should vouch the eldest son only, then should he not have the 
 fruit of his warranty, viz. a recoverie in value; the youngest son 
 only he cannot vouch, because he is not heire at the common 
 law, upon whom the warrantie descendeth (1). 
 
 So 
 
 •j" car il ne serre barre — ne luy ledera, L. and M. and Roll. 
 
 (B) Vid. note A. on Sect. 601. 
 
 (1) 38 E. 3. 22. 43 E. 3. 19. 48 Ass. 41. 4 E. 3. 55. 21 E. 8. 46. 
 21 E. 3. 36. 11 //. 7. 12. 6 //. 7. 2. Hale's MSS.
 
 376. b.] 
 
 [6] 22 E. 4. 10. 
 4 E. 3. 55. 
 27 H. 6. 1, 2. 
 11 E. 3. Det. 7. 
 (8 Rep. 8. b.) 
 [c] 49 Ass. 4. 
 38 E. 3. 22. 
 (Hob. 25.) 
 
 [<r\ 32 E. 3. 
 Vouch. 94. 
 35 H. 6. 33. 
 
 PI. Com. 515. 
 
 (2 Cro. 218.) 
 
 [c] 17 E. 2. tit. 
 Recoverie in 
 value, 33. 
 1 E. 3. 12. 
 33 E. 3. 
 Judgm. 222. 
 14 E. 3. ib. 160. 
 10 E. 3. 52. 
 18 E. 3. 51. 
 Lib. 1. fol. 96. 
 Shelleye's case. 
 [/] 32 E. 3. 
 Vouch. 94. 
 per Greene. 
 (Plowd. 11. a. 
 Manxel's case.) 
 
 [ ;/ ] Vide PI. 
 Com. fol. 514. 
 (3 Rep. 5. 
 10 Rep. 35. 
 Dr. and Stud. 
 41. b. 8 Rep. 
 101. b. See Cro. 
 Eliz. 670.) 
 
 [A] 17 E. 3. 
 20 E. 3. 
 Vouch. 129. 
 
 59. 
 
 Of Warrantie. L. 3. C. 13. Sect. 718. 
 
 [//] So it is of heires in gavelkind, the eldest may bee 
 vouched as heire to the 0^7" warranty and the other r3y6.~| 
 sonnes in respect of the inheritance descended into [ b. 
 them. [Y] And in like sort, the heire at the common 
 law, and the heire of the part of the mother, shall bee vouched ; 
 but the heire at the common law may be vouched alone in both 
 these cases, at the election of the tenant: et sic de similibus. 
 [(/] In the same manner if a manner dieth seised of certaine lands 
 in fee, having issue a sonne and a daughter by one venter, and 
 a sonne by another, the eldest sonne entreth and dieth, the land 
 descends to the sister ; in this case the warrantie descendeth on 
 the sonne, and he may be vouched as heire, and the sister, as 
 heire of the land : in which and the other case of burrough 
 English, the sonne and heire by the common law having nothing 
 by discent, the whole losse of the recoverie in value lieth upon 
 the heires of the land, albeit they be no heires to the warrantie. 
 Then put the case that there is a warrantie paramount, Who shall 
 deraigne that warrantie ? and to whom shall be recompense in 
 value goe ? Some have said, that as they are vouched together, 
 so shall they avouch over, and that the recompense in value shall 
 enure according to the losse ; and that the effect must pursue 
 the cause, as a recoverie in value by a warrautie of the part of 
 the mother shall goe to the heire of the part of the mother, &c. 
 
 Some others hold, that it is against the maxime of law, that 
 they that are not heires to the warrantie should joyne in voucher 
 or to take benefit of the warrantie which descended not to 
 them; but that the heire at the common law, to whom the 
 warrantie, descended, shall deraigne the warrantie, and recover 
 in value; and that this doth stand with the rule of the common 
 law. 
 
 Others hold the contrarie, and that this should be both against 
 the rule of law, and against reason also; for by the rule of law 
 \e~\ the vouchee shall never sue to have execution in value, untill 
 execution be sued against him. But in this case execution can 
 never be sued against the heire at the common law, therefore he 
 cannot sue to have execution over in value. Second, it should 
 be against reason that the heire at the common law should have 
 totum lucrum and the speciall heires totum damnum. I finde in 
 our bookes [/] that this reason is yeelded, that the speciall 
 heire should not be vouched only ; for (say they) if the speciall 
 heires should be vouched only, then could not they deraigne the 
 warrantie over; which would be mischievous, that they should 
 lose the benefit of the warrantie, if they should be vouched only. 
 But if the heire at the common law were vouched with them, 
 (as by the law he ought) all might be saved; and therefore 
 studie well this point how it may be done. 
 
 [y] If tenant in generall taile be, and a common recoverie is 
 had against him, and his wife, where his wife hath nothing, and 
 they vouch, and have judgement to recover in value, tenant in 
 taile dieth, and the wife surviveth : for that the issue in taile had 
 the whole losse, the recompence shall enure wholly to him ; and 
 the wife, albeit she was partie to the judgement, shall have 
 nothing in the recompence, for that she loseth nothing. 
 
 [7i] If the bastard eigne enter and take the profits, he shall be 
 
 32 E. 3. Vouch. 94. 5 H. 7. 2. 
 
 vouched
 
 L. 3. C. 13. Sect. 719. Of Warrantie. [376. b. 
 
 vouched only, and not the bastard and the raulier; because the 
 bastard is in appearance heire, and shall not disable himselfe. 
 
 [t] If a man be seised of lands in gavelkinde, and hath issue [{] ll H. 7. 12. 
 three sonnes, and by obligation bindeth himselfe and his heires l } E - 3 - 
 and dieth, an action of debt shall be maintainable against all the £*" ^i^s 
 three sonnes, for the heir is not chargeable unlesse he hath lands (Moor, 74.) 
 by discent. 
 
 [/.•] So if a man be seised of lands on the part of his mother, [7^] ll H. 7. 12. 
 and binde himselfe and his heires by obligation, and dieth, an ( 2 Cro - 25 - b - 
 action of debt shall lie against the heir on the part of the mother, ^g 272 420 
 without naming of the heire at the common law. And so note Hob. 26.) 
 a diversitie between a personall lien of a bond, and a reall lien 
 of a warrantie. 
 
 Sect. 719. 
 
 * JYTOTi?, if land bee given to a man, and to the heirs males of his 
 bodie begotten, and for default of such issue, the remainder thereof 
 to his heires females of his body begotten, and after the donee in tayle 
 maketh a feoffment in fee with warrantie accordingly, and hath issue a 
 son and a daughter and dieth, this warrantie is but a lineall warrantie to 
 the son to demand by a writ of formedon in the discender ; and also it 
 is but lineall to the daughter to demand the same land by writ of forme- 
 don in the remaynder, unlesse (A) the brother dieth without issue male 
 (sinon f frere deviast sans issue male), because she claymeth as heir female 
 of the bodie of her father ingendered. But in this case if her brother in 
 his life release to the discontinuee, tfc. with warrantie, $c. and after dieth 
 without issue, this is a collaterall warranty to the daughter, because shee 
 cannot convey to her the right which shee hath by force of the remainder 
 by any means of discent by her brother, for that the brother is collaterall 
 to the title of his sister, and therefore his warranty is collaterall (ceo est 
 un collateral garrantie a le file, pur ceo que el ne poit conveyer a luy 
 le droit que el ad per force de le remaynder per ascun meane de discent 
 per son frere, .}. pur ceo J que le frere est collaterall a le title so soer, et 
 pur ceo son garrantie est collateral), $c. 
 
 HERE 
 
 * Note— Also, L. and M. and Rob. R. Tottel; 1583, hy W. West; 1594, by 
 
 ■j" sinon — si son, L. and 31. Roh. C. Yetsweirt; and by that of 1639. It 
 
 Pinson, Redman, and 31SS. This is however observable, thai the text stood 
 
 reading (si son) which materially alters as above in the first edition of Colce upon 
 
 the sense of the above passage of Little- Littleton 1628, and in all the editions 
 
 ton, icas much relied on by lor dVaughan to the 9 th inclusive, 
 in his Reports, 368, 369, and is also 1 et added in L. and 31. and Roh. 
 
 accordingly confirmed by edit. 1577, by 
 
 que not in L. and 31. and Roh. 
 
 (A) Upon this part of sect. 719, Mr. Ritso observes, that, for "unless the brother dieth 
 without issue male," we should read, " if the brother dieth, &e." for it is only in the event 
 of the brother's dying tcithout issue male, that the heire female can have any claim at all. 
 See Mr. Ititso's Intr. p. 114. and the reading above under f. 
 
 Vol. II.— 45
 
 376. b.] Of Warrantie. L. 3. C. 13. Sect. 719. 
 
 [i] 24 E. 3. 36. 1 ERE it appeareth, that [/] whensoever the ancestor taketh 
 
 27 E.3. Age,l03. [ i an y e9 t a t e of freehold, a limitation after in the same convey- 
 
 40 E V 9 ance to an y °f n ' s ne i res > are words of limitation, and not of pur- 
 
 37 H. 8. Br. chase, albeit in words it be limited by way of remainder (1) ; 
 
 N I.-- me, 
 
 1 & 40. <fc tit. Done & Rem. 61. (Ant. 17. b. 22. b. 2 Roll Abr. 417. 
 
 1 Roll. Abr. 627, 628.) 
 
 and 
 
 (1) The doctrine of law expressed in the text is generally called the Rule 
 IN Shelley's case: — and has been discussed by several gentlemen of the 
 greatest eminence in the profession. 
 
 I. In sir William Blackstone' s argument in the cane of Per r in v. Blake, pub- 
 lished by Mr. Hargrave among his law tracts, fol. 500, it is observed, that, 
 •• where there is a gift to A. and his heirs for ever, or to A. and the heirs of his 
 '•body begotten, the first words (to A.) create an estate for life; the latter (to 
 •• his heirs, or the heirs of his body) create a remainder in fee, or in tail, which 
 " the law, to prevent an abeyance, refers to and vests in the ancestor himself, who 
 " is thus tenant for life, with an immediate remainder in fee or in tail, and then 
 " by the conjunction of the two estates, or the merger of the less in the greater, 
 " he becomes tenant in fee, or tenant in tail in possession." This exposition of 
 the expression in question sir Wm. Blackstone afterwards applies, with great 
 ability in his investigation of the rule in Shelley's case. He lays it down as a 
 great fundamental maxim upon which the construction of every devise must 
 depend, that the intention of the testator shall be fully and punctually observed 
 so far as the same is consistent with the established rules of law, and no far- 
 ther. He makes a distinction between the rules of law which are to be con- 
 sidered as the fundamental rules of the property of this kingdom, and are there- 
 fore of that essential, permanent and substantial kind, which cannot be exceeded 
 or transgressed by any intention of a testator, however clearly or manifestly ex- 
 pressed; and those rules of a more arbitrary, technical, and artificial kind, 
 which the intention of a testator may control. He then supposes that there 
 is a third class of rules, of a still more flexible nature. Among the rules of the 
 first class he reckons these; that every tenant in fee simple, or fee tail, shall 
 have the power of alienating his estates, by the several modes adapted to their 
 respective interests; that no disposition shall be allowed which in its conse- 
 quence tends to a perpetuity ; that lands shall descend to the eldest son or 
 brother alone, or to all the daughters or sisters in partnership. Among the 
 rules of the second class he reckons those rules of interpretation by which the 
 court invariably construe particular modes of expression to denote a particular 
 intention in the testator. Thus, says he, if a man devises his land, being free- 
 hold, to another generally, without specifying the duration of his estate, the 
 courts consider it as evidence that he iutended the devisee should be only 
 tenant for life; but if he devises, in like manner, a chattel interest, the courts 
 consider it to be evidence of his intention that the devisee should have the 
 t >tal property. Among the rules of the third class he reckons the rule in 
 Shelley's case. Having admitted that the second and third class of rules allow 
 (.f exceptions, when it appears to be the testator's intention that the operation 
 of his devise should be different from that which the legal operation of the 
 words in which it is penned would be, he adds, that this intention shall not 
 have this effect, unless it is manifest and certain : so that if his intention that 
 his words should operate contrary to their technical and legal import, does not 
 appear by express words, or by necessary implication, the legal operation of 
 the words must take effect. He applies this rule to the case of Perrin v. 
 Blake. He argues that it does not appear by any evidence that the testator 
 intended his words should not have their legal operation : he says, the question 
 
 is
 
 L. 3. C. 13. Sect. 719. OfWarrantie. [376. b, 377. a. 
 
 and therefore here the remainder, to the heires females, vcsteth 
 in the tenant in taile himselfe. And it is good to bee 
 
 [377. "1 J&2f°* knowne, that for learning sake, and to find out the 1 n. 6. 4. 
 a. reason of the law, these limitations to the heires males of n H. 6. 13, 14. 
 
 no it f? 
 
 the bodie, and after to the heires females of the bodie Dey / j 8> 
 
 Statham, Devise. PL Com. 414. 20 H. 6. 43. Vid. Litt. ca. Taile, Sect. 24. 37 II. 8. 
 Br. Done & rem. 61. & tit. Nosnie, 1 & 40. (Ant. 25. a. b.) (Vaugh. 363, g. 376. 
 Ant. 374. a. 
 
 may 
 
 is not whether the testator intended the ancestor should or should not have a 
 power of alienating the lands devised to him, or should have only an estate for 
 his life. He admits it to be clear, that he intended the ancestor should not 
 have a power of alienating the lands, and that he should take only an estate 
 for his life: but the real question, he says, is, how the heirs were intended to 
 take, whether as descendants or purchasers. If the testator intended they 
 should take as purchasers, the ancestor remained tenant for life; if he meant 
 they should take by discent, or had formed no intention about the matter, then, 
 says he, by operation and consequence of law the inheritance is vested in the 
 ancestor. He says, that in the case of Perrin and Blake, it is neither clearly 
 expressed nor manifestly to be implied from any part of the testator's will, that 
 he intended the heirs should take as purchasers; he therefore concludes, that 
 the words in question should be construed according to their legal operation : 
 and consequently, that in conformity to the rule laid down in Shelley's case, 
 they should operate not as words of purchase, but as words of descent, and that 
 the ancestor therefore should take an estate in tail. 
 
 II. Mr. Harjrave, in his observations concerning the rule in Shelley's case, 
 remarks, that those who wish to avoid the rule, avow that they consider it as 
 subordinate to the intention of the testator, as a rule of interpretation, as 
 merely a technical construction of words, which yields to the intention when- 
 ever they are opposed to each other ; that as soon as they discover that it is 
 not the testator's intention that the first taker should have a power of barring 
 the entail to his heirs, they think the victory over the rule is complete. On 
 the other hand, those who wish to support the rule insist that it is a rule of 
 interpretation, established on decrees of the most authoritative decisions, which 
 cannot be departed from without levelling the great laud-marks, by which the 
 titles to real property are ascertained, and establishing in their room a mon- 
 strous latitude of uncertain and arbitrary construction. He says, he finds some- 
 thing to approve and something to condemn on both sides of these discordant 
 comments upon the rule ; and that in both there is one common error. To 
 the opponents of the rule he admits, that where the rule would disappoint a 
 lawful intention sufficiently expressed, it ought not to be effected. But ho 
 asks, whether the intention is lawful. The rule, as he considers it, is a con- 
 clusion of law upon certain principles — so absolute as not to have any thing to 
 say to the intention, if these premises really belong to the case ; and these 
 premises, he insists, are an intention by heirs of the body, or other words of 
 inheritance, to comprehend the whole line of heirs to the tenant for life, an I 
 so to build a succession upon his preceding estate of freehold. This being so, 
 if in such case the word heirs is used in that its large and proper sense, it is 
 a contradiction to the rule, to intend that the remainder to the heirs shall 
 operate by purchase, and such intent is not lawful ; so that it is incumbent ou 
 those who oppose this application of the rule, to show, that the word heirs is 
 used in a qualified sense, and intended merely to describe certain persons, who 
 at the death of the tenant for life, may answer that description, and to give 
 a succession of heirs to them ; this being shown, the rule, he says, no longer 
 applies. But nothing less than its appearing, that by the heirs of the body 
 
 or
 
 377. a.] Of Warrantie. L. 3. C. 13. Sect. 719. 
 
 may be put : but it is dangerous to use them in conveyances, 
 for great inconveniences may arise thereupon ; tor if such a 
 tenant in tayle hath issue divers sons, and they have issue divers 
 daughters, and likewise if tenant iu tayle hath issue divers daugh- 
 ters, 
 
 or heirs general, the whole line and succession of heirs to the tenant for life, 
 or, in other words, the whole of his inheritable blood, was not meant, can de- 
 liver the case from the rule. He says, that the genuine rule in Shelley's case 
 is part of an ancient policy of the law to guard against the creation of estates 
 of inheritance, with equalities, incidents, or restrictions, foreign to their nature. 
 Thus it is one of the properties of an estate in fee simple, that it may be ali- 
 enated by the party seised, so that a condition not to alien is void at law. Thus 
 curtesy and dower are incidents to estates of inheritance, and inseparably 
 annexed to them; that these known examples of incidents, inseparable from 
 inheritance, lead to a discovery of a foundation for the rule, which in a 
 moment renders it paramount to and independent of private intention. It is 
 one branch of a policy of law, adopted to prevent annexing to a real descent 
 the qualities and properties of a purchase, and so is calculated to render im- 
 possible the creation of an amphibious species of inheritance; that is, an estate 
 of freehold, with a perpetual succession to heirs, without the other properties 
 of inheritance; in other words, an inheritance in the first ancestor, with the 
 privilege of vesting in the heirs by purchase the succession of one to another, 
 without the legal effects of a descent, a compound of descent, and purchase. — Such 
 a commixture would, he says, have put an end to all those lines of distinction 
 by which we so easily and certainly discriminate inheritances from mere estates 
 of freehold. It would have been a continual source of fraud upon feudal 
 tenure. When the heir came into the tenure by descent, the lord was entitled 
 to those grand fruits of military tenure, wardship and marriage but if he took 
 by purchase, only the trifling acknowledgment of relief was due to the lord. 
 If the heir were allowed to succeed by purchase, it would defeat the specialty 
 creditors of the ancestor ; it would have suspended all actions for the inheri- 
 tance of land. If private intention had been permitted to annex to real 
 heirship the contradiction of taking by purchase, what principle of our law 
 would have remained to resist stripping the title by succession of all the other 
 effects and consequences legally appropriated to it? Why might it not have 
 given to purchase the qualities of descent? It is a positive rule of our law, 
 that a man cannot raise a fee simple to his own right heirs as purchasers, either 
 by legal conveyance, or by conveyances to uses. By this it is meant, that 
 where" the ancestor wills that at his death, his heirs shall, by gift from him, 
 come to that very inheritance which the law of descent and succession throws 
 upon them, it is construed as a vain and fruitless attempt to give that to the 
 heirs which the law vests in them. It amounts to a prohibition upon the 
 ancestor against making his heirs purchasers, by giving at his death what the 
 law confers without his aid. But this rule applies only to the acts of the 
 ancestor; it was therefore requisite to have a like barrier as to acts between 
 persous not standing in that relation towards each other. This is affected by 
 t ie rule in Shelley'e case. Thus explained, says he, the rule in Shelley's case 
 c m no longer be treated as a medium for discovering the testator's intention. 
 The ordinary rules for the interpretation of deeds should be first resorted 
 to. When it is once settled that the donor or testator has used words of inhe- 
 ritance, according to their legal import; has applied them intentionally to 
 comprise the whole line of heirs to the tenant for life; has made him the 
 terminus, by reference to whom the succession is to be regulated ; then the 
 rule in Shelley's case applies, and the heir shall not take by purchase. But if 
 it shall be decided that the testator or donor did not mean to involve the whole 
 line of heirs to the tenant for life; did not mean to engraft a succession on 
 
 his
 
 L. 3. C. 13. Sect. 719. Of Warrantie. [377. a' 
 
 ters, and each of them hath issue sonnes, none of the daughters 
 of the sons, nor the sonnes of the daughters, shall ever inherite 
 to either of the said estates fcayle : and so it is of the issues of the 
 issues, for that (as hath beene said) the issues inheritable must 
 
 make 
 
 his estate, and to make him the ancestor or terminus; but instead of this, 
 intended to use the word heirs in a limited, restrictive, and qualified sense ; 
 intended to point at that individual person who should be the heir at the mo- 
 ment of the ancestor's decease; intended to give a distinct estate of freehold 
 to such single heir, and to make his or her estate of freehold the ground- 
 work of a succession of heirs; to construe him or her the ancestor, terminus, 
 or stock, for the succession to take its course from ; — in every one of these 
 cases, the premises are wanting upon which the rule in Shelley's case inter- 
 poses its authority, and the rule therofore becomes extraneous matter. 
 
 III. Previously to Mr. Hargrave's publication, the rule in question had been 
 discussed with infinite learning and ability, by Mr. Fearne, in his Essay on 
 Contingent Remainders. In this justly celebrated work, Mr. Fearne observes, 
 that the rule in Shelley's case is supposed to have been originally introduced 
 to prevent frauds upon the tenure; and that if such a limitation had been con- 
 strued a contingent remainder, the ancestor might, in many cases, have de- 
 stroyed it for his own benefit ; if not, he might have let it remain to his heirs 
 in as, beneficial a manner as it had descended to him, at the same time that 
 the lord would have been deprived of those fruits of the tenure which would 
 have accrued to him upon a descent. He then minutely and accurately ex- 
 amines all the cases upon the subject, which had come before the courts of 
 law and equity, and investigates very fully the principles upon which they 
 were determined. He says, " that in the case of Perrin and Blake, the ques- 
 " tion is not whether the words, heirs of the body, may not, under certain cir- 
 " cumstances, be taken as words of purchase ; but whether those words, 
 " standing perfect, independent and unexplained, and preceded by a limitation 
 " of the legal freehold to the ancestor in the same will, have ever been con- 
 " strued as words of purchase." To this he replies, " that not one of the cases, 
 " till that of Perrin and Blake, can fairly be urged in support of an affirmative 
 " answer to that question." 
 
 IV. " Our attention," (to adopt Mr. Fearne's masterly statement of it), " is 
 " next called to some observations of very high authority, upon the applica- 
 " tion of the rule. Lord chancellor Thurlow, in the case of Jones v. Morgan, 
 " 1 Bro. Cha. Ca. 20G. laid down some strong-featured positions, describing 
 " the outlines of a distinction applicable to all the cases in which that rule 
 " had been, or can be agitated. His lordship drew an inference from all the 
 " cases, that, where the estate is so given, that after the limitation to the first 
 " taker it is to go to every person who can claim as heir to the first taker, 
 " the word " heirs" must be words of limitation : — That all heirs, taking as 
 " heirs, must take by descent. In cases, he said, where he could bring it to 
 "the point that the testator, by the word "heirs" meant 1st, 2d, 3d, and 
 " other sons, there he would change the words of the will; but, in the case 
 " before him he thought the word " heirs" was the very thing meant. — Sup- 
 " pose, said his lordship, William had had a son, which son had had a son and 
 " died, leaving sir William the testator, the eldest son of the son would have 
 " been heir. If there had been a title, he would have taken it ; but the estate, 
 " if the words had been words of purchase, (that is, if they were construed to 
 " import limitations to the first and other sons of William successively in tail 
 " male), must have gone to the second son ; the devise to the first son being a 
 
 " lapsed
 
 377. a.] Of Warrantie. L. 3. C. 13. Sect. 719. 
 
 make their clayme eyther onely by males, or onely by females, 
 so as the females of the males, or males of the females, are wholly 
 excluded to bee inheritable to eyther of the said estates tayle ; 
 but where the first limitation is to the heires males, let the limi- 
 tation 
 
 "lapsed devise, like the case of White & White; but sir William Morgan 
 " meant the estate to go to whoever should be heir." 
 
 " The chancellor thought the argument immaterial, that the testator meant 
 " the first estate to be an estate for life. He took it. that, in all cases, the 
 " testator did mean so. He rested it upon what the testator meant afterwards; 
 " — if he meant that every other person, who should be heir, should take, 
 " he then meant, what the law would not suffer him to give, or the heir to take, 
 " as a purchaser. — His lordship said, that in conversing with a great authority, 
 ' ' he asked, what would become, in the case stated, of the grandson ; that 
 " the answer was, he should take as heir. Lord Thurlow observed he knew 
 " he might; but then he must take by discent. All possible heirs, he said, 
 " must take as heirs, and not as purchasers : that in all cases where the limi- 
 " tation is of an estate of freehold to a man, and afterwards to his heirs, &c. 
 " (whether general or special), so as to give it to the heirs as a denomination 
 " or class, the heirs shall be in by descent, and not by purchase. And that 
 " the case stated by Anderson in Shelley's case of a limitation to the use of A. 
 " for life, remainder to the use of his heirs and of their heirs female, was the 
 " only one to the contrary, and in that case the word " heirs" must be a 
 " description of the persons, in order to let in the limitation to the heirs 
 " female." 
 
 " Now" — continues Mr. Fearne, — " if the inference I have drawn from the 
 " very operative tendency of the law to hereditary descent, in its mode of 
 " approaching it, where the requisite ground for its perfect accomplishment is 
 " wanting, be just; if, from such premises, unopposed by any single repugnant 
 "decision or judicial opinion, the conclusion that the capacity of an heir to 
 " take the inheritance by purchase, so as to transmit it through the same line 
 "as by descent, is confined to those cases only where the ancestor takes no 
 " estate of freehold, be sufficiently founded, lord Thurlow's doctrine embraces 
 " the subject to the full extent of his expression. For then, wherever the 
 " ancestor takes the freehold, the inheritance will not go to all the heirs, &c. 
 " in the course of inheritable succession, unless by an actual descent. And 
 "consequently, if after the first taker, it is to go to every person who can 
 " claim as heir to him, the intended succession can only be effectuated by 
 " taking the words " heirs," &c. as words of limitation. If after him all heirs, 
 " &c. are to take as such, that is, as answering that description, they can only 
 " take by descent. If the law will not admit of all possible heirs, &c. taking 
 " the inheritance, after its inception by a freehold in the ancestor, otherwise 
 " than by descent, it follows, that, wherever the limitation to the heirs, &c. 
 " after a freehold to the ancestor, is admitted to reach the whole denoinina- 
 " tion or class of heirs described, they must take by descent and not by 
 " purchase." 
 
 V. The very masterly discussions referred to in this note, will make the 
 reader fully acquainted with the general merits of the case in question, and of 
 the several points of legal learning, upon the discussion of which it either 
 immediately or incidentally depends. But as the subject is necessarily of a 
 v ry abstruse and intricate nature, and the arguments used in support of the 
 different opinions respecting it are necessarily complicated and interwoven with 
 one another, the following discrimination of the hading points, upon which the 
 decision of the case must ultimately turu, will, perhaps, be useful to those 
 who wish to obtain an accurate knowledge of the doctrine in dispute. 
 
 V. 1. Let
 
 L. 3. C. 13. Sect. 719. Of Warrantie. [377. a. 
 
 tation be, for default of such issue, to the heires of the bodie of 
 the donee, and then all the issues, he the}' females of males, or 
 males of females, are inheritable. 
 
 If 
 
 V. 1. Let us first suppose, that after a devise to a man for life, and a sub- 
 sequent devise to the heirs of his body, the testator in express words declares 
 it to be his intention, that, by the devises in question he means to give the 
 ancestor an estate for his life only, and to give an estate in fee by purchase to 
 his heirs : Is the rule in question of that very rigid and forcible nature as to 
 be unaffected and uncontrtlled by these express words? If the answer to this 
 question is, that the express declaration of the testator will, in this case, con- 
 trol the legal operation of the words, heirs of the body, the next question is, 
 Can any words short of an express declaration have this effect ? or, in other 
 language, Can that rule be controlled by words of implication ? If the answer is 
 in the affirmative, the next inquiry is, Whether to form such an implication 
 as will control the rule, it is sufficient that it appears to be the testator's in- 
 tention that the ancestor should take an estate for his life only ? Or must it 
 also appear to be his intention that the heirs should take, not as descendants, 
 but as purchasers ? Must it further appear, how or what estates he intends 
 the heirs to take ? And hoiv and what estates may the heir take by the law 
 of England, his ancestor taking by the same instrument an estate for his life 
 only? 
 
 Such, perhaps, will be the process of inquiry, if it is admitted, that there 
 are cases where, in devises of this nature, the heirs will take by purchase : but 
 if that is not admitted ; if it is asserted, that where a testator has once devised 
 to a man for life, and afterwards to the heirs of his body, no other words, how- 
 ever positive and express, shall control the legal operation of the words, heirs of 
 his body ; 
 
 V. 2. It will then remain to inquire into the ground of the supposed inflexi- 
 bility and rigidity of the rule. — Is it that it is against the law of the land, that 
 lands should be conveyed to the ancestor for life with such estate or estates 
 in remainder to the heirs of his body, as those heirs must be supposed to take, 
 if they take as purchasers? — To resolve this question with accuracy, it should 
 first be settled what estate or estates the heirs of the body would take under 
 this construction ; and then it should be supposed thai; such estate or estates 
 are devised by the most accurate and scientific legal expressions : if devises so 
 worded would be held contrary to law, the necessary conclusion is, that the 
 object intended to be effected by the testator is against.law. 
 
 V. 3. If it appears that such estate or estates are not contrary to the law, 
 but it still is contended that a devise to one for life, and after his decease to 
 the heirs of his body, shall make the heirs take by descent, contrary to the 
 testator's intention, the only remaining ground to support that conclusion is, 
 that to make the heirs take by descent in devises of this nature, is a point of 
 construction so fixedly and unalterably settled by judicial determination, that 
 it is not now in the breast of any court to deviate from it. By investigating 
 the rule in question under the above heads of inquiry, a regular and distinct 
 view may, it is conceived, be obtained of the different points of law which 
 relate to it, and of the different grounds upon Avhich an opinion upon it may 
 be framed. — It is greatly to be lamented that there should be so much uncer- 
 tainty and difficulty in the application of a rule of law, to which resort must 
 be so often had on the construction of wills. All parties agree that the rule 
 has an existence ; but, from the liberality which is allowed in the construction 
 of wills, it has been contended that it does not extend to those devises to 
 which it cannot be applied, without defeating the intention of the testator. It 
 is certain that no rule of law has a more ancient origin, or is more generally 
 established, than that if a testator expresses his intention defectively, either 
 
 by
 
 377. a.J Of Warrantie. L. 3. C. 13. Sect. 719. 
 
 If a man give lands to a man, to have and to hold to him and the 
 heires males of his bodie, and to him and to the heires females of 
 his bodie, the estate to the heires females is in remaynder, and 
 the daughters shall not iuherite any part, as long as there is issue 
 
 male j 
 
 by not using technical and artificial terms, or by using them improperly, yet 
 if his intention can be collected from his will, the law, however defective his 
 language may be, will construe his words according to his intention ; and if 
 the object of it is warranted by the established rules of law and equity, will 
 admit its full operation and effect. It is equally certain, on the other hand, 
 that if the testator's intention appears to be to effect that, which the rules of 
 law and equity do not admit, neither the courts of law nor the courts of equity 
 can allow its operation. The first thing, therefore, to be ascertained is, what 
 the object of the testator is ; the next, whether it is such as the rules of law 
 and equity admit. 
 
 V. 4. To determine the last point, as soon as it is settled what the testator's 
 intention is, let him be supposed to have expressed it, not in the words actually 
 made use of by him, but in the most accurate and scientific language. If, 
 when so expressed, its operation will be allowed, both at law and in equity, it 
 must be admitted, on all hands, that it should have its operation and effect, 
 notwithstanding any inaccuracy or impropriety used by the testator in his 
 method of expressing it. But if, when expressed in artificial and scientific- 
 language, the law will not give it effect, it must equally be admitted, that it is 
 no longer in the power of the courts to give it an operation ; the fault of the 
 testator's will being, not that he has expressed his intention inaccurately, but 
 that the object of his intention is unlawful. 
 
 V. 5. To apply this reasoning to the case of Perrin v. Blake, what was the 
 testator's intention ? Supposing the heirs in that case to take by purchase, 
 there are, it is conceived, but three constructions to be put upon such a devise. 
 The first is, to supp»se, that the devise to the heirs of the body of the ances- 
 tor, to whom the life estate is limited, gives estates to his sons successively 
 in tail, with remainders over in tail to his daughters as tenants in common. 
 Devises of this nature are, unquestionably, conformable to law. They are the 
 modifications of property most frequently introduced in the settlements of real 
 estates. It follows, that if the words of the testator are construed in this sense, 
 they are unobjectionable in point of law. But the courts of law have not thought 
 themselves warranted to construe them in this sense ; this construction, there- 
 fore, must be laid aside. 
 
 The second construction is, to suppose, that the testator's intention is to give 
 the ancestor an estate of freehold, and to vest the inheritance in the person who 
 at the time of the ancestor's decease, should be the heir of his body, and to 
 make that person the stock of the inheritance. It must be admitted, that this 
 is perfectly lawful ; and there is no doubt but a disposition of this nature, if 
 framed in proper language, would be good, not only in a will, but in a deed. 
 The question then will be, Whether that was the intention of the testator ? 
 It is obvious, that by the words heirs of the body, the testator means to com- 
 prehend all the heirs of the body of the devisee ; but if the construction here 
 contended for be admitted, only a particular series or line of such heirs will 
 be admitted. None will be admitted but the person who happens at the time 
 of the ancestor's decease to be the heir of his body, and the heirs of the body 
 of that' person; all the other heirs of the body of the ancestor will be utterly 
 excluded. Thus, supposing him to have several sons, the eldest son would, at 
 the time of the testator's decease, answer to the description of heir of his body ; 
 he, therefore, would take an estate by purchase ; he would be the stock of the 
 inheritance, and from him the lands would descend upon all his issue. But the 
 
 devise
 
 L. 3. C. 13. Sect. 719. Of Warrantie. [377. a. 
 
 male; for the estate to the heires males is first limited, and shall 
 be first served ; and it is as much to say, and after to the heires 
 females, and males in construction of law are to be preferred. 
 
 Sect. 
 
 devise would reach no farther; it would not comprehend the other sons of the 
 ancestor, or their issue. Thus, if this construction should be received, the 
 intention of the testator will, to a great degree, be absolutely defeated. If 
 there are no ulterior limitations or devises after the devise to the heires of the 
 body of the tenant for life, the reversion in fee will descend on the eldest son ; 
 and he may, consequently, dispose of it from his brothers and their issue. If 
 there are any such ulterior limitations or devises, the persons claiming under 
 them would take before, and to the total rejection of the other brothers and 
 their issue. Of the second construction, therefore, must be repeated what was 
 said of the first, that it is unobjectionable, in point of law, but that it is not 
 conformable to the intention of the testator. 
 
 The third construction is, to suppose, that the inheritance will first vest in the 
 person answering, at the time of the decease of the ancestor, to the description 
 of heir of his body; and that, on failure of issue of that person, it will vest in 
 him who answers that description at the time of such failure of issue, and so 
 on, while there are any such heirs remaining. This construction is conformable 
 in some respects to the case of John de Mandeville, mentioned by sir Edward 
 Coke, ante 26. b. (and see the note in p. 505, of Mr. Douglas's Reports). The 
 question then is, Whether there is any thing unlawful in this intention ? To 
 ascertain this, let it be tried by the test above mentioned, that is, let us suppose 
 it expressed in the most accurate and technical language. This will give the 
 first son or his issue, at the time of the ancestor's decease, an estate tail; and 
 upon failure of that line of issue, the lands will vest for an estate tail in the 
 person who, at the time of the failure of the issue of the first-taking heir, will 
 answer the description of heir of the body of the tenant for life, and so on till 
 all the heirs of his body, and all their issue, are exhausted. — It is obvious, that 
 a limitation of this nature differs materially from the limitations adopted in the 
 first construction, viz. to the sons successively in tail male, with remainder to 
 the daughters; for in that case the estate vests immediately in the first taker, 
 and the other sons, and all the daughters, take vested remainders in tail. But, 
 according to the construction we are now speaking of, all, after the first taker, 
 must be considered as taking, if the expression may be allowed, quasi per for- 
 man doni, conformably to the construction put on the limitation in Mandeville's 
 case. Supposing even that they take by purchase, all the estates after that of 
 the first taker must be contingent. In fact, it is not very easy to ascertain how 
 they would take, and it might be found difficult to frame the language of the 
 limitation. But certainly none of the other children, or their heirs, if this con- 
 struction should be received, would take vested estates during the life of the first 
 taker, or the continuance of issue of his body : for, till the events in question 
 happened, it must be uncertain who, at the particular times in question, would 
 answer to the description of heir of the body of the tenant for life ; whereas, 
 according to the first construction, all the children would answer the description 
 under which they are designed, immediately upon their respective births. Such 
 is the effect of this third construction. — Is there any thing in the devise, con- 
 struing it in this manner, and supposing it to be properly and accurately framed, 
 that combats with any known rule of law? It is certain that such a limitation 
 would be good, if the life estate, instead of being limited to the ancestor of the 
 persons to whom the inheritance is afterwards limited, were limited to a stran- 
 ger; as in the common case of a devise to A. for life, remainder to the right 
 heirs, or the heirs of the body of I. S. — Why should its being a devise to the 
 ancestor make a difference? It may even be conteuded, that a limitation and 
 
 devise
 
 377. b.] Of Warrantie. L. 3. C. 13. Sect. 720. 
 
 BfifcX'.., "*" Sect. 720. J-877.J 
 
 (Plowd. 403. a.) 
 
 J^LSO, I have heard say, that in the time of Icing Richard the second, 
 
 there teas a justice of the common place, dwelling in Kent, called Ri- 
 
 chel, who had issue divers sonnes, and his intent was, that his eldest sonne 
 
 should have certaine lands and tenements to him, and to the heires of his 
 
 bodie 
 
 devise of this nature have heen allowed in equity. In the case of Tipping v. 
 Cosin, Carth. 272. there was a limitation, and in lady Jones v. lord Say and 
 Sele, 8 Vin. 262. there was a devise of a trust estate to the ancestor for life, 
 with a legal remainder after his decease to the heirs of his body. In both cases 
 it was admitted, that on account of the different qualities of their estates, the 
 freehold being equitable, and the inheritance legal, they did not coalesce so as 
 to be within the rule in Shelley's case; but it was allowed to be a good remain- 
 der in tail, in the heirs of the body of the ancestor; and in the former of these 
 cases the verdict was for the person claiming the remainder. It may be an- 
 swered (and certainly with great appearance of reason), that, on account of the 
 different nature and quality of the estates, the mischiefs intended to be obviated 
 by the rule in Shelley's case could not follow from admitting the heirs to take 
 in these cases by purchase. Considering it with respect to the feudal princi- 
 ples, which are supposed to have given occasion to the rule, the lord would not 
 have lost the fruits of his tenure, nor would the fee have been put into abey- 
 ance. This case, therefore, proves nothing in favour of the legality of the 
 estates to be raised by the construction here contended for. This point is 
 exhausted by Mr. Hargrave's treatise upon it. If the reader be convinced by 
 it that the estates to be raised by this third construction are not such as the 
 law admits, it follows, that supposing the devise in question to operate so as to 
 give the heirs an estate by purchase, it must be construed in one of the two 
 former modes. Now these modes are not reconcileable with what is acknow- 
 ledged to be the general scope and object of the testator's intention. The con- 
 sequence is, that the devise must be left to its legal operation, and the heir 
 must take by descent. 
 
 V. 6. But if the reader should be of opinion that the estates which, if the 
 third construction is admitted, will be created by the testator's will, are such 
 as the law allows, still there will remain a formidable objection to the admission 
 of that construction. It will appear, that by a series of adjudications, from 
 the 18 Ed. II. to the case of Coulson v. Coulson, 17 Geo'. II. inclusively, de- 
 vises of the nature in question have been construed to vest the inheritance in the 
 ancestor. Admitting therefore that the reason or foundation of the construc- 
 tion in question is not now discoverable, there still is great reason to contend 
 that it is binding on the courts. This is by no means peculiar to the rule in 
 Shelley's case. There are many other rules of construction received by the 
 courts, which are arbitrary, and some of them not reconcileable to plain reason. 
 Still, being adopted as rules of construction, the courts (sometimes even with 
 an avowed reluctance) consider themselves to be bound to submit to them. 
 
 VI. It remains to observe, that the suggestions here submitted to the reader, 
 are intended to apply only to the devises of legal estates, and to those devises only 
 in which the argument to except them from the rule in Shelley's case depends 
 at the most on the two following circumstances : 1st, that it evidently appears 
 
 to
 
 L. 3. C. 13. Sect. 720. Of Warranto. [377. b. 
 
 bodie begotten; and for default of issue, the remainder to the second sonne 
 $c. and so to the third sonne, $c. and because he ivould that none of his 
 sons should alien, or make warrantie to bar or hurt the others that should be 
 in the remainder, £c. he causeth an indenture to bemadeto this effect, viz. 
 that the lands and tenements were given to his eldest son upon such con- 
 dition, that if the eldest son alien in fee, or in fee taile, cj-c. or if any of his 
 sons alienee, that then their estate shoidd cease and be void, and that then 
 the same lands and tenements immediately should remain to the second son 
 and to the heires of his body begotten *et sic ultra, the remainder to his 
 other sonnes and livery of seisin was made accordingly. 
 
 " T HA YE heard say, &c" Those things that one bath by 21 IL 6^f. 33. 
 credible hearesay, by the example of our author, are worthy gi ' r Anthony" 
 of observation. This invention devised by justice Ricliel in the MUdmaye'a 
 reigne of king Richard the second, who was an Irishman borne, case. 
 and the like by Thirning, chiefe-justice in the reigne of Henry 
 the fourth, were both full of imperfections ; for Nihil simul in- (1 Rep. 84.) 
 ventum est et perfectum, and Seejye viatorem nova Hon veins orbita 
 fallit: and thesefore new inventions in assurances are dangerous. 
 And hereby it may appeare, that it is not safe for any man (be 
 
 he 
 
 * this being upon the same condition, shoidd remain to the third son, and to 
 
 scilicet, that if the second son alien, &c. the heirs of his body begotten, added in 
 
 that then his estate shoidd cease, and L. and M. and Roh. 
 that then the same lands and tenements 
 
 to be the testator's intention to give the ancestor an estate for his life ouly : 
 and 2dly, that it also evidently appears to be his intention that the heires, of 
 his body should take by purchase. If the testator's intention appears to be to 
 give the ancestor an estate for life only, and to give an estate by purchase to 
 the heires of his body ; and if, besides this, his intention is, that by the devise to 
 the heirs the inheritance should vest in that individual heir who, at the time of 
 the decease of the tenant for life, shall be the heir of his body, and the heirs of 
 the body of that person, and that the devise should reach no farther; or his 
 intention is, that the inheritance should descend upon the sons of the tenant for 
 life successively in tail, with or without remainders to the daughters; and this 
 ulterior intention appears from any other part of the will either by plain decla- 
 ration, or clear implication ; then, as there is nothing unlawful in this disposi- 
 tion of his property, there is no rule of law or equity that stands in the way of 
 such construction. — But this ulterior construction is not to be implied from the 
 mere circumstances of an estate for life only being given to the ancestor, and 
 its appearing either by express words or implication, that it was the testator's 
 intention to give an estate by purchase to the heirs. — It may be said this brings 
 the matter to as much uncertainty as attended it before : but surely that is not 
 the case. Numberless as these cases respecting the point in question are, there 
 are few indeed, in which any ground for this ulterior construction of the words, 
 " heirs of the body," occurs. See those cited by Mr. justice Blaekstone in 
 Mr. Hargrave's Tracts, 505, 50G. 
 
 Since the first publication of this note, all the learning respecting this cele- 
 brated rule of law, particularly with a view to its application to decided cases, 
 and to those which occur, or are likely to occur on it, in practice, has been 
 ably collected and arranged by Mr. Preston, in his Succinct view of the Rule 
 in- Shelley's Case.— [Note 329.]
 
 377. b. 378. a.] Of Warrantie. L. 3. C. 13. Sect. 721. 
 
 he never so learned) to be of counsell with hiniselfe in his owne 
 case, but to take advice of other great and learned men. 
 
 Non prosunt do minis quse prosunt omnibus, artes. 
 
 And the reason hereof is, in suo quisque negotio habetior est, 
 quam in alieno. 
 [m] 2 H. 4. f. 11. [m] And the same judge in his owne name, &c. brought an 
 in Action sur le ac tion upon his case against others, and obtained a verdict so as 
 the right of the cause was tried on his side ; yet for that upon 
 his owne shewing in his count the action did not lye, ex assensu 
 omnium justiciariorum prceter querentem Richel, judgement was 
 given against him ; but let us now leave this judge for example 
 to others, and let us return to our author. 
 
 m* Sect. 721. [ 3 ? 8 -] 
 
 J) UT it seemeth by reason, that all such remainders in the forme afore- 
 said are void and of no value, and that for three causes. One cause 
 is, for that every remainder which beginneth by a deed, it behoveth that 
 the remainder be in him to whom the remainder is entailed by force of the 
 same deed, before the livery of seisin is made to him which shall have the 
 freehold ; for in such case the growing and the being of the remainder 
 is by the livery of seisin to him that shall have the freehold, and such 
 remainder was not to the second sonne at the time of the livery of seisin 
 in the case aforesaid, $c. 
 
 HERE our author is of opinion, that these remainders in the 
 forme aforesaid, are void and of no value for three causes. 
 
 (Plowd. 25. a. « One cause is, &c." Here hee setteth down a rule concerning 
 
 360 ) " remainders, viz. every remainder which commenceth by a deed 
 
 ought to vest in him to whom it is limited, when livery of seisin 
 
 is made to him that hath the particular estate. 
 
 [«] 7 R. 2. First, Littleton saith by deed, [«■] because if lands bee granted 
 
 Scire facias. an j rendered by fine for life, the remainder in taile, the remain- 
 (Ant. 3o4. b.) , . „ J „ , ' . . . . . ' , 
 
 cler in tee, none ot these remainders are in them in the remain- 
 der, untill the particular estate be executed. 
 (Cro. Eliz. 360.) Secondly, that the remainder bee in him, &c. at the time of 
 the livery. — This is regularly true, but yet it hath divers excep- 
 (2 Roll. Abr. tions. First, unlesse the person that is to take the remainder be 
 r-, 'J 2 jj 6 not in rerum naturd : [o\ as if a lease for life be made, the re- 
 
 tit. Feoffments mainder to the right heires of I. S. I. S. being then alive, it 
 & Faits, 99. sufficeth that the inheritance passeth presently out of thelessour, 
 \[ P * '■ )ut cannot vest m tne heire of I. 8. for that living his father he 
 
 Detinue, 46. i s n °t in rerum naturd, for non est hasres viventis ; so as the re- 
 2 H. 7. 13. mainder is good upon this contingent, viz. if I. S. (lie during the 
 
 \l ^/"o 27 ' lif e of the lessee. 
 
 21 H. 7. 11. 7 H. 4. 23. 11 H. 4. 74. 18 H. 8. 3. 27 H. 8. 42. 38 E. 3. 26. 
 30 Ass. 47. 6 R. 2. Qu. Jur. clam. 20. (1 Rep. 94.) 
 
 [p\ Pi. Com [j>] And so it is if a man make a lease for life to A. B. and 
 
 SlmSI * 8 * C - and if B - survive C - then the remainder to B. and his heires. 
 (3 Rep.*20. Here is another exception out of the said rule; for albeit the 
 
 2 Rep. 57. a.b.) person be certaine, yet inasmuch as it depends upon the dying of 
 B. before C. the remainder cannot vest in C. presently. And 
 
 the
 
 L. 3. C. 13. Sect. 722. Of Warrantee. [378. a. 378. b. 
 
 the reason of both these cases in effect is, because the remainder 
 is to commence upon limitation of time, viz. upon the possi- 
 bilitie of the death of one man before another, which is a 
 common possibilitie. 
 
 A man letteth lands for life upon condition to have fee, and 
 warranteth the land in furmd prsedictd, afterwards the lessee per- (8 Rep. 73.) 
 formeth the condition whereby the lessee hath fee, the warranty 
 shall extend and increase according to the state. And so it is 
 in that case if the lessor had died before the performance of the 
 condition, the warrantie shall rise and increase according to the 
 estate, and yet the lessor himselfe was never bound to the war- (Hob. 130, 131.) 
 rantie, but it hath relation from the first livery. And by this it 
 appeareth that a warranty being a covenant reall executory, may 
 extend to an estate infuturo, having an estate whereupon it may 
 worke in the beginning. But if a man grant a seigniorie 
 
 t 378.1 for yeares, upon condition to have fee O^T" with a war- 
 b. J v&niy in forma praidi eta, and after the condition is per- 
 formed, this shall not extend to the fee because the 
 first estate was but for yeares, which was not capable of a war- 
 ranty (A). And so it is, if a man make a lease for yeares, the 
 remainder in fee, and warrant the land in forma prsedieta, he in 
 the remainder cannot take benefit of the warranty, because he is 
 not partie to the deed ; and immediately he cannot take, if he 
 were partie to the deed, because he is named after the habendum, 
 and the estate for yeares is not capable of a warrantie. And so 
 it is if land be given to A. and B. so long as they joyntly together 
 live, the remainder to the right heirs of him that dieth first, and 
 warrant the land in forma praidietd ; A. dieth, his heire shall (1 Rep. 17.) 
 have tbe warrantie ; and yet the remainder vested not during the 
 life of A. for the death of A. must precede the remainder, and 
 yet shall the heire of A. have the land by discent. 
 
 Sect. 722. 
 
 I 1 HE second cause is, if the first son alien the tenements in fee, then 
 is the freehold and the fee simple in the alienee, and in none other; 
 and if the donor had any reversion, by such alienation the reversion is 
 discontinued : then how by any reason may it be (donques coment per 
 ascun reason poit * ceo estre) that such remainder shall commence his 
 being and his growing immediately after such alienation made to a stran- 
 ger, that hath by the same alienation a freehold and fee simple, §c. ? 
 And also if such remainder should be good, then might he enter upon 
 the alienee, where he had no manner of right before the alienation, 
 which should bee inconvenient. 
 
 " TF the first sonne alien, &c." By the alienation of the donee 
 two things are wrought. 
 First the franktenement and fee is in the alienee. 
 
 Secendly, the reversion is devested out of the donor, [q] And [q] 21 n. 7. 11. 
 
 therefore 27 u - 8 - u ' 
 
 * ceo not in L. or M. or Roh. 
 
 (A) Vid. Sect. 350, and lord Coke's comment thereon.
 
 378. b. 379. a,] Of Warrantie. L. 3. C. 13. Sect. 722. 
 
 therefore by the alienation that transferreth the freehold and fee 
 simple to the alienee, there can no remainder be raised and 
 vested in the second sonne. [r] As if a man make a lease for life 
 upon condition that if the lessor grant over the reversion, that 
 foi er 275 T 276 ' tnen tne l essee s ^ a ^ have fee ; if the lessor grant the reversion 
 Dyer, 209. a.' by fine, the lessee shall not have fee; for when the fine transfer- 
 reth the fee to the conusee, it should be absurd, and repugnant to 
 reason, that the same fine should worke an estate in the lessee ; 
 for one alienation cannot vest an estate of one and the same land 
 to two severall persons at one time. 
 
 In a man's owne grant, which is ever taken most forcibly 
 against himselfe, the reason of Littleton doth hold; for it hath 
 beene resolved by the justices, [s] that if a man seised of an ad- 
 vowson in fee by his deed granteth the next presentation to A. 
 and before the church becometh void, by another deed grant the 
 next presentation of the same church to B. the second grant is 
 void, for J., had the same granted to him before; and the grantee 
 shall not have the second avoydance by construction, to have the 
 next avoydance which the grantor might lawfully grant, for the 
 grant of the next avoydance doth not import the second 
 presentation, [t] But if aman seised of an J&gf 11 advowson r379.~| 
 in fee take wife ; now by act in law is the wife intitled [_ a - J 
 to the third presentation, if the husband die before. 
 The husband grant the third presentation to another, the hus- 
 band die, the heire 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 diversitie hetweene a title by act in law 
 and by act of the partie; for the act in law shall worke no pre- 
 judice to the grantee. 
 
 [r] 6 It. 2. Quid 
 juris clam. 20, 
 
 Plowd. 487.) 
 Argumentum 
 ex absurdo. 
 (5 Rep. 8. a.) 
 
 [>] 20 H. 8. 
 Presentments al 
 Eglises. Br. 52. 
 33 H. 8. ib. 55. 
 29 H. 8. 
 Dier, 35. 
 11 Eliz. 282, 
 283. 
 (5 Rep. 56.) 
 
 [t] 15 H. 7. 7. 
 
 19 E. 3. 
 
 Quar. imp. 154. 
 
 (3 Cro. 790, 
 
 791.) 
 
 (2 Cro. 691.) 
 
 contra Winch, 
 
 94. S. C. 
 
 Hob. 120. 
 
 Ant. 189. a.) 
 
 (Ant. 214. b. 
 218. a.) 
 
 Vide Sect. 87. 
 
 " Also if such remainder shall be good, &c." The force of this 
 argument is, that seeing the estate of the alienee (albeit the 
 words of the condition be, that the state should cease and be 
 void) being an estate of inheritance in lands or tenements, cannot 
 cease or be void before the state be defeated by entrie ; then if 
 this remainder should be good, then must it give an entrie upon 
 the alienee to him that had no right before, which should be 
 against the expresse rule of law, viz. that an entrie cannot be 
 given to a stranger to avoid a voydable act, as before hath beene 
 said in the Chapter of Conditions. 
 
 " Which should bee inconvenient." Here note three things : 
 First, that whatsoever is against the rule of law is inconvenient. 
 Secondly, that an argument ab inconvenient i is strong to prove it 
 is against law, as often hath beene observed. (N.) Thirdly, that 
 new inventions (though of a learned judge in his owne profession) 
 are full of inconvenience, Pericidosum est res novas et inusitatas 
 inducere. 
 
 Eventus variosres nova semper habet. 
 (N) As to the limited force of the argument ab inconvenienti, see ante, note 1. to 66. a. 
 
 Sect.
 
 L. 3. C. 13. Sect. 723. Of Warrantie. [379. a. 379. b. 
 
 Sect, 723. 
 
 THE third cause is, when the condition is such, that if the elder sonne 
 alien, $>c. that his estate shall cease or bee voide, £c. then after such 
 alienation, $c. may the donor enter by force of such condition f, as it 
 seemeth ; and so the donor or his heires in such case ought sooner to have 
 the land than the second sonne, that had not any right before such 
 alienation ; and so it seemeth that such remainders in the case af ore- 
 say d are void%- 
 
 HERE it is to bee observed, that part of tbe condition that (l Rep. 48. 62^ 
 prohibited the alienation made by tenant in taile is good fl R * 12 £ p " ' 
 in law, with such distinction as hath beene before said in the e Rep. 40. 
 Chapter of Conditions. And the consequent of the condition, 2 Rep. 50. 
 viz. that the lands should remaine to another, &c. is voyd in law, nt • a-) 
 and by the opinion of Littleton the donor may re-enter for the 
 condition broken; for Utile per inutile non vitiatur : which being (i Roll. Abr. 
 in case of a condition for the defeating of an estate, is worthy 408.) 
 of observation. 
 
 And it is to bee noticed, that after the death of the donor, the 
 condition descendeth to the eldest sonne, and consequently his 
 alienation doth extinguish the same for ever; wherein the weak- (io Rep. 40. b.) 
 nesse of this invention appeareth; and therefore Littleton here 
 saith, that it seemeth that the donor may re-enter, and speaketh 
 nothing of his heires. A man hath issue two sonnes, and maketh 
 a gift in taile to the eldest, the remainder in fee to the puisne, 
 upon condition, that the eldest shall not make any discontinuance, 
 with warrantie to barre him in the remainder; and if he doth, 
 that then the puisne sonne and his heires shall re-enter, the eldest 
 makes a feoffment in fee with warrantie, the father dieth, the 
 eldest soone dieth without issue, the puisne may enter ; but if the 
 discontinuance had beene after the death of the father, the puisne 
 could not have entred. In this case foure points are to be ob- 
 served. First, as Littleton here saith, the entrie for the breach 
 
 of the condition is given to the father, and not to the ^ 10 Rcp< 109 ) 
 r379.T puisne sonne. Secondly, Jg®* that by the death of the 41 E. 3. fol. 
 b. j father the condition descends to the elder sonne, and 
 
 is but suspended, and is revived by the death of the 
 eldest sonne without issue, and descendeth to the youngest 
 sonne. Thirdly, that the feoffment made in the life of the Vid. Sect. 446. 
 father cannot give away a condition that is collateral^ as it may 
 doe a right (A). Fourthly, that a warrantie cannot binde a 
 title of entrie for a condition broken (as hath beene said) ; but ( 10 Rep . 95> ) 
 if the discontinuance had becne made after the death of the 
 father, it had extinct the condition : which case is put to open 
 the reason of our author's opinion (1). 
 
 In 
 
 | &c. added in L. and M. and Roh. % dr. added in L. and M. and Roh. 
 
 (A) Vid. ante 265. a. 265. b. 
 
 (1) In some of the former notes there has been found occasion to anticipate 
 many of the observations which otherwise would have occurred upon this and 
 
 the
 
 379. b.J Of Warrantie. L. 3. C. 13. Sect. 723. 
 
 Ia these last three Sections our author hath taught us an ex- 
 cellent point of learning, that when any innovation or new inven- 
 tion starts up, to trie it with the rules of the common law (as our 
 author here hath done); for these be true touchstones to sever 
 the pure gold from the drosse and sophistications of novelties and 
 
 new 
 
 the three preceding Sections. See ante 203. b. n. 1. 216. a. n. 2. 223. b. n. 1. 
 and particularly 327. a. n. 2. — It may however be further observed, that this 
 is one of the many attempts which have been made at different times to pre- 
 vent the exercise of that right of alienation which is inseparable from the estate 
 of a tenant in tail. The chief of them are stated in a very pointed manner by 
 Mr. Knowler, 1 Bur. 84. He observes, that the power to suffer a common 
 recovery is a priviledge inseparably incident to an estate tail; it is a potestas 
 alienandi, which is not restrained by the statute de donis, and has been so 
 considered ever since Taltarum's case [12 E. 4. 14. b. p. 16]. And this power 
 to suffer a common recovery cannot be restrained by condition, limitation, 
 custom, recognizance, statute or covenant. That it cannot be restrained by 
 condition, appears by Co. Litt. 223. b. 224. a. and Sonday's case, 9 Rep. 128 — 
 That it cannot be restrained by limitation, appears by Cro. Jac. 696. Foy v. 
 Hinde, and by Sonday's case, and other books. — That it cannot be restrained 
 by custom, appears by the case of Taylor and Shaw, in Carter 6, and 22. — 
 That it cannot be restrained by recognizance, or by statute, appears by Pool's 
 case, cited in Moore, 810.— That it cannot by restrained by covenant, appears 
 by the case of Collins v. Plummer, 1 Peere Wms. 104.— That an attempt to 
 suffer a common recovery cannot be restrained, appears by Corbet's case, in 
 the 1 Rep. 83. b. Sir Anthony Mildmay's case, in the 6 Rep. 40, and the case of 
 Pierce v. Win, in 1 Ventr. 321. And that a conclusion or agreement to suffer a 
 recovery cannot be restrained, appears by Mary Portington's case, in the 10 Rep. 
 35. — One of the last attempts to establish a perpetuity was made in the will of 
 John Duke of Marlborough, where a power was given to trustees, on the birth 
 of the sons of the several persons therein mentioned, to revoke the uses limited 
 to those sons in tail male; and in lieu thereof, to limit the estates to the use 
 of such sons for their lives, with immediate remainders to the respective sons 
 of such sons severally and successively in tail made. Lord Northington, in 
 1759, declared this clause, as it tended to a perpetuity, and was repugnant to 
 the estate limited, was void and of no' effect. There was an appeal from this 
 decree to the lords. And after hearing counsel upon it, the judges were 
 ordered to attend, and their opinion was asked, "Whether by the rules of law 
 " an estate tail limited to the use of persons unborn by any deed or will, can, 
 " by virtue of any power given by such deed or will to trustees, be revoked 
 " upon the birth of such persons, and a new estate limited to such persons 
 " for their lives respectively, with remainder to their issue successively in tail 
 "male?" The lord chief justice of the common pleas delivered the unani- 
 mous opinion of the judges in the negative. The utmost stretch towards a 
 perpetuity which the courts have hitherto allowed, is through the medium of 
 an exercise of a power of appointment limited in a deed or will. If the objects 
 of the power be not restrained to any particular description of persons, but 
 designed generally to be such persons as the party to whom the power is 
 given shall appoint, there is no question but he may appoint life estates,_ with 
 remainders over, in the same manner as he might do by a substantive original 
 conveyance, notwithstanding the persons to whom the life estates are appointed 
 were not in existence at the time of the execution of the conveyance in which 
 the power contained. But it seems to be otherwise, if the objects of the 
 power are restrained to any particular description of persons, as to the children 
 of the appointer. See Alexander v. Alexander, 2 Ves. sen. 640. and Robinson 
 v. Hardcastle, in Mr. Brown's Rep, of Cases determined in Chancery during the 
 
 26th
 
 L. 3. C. 13. Sect. 723. Of Warrantie. [379. b. 
 
 new inventions. And by this example you may perceive, that (Plowd. 413.) 
 the rule of the old common law being soundly (as our author Ant> 282, b -) 
 hath done) applying to such novelties, it doth utterly crush them 
 and bring them to nothing; and commonly a new invention doth 
 offend against many rules and reasons (as here it appeareth) of 
 the common law; and the antient judges and sages of the law 
 have ever (as it appeareth [*] in our bookes) suppressed innova- p-i 31 E 3 
 tions and novelties in the beginning, as soone as they have Gager deliver- 
 offered to ereepe up, lest the quiet of the common law might ance > 5 - 
 be disturbed : and so have [a] acts of parliament done the like, 3S E s 3 , 
 whereof by the authorities emoted in the margent, you may in 2 H. 4. 18, Ac. 
 stead of many others, upon this occasion take a little taste. But M l E - 3. cap. 
 our excellent author, in all his three bookes, hath said nothing jg'^o' 3 * 
 but Ex veterum sapientium ore et more. 1 <fe 6. ' 
 
 4 H. 4. ca. 2. 11 H. 6. c. 23. 2 E. 4. cap. 8. Ac. 
 
 Sect. 
 
 26th year of his late majesty's reign, p. 22. — The modes formerly used to 
 prevent the wife's dower seem open to objection. Sometimes the estate is 
 limited to a purchaser and a trustee and their heirs, but as to the estate of the 
 trustee and his heirs in trust for the purchaser and his heirs. This exposes the 
 purchaser to the chance of the trustee's dying in his life ; in which case the 
 right of dower will attach upon the estate. Sometimes the estate is limited to 
 the purchaser and a trustee, and the heirs of the trustee, but in trust for the 
 purchaser. Sometimes it is limited immediately to the trustee and his heirs, 
 in trust for the purchaser and his heirs; but each of these modes is objection- 
 able, as they keep the legal fee from the purchaser, and expose him to all the 
 inconvenience of its escheating to the crown for want of heirs of the trustee, 
 or of its becoming vested in infants, married women, or persons residing at a 
 distance, not easily discoverable, or not willing to join in the conveyances 
 required to be made of it. Sometimes even it may be considered to pass in 
 the general devise of the trustee's will, and by that means becomes settled at 
 law to uses in strict settlement, and therefore not to be regained but by a fine 
 or common recovery, and till the existence of a tenant in taile not to be regained 
 without the aid of parliament. It cannot therefore be desirable that the legal 
 fee should be outstanding in a trustee. To prevent this, the estates may be 
 first limited to such uses as the purchaser shall appoint, and for want of ap- 
 pointment, to the use of a trustee, his heirs and assigns, during the life of the 
 purchaser, in trust for him, and subject thereto to the use of the purchaser, 
 his heirs and assigns. If this method be adopted, no doubt will remain of 
 the wife's right of dower being effectually prevented ; the purchaser during his 
 life will have the absolute command of the legal fee, and at his death it will 
 descend upon his heir. — Another mode is suggested by Mr. Fearne in his 
 Essay on Contingent Remainders, 6th edition, p. 347, note. " The lands," 
 says he, " may be limited to the use of the appointees of the purchaser (in 
 " the fullest manner) ; and in default of appointment, to the use of him and his 
 " assigns during his life ; and from and after the determination of that estate, 
 " by any means, in his life-time, to the use of some person and his heirs, 
 " during the natural life of the purchaser, in trust for him and his assigns ; 
 " and from and after the determination of the estate so limited in use to the 
 w said trustee and his heirs, to the use of the purchaser, his heirs and assigns, 
 « for ever."— [Note 330.] 
 Vol. II.— 46
 
 379. b. 380. a.] Of Warrantie. L. 3. C. 13. Sect. 724-25. 
 
 (2 Inst. 293. cap. 3.) Sect. 724. 
 
 ALSO, at the common law, before the statute of Gloucester, if tenant 
 by the curtesie had aliened in fee with warrantie, after his decease 
 this was a barre to the heire, as it appear eth by the words of the same 
 statute (Item, a le common ley, devant l'estatute de Gloucester, si 
 tenant per le curtesie ust alien en fee ovesque garrantie *, apres son 
 decease ceo fuit un barre al heire, f sicome appiert per les parols de 
 mesme l'estatute) : but it is remedied by the same statute, that the war- 
 rantie of tenant by the curtesie shall bee no barre to the heire, unlesse 
 that hee hath assets by discent by the tenant by the curtesie; for before 
 the sayd statute, this was a collateral warrantie to the heire, for that hee 
 could not convey any title of discent to the tenements by the tenant by 
 the curtesie, but only by his mother, or other of his aneestors% ; and this 
 is the cause why it was a collateral warrantie. 
 
 Sect. 725. 
 
 T> TIT if a man inheritor taJceth wife, who have issue a sonne betweene 
 
 them (les queux ont § fits enter eaux), and the father 
 Jlgg^dieth, and the sonne entreth into the land, and endow his r380.~| 
 mother, and after the mother alieneth that which she hath in L a - J 
 dower, to another in fee, with warrantie accordant, and after 
 dieth, and the warrantie descendeth to the sonne, now the son shall be 
 barred to demand the same land by cause of the sayd warrantie ; because 
 that such collatterall warrantie of tenaunt in dower is not remedied by 
 any statute. The same law is it, where tenant for life maketh an aliena- 
 tion with warrantie, $c. and dieth, and the warranty descendeth to him 
 which hath the reversion or the remainder ||, they shall be bat red by such 
 warrantie \.. 
 
 (11 H. 7. cap. 20. f~\J? this and the subsequent Section sufficient hath beene 
 Ant. 365. b.) \J gayd before in this chapter, Sect. 697. 
 
 " Is not remedied by any statute." But by a statute made 
 since, this case is remedied, as you see before, Sect. 697. 
 
 Sect. 
 
 * accord, added in L. and M. and § issue added in L. and M. and 
 
 Roh. s R°h- 
 
 t &c. added in L. and M. and Roh. \\ &c. added in L. and M. and Roh. 
 
 X &c. added in L. and M. and Roh. \ &c. added in L. and M. and Roh.
 
 L. 3. C. 13. Sect. 726. Of Warrantie. [380. a. 380. b. 
 
 Sect. 726. 
 
 A L i 
 
 /SO, in the case aforesaid, if it were so that when the tenant in 
 dower aliened, % §c. his heire was within age, and also at that time 
 that the warrantie descended upon him he was within age : in this case 
 the heire may after enter upon the alienee, notwithstanding the warrantie 
 descended, §c. because no lachesse shal be adjudged in the heire within 
 age, that he did not enter upon the alienee in the life of tenant in dower. 
 But if the heire were within age at the time of the alienation, §c. and 
 after he commeth to full age in the life of tenant in dower, and so being 
 of full age he doth not enter upon the alienee in the life of tenant in doiver, 
 and after the tenant in doiver dieth, §c, there per adventure the heire shall 
 be barred by such warrantie ; because it shall be account ed his folly , that 
 he being of full age did not enter in the life of tenant in doiver, £c. 
 
 HERE note this diversitie : if the heire bee within age at the 18 E. 4. 13. 
 time of the discent of the warrantie, he may enter and avoyd 23 x ^ %* 
 the estate either within age, or at any time after his full age; and 32 E.3. Gar. 30. 
 Littleton saith well, that the infant in this case may enter upon (1 Rep. 120. 
 the alienee; for if he bring his action against him, he shal be ^j°") n 
 barred by this warrantie, so long as the state whereunto the war- 773.) 
 rantie is annexed continue, and be not defeated by entrie of the 35 H. 6. 63. 
 heire : but if hee be within age at the time of the alienation with 
 warrantie, and become of full age before the discent of the war- 
 ranty, the warranty shal barre him forever. Our author putteth 
 his cases where the entrie of the infant is lawfull ; [«] for where [„] 3 n. 7. 9. 
 
 the entrie of the infant is not lawfull when the war- 35 H. <;. 63. 
 [380.1 rantie OCT descendeth, the warrantie doth binde the *l£\ V ^ r - 54 - 
 b. I infant, as well as a man of full age ; and the reason War.Br. 84. 
 
 thereof is, because the state whereunto the warrantie Lib. 1. fol. 67. a. 
 was annexed continueth and cannot be avoided but by action, in |f ^ r C nu r 'j Oase ' 
 which action the warrantie is a barre : and for the same reason i ey > s case# 
 likewise it is of a feme covert, if her entrie be not lawful, a war- (l Rep. 66.) 
 rantie descending on her during the coverture, doth bind her. \_w~\ M * 8 E. 3. 3. 
 And albeit the husband be within age at the discent of the war- ( 2 i ns t. 483.) ' g ' 
 rantie, yet if the entre of the wife be taken away, the warrantie 
 shall binde the wife. 
 
 [q~\ And herein a diversitie is to bee observed betweene matters [?] 20 E. 3. 
 of record done or suffered by an infant, and matters in fail: for ^"il 11, l l,sc - 27 - 
 matters in fait he shall avoyd either within age, or at full age, as 6 ' E '3 39 * ' 
 hath beene said : but matters of record, as statutes merchants 17 E. 3. 76. 
 and of the staple, recognizances knowledged by him, or a fine 17 Ass - 53. 17. 
 levied by him, recoverie against him by default in a reall action J 3 y' : 
 (saving in dower) must be avoyded by him, viz. statutes, &c. by Aud. quae. 26. 
 audita quserela, and the fine and recoverie (1) by writ of error 18 E.3. 
 
 Infant. 61. 
 16 H. 7. 5. 15 E. 4. 5. 8 II. 6. 30. 1 H. 7. 15. (10 Rep. 43. Siderf. 321, 322. F. 
 N. B. 101. k. Moor, 76. 460. 9 Rep. 30. b. 12 Rep. 122, 123.) 6 II. 8. Saver de de- 
 fault, Br. 50. 3 H. 6. 10. 1 Mar. Dy. 104. (Ant. 131. a. Noy. 16.) (Cro. Jac. 59. 
 Yelv. 88. contra.) 
 
 during 
 
 \ &c. added in L. and M. and Roh. 
 
 (1) Since our author wrote, the law seems to be otherwise understood; for 
 it is now the common practice for infants, having obtained a privy seal for 
 
 tha
 
 380. b. 381. a.] Of Warrantie. L. 3. C. 13. Sect. 726. 
 
 during his minoritie and the like. And the reason thereof is, be- 
 cause they are judiciall acts, and taken by a court or a judge, 
 therefore the nonage of the partie, to avoyd the same, shall be 
 tried by inspection of judges, and not by the countrey. And for 
 that his nonage must be tried by inspection, this cannot be done 
 after his full age : and so is the law clerely holden at this day, 
 though there be some dilferences in our bookes. But if the age 
 be inspected by the judges, and recorded that he is within age, 
 albeit he come of full age before the reversall, yet may it be 
 reversed after his full age. [*] And so it was resolved by the 
 whole court of king's bench in the case of Kekewiche. 
 
 If lands had beene given to the husband and wife and their 
 heires, and the husband had made a feoffement to another, to 
 whom a collaterall ancestor of the wife had released and died, 
 and the husband died, (and this had beene before the statute of 
 32 H. 8.) this warrantie had so bound her waiveable right, as she 
 could not waive her estate, and claime dower. Otherwise it is of 
 an estate determined : for if a disseisor make a lease to the hus- 
 band and wife during the life of the husband, and the husband 
 dieth, she may disagree to this estate determined, to save her- 
 selfe from dammages. And so note a diversitie betweene an 
 estate determined, and an estate bound by warrantie. 
 
 [*] Pasch. 
 13 J. R. in the 
 king's bench. 
 
 (Ante, 171. b. 
 246. a. 337. b. 
 350. b.) 
 
 {,/] PI. Com. 
 .•^towel's case, 
 355, &c. 
 (2 Rep. 44. 
 Moor, 92. 
 4 Rep. 4. b. 
 9 Rep. 85.) 
 
 " No lachesse shal be adjudged in the heire within age." Laches, 
 or lasches, is an old French word for slacknesse or negligence, or 
 not doing. And the rule (that no negligence shall be adjudged 
 in an infant) is true, where he is thereby to be barred of his 
 entrie in respect of a former right, as by a descent; or of his 
 former right, (as Littleton doth here put an example) by a war- 
 rantie where his entrie is congeable. But otherwise it is of con- 
 ditions, charges and penalties going out of or depending upon 
 the originall conveyance, for the laches or negligence shall be 
 adjudged in those cases as well in the infant as any other. 
 |j/j Vid. PL Com. Stored' s case per totum. And see further there, 
 where an infant being tenant for life or yeares, shall be punished 
 for doing or suffering of waste ; and where he clairneth by pur- 
 chase, a cessavit shall lie against him, if he pay not his rent by 
 two yeares. And some have said, if he have the tenancie by 
 discent, and he himself cesse, a cessavit doth lie, and he shall 
 not have his age because it is of his owne cesser, 31 E. 3. Age, 54. 
 But other bookes (as some conceive them) be against that: Vid. 
 9 Edw. 3. 50. 28 E. 3. 99. 14 E. 3. Age, 88. 2 E. 2. 
 Age, 132, JKaT" and others, which bookes doe not prove 
 that the cessavit doth not lye in that case, but the con- 
 trary, that hee shall have his age, to the end he may 
 at his full age certainly know what to plead, or what arrerages 
 to tender; for the land was originally charged with the seigniorie 
 and services. 
 
 Sect. 
 
 t 8 ! 1 -] 
 
 that purpose to suffer common recoveries; and the law seems to have been so 
 settled ever since Blount's case, which is reported in Hobart's Reports, page 
 196; which recovery was afterwards held good on a writ of error brought, and 
 infancy assigned for error; as may be seen in W. Jones, 318. Cro. Car. 307. 
 where the case is reported under the names of the earl of Newport v. sir Henry 
 Mildmay. See 2 Salk. 567. Note to the llt/i edition.— {Note 331.]
 
 L. 3. C. 13. Sect. 727-28. Of Warrantie. [381. a. 381. b. 
 
 •beCl. 7 jit, (Ant. 52. b. 325.) 
 
 J^UT now by the statute made 11 H. 7, cap. 10, it is ordained, if any 
 woman discontinue, alien, release, or confirme with warrantie any 
 lands or tenements which she holdeth in dower for terme of life, or in 
 taile of the gift of her husband, or of his ancestors, or of the gift of any 
 other seised to the use of the first husband, or of his ancestours, that all 
 such warranties, §c. shall be void ; and that it shall be lawfullfor him 
 ivhich hath these lands or tenements, after the death of the same woman 
 to enter. 
 
 r PHIS is an addition to Littleton, and therefore to be passed 
 1 over. And hereof sufficient hath beene said before, Sect. 
 697. 
 
 Sect. 728. 
 
 j^LSO, it is spoken in the end of the said statute of Gloucester, which 
 speaketh of the alienation with warrantie made by the tenant by the 
 courtesie in this forme. Also, in the same manner, the heire of the 
 woman after the death of the father and mother shall not be barred of 
 action, if hee demandeth the heritage or the marriage of his mother by 
 writ of entry, that his father aliened in his mother s time, whereof no 
 fine is levied in the king's court : and so by force of the same statute, if 
 the husband of the wife alien the heritage or marriage of his wife in fee 
 with warrantie, $c. by his deed in the countrey, it is cleere law, thattlii* 
 warranty shall not bar the heire, unlesse hee hath assents by discent f. 
 
 " \\TI1ERE0F no fine is levied in the kino's court, &c." Here (Ant. 115. a. 
 
 are three things worthy of observation concerning the 36g * *\ 
 
 construction of statutes. First, that [«] it is the most naturall [ a ] pi. com. 
 
 and <reuuine exposition of a statute to construe one part of the f- "5. 7 E. 3. 89. 
 
 statute bv another part of the same statute, for that best ex- y ,T ,n \ 
 
 ii • /• i i ii • * Rc\k 50. b. 
 
 presseth the meaning or the makers. As here the question upon 5s. 76.) 
 
 the generall words of the statute is, whether a fine levied onely Vide Braeton, 
 
 by a husband seised in the right of his wife with warranty shall ^1 t i : D 5 
 
 barre the heire without assets. And it is well expounded by cap. 34. 
 
 the former part of the act, whereby it is enacted that alienation (6 Rep. Gre- 
 
 made bv tenant b\ r the courtesie with warrantie shall f3* 8 case. 
 
 [_,__. _ iii-i ^~, 1 1 a 1 5 Kep. 60. 
 
 381. 1 not bar the heire, unlesse assets fi@~ descend. And 7 i lep< 37- 
 b. J therefore it should be inconvenient to intend the statute 8 Rep. 20. lis. 
 in such manner, as that he that hath nothing but in ^- «,.f, 10 ^' 
 the right of his wife should by his fine levied with warrantie 4C5 ' 4 87 ' a 
 barre the heire without assets. And this exposition is ex vice- 11 Rep. 62. b.) 
 ribus actus. 
 
 Secondly, 
 
 * This Section not in L. and M. or f &c. added in L. and M. and 
 
 Roh. Roh.
 
 381. b. 382. a.] Of Warrantie. L. 3. C. 13. S. 729, 730. 
 
 Secondly, the words of an act of parliament must bee taken 
 
 in a lawfull and rightfull sense; as here the words being (whereof 
 
 no fine ub levied in the kings court) are to be understood, whereof 
 
 (10 Rep. 43.) no fine is lawfully or rightfully levied in the king's court. And 
 
 [b] Pi. Com. therefore [b] a fine levied by the husband alone, is not within 
 
 246. b. Seignior the meaning of the statute, for that fine should worke a wrong 
 
 U^fofiV"*" t0 the wife > but a fine levied ky tue husband and wife is in- 
 
 in case del Abbot tended by the statute, for that fine is lawfull and worketh no 
 
 de Strata mer- wrong, [o] So the statute of W. 2. cap. 5, saith (Ila quod 
 
 MH H 4 80 episcopus ecclesiam conferat) is construed, It a quod episcopus 
 
 8 iE. 4. 12. *" ecclesiam legitime conferat ; and the like in a number of other 
 
 21 H. 6 28. cases in our bookes. And generally the rule is, Quod non prsestat 
 
 "* E " 4- 4 3 p impedimentum quod dejure non sortitur effectum. 
 
 don, 15. 
 
 (6 Rep. 20.) Thirdly, that construction must be made of a statute in sup- 
 
 pression of the mischiefe, and in advancement of the remedie, 
 as by this case it appeareth. For a fine levied by the husband 
 only is within the letter of the law ; but the mischiefe was, the 
 heire was barred of the inheritance of his mother by the war- 
 rantie of his father without assets ; and this act intended to apply 
 a remedy, viz. that it should not barre unless there were assets, 
 and therefore the mischiefe is to be suppressed, and the remedie 
 advanced. Et qui hseret in literd, hseret in cortice, as often 
 before hath beene said. 
 
 (2 Inst. 294.) 
 
 Sect. 729. 
 
 7? UT the doubt is, if the husband alien the heritage of his wife by fine 
 levied in the king's court with warrantie, $c. if this shall barre the 
 heire without any discent in value*. And as to this, I will tell her cer- 
 taine reasons, which I have heard said in this matter. I have heard my 
 master sir Richard Newton, late chief e- justice of the common pleas, once 
 say in the same court, that such warrantie as the husband maketh by fine 
 levied in the king's court shall barre the heire, albeit heehath nothing by 
 <liscent (cornent que il f ad riens per discent), because the statute saith 
 [whereof no fine is levied in the king's court) \\; and so by his 
 jggjf 3 * opinion this warrantie by fine \.remaineth yet a collaterall J~88S.~j 
 warrantie, as it was at the common law not remedied by the L a - J 
 said statute, because the said statute excepteth alienations by 
 fine with warrantie. 
 
 Sect. 730. 
 
 j ND some others have said, and yet doe say the contrary, and this is 
 their proof e, that as by the same chapter of the said statute it is or- 
 dained, that the warrantie of the tenant by the courtesie shall be no barre 
 
 to 
 
 * &c. added in L. and M. and Roh. || &c added in L. and M. and Roh. 
 f ad — n'ad, L. and M. and Roh. \. &c. added in L. and M. and Roh.
 
 
 L. 3. C. 13. Sect. 731. Of Warrantie. [382. a.&b. 383. a. 
 
 to the heire, unlesse that he hath assets by discent, $c. although that the 
 tenant by the courtesie levie a fine of the same tenements with ivarrantie, 
 <frc. as strongly as hee can, yet this ivarrantie shall not barre the heire, 
 unless that hee hath assets by discent, §c. And I believe that this is 
 law ; and therefore they say, that it should be inconvenient to intend the 
 statute in such manner, as a man that hath nothing but in right of his 
 wife might by fine levied by him of the same tenements (per fine levie per 
 luj f de mesmes % les tenements) ivhich he hath but in right of his 
 wife with warrantie, §c. barre the heire of the same tenements without 
 any discent of fee simple, §c. where the tenant by the courtesie cannot 
 doe this. 
 
 SWt 731 (Plowd. 57. b. 
 
 kJCl^L. I OX. Ant. 11 o. a. 
 
 360. a. 369. a. 381. b.) 10 Rep. 43. Ant. 381. b.) (2 Inst. 294.) 
 
 J) UT they have said, that the statute shall bee intended after this mari- 
 ner, scilicet, where the statute saith (lou le statute § dit), whereof 
 t 382.1 no fine is levied in the king's court, that is to say &J° whereof 
 D - J no lawful fine is rightfully levied in the king's court. And that 
 is, whereof no fine of the husband and his wife is levied in the 
 king's court, for at the time of the making of the said statute, every 
 estate of lands or tenements that any man or woman had, which should 
 descend to his heire, ivasfce simple without condition, or upon certain con- 
 ditions in deed or in law. And because that then such fine might right- 
 fully be levied by the husband and his wife, and the heires of the husband 
 should warrant, §c. such warrantie shall barre the heir, \. and so they 
 say that this is the meaning of the statute, for if the husband and his wife 
 should make a feoffment in fee by deed in the countrie, his heire after the 
 decease of the husband and wife shall have a writ of entrie sur cui in vita, 
 &c. notwithstanding the warrantie of the husband, then if no such excep- 
 tion were made in the statute of the fine levied, £c. then the heire should 
 have the writ of entrie, $c. notwithstanding the fine levied by the husband 
 and his wife, because the tvords of the statute before the exception of the 
 fine levied, §c. are generally viz. that the heire of the wife after the death of 
 the father and mother is not barred of action if he demand the heritage 
 or the marriage of his mother by writ of entrie, that his father aliened in 
 the time of his mother, and so albeit the husband and wife aliened by fine 
 yet this is true that the husband aliened in the time of the mother, and 
 so it should bee in that case of the statute, unlesse that such 
 [383.1 gjg^ words were, viz. whereof no fine is leviedin the king's court; 
 L a - J and so they say, that this is to be understood, whereof no fine by 
 the husband and his wife is levied in the king's court, the ivhich 
 is lawfully levied in such case; for if the justices have knowledge, that a 
 man that hath nothing but in the right of his wife will levie a fine in 
 his name onely, they will not neither ought they to take such fine to be 
 
 levied 
 
 f mesme added in L. and M. and § dit — parle, L. and M. and Roh. 
 Roh. \. &c. added in L. and M. and Roh. 
 
 | mesmes not in L. and M. or Roh.
 
 383. a. 383. b.] Of Warrantie. L. 3. C. 13. Sect. 732. 
 
 levied by the husband alone without his wife (car si les justices ont conu- 
 sans, que home que n'ad riens forsque en droit sa feme, voile levier un 
 fine en son nosme solement, ils ne voylont, ne * unque devoyent prender 
 tiel fine d'estre levie per le baron solement sans f sa feme), £c. Ideo 
 quaere of this matter, fyc. % 
 
 11 T HA YE heard my master, sir Richard Newton, &c." who 
 was a gentleman of an ancient family ; in Latine, de nova 
 villa; in French, de neitfe ville ; and a reverend learned judge, 
 and worthily advanced to be chiefe-justice of the court of com- 
 mon pleas, whom our authour remembers with great reverence, 
 as by his words you may perceive, calling him his master, and 
 citeth his opinion delivered once in the court of common pleas, 
 which our author heard and observed (whose example therein 
 it is necessary for our student to follow ; but the latter opinion 
 (as hath beene before observed) being Littleton's owne, is against 
 
 [d] Bract. 321. the opinion of the lord Neicton [d], and the law is holden cleerely 
 Fleta, lib. 5. w j t j 1 our au th our a t this day ; and our authour (as in all other 
 8 E. 2. Gar. 81. cases) hath good authoritie in law to warrant his opinion : Nul- 
 ls E. 3. 51. Uus hominis authoritas tantum apud nos valere debet, utmeliora 
 7 E. 3. 84. non se q neremVir s j QU i s attulerit. 
 
 (3 Rep. 77.) 
 
 Sect. 731. " For if the justices have knoidedge, &c." Hereby it appeareth 
 
 [e] 33 H. 6. 52. [e] that the judge if hee knoweth it, ought not to take knowledge 
 
 l,'- 3 "^ 5 ' ■.*<, of a fine that worketh a wrong to a third person. 
 2 Eliz. Dier, 178. c r 
 
 1 H. 7. 9. 1 Mar. 80. 4 E. 3. 41. 7 Eliz. Dier, 246. Vide Sect. 87, Ac. 
 
 " That it should be inconvenient." Argumentum ah inconve- 
 nienti, is very forcible in law, as often hath beene observed (N). 
 
 Of the rest of these three Sections sufficient hath beene said 
 before. 
 
 Sect. 732. 
 
 A LSO, it is to be understood, that in these words where the heire 
 demands the heritage or the marriage of his mother, this word (or) 
 is a disjunctive, and is as much to say, if the heire demand the heritage of 
 his mother viz. the tenements that his mother had in fee simple by discent 
 or by purchase, or if the heire demand the marriage of his mother, 
 that is J$£§=' to say, the tenements that were given to his mother r883."| 
 in frankmarriage. L D - J 
 
 SOME doe expound heritage of the mother to be the lands 
 which the mother hath by discent ; and that construction is 
 Vide Sect. 9. true> k ut t k e statute, by the authoritie of Littleton, extendeth 
 also where the mother hath it by purchase in fee simple ; for so 
 saith Littleton himselfe, that this word (inheritance) is not only 
 
 intended 
 
 * unque not in L. and M. or f nosme added in L. and M. and Boh. 
 Roh. % &c. not in L. and M. or Roh. 
 
 (N) But see ante note 1 to 66 a..
 
 L. 3. C. 13. Sect, 733. Of Warrantie. [383. b. 
 
 intended where a man hath lands by discent, but where a man 
 hath a fee simple by purchase, because his heires may inherit 
 him. And albeit it be true, that the statute extendeth to an 
 estate in frankmarriage acquired by purchase, yet doth it extend 
 also to all estates in taile, as well by discent as by purchase; for 
 that frankmarriage is put but for an example. 
 
 Sect. 733. 
 
 ALSO, where it is contained in divers deedes these words in Latin 
 (come est move f en divers faits ceux parolx en Latyne) Ego et 
 haeredes mei * warrantizabimus et in perpetuum defendemus ; it is to 
 lee seene what effect this word (defendemus) hath in such deede ; and it 
 seemeth that it hath not the effect of warrantie, nor comprehcndeth in it 
 -the cause of warranty (et il semble que il n'ad pas l'effect de garrantie, 
 ne emprent en luy f la cause de garrantie) ; for if it should be so, that 
 it tooke the effect or cause of warrantie, then it should bee put into some 
 fines levied in the king's court (donques il serroit J mitte en ascuns fines 
 levies en la court le roy) : and a man never saw that this word (defende- 
 mus) was in any fine (et home ne veiet || ceo unque que cest parol de- 
 fendemus fuit en ascun fines), but only this ivord (warrantizabimus) ; by 
 which it seemeth, that this word and verbe (warrantizo) maketh the 
 toarrantie, and is the cause of warrantie, and no other word in our laiv 
 (per que semble, que cest parol § et verbe warrantizo, ^[ fait la garran- 
 tie, et est la cause de garrantie, et mil auter verbe en nostre ley). 
 
 " TPGO et hseredes mei warrantizabimus, et in perpetuum de- 
 fendemus." Wherein three things are to be observed. First, 
 that haeredes mei are words of necessitie, for otherwise the heires 
 
 are not bound, [«] Secondly, though in the clause of the war- [«] 6 E. 2. 
 
 lantie it bee not mentioned to whom, &c. yet shall it be intended Vouch. 238. 
 
 to the feoffee. [b~\ Thirdly, that the feoffor may by expresse } 2 ^ 2 ' l ^: 262 * 
 
 words warrant the land for the life of the feoffee, or of the feoffor, \b\ 38 E. 3." 14. 
 
 &c. but the recoverie in value shall bee in fee. [e] Of this Brae- [A Bract. foL 
 
 fonwriteth in this manner: Et eoo et hseredes mei warrantizabi- ?'.; 2 ^ 8 ' *L 001 
 
 7*7 7.7 • v 7 7 • 7 7'7 ■ -Lilt). D. OOV, Ool. 
 
 mus tali et hcereawus sitis.tantum, vet tad et fia'redibus et assig- Brit. fol. 106. b. 
 7iatis et hazredibus assignatorum, vel assignatis assignatorum et Flet. lib. 5. cap. 
 eorum ha?redibus, et acquietabimtis et defendemus eis totam terram 15 ' \^ lb ' 6 * 
 illam cum pertinentiis, contrm omnes gentes, &c. Per hoc autem 35 jr g", 8. 
 quod dicit {ego hseredes mei) obligat se et hseredes ad warrantiam Gar. 90. 
 propinquos et remotos, prcesentes et futuros, ei succedentes in infi- £\ N ' ?: 13 ^* b ' 
 nitum. Per hoc autem quod dicit (warrantizabimus) suscipit in -p\ et \ u hi gU p' 
 se obliijationemad defendendum suum tenentem in possess ione rei 11 H. 6. 48. 
 data? et assignatos suos et eorum haredes et omnes alios, &c. Per 6 ^- 2 - Gar - 2 *> 2 - 
 /40c autem quod dicit (acquietabimus) obligat se et hceredes suos ad 
 
 acquietandum 
 
 f move — mote, L. and M. and l| ceo not in L. and M. or Roh. 
 
 Roh. § et verbe not in L. and M. or Roh. 
 
 * &c. added in L. and M. and Roh. ^j as, &c. added in L. and M.; &c. 
 
 \ la not in L. and M. or Roh. only added in Roh. 
 j mitte — mote, L. and M. and Roh.
 
 384. a.] 
 
 [d] 46 E. 3. 28. 
 11 H. 4. 41. 
 
 6 E. 2. 
 Vouch. 262. 
 2 E. 4. 15. a. 
 (Moor. 175.) 
 
 [e] 2 E. 4. 15. 
 tit. Det. 71. 
 (2 Roll. Abr. 
 396. Cro. Car. 5. 
 Dyer, 255. a. 
 Ant. 201. b. 
 
 4 Rep. 80. 
 9 Rep. 61.) 
 
 46 E. 3. 28. 
 Vide Sect. 1. 
 
 Sect 697. 
 [*] 31 E. 3. 
 Vouch. 24. 
 12 Rich. 2. 
 tit. Cont. de 
 Vouch. 35. 
 
 29 E. 3. 48. 
 
 30 E. 3. 6. b. 
 SymkenSymons 
 case. 
 
 8 E. 3. 61. 
 12 E. 3. 
 Vouch. 27. 
 Temps E. 1. 
 Vouch. 302. 
 3 H. 6. 17. 
 [/] Lestat. de 
 Bigamis, c. 6. 
 2 H. 7. 7. 6 H. 
 7. 2. 48 E. 3. 2. 
 (Vaugh. 118.) (F. N. B. 134. b.) 
 
 Of Warrantie. L. 3. C. 13. Sect. 733. 
 
 acquietandum si quis QO" plus petierit servitii vel |~384:.~| 
 aliud servitium quam in carta donationis contineiur. [ a. 
 Per hoc autcm quod dicit (defendemus) obligat se et 
 ha;redes suos ad defendendum si quis velit servitutem ponere rei 
 datse contra formam sum donationis. [<7] Hereby it appeareth, 
 that neither defendere nor acquiefare doth create a warrantie, 
 but warrantizare only. And as Ego et hseredes met warranti- 
 zabimus, &c. in Latine doe create a warrantie; so, I and my 
 heires shall warrant, &c. in English, doth create a warrantie also. 
 [e] If a man be bound to A. in an obligation to defend such 
 lands to A. whereof the obligor had infeoffed him for twelve 
 yeares, &c. in this case if he be ousted by a stranger without 
 being impleaded, the obligation is forfeit : but if he bee bound 
 to warrant the land, &c. the bond is not forfeited, unlesse the 
 obligee be impleaded, and then the obligor must be readie to 
 warrant, &c. 
 
 " Then it should bee put into some fines, &c." Here Littleton 
 draweth an argument from the forme and words of a fine ; and 
 his reason is this : that seeing that a fine is the highest and 
 surest kinde of assurance in law, if defendemus had the force of 
 a warrantie, it would have beene contained in fines : and on the 
 other side, seeing this word icarrantizo is contained in fines to 
 create a warrantie, that therefore that word doth imply a war- 
 rantie, and not the other. 
 
 "And no other word in our law." Here it appeareth, that 
 no other verbe in our law doth make a warrantie, but icarrantizo 
 only, which is only appropriated to create a warrantie. 
 
 But, Qui bene distinguit bene docet; and here of necessitie you 
 must distinguish, [*] first betweene a warrantie annexed to a 
 freehold or inheritance, (whereof Littleton here speaketh) and a 
 warrantie annexed to a ward, which is a chattell reall; for there, 
 grant, demise, and the like, doe make a warrantie. And of war- 
 ranties annexed to freeholds and inheritances, some be warranties 
 in deed, and some be warranties in law. A warrantie in deed, or 
 an expresse warrantie, (whereof Littleton here speaketh) is created 
 only by this word icarrantizo; but warranties in law are created 
 by many other words : they be therefore called warranties in 
 law, because in judgment of law they amount to a warrantie 
 without this verbe icarrantizo. [_/] As dedi is a warrantie in law 
 to the feoffee and his heires during the life of the feoffor, but con- 
 cessi in a feoffment or fine implyeth no warrantie. (1) But before 
 
 the 
 
 31 E. 1. tit. Vouch. 290. F. N. B. 134. b. 6 E. 2. Vouch. 258. 
 
 (1) What is said by sir Edward Coke in this place, and the determination 
 of the judges in Nokes' case, 4 Rep. 80. and lord chief justice Vaughan's 
 argument in Hayes v. Bickerstaff, in his Reports, page 126. should remove 
 the scruples too often entertained on the part of trustees, respecting the pro- 
 priety of their conveying by the word grant. From the passages here referred 
 to, it most clearly appears, that the word grant, when used in the conveyance 
 of an estate of inheritance, does not imply a warranty; and that if it did, the 
 insertion of any express covenant on the part of the grantor, would qualify 
 
 and
 
 L. 3. C. 13. Sect. 733. Of Warrantie. [384. a. 
 
 the statute of quia emptores terrarvm, if a man had given lands by 
 the word dedi, to have and to hold to him and to his heires, of the 
 donor and his heires, by certain services, then not only the donor 
 but his heires also had beene bound to warrantie ; but if before 
 
 that 
 
 and restrain its force and operation within the import and eifect of that cove- 
 nant, as the law, when it appears by express words how far the parties designed 
 the warranty should extend, will not carry it farther by construction. There 
 is therefore no reasonable ground for trustees objecting to convey by the word 
 grant; but serious objections maybe raised in some cases to purchasers taking 
 a conveyance from them without it. These are stated in the following passage 
 from Bridgman's Complete Conveyancer, vol. 1. 823. — " Sir Jeffrey Palmer's 
 " resolution concerning the words give and grant in a conveyance. " Sir, 
 " I conceive that care ought to be taken in a conveyance, of what nature 
 " soever it be, that there be not therein give and grant; for they imply a 
 " general warranty, and shall not be qualified by the special warranty following; 
 " as hath of late been thrice adjudged. H. T." — Sir Jeffrey Palmer's answer. 
 " Give implies & personal warranty, and so is not always used. The word grant, 
 " in a lease for years, is a covenant in law; or(as you may call it) ^general war- 
 11 ranty, if it be not qualified by a covenant or warranty in fait, but if there be 
 " a covenant or warranty in fait, then it is restrained to the words of the covenant 
 " subsequent. But in an estate of inheritance where they're passeth, there the 
 " word grant is neither a covenant in law, nor warranty. For if it should be a 
 " covenant in law, or warranty in itself, it would be there restrained and qualified 
 " by the warranty and covenants in fait. And a deed to pass an inheritance 
 " where common is cannot be without it ; for if it be common in gross, it cannot 
 " pass by the livery, but must pass by the word grant. And I never yet saw a 
 "feoffment without it. Jeffrey Palmer." This dictum of sir Jeffrey Palmer has 
 been sometimes cited to prove that it is not safe for purchasers to take a con- 
 veyance by lease and release, or bargain and sale enrolled, if the conveyance be 
 from the trustees, and they do not convey by the word grant. It is said that com- 
 mons, or advowsons, or other things which be in giant, will not, if they are 
 severed from the inheritance, pass without the word grant. But this is a mis- 
 take, and by no means warranted by sir Jeffrey Palmer's dictum, which evi- 
 dently applies only to conveyances by feoffment; in which case commons in 
 gross, <fcc. lying in grant would not pass by the livery, and therefore without 
 the word grant, or some other word of a similar operation, would not pass by 
 the charter of feoffment. But in the case of a lease and release, there is no 
 doubt, that any thing which lies in grant will vest in the vendee, by the lease 
 for a year, and that a release without the word grant, would operate by way 
 of enlargement to give the releasee the fee. So in the case of a bargain and 
 sale enrolled, any thing which lies in grant will vest in the bargainee by the 
 statute of uses without the word grant. Upon the whole therefore there is no 
 such peculiar operation in this famous monosyllable, as to make it either dan- 
 gerous for a trustee to convey by it, or essential for a purchaser to require it. 
 How a covenant shall be expounded with regard to the context, or to synoni- 
 mous or other words, see Com. Dig. €ov. (D.) Vin. Abr. Covenant (L. 4.) 
 
 To explain more fully, what is said above, it may be proper to state at 
 length the operation of the word " grant" or "give," in conveyances of estates 
 in fee simple, in gifts in tail, in leases for life, and in leases for years. — 1st. As 
 to the operation of the word "grant" or u give," in conveyancee of estates in fee 
 simple, it is to be observed, that, till the practice of subinfeudation was abolished 
 by the statute quia emptores terrarum, lands might be granted, either to be 
 held of the grantor himself, or to be held of the chief of the fee. When 
 they were granted to be held of the grantor himself, at least if the grant were 
 made by the word " dedi," there, without any other warranty, the feoffor and 
 
 his
 
 384. a.] Of Warrantie. L. 3. C. 13. Sect. 733. 
 
 that statute a man had given lands by this word dedi, to a man and 
 to his heires for ever, to bold of the cbeife lord, there the feoffor 
 had not beene bound to warrantie but during his life, as at this 
 
 day he is. 
 J And 
 
 his heirs were bound to warranty. This is enacted by the statute de bigamis, 
 ch. 6. and we have lord Coke's authority that this statute was only declaratory 
 of the common law, in this respect. The reason for implying warranty, in this 
 case, is by his lordship said to be, that, "where dedi is accompanied with a 
 " perdurable tenure of the feoffor and his heirs, there dedi importeth a per- 
 " durable warranty for the feoffor and his heirs, to the feoffee and his heires." 
 2 lust. 275. The warranty in this instance was therefore a consequence of 
 tenure, (ant. 101. b.) and so necessary a consequence of it, tbat, where an 
 express and qualified warranty was introduced, it did not restrain or circum- 
 scribe the implied warranty. When lands were granted to be held of the chief 
 lord of the fee, there the tenancy was of the chief lord, and no tenure sub- 
 sisted between the grantor and the grantee. Warranty, therefore, being a 
 consequence of tenure, did not hold in these cases between the grantor and 
 grantee, as there was no tenure between them to raise it. Still the grantor 
 was supposed to be bound by his own gift. The word "give," therefore, 
 imported, in this case, a warranty to him. But this was personal to the 
 grantor ; it did not apply to the heir, and it could not affect him without work- 
 ing that involuntary alienation, which, in a case of that nature the jurispru- 
 dence of those times did not readily admit. The statute " quia emptores ter- 
 " rarum," put an end to the subinfeudation of fee simple estates, and of course 
 put an end to the warranty we have been speaking of, as incident to grants of 
 lands in fee simple, to be held of the grantor and his heirs. The consequence 
 was, that, after the statute quia emptores terrarum, there was no case, except 
 that of homage auncestral, in which warranty, unless it arose from the express 
 contract of the parties, bound more than the donor, or bound him longer than 
 the terme of his life. 2dly, But with respect to estates tail and leases for life, 
 the judges took this important distinction, that, where a person seised in fee 
 granted for life or in tail, reserving the reversion in himself, the grantees of 
 the particular estates held of the reversioner, and he of the chief lord ; where a 
 person granted for life or in tail, with the remainder over in fee simple, both 
 the tenants of the particular estates, and the remainder-men, held of the chief 
 lord. In the former case, therefore, the tenure, between the donor and the 
 donees still subsisting, the law remained as it did before the statute, that is, 
 when those estates were created by the word ( 'dedi," both the donor and his 
 heirs, were, in consequence of the tenure, obliged to warranty. Thus it stood 
 in respect of grants in fee simple, in taile, or for life; and in all these cases 
 the warranty must be understood in its strict legal import, as implying an 
 obligation in the lord to acquit his tenant against the superior lord, where 
 there was a seigniory paramount, and to give the tenant a recompense in case of 
 eviction. 3dly, But in leases for years, (to which the subject now leads,) the 
 case is very different. A lease for years, (See Bacon*s Abr. tit. Leases and 
 Termes for Years) is a contract between lessor and the lessee for the possession 
 and profits of lands, &c. on the one side, and a recompense by rent, or other 
 consideration, on the other. As the lessor contracts that the lessee shall hold 
 the land, he cannot claim it in opposition to his covenant. — Thus he parts with 
 the land during the term; but his supposed parting with the land, and the in- 
 terest of the lessee in it during the term parted with, was rather a con- 
 sequence of law accruing from the contract, than the contract for the enjoy- 
 ment, a consequence of law, accruing from the parting with the land. The 
 tenant, therefore, had only the perception of the profits, and was considered 
 to hold the possession for the reversioner. The consequence was, that 
 
 whoever
 
 L. 3. C. 13. Sect. 733. Of Warraritie. [381 a. 
 
 And albeit the words of the statute ofbigamis be in cartis autem 
 ubi continentur {dedi et concessi, &c.) yet if dedi be contained 
 alone, it doth import a warrantie; for the statute doth conclude, 
 ipse, tamen feoff ator in vita sua ratione proprii doni sui tenetur 
 
 warrantizare ; 
 
 whoever recovered the freehold, reduced the term whether the recovery were 
 true or feigned. As the possession was not considered to be in the lessee, 
 there was originally no means by which he could recover it. His only remedy 
 was in consequence of the contract, which constituted the lease. By virtue 
 of that, the words "yielding and paying," &c. were construed a covenant 
 in favour of the lord, which enabled him to recover his rent by an action of 
 covenant or an action of debt, and the words, " grant, demise, &c." were 
 construed a covenant in favour of the tenant, which enabled him to re- 
 cover damages as a recompense for the possession lost. In this sense they 
 are said to imply a warranty. From the warranty of freehold estates it differs 
 in its nature, as that arises from tenure, this from contract ; and in its opera- 
 tion, as that, being a consequence of tenure, is not modelled by express 
 warranties, this, arising from the contract of the parties, is considered to be 
 modified and regulated by an express covenant inserted in the lease. See 
 Spencer's case, 5 Rep. 17. 1 Lev. 57. and Clarke v. Samson, 1 Ves. sen. 
 101. Lord Coke, ant. 101. b. and post 389. a. expressly says, that war- 
 ranty cannot be annexed to chattels real or personal ; for, says his lordship, 
 if a man warrants them, the party shall have covenant or action upon the 
 case. Thus, therefore, the law stands since the statute quia emptores. In all 
 cases of homage auncestral, if any such now exist, (which is at least doubtful), 
 the doctrine of warranty remains as it did before the statute, that is, — if the 
 grant was made by the word " dedi," it imports a warranty. In other cases it 
 may be expressed as the parties think proper ; if it be not expressed, then, in 
 conveyance in fee simple, it is not implied by the word " grant," or any other 
 word except the word "give;" and then it holds only during the life of the 
 grantor ; in gifts in tail, and in leases for life, by the word " give," where the 
 reversion is left to the donor, the tenure between him and the donee or lessee 
 still continues. Of that tenure it is a necessary consequence of law, and is 
 not considered to be restrained by any express covenants. In leases for years 
 rendering rent, warranty, considering it to import a covenant for the quiet en- 
 joyment of the term, is of the essence itself of the lease ; but the lease being 
 originally founded on contract, any of its terms may be varied by the parties 
 themselves at their pleasure, and is in fact considered as varied pro tunto by the 
 insertion of any express covenant. But the effect of an express covenant in 
 restraining the effect of an implied general covenant is not to be confounded 
 with the effect of a particular covenant in restraining the effect of an express 
 general covenant, as the latter is not restrained by a subsequent covenant, 
 unless it can be considered as part of the general covenant. See Noke's case, 
 4 Rep. 80. and 1 Saund. 60. — It may happen, that a person having a term of 
 yean only, conveys the lands as an estate in fee simple to another and his heirs, 
 by the word " grant." But this cannot amount to a warranty of the lands, for 
 the term. The operation of the word "grant,"in implying a warranty in the 
 creation or assignment of a term, arises from implication only, that is, from the 
 law's presuming, by the party's using the word " grant," that he intended to 
 warrant the lands as a term. But his expressly treating the land in the deed 
 as a fee simple estate, and expressly conveying it as such, necessarily rebuts 
 every implication of its being his intention or undertaking to convey it as 
 a term of years. In what has been said above, the grantor is considered as 
 the real owner of the land, receiving the purchase money, or other considera- 
 tion of the estate or interest parted with. In this case, independently of all 
 construction of particular words, there is great reason to consider him bound 
 
 to
 
 384. a. ] Of Warrantie. L. 3. C. 13. Sect. 733. 
 
 warrantizare ; so as dedi is the word that implieth warrantie, 
 and not concessi. Also where the words of the statute bee 
 further, sine clausula quse conduct, warrantiam, the meaning of 
 the statute is, that dedi doth import a warrantie in law, albeit 
 there be an expresse warrantie in the deed. 
 
 For if a man make a feoffment by dedi, and in the deed doth 
 warrant the land against I. S. and his heires, yet, dediis a generall 
 
 warrantie 
 
 to warrant the property he parts with, as he receives the benefit of it. In the 
 case of a trustee, this ground of raising or implying an obligation of warranty 
 necessarily fails. Upon the whole, to apply what has been said to the point 
 mentioned at the beginning of the note, it appears clear, that whenever there 
 is a deed, on the face of which the trustee is party, and conveys, merely as 
 trustee, there is no substantial objection to his conveying by the word " grant." 
 If the lands are freehold, it is clear that no warranty or covenant is imported 
 by it ; if it happens that they are held for a term of years only, all implication 
 of an intention or undertaking to convey them for the term is necessarily 
 rebutted by their being treated in the deed, and conveyed by the party, as 
 a fee simple estate ; and if any such warranty or covenant would otherwise be 
 implied, it would be restrained, by his covenant that he himself has done no 
 act to encumber, to a warranty or covenant against his own acts. To obviate, 
 however, every doubt which may be entertained on this ground, it is usual to 
 make the trustee convey " according to his estate, right, or interest, but not 
 " further or otherwise," — or to express that he grants, &c. " not as warranting 
 "the title, but in order to pass or convey the lands." Whenever the former 
 words are inserted, care should be taken to make them referrible to the trustee 
 only, and not to the owner of the fee ; who, in express contradiction from the 
 guarded mode of conveyance applied to the trustee, should be made to " grant," 
 &c. " fully and absolutely." 
 
 It remains to inquire what remedy a person purchasing under a defective 
 title has, exclusively of the purchaser's warranty or covenants, or where the 
 title is subject to a defect, which the warranty or covenants do not reach. In 
 every case where the seller conceals from the purchaser the instrument or the 
 fact which occasions the defect, or conceals from him an incumbrance to which 
 the estate is subject, it is a fraud, and the purchaser has the remedy of an action 
 on the case, in the nature of an action of deceit. But a judgment obtained 
 after the death of the seller, in an action of this nature, can only charge his 
 property as a simple contract debt, and will not, therefore, except under very 
 particular circumstances, charge his real assets. A bill in chancery, in most 
 cases, will be found a better remedy. It will lead to a better discovery of the 
 concealment, and the circumstances attending it, and may in some cases enable 
 the court to create a trust in favour of the injured purchaser. But where the 
 instrument or the fact which occasions the defect of the title, or the instrument 
 creating the incumbrance, is produced, the purchaser has fair notice given him 
 of it, and if the covenants do not extend to it, he appears to be without remedy, 
 unless he can avail himself of the covenants of the earlier vendors, many of 
 which are inherent to the lands, and to some of which, as the covenant for quiet 
 enjoyment, there is no objection, on account of their antiquity, where the breach 
 is recent. It sometimes happens, that a purchaser consents to take a defective 
 title, relying for his security on the vendor's covenants. Where this is the case, 
 this should be particularly mentioned to be the agreement of the parties; as it 
 has been argued, that, as the defect in question was known, it must be under- 
 stood to have been the agreement of the purchaser to take the title, subject to 
 it, and that the covenants for the title should not extend to warrant it against 
 this particular defect. On the general doctrine respecting the usual covenants 
 for title, see Mr. Sugden's Law of Vendors, Ch. 13.— [Note 332.]
 
 L. 3. C. 13. Sect. 733. Of Warrantie. ("384. a. 384. b. 
 
 warrantie during the life of the feoffor : and so was the statute 
 expounded in both points, [jy] Ilil. 14 El. in the court of com- r -j Hil 14 E1 _ 
 mon pleas, which I myselfe heard and observed. [A] And if a in Com. Banc. 
 man make a lease for life reserving a rent, and adde an expresse W . Llb - 4. fol. 
 warrantie, here the expresse warrantie doth not take away the ca ' e 8 E 3 69 
 warrantie in law, for he hath election to vouch by force of either of 9 E. 3. 15. 
 them. And in Nokes' case note a diversitie betweene a warrantie 10 E - 3 - n - 
 
 on u o 
 
 that is a covenant reall, and a warranty concerning a chattell. [t] Cont ' d " e Gar - 
 
 Also this word excambium doth imply a warrantie. 31 E. 3. 
 
 Vouch. 280. 
 32 E. 3. ib. 102. 43 E. 3. 3. 2 E. 3. tit. Cui in vita, 17. 3 E. 3. Formedon, 44. 
 [i] 4 E. 2. Vouch. 245. 22 E. 3. 3. J 4 H. 6. 2. 20 H. 6. 14. Lib. 4. fol. 122. in 
 Bustard's case. 15 E. 3. Bar. 255. 43 E. 3. 3. Lib. 1. f. 96. Lib. 5. fol. 17. Spen- 
 cer's case. Lib. 8. fol. 75. Sr. SafTord's case. 
 
 Also a partition implyeth a warrantie in law, as in the Chapter 
 of Parceners appeareth. And homage auncestrell doth draw to 
 itselfe warrantie, as hath beene said in the Chapter of Homage 
 Auncestrell. 
 
 And it is to be observed, that the warrantie wrought by this 
 word dedi, is a speciall warrantie, and extendeth to the heires of 
 the feoffee during the life of the donor only. But upon the 
 exchange and homage ancestrell the warranty extendeth reci- 
 procally to the heirs, and against the heirs of both parties ; 
 and in none of the cases the assignee shall vouch by 
 
 [38-4."] EST' force of any of these warranties, but in the case 
 b. | of the exchange and dedi, the assignee shall rebutt, 
 but not in the case of homage auncestrell. 
 [&] And so no man shall have a writ of contra formam colla- [j] 28 Ass. 33. 
 tionis, but only the feoffee and his heires which be privie to the 14 H. 4. 5. 
 deed; but an assignee may rebutt by force of the deed. 4 8 e E 2 3 a 18 ' 
 
 201 & 202. 19 E. 3. Avowr. 201, 202. 11 E. 3. Avowr. 100. 30 H. 6. 7. 33 H *8 
 Dyer, 51. 10 H. 7. 11 b. F. N. B. 163. a. 
 
 [I] If a man make a gift in taile, or a lease for life of land, by [/] 6 E. 2. 
 
 deed or without deed, reserving a rent, or of a rent service by Cont. de Vouch. 
 
 deed, this is a warrantie in law, and the donee or lessee being l°i" % m'-?', 6 ,^ 
 ,',,,,, , , ; , .1,1. P 4 E. 2. ibid. 102. 
 
 impleaded, shall vouch and recover in value. And this warrantie 6 E. 3. 11. 50. 
 
 in law extendeth not only against the donor or lessor, and his 7 E. 3. 6. 
 heires, but also against his assignees of the reversion ; and so *o p' o' o* 
 likewise the assignee of lessee for life shall take beneht of this 3H.V.13. 
 warrantie in law. 6 II. 7. 2. 
 
 14 E. 3. Garr. 32. 
 F. N. B. 134. g. 5 E. 3. 87. 20 E. 3. tit. Counterplea do Gar. 7. 
 
 [m] "When dower is assigned there is a warrantie in law in- [»»] 4 e. 3. 36. 
 eluded, that the tenant in dower being impleaded, shall vouch 33 E - 3. tit. 
 and recover in value a third part of the two parts whereof she is w'if^T, 11 ' 
 
 1 -Li /-• ^ IZZ. 4o Ass. oZ. 
 
 dowable(l). 50 E. 3. 7. 
 
 And it is to be understood, that a warrantie in law and assets is F. N. B. 149. m. 
 in some cases a good bar. [«.] In a formedon in the discender 1" W*' 6 2 
 the tenant may plead, that the ancestor of the demandant Bar/255, 
 exchanged the land with the tenant for other lands taken in 
 
 exchange, 
 
 (1) Tenant by the courtesy cannot vouch, because he shall not recover 
 in value, 10 II. 7. 10. b. but he may pray in aid of him in the reversion. Hob. 
 Rep. 21.— [Note 333.]
 
 384. b.] 
 
 Of Warrantie. 
 
 L. 3. C. 13. Sect. 733. 
 
 [o] 38 E. 3. 22, 
 23, 24. 13 E. 3. 
 Gar. 35. 
 
 [ P ] 16 E. 3. 
 Age, 45. 
 18 E. 3. 8. 
 31 E.3. Gar. 29. 
 
 (1 Rep. 10.) 
 
 Vide lib. 4. 
 fol. 121. 
 Bustard's case. 
 
 [q] 45 E. 3. 
 
 20 b. 
 
 [r] 14 E. 3. 
 
 Gar. 33. 
 
 13 E. 1. Gar. 83 
 
 Lib. 5. fol. 17. b 
 
 in Spencer's 
 
 case. 
 
 38 E. 3.21. 
 
 [«] 12 E. 2. 
 Vouch. 263. 
 19 E. 2. 
 Gar. 85. 
 
 13 E. 1. ib. 93. 
 Lib. 5. fol. 17. 
 Spencer's case. 
 7 E. 3. 34. 
 
 10 E. 3. 9. 
 
 14 E. 3. Garr. 33 
 Bract, ubi sup. 
 
 [t] 43 E. 3. 23. 
 26 E. 3.68. 
 Ante, 174. a. b. 
 5 E. 3. Age, 19. 
 
 exchange, which descended to the demandant, whereunto he 
 hath entred and agreed ; or if he hath not entred and agreed 
 unto the lands taken in exchange, then the tenant may plead 
 the warrantie in law, and other assets descended. 
 
 [o] If tenant in taile of lands make a gift in taile, or a lease 
 for life, rendring a rent, and dieth, and the issue bringeth a 
 formedon in the discender, the reversion and rent shall not barre 
 the demandant; because by his formedon he is to defeat the 
 reversion and rent, Et non potest adduci exceptio ejusdem rex, 
 cujus petitur dissolutio. 
 
 [p] But if other assets in fee simple doe descend, then this 
 warrantie in law and assets is a good barre in the formedon. 
 
 Here foure things are to be observed : first, that no warrantie 
 in law doth barre any collaterall title, but is in nature of a lineall 
 warrantie : wherein the equitie of the law is to be observed. 
 
 Secondly, that an expresse warrantie shall never binde the 
 heires of him that maketh the warrantie, unlesse (as hath beene 
 said) they be named : as for example, Littleton here saith (E(/o 
 et heeredes mei) ; but in case of warranties in law, in many 
 cases the heirs shall bee bound to warrantie, albeit they be not 
 named. 
 
 Thirdly, that in some cases warranties in law doe extend to 
 execution in value, of speciall lands, and not generally of lands 
 descended in fee simple, as you may see at large in my Reports. 
 [q] Fourthly, that warranties in law may be in some cases 
 created without deed, as upon gifts in taile, leases for life, es- 
 changes, and the like. 
 
 And seeing somewhat hath beene said out of Bracton and 
 other antient authors, concerning assignees, it is necessarie to 
 shew who shall take advantage of a warrantie, as assignee by 
 way of voucher, to have recompence in value. 
 
 [r] If a man infeoffe A. and B. to have and to hold to them 
 and to their heires, with a clause of warrantie, prsedictis A. et B. 
 et eorum hseredibus et assignatis : in this case if A. dieth, and B. 
 surviveth and dieth, and the heir of B. infeoffeth C. he shall 
 vouch as assignee, and yet he is but the assignee of the heire 
 of one of them ; for in judgement of law the assignee of the 
 heire is the assignee of the ancestor, and so the assignee of 
 the assignee shall vouch in infinitum, within these words, (his 
 assignees.) 
 
 [s] If a man infeoffeth A. to have and to hold to him, his 
 heires andassignes; A. infeoffeth B. and his heires, B. dieth, 
 the heire of B. shall vouch as assignee to A : so as heires of 
 assignees, and assignees of assignees, and assignees of heires, are 
 within this word (assignes); which seemed to be a question in 
 Bracto?i'$ time. And the assignee shall not only vouch, but also 
 have a icarrantia cartse. 
 
 9 E. 2. Garr. de Chart. 30. 36 E. 3. Gar. 1. 4 H. 8. Dy. 1. F. N. B. 135. 
 
 If a man doth warrant land to another without this word 
 (heires), his heires shall not vouch (N) : and regularly if he war- 
 rant land to a man and his heires, without naming assignes, his 
 assignee shall not vouch. [<] But if the father be infeofi'ed with 
 
 Post. 390. a.) 
 PI. Coin. 418. 
 
 40 E. 3. 14. 24 E. 3. 36. 11 H. 4. 94. 39 E. 3 17. 
 
 warrantie 
 
 (X) TJie doctrine in the text was discussed in the recent case of Doe v. Prestwidae, 
 4 Maule and Sednjn, 178.
 
 L. 3. C. 13. Sect. 733. Of Warrantie. [384. b. 385. a. 
 
 warrantie to him and his heires, the father infeoffeth his eldest 
 son with warrantie and dieth, the law giveth to the sonne advan- 
 tage of the warrantie made to his father, because by act in law 
 the warrantie betweene the father and the sonne is extinct. 
 
 But note, there is a diversitie between a warrantie that is a 
 covenant reall, which bindeth the partie to yeeld lands or tene- 
 ments in recompence, and a covenant annexed to the land, which 
 is to yeeld but dammages, for that a covenant is in many cases 
 extended further than the warrantie. As for example : 
 
 [«] It hath been adjudged, that where two coparceners made ["] 42 E. 3. b. 
 partition of land, and the one made a covenant with the other, per Fincnden - 
 to acquite her and her heires of a suit that issued 
 
 t385."l JB^out of the land, the covenantee aliened, in that J^ jf Acer's*' 
 a. J case the assignee shall have an action of covenant, case.) 
 and yet he was a stranger to the covenant, because 
 the acquittall did runne with the land. 
 
 [x] A. seised of the mannor of D. whereof a chappell was W 42 E. 3. 3. a. 
 parcell, a prior with the assent of his covent covenanteth by deed Laur / Paken - 
 indented with A. and his heires to celebrate divine service in 2 H. 4. 6.°' 
 his said chappell weekely, for the lord of the said mannor, and 6 H. 4. 1 <fc 2. 
 his servants, &c. In this case the assignees shall have an action Ralfe Brabson'i 
 of covenant, albeit they were not named, for that the remedie foi^i 7 'is ' 
 by covenant doth runne with the land, to give dammages to the Spencer's case, 
 partie grieved, and was in a manner appurtenant to the mannor. 
 [y] But if the covenant had beene with a stranger to celebrate iyi 2 h 4 6 
 divine service in the chappell of A. and his heires, there the Hen. Home's 
 assignee shall not have an action of covenant ; for the covenant; case - 6 H - 4. 1. 
 cannot be annexed to the mannor, because the covenantee was SMncert case 
 not seised of the mannor. See in Spencer's case before remem- 
 bred, divers other diversities between warranties and covenants 
 which yeeld but dammages. 
 
 And here it is to be observed, that an assignee of part of the 
 land shall vouch as assignee. [*] As if a man make a feoffment [*] is E. 3. 52. 
 in fee of two acres to one, with warrantie to him, his heires and 10 B - 3 - 58. 
 assignes, if he make a feoffment of one acre, that feoffee shall 12 e 3 
 vouche as assignee ; for there is a diversitie betweene the whole Counterplea 
 estate in part, and part of the estate in the whole, or of any de Vouch. 42. 
 part. As if a man hath a warrantie to him, his heires, and as- J 4 E " 3 " .. 
 signes, and he make a lease for life, or a gift in taile, the lessee 5 e. 3. ibid. 
 or donee shall not vouch as assignee, because he hath not the 178. 13 E. 3. 
 estate in fee simple whereunto the warranty was annexed ; but ^'d- 129 - 
 the lessee for life may pray in aide, or the lessee or donee may 41 E . 3' Vouch, 
 vouch the lessor or donor, and by this means he shall take ad- 69 & 100. 
 vantage of the warranty. But if a lease for life, or a gift in j 52 *?• 3- 'bid. 96. 
 taile be made, the remainder over in fee, such a lessee or donee ^j this diver- 
 shall vouch as assignee, because the whole estate is out of the sitie was agreed, 
 lessor, and the particular estate and the remainder doe in judge- Hill. 14 Eliz. 
 ment of law to this purpose make but one estate. Banco which I 
 
 heard and observed 
 
 [a] If a man infeoffee three with warrantie to them and their r a ] 40 e. 3. 14 
 heires, and one of them release to the other two, they shall 40 Ass. 5. 
 vouch ; but if he had released to one of the other, the warrantie ^ JJ- jj- *• 
 had been extinct for that part, for he is an assignee. ation sans 
 
 [&] If a man doth warrant land to two men and their heires, licence, 31. 
 and the one make a feoffment in fee, yet the other shall vouch f,?.', 4 ^ 8 ', 
 for his moitie. If a man at this day be infeoffed with warrantie betin. 45. " 
 
 7 E. 3. 35. 46 E. 3, 4. 
 
 Vol. II.— 47 to
 
 385. a. 385. b.] Of Warrantie. L. 1 . C. 13. Sect. 733. 
 
 to him, his heires, and assignes, and he make a gift in taile, the 
 remainder in fee, the donee make a feoffment in fee, that feoffee 
 (SeeVaugh. shall not vouch as assignee, because no man shall vouch as as- 
 388.) signee but he that commeth in, in privitie of estate; but he must 
 
 vouch his feoffor, and he to vouch as assignee, but such an as- 
 signee may rebutte. If the warrantie be made to a man and his 
 heires without this word (assignes), yet the assignee, or any 
 tenant of the land may rebutte. And albeit no man shall vouch 
 or have a warrantia cartae, either as partie, heire, or assignee, 
 but in privitie of estate, yet any that is in of another estate, be it 
 by disseisin, abatement, intrusion, usurpation, or otherwise, shall 
 rebutte by force of the warrantie, as a thing annexed to the land, 
 
 [c] 38 E. 3. 21. which sometime was doubted [c] in our bookes. But herein is a 
 26 E. 3. 56. diversitie to be observed, when in the cases aforesaid he that re- 
 sfmou^s'case butteth claimeth under the warrantie; and when he that would 
 7°e. 3. 34, 35. ' rebutte claimeth above the warranty, for there he shall not re- 
 8 E. 3. 10. butte. And therefore if lands be given to two brethren in fee 
 10 E 3* 42 simple, with a warranty to the eldest and his heires, the eldest 
 45 E. 3. 18.' dieth without issue, the survivor albeit he be heire to him, yet 
 10 Ass. 5. shall he neither vouch nor rebutte, nor have a warrantia cartae 
 I* Ass' 39 88 because his title to the land is by relation above the fall of the 
 31 Ass. 13. warrantie, and he commeth not under the estate of him to whom 
 
 the warrantie is made, as the disseisor, &c. doth. 
 
 [d] Lib. 3. fol. [d] If a man make a gift in taile at this day, and warrant the 
 62, 63. Lincolne land to him, his heires and assignes, and after the donee make a 
 College case. f eo ff e ment and dieth without issue, the warrantie is expired as to 
 
 any voucher or rebutter, for that the estate in taile whereunto it 
 
 was knit is spent; otherwise it is, if the gift and feoffement had 
 
 beene made before the statute of donis conditionalibus : for then 
 
 both the donee and feoffee had a fee simple ; and so are our 
 
 bookes to be intended in this and the like cases. 
 
 [ e ]14 E. 3. [e] If A. be seised of lands in fee, and B. releaseth unto him, 
 
 Garr.108. or c(m firmeth his estate in fee with warrantie to him, his heires 
 
 12 H. 7. 1. aQc j aggjgflgg . a }[ mea a g ree this warrantie to be good : but some 
 
 have holden, that no warrantie can be raised upon a bare release 
 
 or confirmation without passing some estate or transmutation of 
 
 mil H. 4. 22. possession. [/] But the law as it appeareth by Littleton him- 
 
 10 E. 3. 52." selfe, is to the contrary, and that both the party, and (as some 
 
 21 E. 3. 27. doe hold) his assignee shall vouch; but he that is vouched in 
 
 738**745. that case must be P re sent in court, and ready to enter into the 
 
 warranty and to answer, and the tenant must shew forth the 
 
 deed of release or confirmation with warrantie, to the intent 
 
 the demandant may have an answer thereunto, and either deny 
 
 the deed, or avoid it ; for that at the time of the confirmation 
 
 made, he (A) to whom it was made had nothing in the land, &c. 
 
 for otherwise the demandant may counter plead the voucher by 
 
 W. 1. cap. 40. the statute of W. 1. viz. that neither vouchee nor any 
 
 of his ancestor had any J^" seisin whereof he might T385.1 
 Statut 2 e toTo m:ike a feoff ement (B). And this is grounded upon |_ b. J 
 cat. ad warrant, the said statute of W. 1, the words wherof be, S'ilneit 
 
 son 
 
 (A) Here "to" seems to be printed by mistake instead of " by." See Mr. Ritso's Intr. 
 , 121. 
 
 (B) Yet by 20 E. 1. (statute of vouchers), which recites that the averment therein mentioned 
 (being the averment in the counierpha spoken of in the text) had not been used to be ad- 
 mitted unhss the party vouched had been absent, by reason of the statute of 11. 1. above 
 cited, it was ordained, that such averment should be admitted, whether the party vouched 
 were absent or present, without any respect had unto his presence or absence.
 
 L. 3. C. 13. Sect. 734. Of Warrantie. [385. b. 
 
 son garrantor en present (1), que luy voile garranter de son gree, 
 et maintenant enter en respons, otherwise the tenant must be 
 driven to his warrantia cartas. 
 
 \_g~\ Bui a warrantie of it selfe cannot enlarge an estate; as if [g] 22 H. 6. 15. 
 the lessor by deed release to his lessee for life, and warrant the 19 H - 6 - 73 - 
 land to the lessee and his heires, yet doth not this enlarge his 2 jj 4 13 ' 
 
 estate. 41 E. 3. Garr. 15. 
 
 43 E. 3. 17. 
 43 Ass. 42. 12 Ass. 17. 12 E. 3. Taile, 3. 22 E. 4. 16. b. 44 E.3. 10. 
 43 Ass. Bassingborn's. Ass. Lib. 10. foL 97. Seymour's case. 
 
 [A] If a man make a feoffment in fee with warrantie to him, [*] Lib. 3. 
 his heires and assignes by deed (as it must be), and the feoffee o 1 ',, 63 ' Lincolne 
 enfeoffeth another by paroll, the second feoffee shall vouche, or 
 have a warrantia carta' (as hath been said) as assignee, albeit 
 he hath no deed of the assignment, because the deed com- 
 prehending the warrantie, doth extend to the assignees of the 
 land; and he is a sufficient assignee, albeit he hath no deed. 
 
 [i] If a man infeoffe two, their heires and assigns, and one of [*] 29 E. 3. 70. 
 them make a feoffement in fee, that feoffee shall not vouch as V E '. 2, J ° inder 
 
 , n \ ' in action, 1. 
 
 assignee (2). _ _ > 11 E. 4. 8. 
 
 If a man make a feoffement in fee to A. his heires and assignes, 
 
 A. infeoffeth B. in fee, who re-infeoffeth A. he or his assignes 
 shall never vouche, for A. cannot be his owne assignee. But if 
 
 B. had infeoffed the heire of A. he may vouche as assignee; for 
 the heire of A. may be assignee to A. inasmuch as he claimeth 
 not as heire. 
 
 [k] If a man make a feoffement by deed of lands to A. to have [&] 14 H. 4. 3. 
 and to hold to him and his heires, and binde him and his heires 
 to warrant the land in forma pradictd; this warrantie shall 
 extend to the feoffee and his heires; but if he had warranted 
 the land to the feoffee the warrantie had not extended to his 
 heires, except the words had beene to him and his heires. 
 
 If a man letteth lands for life, the remainder in taile, the (Ant. 20. b.) 
 remainder eadem forma, this is a good estate taile, quia idem 
 semper refertur proximo pro2cedendi(3). 
 
 Sect. 734. 
 
 A LSO, if tenant in taile be seised of* lands devisable by testament 
 after the custom, §c. and the tenant in the tayle alieneth the same tene- 
 ments to his brother in fee (et le tenant en tayle alien f mesmes les tene- 
 ments a son frere en fee), and hath issue, and dieth, and after his brother 
 deviseth by his testament the same tenements to another in fee, and bindeth 
 
 him 
 
 * lands — tenements, L. and M. and f mesnes not in L. and M. or Roh. 
 Roh. 
 
 (1) i. e. if he have not his warrantor present. 
 
 (2) The other may vouch for his moiety, as is observed in the preceding 
 page; but if they make partition, both have lost it. Hob. 25. — [Note 334.] 
 
 (3) A man enfeoffeth three by deed, and warranteth the land to them, et 
 cuilibet eorum, this is a joint warranty, because the estate or interest was joint; 
 but is the estates were several, the warranty would be several. 5 Rep. 19. — 
 [Note 335.]
 
 385. b. 386. a.] Of Warrantie. L. 3. C. 13. Sect. 734. 
 
 him and his Tieires to warrantie, $c. and dieth without issue ; it seemeth 
 that this warrantie shall not barre the issue in the taile, if hee will sue his 
 writ o/formedon, because that this warrantie shall not descend to the issue 
 in tayle, in so much as the uncle of the issue was not bound to the same 
 warrantie in his lifetime: neither could he warrant the tenements in his 
 life, insomuch as the devise could not take any execution or effect until 
 after his decease (4) (pur ceo que cest garrantie ne discendera my al issue 
 en le tayle, entant que le uncle del issue ne fuit my oblige a le garrantie 
 en sa vie: net que il ne puissoit garranter les tenements en sa vie, 
 entant que le devise ne puissoit prender ascun execution ou effect, forsque 
 apres son decesse). And insomuch as the uncle in his life 
 was not jg®"" held, to warrantie, such warrantie may not de- r386."J 
 scend from him to the issue in the tayle, §c. for nothing can |_ a. J 
 descend from the ancestour to his heire, unlesse the same were 
 in the ancestour (1). 
 
 (6 Rep. 33. TJ ERE our author declareth one of the maximes of the 
 
 2 Cro. 570. _LL common law, that the heire shall never be bound to any 
 
 10 Rep. 95.) express wrrrantie, but where the ancestor was bound by the 
 
 same warranty; for if the ancestor were not bound, it cannot 
 
 descend upon the heire, which is the reason here yeelded by 
 
 [Z] 31 E. 1. Littleton. [I] If a man make a feoffment in fee, and binde his 
 
 m^N™' heires to warrantie, this is void by the warrant of this maxime, 
 
 Ant. 213. b.) as to tne heire, because the ancestor himselfe was not bound. 
 
 Also, if a man binde his heires to pay a summe of money, this 
 
 Bracton, li. 2. is voide. And of the other side, if a man binde himselfe to 
 
 fol. 37. 238. warranty, and binde not his heires, they be not bound ; for he 
 
 Bntt. fo. 10 . . mugfc ga ^ ag . fc a pp earet ] 1 before, Ego et hceredes met warrantiza- 
 
 [m] Fleta, lib. 2. bimus, &c. [m] And Fleta saith, Nota quod haves non tenetur in 
 cap. 55. (N) Anglid ad debita antecessoris reddenda, nisi per antecessorem ad 
 Britton, fo. 65. b. hocfuerit obligatus, prceterquam debita regis tantum: A fortiori 
 (4 Rep. 80. m case °f warrantie, which is in the realtie. 
 
 Ante 209. a.) But a warrantie in law may binde the heire, although it never 
 
 bound the ancestor, and may be created by a last will and testa- 
 [n] 18 E. 3. 8. ment. [n] As if a man devise lands to a man for life or in taile 
 reserving a rent, the devisee for life or in taile shall take advan- 
 tage of this warrantie in law, albeit the ancestor was not bounden, 
 and shall binde his heires also to warrantie, although they be not 
 named. Also an express warrantie cannot be created without 
 deed, and a will in writing is no deed, and therefore an expresse 
 warrantie cannot be created by will. 
 
 Sect. 
 
 | que il ne not in L. and M. or Roh. 
 
 (N) Vid. Fleta, lib. 2. cap. 62. § 10. 
 
 (4) Upon a similar principle it was held, that a person could not devise 
 land in frankmarriage, because the donee could not hold of the donor. Ant. 
 21. b.— [Note 336.] 
 
 (1) It is a general rule, that the heir cannot take any thing by descent 
 when the ancestor is secluded from taking. Ant. 99. b.— If a father and his 
 heir apparent join in a warranty, the heir is doubly bound by his own war- 
 ranty, and as heir to his father. Moore, 20. — [Note 337.]
 
 L. 3. C. 13. Sect. 735-36. Of Warrantie. [386. a. 386. b. 
 
 Sect. 735. 
 
 J^LSO, a warranty cannot goe according to the nature of the tenements 
 by the custome, $c. but onely according to the forme of the common 
 law (un garrantie ne poit aler * solonque la nature des tenements per 
 le custome, &c. mes tantsolement solonque le forme del common ley). 
 For if the tenant in taile be seised of tenements in borough English, where 
 the custome is, that all the tenements within the same borough ought to 
 descend to the youngest sonne, and he discontinued the taile with war- 
 ranty, $c. and hath issue two sonnes, and dieth seised of other lands or 
 tenements in the same borough in fee simple to the value or more of the 
 lands entailed, fyc. yet. the youngest sonne shall have a formedon of the 
 f lands tailed, and shall not be barred by the warrantie of his father, 
 albeit assets descended to himinfee simplefrom his said father, 
 
 t386."| J^!? 1 * according to the custome, §c. because the warranty des- 
 "• J cendeth upon his elder brother who is in full life J, and not 
 upon the youngest. \\ And in the same manner is it of collaterall 
 warranty made of such tenements, where the warranty dese'endeth upon 
 the eldest sonne, $c. this shall not barre the younger son, §c. 
 
 Sect. 736. (8Rop.86.) 
 
 TN the same manner is it of lands in the county of Kent, that are 
 called gavelkinde, which lands are dividable betweene the brothers, §c. 
 according to the custome \. ; if any such warranty be made by his an- 
 cestor, such warrantie shall descend, onely (B) to the heire which is heire 
 at the common laiv, § that is to say, to the elder brother, according to the 
 conusance of the common law, and not to all the heires that are heires 
 of such tenements according to the custome Tf. 
 
 HEREUPON a diversitie is to be observed betweene the Vid. Sect. 603. 
 lien reall, and the lien personall, for the lien reall, as the ? 2 R ep . 25 ) 
 warrantie, doth ever descend to the heire at the common law; [„] 11 E. 3. 
 [«] but the lien personall doth binde the speciall heires, as all Det - 7 - 
 the heires in gavelkind, and the heir on the part of the mother, n 
 as hath beene said. 
 
 [o] If two men make a feoffment in fee with a warranty, and [ ] 17 E. 3. 
 the one die, the feoffee cannot vouch the survivor onlv, but Joint. 41. 
 
 ' •" 16 H. 7. 13. 
 
 29 E. 3. 46. 12 H. 7. 3. 22 E. 3. 1. 17 E. 3. 8. 30 E. 3. 40. 19 H. 6. 55. 
 Lib. 3. fol. 14. Matthew Herbert's case. (1 Leon. 322. March. 125. Allen, 41. 
 Savil. 692. Clay. 3.) 
 
 the 
 
 * solonque — sans, L.and M.and Roh. \. &c. added in L. and M. and Roh. 
 
 f lands, tenements, L. and M. and § that is to say, to the elder brother, 
 
 Roh. according to the conusance of the com- 
 
 \ &c. added in L. and M. and Roh. mon law, not in L. and M. or Roh. 
 
 || And not in L. and M. or Roh. ^[ &c. added in L. and M. and Roh. 
 
 (B) See ante note A. on Seet. 601.
 
 386. b\ 387. a.] Of Warrantie. L. 3. C. 13. Sect. 737-3B. 
 
 the heire of bim that is dead also (1); but otherwise, if two 
 joyntly binde themselves in an obligation, and the one die, the 
 survivor shall be charged. 
 
 Sect. 737. 
 
 A LSO, if tenant in taile hath issue two daughters by divers venters, 
 and dieth, and the daughters enter, and a stranger disseiseth them of 
 the same tenements, and one of t them releaseth by her deed to the dis- 
 seisor all her right, and binde her and her heirs to warrantie, 
 and die withoutissue: in this case the fl^sister which surviveth r387."j 
 may well enter, and oust the disseisor of all the tenements, be- L a. J 
 cause such warrantie is no discontinuance nor collaterall war- 
 rantie to the sister that surviveth, for that they are of halfe blood, and 
 the one cannot be heire to the other, according to the course of the eommon 
 law. But otherwise it is, where there be daughters of tenant in tail 
 by one venter. 
 
 fTHE reason of this is in respect to the halfe blood, whereof 
 
 -I sufficient hath been said in the first booke, in the Chapter 
 
 of Fee Simple. 
 (Ante 12. a. Two brothers be by demy venters ; the eldest releaseth with 
 
 U a. & b.) warrantie to the disseisor of the uncle, and dieth without issue, 
 
 the uncle dieth, the warrantie is removed, and the younger 
 
 brother may enter into the land. 
 
 Sect. 738. 
 
 ALSO, if tenant in taile letteth the lands to a man for terme of life, 
 the remainder to another in fee (si tenant en taile lessa les tenements 
 a un * home pur terme de vie, le remainder a un auter en fee), and a 
 collaterall ancestor confirmeth the state of the tenant for life, and bindeth 
 him and his heires to ivarrantie for terme of the life of the tenant for 
 life, and dieth, and the tenant in taile hath issue and dies ; now the issue 
 is barred to demand the tenements by writ of formedon during the life 
 of tenant for life, because of the collaterall warrantie descended upon 
 the issue in taile. But after the decease of the tenant for life, the issue 
 shall have a | writ of formedon, <f<?. 
 
 HERE 
 
 ^ them — the daughters, L. and M. * home not in L. and M. or Roh. 
 and Roh. \. wr ^ °f not m ^- an< * ^ # or ^°^' 
 
 (1) This seems to be contradicted in Moore, 20. where it is said, that if two 
 are vouched, and one of them makes default, the grand cape ad valentiam shall 
 issue against him who made the default ; and if one of them dies, the heir and 
 the survivor of them may be vouched, or the survivor of them only, at the 
 election of him who hath the warranty. — [Note 338.]
 
 L. 3. C. 13. Sect. 739. Of Warrantie. [387. a. 387. b. 
 
 HERE it appeareth, that a warrantie may be raised by a con- Vide Sect. 733. 
 firmation which transferreth neither estate nor right, where- j^t 335 \ 
 of sufficient hath been said before. 
 
 " To warrantie for term of the life, &c." [p] This proveth [p] 38 E. 3. 14. 
 that a warrantie may be limited, and that a man may warrant y E ' h 3 ' 87 
 lands aswell for terme of life or in taile, as in fee (1). 
 
 If tenant in fee simple that hath a warrar.tie for life either by (4 Rep. 80, 
 an expresse warrantie or by dedi be impleaded and vouch, hee ^ n ** 383 * . 
 shall recover a fee simple in value, albeit his warrantie were but 
 for terme of life, because the warrantie extended in that case to 
 the whole estate of the feoffee in fee simple (2) ; but in the case 
 that Littleton here putteth, the tenant for life shall recover in (2Cro.453.) 
 value but an estate for life, because the warrantie doth extend 
 to that estate only. 
 
 " A writ offormedon, &c." Here is implied that a (F. N. B. 211. b. 
 [387.1 collaterall warrantie giveth no right, 03= but shall 2l7.b.2l9. e.) 
 L b. J barre only for life, and after the partie is restored to 
 his action. 
 It is also to bee observed, that a warrantie may descend to the 
 hieres of him that made it during the life of another. 
 
 Sect. 739. (9 Rep. 120.) 
 
 AND upon this I have heard a reason, that this case will prove another 
 ease, viz. if a man letteth his lands to another, to have and to hold 
 to him and to his heirs for terme of another's life, and the lessee dieth 
 living celuy a que vie, &c. and a stranger entreth into the land that the 
 heire of the lessee mag put him out, f 3fc. because in the case next afore- 
 said, inasmuch as a man may binde him and his heires to warrantie to 
 tenant for life only, during the life of the tenant for life (durant la vie le 
 tenant a % terme de vie), and this warrantie descendeth (B) to the heire 
 of him which made the warrantie, the which warrantie is no warrantie 
 of inheritance, but only for terme of another's life : by the same reason 
 where lands are let to a man, to have and to hold to him and his heires 
 for terme of another's life, if the \\ lessee die living celuy a que vie, his 
 heires shall have the lands living celuy a que vie, &c. For they have said 
 
 that 
 
 f &c. not in L. and M. or Roh. || lessee— father, L. and M. and Roh. 
 
 j terme not in L. and M. or Roh. 
 
 (B) See ante note A. on Sect. 601. 
 
 (1) From this it apears, that the warranty ceases on the expiration of the 
 estate to which it is anexed. In Smith v. Tyndal, Salk. 685, 68G, it was 
 resolved that no warranty extinguishes a right, but only binds or bars it so 
 long as the warranty continues in force ; for if the warranty be released, the 
 ancient right revives. — [Note 339.] 
 
 (2) Though the warranty be temporary, yet the thing warranted and to be 
 recovered is perpetual ; for it is a warranty of a fee, though not a warranty in 
 fee. Hob. 126.— [Note 340.]
 
 387. b. 388. a.] Of Warranto. L. 3. C. 13. Sect. 740. 
 
 that if a man grant an annuitie to another to have and to take to him 
 and his heires for terme of another's life, if the grantee die, fyc. that 
 after § his death his heire shall have the annuitie during the life ofceluj 
 a que vie, &c. Quaere de ista materia. 
 
 OCT" T HA YE heard a reason." Here our student |~ 3 88.1 
 is taught after the example of our author, to [_ a. J 
 observe everie thing that is worth the noting. 
 
 " If a man letteih his lands to another, &c." This case is with- 
 al 17 E. 3.48. out question, [q] that the heire of the lessee shall have the land 
 ii tt 1' 49' *° P reven ^ an occupant. And so it is (as Littleton here saith) in 
 
 7 H. 4. 46. case °f an annuitie, or of any other thing that lieth in grant, 
 
 8 H. 4. 15. whereof there can be no occupant. And of this somewhat hath 
 Py- 8 El. .253. ]j een g a i(j j n th e Chapter of Discents (1). 
 
 27 H. 8. 21 H. 8. tit. Estat. Br. 50. 19 E. 3. tit. Account. 56. 33 Ass. p. 17. 
 22 H. 6. 33. 39 E. 3. 37. Vide Sect. 387. (Ante 41. b.) 
 
 Sect. 740. 
 
 T) UT where such lease or grant is made to a man and to his heires for 
 terme of year es, in this case the heire of the lessee or the grantee shall 
 not after the death of the lessee or the grantee have that which is so let 
 or granted, because it is a chattell reall, and * chattels realls by the com- 
 mon law shall come to the executors of the grantee, or of the lessee, and 
 not to the heire.f 
 
 11 E. 3. tit. TTERE is a generall rule, that chattels reals as well as chattels 
 Ass. 88. Jtl personals shall goe to the executors or administrators of the 
 
 11 Ass. 21. . r - . . & , . -r, „ . . . 
 
 10 El Dy. 276. lessee, and not to his heires. ror as estates ot inheritance or 
 (9 Rep. 86. freehold descendible shall go to the heire, so chattels, as well reall 
 a Rep. 2o. 33.) as p ersona ll shall goe to the executors or administrators. 
 
 [r] 24 E. 3. 26. |V] But if the king's tenant by knight's service in capite be 
 F. N. B. 33. b. seised of a mannor, whereunto an advowson is appendant, and the 
 
 *' » "on' o 'f' church become void, the tenant dieth, his heire within age, the 
 Ant. 90. Sect , . , .. ' . , . '. . & ' , 
 
 125. ^ in g shall present to the church, and not the executor or ad- 
 
 ministrator : but if the land be holden of a common person, in 
 that case the executor shall present, and not the gardeine. 
 [«] 40 E. 3. 14. [s] If a bishop hath a ward fallen and dieth, the king shall not 
 
 have the ward nor the successor, but the executor, and the ward 
 shall be assets in his hands. So it is of the heriot, releefe, and 
 [<] 9 H. 6. 58. the like, [t] But if a church become void in the life of a bishop, 
 
 11 H. 4. 7. and so remaine untill after his decease, the king shall present 
 
 thereunto, and not the executor or administrator ; for nothing 
 can be taken for a presentment, and therefore it is no assets. 
 
 Sect. 
 
 § his death not in L. and M. or Roh. f &c. added in L. and M. and Roh. 
 * all added in L. and M. and Roh. 
 
 (1) But several alterations have been made in the law of occupancy by 
 statutes passed since sir Edward Coke's time. See ant. 41. b. note. 5.
 
 L. 3. C. 13. Sect. 741. Of Warrantie. [388. a. 388. b. 
 
 Sect. 741. 
 
 ALSO, in some cases it may bee, that albeit a collaterall warrantie be 
 made in fee, $c. yet such a warrantie may be defeated and taken 
 away. As if tenant in taile discontinue the taile in fee, and the discon- 
 tinuee is disseised, and the brother of the tenant in taile releaseth by his 
 deed to the disseisor all his right, §c. with warrantie in fee, and dieth 
 without issue, and the tenant in taile hath issue and die; now the issue 
 is barred of his action by force of the collaterall warrantie descended 
 upon him. But if afterwards the discontinuee entreth upon the disseisor, 
 then may the heire in taile have well his action of formedon, &c. because 
 the warrantie is taken away and defeated, for when a warrantie is made 
 to a man upon an estate which hee then had, if the estate be defeated, 
 the warrantie is defeated (1). 
 
 " A ND dieth without issue, &c." Here (as before in this Vide Sect. 707. 
 
 ■^- Chapter hath been noted) the collaterall warrantie doth 
 
 descend upon the issue in taUe, before any right doth descend 
 
 unto him, wherein this diversitie is to bee observed. Where the 
 
 right is in esse in any of the ancestors of the heire at 
 
 t388.~l the time of the 5®"* disceut of the collaterall warran- 
 b. J tie, there albeit the warrant'e descend first, and after 
 the right doth descend; the collaterall warrantie shall 
 binde, as here in this case of our author expressly appeareth. 
 But where the right is not in esse in the heire, or any of his an- (12 Rep. 95.) 
 cestors, at the time of the fall of the warrantie, there it shall 
 not binde. [u] As if lord and tenant be, and the tenant make [«] 7 E. 3. 48. 
 a feoffment in fee with warrantie, and after the feoffor purchase 30 H - • • 
 the seigniore, and after the tenant ces.e, the lord shall have a 
 cessavit; for a warrantie doth extend to rights precedent, and 
 never to any right thatcommenceth after the warrantie : whereof 
 more shall be said in this Section. Also a warrantie shall never 
 barre any estate that is in possession, reversion or remainder, (10 Rep. 95. 
 that is not devested, displaced, or turned to a right before, or at 
 the time of the fall of the warrantie. 
 
 \_w] If a lease for life be made to the father, the remainder to [«,] Lib. l.fol. 
 his next heire, the father is disseised and releaseth with warran- 
 
 case. 
 
 tie and dieth; this shall barre the heire, although the warrantie 
 doth fall, and the remainder commeth in esse at one time. 
 
 r vl If there be father and sonne, and the sonne hath a rent ser- M T ? mps 2 Q «- 1 - 
 
 L«/ J .,, , i a Voucher, Z\)o. 
 
 vice, suit to a mill, rent charge, rent secke, common ot pasture, 31 Ags> 13 
 
 or 
 
 (1) In the former cases put by Littleton, the warranty determined upon the 
 natural expiration of the estate to which it was annexed : here it determines 
 by the estate being defeated. But if an estate be bound by a warranty, and 
 afterwards the estate to which the warranty is annexed be defeated as to a par- 
 ticular estate only, the warranty shall not be defeated. As if tenant for life, 
 remainder to A. be disseised, and an ancestor of A. releases to the disseisor 
 with warranty and dies, and afterwards tenant for life enters or recovers, yet 
 the remainder will be bound by the warranty. See 2 Rol. Abr. 740. 1. 40 
 741. 1. 5. And see Com. Dig. tit. Garranty, (J. 5.)— [Note 341.]
 
 388. b. 389. a.] Of Warrantie. L. 3. C. 13. Sect, 741. 
 
 22 Ass. 36. 
 41 Ass. 6. 
 
 23 E. 3. 
 tit. Gar. 74. 
 Lib. 10. fol. 97. 
 E. Seymour's 
 case. 
 
 (9 Rep. 106.) 
 
 [*J 45 E. 3. 31. 
 21 H. 7. 11. 
 
 Vide Sect. 698. 
 
 [a] 21 E. 4, 
 21 H. 7. 9. 
 3 H. 7. 4. 
 7 H. 4. 17. 
 30 H. 8. 
 Dier, 42. 
 30 E. 3. 30. 
 9 E. 3. 78. 
 45 E. 3. 
 Voucher, 72. 
 F. N. B. 125. 
 14 H. 8. 6. 
 (Ant. 366. b. 
 Moor, 56.) 
 
 26. 
 
 (Ant. 366. b.) 
 
 (Ant. 202.) 
 
 [b] 7 H. 4. 17. 
 
 9. b, 
 
 fol. 
 
 [*] 10 E. 4 
 
 18 E. 3. 55, 
 
 44 E. 3. 19. 
 
 [c] Lib. 10, 
 
 97. E. Sey- 
 
 more's case. 
 
 22 Ass. pi. 38. 
 
 31 Ass. p. 13. 
 
 41 Ass. p. 6. 
 
 33 E. 3. Gar. 74, 
 
 (2 Cro. 593.) 
 
 Dyer, 224. a. 
 
 3 Inst. 216. 
 
 10 Rep. 98. b. 
 
 Ant. 205. a. Plowd. 363. b.) 
 
 or other profit apprender out of the land of the father, and the 
 father niaketh a feoffment in fee with warrantie, and dieth, this 
 shall not barre the sonne of the rent, common, or other profit 
 apprender, quamvis clausula specialis warrantie vel acquie- 
 tancicein cards tenendum inseratur, quia in tali casu transit terra 
 cum onere: and he that is in seisin or possession need not to 
 make any entrie or claime : and albeit the sonne after the feoff- 
 ment with warrantie, and before the death of the father, had 
 beene disseised, and so being out of possession, the warrantie 
 descended upon him, yet the warrantie should not binde him, 
 because at the time of the warrantie made the sonne was in pos- 
 session. [*] So if my collaterall ancestor release to my tenant 
 for life, this shall not binde my reversion or remainder, because 
 that the reversion or remainder continued in me. But if he that 
 hath a rent, common, or any profit out of the land in taile, dis- 
 seise the tenant of the land, and niaketh a feoffment of the land, 
 and warrant the land to the feoffee and his heires, [a] regularly 
 the warrantie doth extend to all things issuing out of the land, 
 that is to say, to warrant the land in such plight and manner, 
 as it was in the hand of the feoffor, at the time of the feoffment 
 with warrantie ; and the feoffee shall vouch, as of lands dis- 
 charged of the rent, &c. at the time of the feoffment made. 
 
 A woman that hath a rent charge in fee entermarrieth with 
 the tenant of the land, an estranger releaseth to the tenant of 
 the land with warrantie ; he shall not take advantage of this 
 warrantie either by voucher or warranties, carta;; for the wife, 
 if her husband die, or the heire of the wife living the husband, 
 cannot have an action for the rent upon a title before 
 fi^ the warrantie made ; for if the heire of the wife 
 bring an assise of mordancester, this action is grounded 
 after the warrantie, w hereunto, as hath beene said, 
 the warrantie shall not extend. 
 
 So it is if the grantee of the rent grant it to the tenant of the 
 land upon condition, which maketh a feoffment of the land with 
 warrantie, this warrantie cannot extend to the rent, albeit the 
 feoffement was made of the land discharged of the rent ; for if 
 the condition be broken, and the grantor be intituled to an ac- 
 tion, this must of necessite be grounded after the warrantie made. 
 
 But in the case aforesaid, when the woman grantee of the rent 
 marrieth with the tenant, and the tenant maketh a feoffment in 
 fee with warrantie, and dieth, in a cut in vitd brought by the wife 
 (as by law she may), \L~\ the feoffee shall vouche as of lands dis- 
 charged at the time of the warranty made, for that her title is 
 paramont : so if tenant in taile of a rent charge purchase the 
 land, and make a feoffement with warrantie, if the issue bring a 
 formedon of the rent, the tenant shall vouche causa qua supra. 
 
 [*] But some doe hold, that a man shall not vouche, &c. as 
 of land discharged of a rent service. 
 
 [c] Also, no warrantie doth extend unto meere and naked 
 titles, as by force of a condition with clause of re-entry, exchange, 
 mortmaine, consent to the ravisher and the like, because that for 
 these no action doth lye ; and if no action can be brought, there 
 can be neither voucher, writ of warrant iw carta, nor rebutter, 
 and they continue in such plight and essence as they were by 
 their originall creation, and by no act can be displaced or devested 
 out of their originall essence, and therefore cannot be bound by 
 any warrantie. 
 
 [ 3 ! 9 ] 
 
 And
 
 L. 3. C. 13. Sect. 742. Of Warranto. [389. a. 
 
 [d] And albeit a woman may have a writ of dower to recover [d] 34 E. 3. 
 her dower, vet because her title of dower cannot be devested out til - Droit » ?2. 
 of the originall essence, a collaterall warrantie of the ancestor , 4 Rep. Ver- 
 of the woman shall not barre her. So it is of a feoffment causd non's case.) 
 matrimonii prselocuti. 
 
 [e] A warrantie doth not extend to any lease, though it be for M 21 E. 4. 
 many thousand yeares, or to estates of tenant by statute staple, 1 ^ J 12 22 
 or merchant, or elegit, or any other chattel, but only to freehold n h. 7.15, 16. 
 or inheritances, as it appeareth in all Littleton's cases which he 20 H. 7. 2. b. 
 putteth in this Chapter. And this is the reason, that in all ^ *[. ^ ^ 
 actions which lessee for yeares may have, a warrantie cannot be per pinch, in 
 pleaded in barre, as in an action of trespasse, or upon the statute Quar. Imp. 
 of 5 R. 2. and the like. But in those actions when the free- i^, H ; 1' ?', 97 
 hold of inheritances doe come in question, there the warrantie ( An * t 10 i. 366.' 
 may be pleaded : but in such actions which none but a tenant of Hob. 14. 28. 
 the freehold can have, as upon the statute of 8 H. 6. assise, or 2 Saund. 180 
 the like, there a warrantie may be pleaded in barre (1). 
 
 " When a warrantie is made to a man upon an estate which 
 hee then had, if the estate be defeated, the warrantie is defeated." 
 Here it appeareth, that although a collaterall warrantie be de- 
 scended, [/] yet if the state whereunto the warrantie was an- [/] 3 H. 7. 9. b. 
 nexed be defeated, albeit it be by a meere stranger (as in this 1°" E : y, - tit - 
 case that Littleton here puts by the discontinue) the warrantie c°ahne US iO. 
 is defeated; and although the discontinuance remaine, and no 9 H. 4.'s. 
 remitter wrought to the heire, yet the warrantie is defeated, and Pi. Com. 158. 
 barre removed, so as the issue in taile may have his formedon, ( Rep " ' 
 and recover the land. Sublato principali tollitur adjunc- 
 tum (2). 
 
 Sect. 742. 
 
 TN the same manner it is, if the discontinuee make a feoffment in fee, 
 
 reserving to him a certain rent, and for default of payment a re-entrie, 
 
 §c. and a collaterall * warrantie of the ancestonr is made to the feoffee 
 
 that hath the estateupon condition, Sfc. and (A) dieth without issue, albeit 
 
 that this warranty shall descend upon the issue in tayle, yet if after the 
 
 rent 
 
 * warrantie of the ancestour is made — ancestour releaseth, L. and M. and Roh. 
 
 (A) Here, it seems, the words "the ancestor" should be understood. For, as Mr. Ritso 
 observes, it is not the discontinuee who is here spoken of, nor the feoffee icho hath the estate 
 upon condition, but the collaterall ancestor of the tenant in tail, who made the warranty. 
 See Mr. Ritso's Intr. p. 114, and the reading above under*. 
 
 (1) The feoffee with warranty cannot take any advantage of the warranty 
 unless he be tenant of the land. 26 H. 8. 3. b.— [Note 342.] 
 
 (2) If a man makes a feoffment with warranty, non-feoffment is a good 
 plea; for if the feoffment be avoided, the warranty also is avoided, for that 
 depends upon the feoffment. But if the man makes a lease for years, and 
 
 . covenants that he will warrant and defend the land to the lessee ; if the lessee 
 be ousted, whether it be by one that hath or that hath not title, he shall have 
 a writ of covenant. Brownlow's Rep. part 2. fol. 165. — [Note 343.]
 
 389. b. 390. a.] Of Warrantie. L. 3. C. 13. Sect. 743. 
 
 rent be behind, and the Jg@°* discontinuee enter into the land*, r389.~| 
 then shall the issue in tayle have his recovery by writ of forme- | b. 
 don, because the collaterall warranty is defeated. And so if 
 any such collaterall warrantie be pleaded against the issue in taile, in 
 his action of formedon, he may shew the matter as is aforesaid, how the 
 warrantie is defeated, §c. and so hee may well maintaine his action, \. SfC. 
 
 (10 Rep. 95.) TJ ERE Littleton putteth another case upon the same ground 
 -JL-L and reason, viz. where the state whereunto the warrantie is 
 annexed is defeated, there the warrantie it selfe is defeated also, 
 which is one of the maximes of the common law. 
 
 Sect. 743. 
 
 ALSO, if tenant in taile make a feoffment to his uncle, and after the 
 uncle make a feoffement in fee with warranty, §c. to another, and 
 after the feoff ee of the uncle doth re-enfeoffe againe the uncle in fee, and 
 after the uncle enfeoff eth a stranger in fee without warrantie, and dieth 
 without issue, and the tenant in tayle dieth, if the issue in tayle will bring 
 his writ of formedon against the stranger that was the last feoff ee, || and 
 that by the uncle, the issue shall not be barred by the warranty that was 
 made by the uncle to the first feoffee of his uncle, for that the said war- 
 rantie was defeated and taken away, because the uncle tooke backe to 
 him as great an estate from his first feoffee to whom the ivarrantie was 
 made, as the same feoffee had from him (pur ceo que l'uncle a luy % 
 reprist cy grand estate de son § primer feoffee a que le garrantie fuit 
 fait, sicome mesme le feoffee avoit de luy.) And the cause why the war- 
 ranty is defeated is this, viz. that if the warrantie should stand in his 
 force, then the uncle should warrant to himselfe, which cannot be. 
 
 (Vaugh. 389.) figg-TTERE Littleton putteth another case where a ["390.1 
 
 -fl warrantie may be defeated, as when the uncle |_ a. 
 
 taketh backe as large an estate as he had made, the 
 
 warrantie is defeated, because he cannot warrant land to him- 
 
 [gr] Temps E. l. selfe. \_g~\ And so it is if the uncle had made the warrantie to 
 
 40°E Cb 3 r 'l4 66 ' ^ e f e °ff ee > ms heires and assignes, and taken backe an estate in 
 
 44 e! 3. 38. fee, and after infeofFed another, yet the warrantie is defeated, for 
 
 25 E. 3. 43. b. that he cannot be assignee to himselfe, and a man shall not re- 
 
 26 E. 3. 68. gularly vouche himselfe as assignee of a fee simple, and the law 
 Voucher, 106. w dl not suffer things inutile and unprofitable. [A] And yet if the 
 16 E. 3. father be infeoffed with warrantie to him and his heires, the father, 
 y„ 0I J? h | r ' 87, infeoffeth his heire apparent in fee (A) and dieth, he, (as it hath 
 
 Vouchee, 122. 17 E. 3. 73, 74. 20 H. 6. 29. (2 Roll. Abr. 739.) [K] 40 E. 3. 14. a. 
 41 E. 2. 25. a. (Ant. 384. Roll. Abr. 98. a.) 
 
 beene 
 
 * &c. added in L. and M. and Roh. J reprist — prist L. and M. and 
 
 ]. &c. not in L. and M. or Roh. Roh. 
 
 || &c. added in L. and M. and Roh. § dit added in L. and M. and Roh. 
 
 (A) It seems that the feoffement of the father to his heir apparent 7nust be understood to 
 be made with warranty. For otherwise the father's death, which appears to be the act in 
 law meant by lord Coke, would not determine any warranty between the father and son.
 
 L. 3. C. 13. Sect. 744. Of Warrantie. [390. a. 
 
 beene said) shall vouch himselfe, and the heire in borow English, 
 by reason the act in law determined the warrantie betweene the 
 father and the sonne (B). 
 
 [i] But if a man maketh a feoffment in fee with warrantie to [0 n H. 4. 20. 
 the feoffee, his heires and assignes, and the feoffee re-enfeoffeth 42 / ^ E. 
 the feoffor and his wife, or the feoffor and any other stranger, the 18 'e. '3. 56. 
 warrantie remaineth still ; or if two doe make a feoffement with 29 E. 3. 46 
 warrantie to one and his heires and assignes, and the feoffee re- j^^E- ^ 
 enfeoffs one of the feoffors, the warrantie doth also remaine. 
 
 39 E. 3. 9. 
 
 389. 
 
 Sect. 744. 
 
 ~Q TIT if the feoffee had made an estate to (C) his uncle for terme of 
 life, or in taile, saving the reversion, fye. or a gift in tayle to the 
 uncle, or a lease for terme of life, the remainder over, §c. in this case the 
 warrantie is not altogether taken away (en cest cas le garrantie n'est 
 *pas tout ousterment anient), but is put in suspence during the estate that 
 the uncle hath. For after that, that the uncle is dead without issue, | §c. 
 then he in the reversion, or he in the remainder, shall barre the issue in 
 taile in his writ of formedon by the collaterall warranty in such case, §c. 
 ByLt otherwise it is where the uncle hath as great estate in the land of the 
 feoffee to whom the warrantie was made, as the feoffee hath himselfe. 
 Causa patet. 
 
 " J?OR terme of life, or in taile." Here it appeareth, [&] that [*] 16 E. 3. 
 
 by taking a [7] lease for life, or gift in taile, the warrantie Vouch - 87 - 
 
 is suspended. 44 E. 3. 38. 
 
 A man infeoffeth a woman with warrantie, they intermarry 26 E. 3. 56. 
 
 and are impleaded, upon the default of the husband, the wife is 10 E ' 3 ' 30 ] 
 
 received, she shal vouch her husband, &c. notwithstanding the 12 E. 3. 
 
 warranty was put in suspense, [m] And so on the other side, if ^ ol ^ ter P le 4 a 2 
 
 a woman infeoffe a man with warrantie, and they intermarry 14 E.°3. C ib. 12. 
 
 and are impleaded, the husband shall vouch himselfe and his (4 R e p. 52.) 
 
 wife by force of the said warrantie. [^ 6 E. 2. 
 
 Vouch. 257. 3 E. 3. ib. 201. 5 E. 3. ib. 178. 18 E. 3. 52. 14 E. 3. Vouch. 109. 
 
 31 E. 3. ib. 25. 43 E. 3. 7. 44 E. 3. 38. 32 E. 3. Voucher, 102. [m] 4 E. 2. 
 
 Voucher, 243. 246. 
 
 [n] An infant en ventre sa mere may be vouched if God give ( Ant - 34S - a ) 
 him a birth, and if not, such a one heire to the warrantie; but Temp8 . E . 1. 
 he cannot be vouched alone without the heire at the common (Jar ,i. 153.' 
 law, for proces shall be presently awarded against him. 31 E. 1. 
 
 ' r Brief'e, 873. 
 
 " But is put in suspence." [o] Tenant in tayle maketh a feoffe- vouch. 237. 
 
 11 E. 3. ibid. 13. 11 E. 3. Quar. imp. 158. 38 E. 3. 7 & 29. 41 E. 3. in Dower. 
 9 H. 6. 24. PI. Com. Stowel's case, per Saunders & Browne, [o] 21 E. 3. 36. a. & b. 
 38 E. 3. 21. 44 E. 3. 26. 45 E. 3. Title, 32. 44 E. 3. ib. 31. 33 E. 3. ib. 4. (3 Leon. 
 10. Cro. Car. 145.) 
 
 ment 
 * pas not in L. and M. or Roh. f dx. added in L. and M. and Roh. 
 
 (B) Vid. ante 110. 6. 140. b. 376. b. 384. b. 385. b. 
 
 (C) Here " his" seems printed by mistake instead of " the." See Mr. Ritso s Intr. 
 p. 114.
 
 390. a. 390. b.] Of Warrantie. L. 3. C. 13. Sect. 745. 
 
 ment in fee with warrantie, and disseiseth the discontinuee, and 
 dyeth seised, leaving assets to his issue. Some hold that in 
 respect of this suspended warrantie and assets, the 
 (tissue in taile shall not be remitted, but that the r390.~| 
 discontinuee shall recover against the issue in taile |_ b. J 
 and he take advantage of his warrantie, if any hee 
 hath, and after in a formedon brought by the issue, the discon- 
 tinuee shall barre him in respect of the warrantie and assets ; 
 and so every man's right saved (1). 
 
 Sect. 745. 
 
 8 E. 2. 
 
 Voucher, 237. 
 (Plowd. 379. a.) 
 
 (5 Rep. 109. 
 Ant. 13. a. b.) 
 
 A LSO, if the uncle after such feoffment made with warrantie, or a 
 
 release made by him with warranty, be attaint of felony, or outlawed 
 
 of felony, such collaterall warrantie, shall not barnor grieve the issue in 
 
 the taile, for this, that by the attainder of felony, the bloud is corrupted 
 
 betweene them, §c. 
 
 Sect. 733. 706. " f}R a release made by him with warrantie." Note a warrantie 
 grounded upon a release. Hereof you shall reade before 
 in this chapter. 
 
 " Be attaint of felony, or outlawed, &c." Note, according to 
 Littleton here, there be two manner of attainders : the one is 
 after appearance, and that in three manners ; by confession, by 
 battell, or by verdict : the other upon process to bee outlawed, 
 which is an attainder in law. But (as hath beene said) there is 
 a great diversitie, as to the forfeiture of land, betweene an 
 attainder of felony by outlawry upon an appeale, and upon an 
 inditement ; for in the case of an appeale the defendant shall 
 forfeit no lands, but such as he had at the time of the outlawrie 
 pronounced ; but in case of indictment, such as hee had at the 
 time of the felony committed. And the reason of this diversitie is 
 evident ; for that in the case of appeale there is no time alleaged 
 in the writ when the felony was done, and therefore of necessitie it 
 must relate to that case only to the judgment of the outlawry : but 
 in the case of indictment there is a certain time alleaged, 
 and therefore in that case it shall relate to the time alleaged 
 in the indictment when the felony was committed. But in the 
 case of the indictment there is also a diversitie to be observed : 
 [o] for, as hath beene said, it shall relate to the time alleaged 
 in the indictment for avoyding of estates, charges, and incum- 
 brances, made by the felon after the felony committed ; but for 
 the meane profits of the land it shall relate only to the judge- 
 ment, as well in this case of outlawrie as in other cases. And 
 where Littleton saith (attaint of felony) if a man be convicted 
 of felony by verdict, and delivered to the ordinary to make 
 purgation, [p] hee cannot be vouched, for that the time of his 
 purgation (if any should be) is uncertaine, and the demandant 
 
 cannot 
 
 [o] 33 E. 3.' 
 Forfeiture, 30. 
 38 E. 3. 31. 1 
 3 E. 4. 25. 
 19 E. 4. 2. 
 PI. Com. 488. 
 
 [p] 8 E. 2. 
 Voucher, 237. 
 Vid. 38 E. 3. 
 29. b. Simile. 
 
 (1) But clearly, if the warranty were never executed, as in the case of fine 
 surrender with warranty and assets, there shall be a remitter. Lord Hale's 
 MSS.— [Note 344.]
 
 L. 3. C. 13. Sect. 745. Of Warrantie. [390. b. 391. a. 
 
 cannot be delayed upon such an uncertaintie ; but the tenant is 
 not without reinedie, for hee may have his warrantia cartse. 
 
 " Attaint." Of this word hath beene spoken in the second 
 Booke in the Chapter of Villenage. 
 
 Upon severall attainders of felonies there lye three severall [•] Dame Hale's 
 writs of escheate, viz. [*] first, when he hath judgement to be case in Pi. Com. 
 hanged : secondly, when he is outlawed : thirdly, when he ab- ° ' 62, 
 jureth the realme. 
 
 [q] The defendant in an appeale of death did wage battell, and [q] 8 E. 3. 
 was slaine in the field, yet judgement was given that he should Judgement, 225. 
 be hanged; and the justices said, that it is altogether necessarie 
 that such a judgement be given, for otherwise the lord would not 
 have a writ of escheate. [r] And in eire it hath beene seene, [ r ] 15 e. 3. 
 that a man hath beene attainted after his death by presentment, Petition, 2. 
 &c. (2). The difference betweene a man attainted and convicted 
 is, that a man is said convict before hee hath judgement; as if 
 a man bee convict by confession, verdict, or recreancie. And 
 when he hath his judgement upon the verdict, confes- 
 
 [391."] sion, or J8@T recreancie ; or upon the outlawrie, or 
 a. I abjuration, then ^ he said to be attaint. And thus is 
 
 the law taken at this day, notwithstanding [s] some [ g [ 40 e. 3. 12. 
 diversitie of opinions in our bookes. 3 E - 3 - 
 
 If a felon be convicted by verdict, confession, or recreancie, 8E°2!iWd!'293. 
 he doth forfeit his goods and chattels, &c. presently. [<] For 21 h. 7. 
 where a reason hath beene yeelded in our bookes, that the [o Dame Hale's 
 praying of his clergie was a refusall of the judgement of the law, case, ubi sup. 
 and a flight in law, and for that cause he forfeited his goods and n^Rop^m 
 chattels, that doth not hold ; for if a man be convict of pettie 9 Rep . {29,) ' 
 treason, or murder, or any other crime, for which he cannot have 
 his clergie, yet by his very conviction he forfeiteth his goods and 
 chattels before attainder. And [u] Stanford (speaking of a felon [«] staunf. PI. 
 convict by verdict) saith, that he shall forfeit his goods which he Cor. fol 192. 
 had at the time of the verdict given, which is the conviction in jjjijji ™] 
 that case; and by the statute of 1 R. 3. cap. 3. no sheriffs, bai- vide 7 H. 4. 11. 
 liffe, &c. shall seise the goods of a felon before hee bee convicted 1 R- 3. cap. 3. 
 of the felony; whereby it appeareth, that the goods may be ( 3 In st. 228.) 
 seised as a forfeit after conviction. And the [x] old statute is ^j^fefo^uin 
 worthy of noting : Provisum est in cm-id nostra coram justiciariis vet# Magna 
 nostris, quod de cetero nullus homo captus pro morte hominis vel Carta, fol. 66. 
 alia felonid pro qud debet imprisonari, disseisietur de terris et 2 - P art 
 tenementis velcatallis suis quousque convictus/uerit. So as by a 
 conviction of a felon, his goods and chattels are forfeited ; but 
 by attainder, that is by judgement given, his lands and tenements 
 are forfeited, and his bloud corrupted, and not before. 
 
 ' If 
 
 (2) In Lambarde's Justice of Peace, ch. 10. it is said, that if a man be 
 attainted of murder or felony, it is needless to arraign him of new of any 
 other felony, because it is needless to condemn him who is already attainted, 
 except in special cases, either for the advantage of the king, or the commodity 
 of the subject. The author then proceeds to state several examples of both the 
 exceptions. In 4 Rep. vol. 57. sir Edward Coke observes, that though a man be 
 killed in rebellion, he shall not forfeit his lands nor goods ; but if the chief jus- 
 tice (sovereign coroner of England, upon the view of the body, make record 
 thereof, and return it to the king's bench, he shall forfeit lands and goods, as 
 Fineux, chief-justice, did, temp. H. 7. — [Note 345.]
 
 391. a.] 
 
 [>] Staunf. PI. 
 Cor. 139. 115. 
 
 (3 Rep. 10. b.) 
 
 [*] Glanvil. lib. 
 14 Ca. 15. 
 Marlb. ca. 25. 
 W. 1. c. 15. 
 
 [a] 3 E. 4. 14. 
 18 E. 4. 10. 
 23 Ass. 49. 
 
 1 E. 3. 13. 
 Staunf. PI. Cor. 
 102. E. 
 8 H. 4. 2. 
 
 [b] 22 Ass. 49. 
 (3 Inst. 47. 
 
 4 Rep. 40, 41, 
 42. 44.) 
 
 [c] Staunf. Prrer. 
 45. b. 16 E. 3. 
 Coron. 116. & 
 3E.3. Coron. 
 30'2. 
 
 (5 Rep. 120. 
 9 Rep. 65.) 
 
 (Vide Ant. 74. 
 3 Inst. 112. 
 1 H. P. C. 354, 
 355. Vol. 2. 12. 
 368. Salk. 85. 
 contra.) 
 
 [d] 28 H. 8. 
 
 cap. 15, 
 
 (3 Inst. 112.) 
 
 [e] Hil. 2 Jac. 
 Regis. 
 
 Vide Mich. 7 & 
 
 8 Eliz. Dier, 241, 
 
 14 Eliz. Dier. 
 
 308. 
 
 (4 Rep. 43.) 
 
 Of Warrantie. L. 3. C. 13. Sect. 745. 
 
 [y\ If the party upon his arraignment refuse to answer accord- 
 ing to law, or say nothing, he shall not be adjudged to be hanged, 
 but for his contempt, to peine forte et dure, which worketh no 
 attainder for the felony, nor forfeiture of his lands, or corruption 
 of bloud. But in case of high treason, if the party refuse to 
 answer according to law, or say nothing, hee shall have such 
 judgement by attainder, as if he had beene convicted by verdict 
 or confession (1). 
 
 " Felony." [*] Ex vi termini significat quodlibet capitate cri- 
 men felleo animo perpetratum, in which sense murder is said to 
 be done per feloniam, and is so appropriated by law, asfelonice 
 cannot be expressed by any other word, [a] And in antient 
 times this word (felonice) was of so large an extent as it included 
 high-treason ; and therefore in our antient bookes, by the pardon 
 of all felonies, high-treason, or counterfeiting of the great seale, 
 and of the king's coine, &c. was pardoned, [b] But afterwards it 
 was resolved, that in the king's pardon or charter, this word 
 (felonie) should only extend to common felonies, and that high- 
 treason should not be comprehended under the same, and there- 
 fore ought to be specially named. And yet that a pardon of all 
 felonies should extend to petite treason : wherefore by the law at 
 this day under the word (felony) in commissions, &c. is included 
 petite treason, murder, homicide, burning of houses, burglarie, 
 robbery, rape, &c. chance-medly, se de/endendo, and petite 
 larceny, [c] For such of these crimes for which any shall have 
 this judgement, to be hanged by the necke till he be dead, he 
 shall forfeit all his lands in fee simple, and his goods and chattels : 
 for felony by chance-medly, or se de/endendo, or petite larceny, 
 he shall forfeit his goods and chattels, and no lands of any estate 
 of freehold or inheritance. And all felonies punishable accord- 
 ing to the course of the common law, are either by the common 
 law, or by statute. There is also a felony punishable by the civill 
 law, because it is done upon the high sea, as pyracie, robberie, 
 or murder, whereof the common law did take no notice, because 
 it could not be tried by twelve men. If this pyracie be tried 
 before the lord admirall in the court of the admiraltie, according 
 to the civill law, and the delinquent there attainted, yet shall it 
 worke no corruption of bloud, nor forfeiture of his lands; other- 
 wise it is if he be attainted before the commissioners by force of 
 the statute [d~\ 28 U.S. By the expresse purview of that statute, 
 about the end of the reigne of queene Elizabeth, certaine English 
 pyrats, that had robbed on the sea merchants of Venice, in amitie 
 with the queen, being not knowen, obtained a coronation pardon, 
 whereby amongst other things, the king pardoned them all 
 felonies. It was [e] resolved by all the judges of England upon 
 conference and advisement, that this did not pardon the pyracie ; 
 for seeing it was no felonie whereof the common law tooke conu- 
 sance, and the statute of 28 H. 8, did not alter the offence, but 
 ordaine a triall and inflict punishment, therefore it ought to be 
 pardoned specially, or by words which tant amount, and not by 
 the generall name of felony ; and according to this resolution the 
 delinquents were attainted and* executed. 
 
 Pyrata 
 
 (1) On the peine forte et dure, see Mr. Justice Blackstone's Commentaries, 
 vol. 4. c. 25.
 
 L. 3. C. 13. Sect. 745. Of Warrantie. [391. a. 
 
 Pyrata commeth of the word TreipTuijc, which significth a rover 
 at sea. Attainder of heresie or praemunire worketh no corrup- 
 tion of blood, nor heresie, forfeiture of lands ; but in case of 
 praemunire, forfeiture of lands in fee simple, but not of lands in 
 
 taile, as formerly hath been said (2). \ )"\ By some statutes it [/] Statute de 
 ' J W iv J J Magna moneta, 
 
 tempore E. 1. 35 E. 1. de Carlisle, 20 E. 3. cap. 4. (Doct. & Stud. 115.) 
 
 is 
 
 (2) The offence of PRJSMUNIRE, is called from the words of the writ pre- 
 paratory to its prosecution. It is described by Mr. justice Blackstone, book 4. 
 c. 8. to be, introducing a foreign power into the land, and creating imperium 
 u in imperio, by paying that obedience to the papal process, which constitunally 
 " belonged to the king alone." To explain fully this offence, and the laws of 
 recusancy mentioned in this place, by lord Coke, it is necessary, I. to state the 
 laws, which were passed before the Reformation, to restrain what, in the law 
 of England was termed, papal provision, or the pope's presenting to English 
 benefices, — and papal process, or the pope's interfering in the process of the 
 ecclesiastical courts of England. This will lead, II. to a statement of the laws, 
 which, since the division of the churches at the Reformation, have been passed 
 against those, who, from their remaining in communion with the see of Rome, 
 have received, in the laws of England, the appellation of papists, and persons 
 professing the popish religion. III. After this, will be shown the effect and 
 operation of the laws which were passed in the reign of his majesty king 
 George 3, to relieve persons of that description. IV. Some general ob- 
 servations will then be offered, to point out the particular laws, to which his 
 majesty's English subjects in communion with the see of Rome were then still 
 exposed, but which did not, in any respect, affect English protestant dissenters ; 
 and some remarks on the operation of the toleration act, and the act for quieting 
 corporations, so far as they affect Roman catholics, — on the right or obligation 
 of Roman catholics to serve in the militia, and to serve on juries, and on their 
 right to be admitted to factories, and to hold offices exerciseable abroad. So 
 far this note stands as it was inserted in the former edition. V. We shall then 
 mention the act of 9 Geo. IV. c. 17. in favour of protestant dissenters; and, 
 VI. the act of the 10 Geo. 4. c. 7. in favour of Roman catholics. 
 
 I. WITH RESPECT TO PAPAL PROVISIONS AND PAPAL PR 0- 
 CESS. — The 35 Edw. 1. stat. de asportatis religiosorwm, is said to be the foun- 
 dation of all the subsequent statutes of praemunire. It recites, that, the abbots, 
 priors, and governors, had, at their own pleasure, set diverse impositions upon the 
 monasteries and houses in their subjection ; to remedy which, it was enacted, that, 
 in future religious persons should send nothing to their superiors beyond the 
 sea; and that no impositions whatsoever should be taxed by priors aliens. By 
 the 25 Edw. 3. stat. 6. 27 Edw. 3. stat. 1. c. 1 . and 38 Edw. 3. stat. 2. c. 1,2,3,4. 
 it was enacted, that the court of Rome should present or collate to no bishopric 
 or living in England ; and that, if any one disturbed any patron in the pre- 
 sentation to a living, by virtue of papal provision, such provisor should pay 
 fine and ransom to the king, at his will, and be imprisoned till he renounced 
 such provision. The same punishment was inflicted on such as should cite the 
 king or any of his subjects to answer in the court of Rome. By the 3 Richard 2. 
 c. 3. and 7 Richard 2. c. 12. it was enacted, that no alien should be capable 
 of letting his benefice to farm : and that no alien should be capable of being 
 presented to any ecclesiastical preferment, under the penalty of the statute of 
 provisors. By the stat. 12 Richard 2. c. 15. all liegemen of the king, accept- 
 ing of a living, by any foreign provision, were put out of the king's protection, 
 and the benefice made void. To which the 13 Richard 2, stat. 2, c. 2. adds 
 banishment and forfeiture of lands and goods ; and by c. 3. of the same statute, 
 it was enacted, that any person bringing over any citation or excommunication 
 from beyond sea, on account of the execution of the foregoing statutes of 
 
 provisors, 
 Vol. II.— 48
 
 391. a.] Of Warrantie. L. 3. C. 13. Sect. 745. 
 
 is said, sur forfeiture de corps et de avoire, or sub forisfactura 
 omnium quae inpotestate sua obtinet, or to be at the king's will, 
 
 body, 
 
 provision should be imprisoned, forfeit his goods and lands, and moreover 
 suffer pain of life and member. In the writ for the execution of these statutes, 
 the words praemunire facias, being used to command a citation of the party, 
 have denominated in common speech, not only the writ, but the offence itself 
 of maintaining the papal power, by the name of praemunire. The 16 Richard 2. 
 c. 5. which is the statute generally referred to by all subsequent statutes, is 
 usually called the statute of praemunire. It enacts, that whoever procures at 
 Rome, or elsewhere, any translations, processes, excommunications, bulls, 
 instruments, or other things, which touch the king, against him, his crown, 
 and realm, and all persons aiding and assisting therein, shall be put out of the 
 king's protection ; their lands and goods forfeited to the king's use ; and they 
 shall be attached by their bodies, to answer to the king and his council, or 
 process of praemunire facias shall be made out against them, as in other cases 
 of provisors. By the 2 Henry 4. c. 3. all persons, who accept any provision 
 from the pope, to be exempt from any canonical obedience to their proper ordi- 
 nary, were also subjected to the penalties of praemunire. This is said to be 
 the last ancient statute concerning this offence, till the separation of the 
 church of England from the church of Rome, in the reign of Henry 8. The 
 penalties of praemunire have been since applied to otber offences, some of 
 which bear more, some less, and some no relation to this original offence. Its 
 punishment is to be gathered from the foregoing statutes, and is thus shortly 
 summed up by sir Edward Coke. " That, from the conviction, the defendant 
 " shall be out of the king's protection, and his lands and tenements, goods 
 " and chattels, forfeited to the king; and that his body shall remain in prison 
 " at the king's pleasure, ant. 129. b. or, as other authorities have it, during his 
 ■ " life." Such is the offence of praemunire, and such its punishment by the law 
 of England. Whenever it is said, that a person by any act, incurs the penaltes 
 of a praemunire, it is meant to express, that he thereby incurs the penalties, 
 which, by the different statutes we have mentioned, are inflicted for the 
 offences therein described. This account of the offence of praemunire, and 
 its punishment, is taken, or rather copied, from sir William Blackstone's 
 4th Commentary, chap. 8. 
 
 II. WITH RESPECT TO THE LA WS, WHICH, SINCE THE 
 SEPARATION OF THE CHURCH OF ENGLAND FROM THE 
 CHURCH OF ROME, AT THE TIME OF THE REFORMATION, 
 HAVE BEEN PASSED AGAINST THOSE WHO REMAINED IN 
 COMMUNION WITH THE SEE OF ROME,— the laws against them may 
 be reduced under five heads : — II. 1st. The first are those, which subject them to 
 penalties and punishments for exercising their religious worship ; — under which 
 head, may be ranked, the laws respecting their places of education, and the minis- 
 ters of their church. By these laws, if any English priest of the church of Rome, 
 born in the dominions of the crown of England, came to England from beyond 
 the seas, or tarried in England three days, without conforming to the church, 
 he was guilty of high treason; and those incurred the guilt of high treason, 
 who were reconciled to the see of Rome, or procured others to be reconciled 
 to it. By these laws also, papists were totally disabled from giving their 
 children any education in their own religion ; if they educated their children, 
 at home, for maintaining the school-master, if he did not repair to church, or 
 was not allowed by the bishop of the diocese, they were liable to forfeit 107. 
 a month, and the school-master was liable to forfeit forty shillings a day; if 
 they sent their children for education to any school of their persuasion abroad, 
 they were liable to forfeit 100?. and the children so seut were disabled from 
 inheriting, purchasing or enjoying any lands, profits, goods, debts, duties, 
 legacies, or sums of money. — Saying mass was punishable by a forfeiture of 
 200 marks : hearing it by a forfeit ureof 100. See 1 Eliz. ch. 2. 23 Eliz. ch. 1. 
 ° J 27 Eliz.
 
 L. 3. C. 13. Sect. 745. Of Warrantee. [391. a. 
 
 body, lands, and goods, and the like, these are not extended to 
 the lossc of life or member, but to imprisonment, lands and 
 
 goods. 
 
 27 Eliz. ch. 2. 29 Eliz. ch. 6. 35 Eliz. ch. 2. 2 Jac. 1. ch. 4. 3 Jac. 1. 
 ch. 4, 5. 7 Jac. 1. ch. 6. 3 Car. l.ch. 2. 25 Car. 2. ch. 2. 7 & 8 W. 3. ch. 
 27. 1 Geo. 1. ch. 13. — II. 2d. Under the second head were those laws which 
 punished the English communicants with the church of Rome for not conform- 
 ing to the established church. These are generally called the statutes of recu- 
 sancy. It should be observed, that, absence from church, alone, and unac- 
 companied by any other act, constitutes recusancy, in the true sense of that 
 word. Till the statute of the 35 Eliz. chap. 2 . all nonconformists were considered 
 as recusants, and were all equally subject to the penalties of recusancy : that 
 statute was the first penal statute made against popish recusants, by that name, 
 and as distinguished from other recusants. From that statute arose the dis- 
 tinction between protestant and popish recusants ; the former were subject to 
 such statutes of recusancy, as preceded that of the 35th of queen Elizabeth, 
 and to some statutes against recusancy, made subsequently to that time ; but 
 they were relieved from them all by the act of toleration, in the 1st year of 
 king William's reign. From the 35th Eliz. c. 2. arose also the distinction, 
 between papists and persons professing the popish religion, and popish recusantse 
 and popish recusants convict. Notwithstanding the frequent mention in the 
 statutes, of papists and persons professing the popish religion, neither the 
 statutes themselves, nor the cases adjudged upon them, present a clear notion 
 of the acts or circumstances that, in the eye of the law, constituted a papist, 
 or a person professing the popish religion. When a person of that description 
 absented himself from church, he filled the legal description of a popish recu- 
 sant : When he was convicted in a court of law of absenting himself from 
 church, he was termed in the law a popish recusant convict: to this must be 
 added the constructive recusancy hereinafter mentioned to be incurred by a 
 refusal to take the oath of supremacy. — With respect to the statutes against 
 recusancy ; by these statutes, popish recusants convict were punishable by the 
 censures of the church, and by a fine of 201. for every month during which 
 they absented themselves from church ; they were disabled from holding 
 offices or emoluments; from keeping arms in their houses; from maintaining 
 actions or suits at law or in equity ; from being executors or guardians ; from 
 presenting to advowsons; from practising in the law or physic; and from 
 holding offices, civil or military : they were subject to the penalties attending 
 excommunication, were not permitted to travel five miles from home, unless 
 by license, upon pain of forfeiting all their goods; and might not come to court 
 under pain of 100^. A married woman, when convicted of recusancy, was 
 liable to forfeit two-thirds of her dower or jointure. She could not be executrix 
 or administratrix to her husband, nor have any part of his goods ; and, during 
 her marriage, she might be kept in prison, unless her husband redeemed her at 
 the rate of 10^. a month, or the third part of his lands ; popish recusants 
 convict were, within three months after conviction, either to submit and re- 
 nounce their religious opinions, or, if required, by fourjustices, to abjure the 
 realm : and if they did not depart, or if they returned without license, they 
 were guilty of felony and were to suffer death as felons. — (See the statutes re- 
 ferred to under the former head.) — II. 3. As to thepenalties or disabilities attend- 
 ing the refusal of Roman catholics to take the oath of supremacy, the declara- 
 tion against transubstantiation, and the declaration against popery : It must be 
 premised, that, Roman catholics make no objection to take the oath of alle- 
 giance, 1 G. 1. st. 2. c. 13. or the oath of abjuration, 6 Geo. 3. c. 53. — With respect 
 to the oath of supremacy, — by the 1st Elizabeth, ch. 1. the persons therein 
 mentioned were made compellable to take the oath of supremacy contained in 
 that act : by the 3d of king James the 1st. ch. 4. another oath was prescribed 
 to be taken, commonly called the oath of allegiance and obedience : these 
 
 oaths
 
 391. a. ] Of Warrantie. L. 3. C. 13. Sect. 745. 
 
 [g] W. 2 cap. goods, [g] But if an act of parliament saith, Ee it judgement de 
 25 E l ti<s e * mem ^ er ) or subeat judicium vitx vel membrorum, in that 
 
 1 E. 2. de frang. prisonam. 14 E. 3. cap. 10. Stanf. PI. Coron. 30, 31. 3 E. 3. 
 Coron. 153. Brooke, tit. Coron. 203. 9 E. 4. 26. (11 Rep. 2. 23 H. 8. 25 H. 8. 
 38 H. 6. by 18 Eliz. 25 Ed. 3.) (11 Rep. 291. 4 Inst. 123.) 4 Mod. 128. 
 (Show. 353.) 
 
 case 
 
 oaths were abrogated by the 1st of king William and queen Mary, sess. 1. ch. 
 8. and a new oath of allegiance and a new oath of supremacy were introduced, 
 and required to be taken in their stead : the statute made in the 2d session of 
 the 1st year of king George the 1st. ch. 13. contains an oath of supremacy, in 
 the same words as the oath of supremacy required to be taken by the 1st of 
 king William and queen Mary. By that oath, persons are made to swear, that 
 " no foreign prince, person, prelate, state or potentate, hath, or ought to have, 
 " any jurisdiction, power, supremacy, pre-eminence or authority, ecclesiastical 
 " or spiritual, within the realm." It was required to be taken by the persons 
 therein named ; it might be tendered to any person, by any two justices of the 
 peace; and persons refusing the oath so tendered were adjudged to be popish 
 recusants convict, and to forfeit and to be proceeded against as such. This 
 was the constructive recusancy referred to above. It was not the offence itself 
 of recusancy, which, as we have already observed, consisted merely in the 
 party's absenting himself from church : it was the offence of not taking the 
 oaths of supremacy, and the other oaths prescribed by the act of 1 Geo. 1. the 
 refusal of which, was, by that statute, placed on the same footing as a legal 
 conviction on the statutes of recusancy, and subjected the party refusing to the 
 penalties of those statutes. This was the most severe of all the laws against 
 papists. The punishment of recusancy was penal in the extreme ; and the 
 persons objecting to the oath in question, might be subjected to all the penal- 
 ties of recusancy, merely by their refusing the oath, when tendered to them. 
 It added to the penal nature of these laws, that the oath in question might be 
 tendered, at the mere will of two justices of peace, without any previous in- 
 formation or complaint before a magistrate, or any other person. Thus, by 
 refusing to take the oath of supremacy, when tendered to them, they became 
 liable to all the penalties of recusancy ; and the same refusal, by 7 & 8 Wm. 
 3. ch. 24. and 1 Geo. 1. st. 2. ch. 13. restrained them from practising the law 
 as advocates, barristers, solicitors, attornies, notaries, or proctors, and from 
 voting at elections. — II. 4. With respect to receiving the sacrament of our Lord's 
 Supper: By the 13 Charles 2. (commonly called the corporation act), no per- 
 son can be legally elected to any office, relating to the government of any city 
 or corporation, unless, within a twelve month before, he has received the sacra- 
 ment of the Lord's supper, according to the rites of the church of England ; 
 and he is also enjoined to take the oaths of allegiance and supremacy, at the 
 same time that he takes the oath of office, or, in default of either of these 
 requisites, such election shall be void. — II. 5. As to the declaration against 
 transubstantiation : By the 25 Car. ch. 2. (commonly called the test act), all 
 officers, civil and military, are directed to take the oath, and make the decla- 
 ration against transubstantiation, in the court of King's Bench or Chancery, 
 the next term, or at the next quarter sessions, or (by subsequent statutes,) 
 within six months after their admission, and also, within the same time, to 
 receive the sacrament of the Lord's Supper, according to the usage of the 
 church of England, in some public church, immediately after divine service 
 and sermon ; and to deliver into court, a certificate thereof, signed by the 
 minister and churchwarden ; and also to prove the same, by two credible wit- 
 nesses, upon forfeiture of 500?. and disability to hold the office. — II. 6. With 
 respect to the declaration against popery : The act passed in the 30th year of 
 Car. 2. st. 2. ch. 1. contains the declaration, and prescribes it to be made, by 
 members of either house of parliament, before they take their seats. By 
 
 it,
 
 L. 3. C. 13. Sect. 745. Of Warrantie. [391. b. 
 
 case judgement of death shall be given, as in case of 
 
 t391.~| felonie, viz. that he be O^T hanged by the necke till he 
 b. I be dead, and consequently his bloud is corrupted (as 
 our author here saith), and shall forfeit as in case of 
 
 felonie. 
 
 There 
 
 it, they declare their disbelief of the doctrine of transubstantiation, and their 
 belief that the invocation of saints, and the sacrifice of the mass, are idola- 
 trous. — II. 7. With respect to the laws affecting their landed property : How 
 this was affected by the law against recusancy has been already mentioned. 
 By the 11 & 12 W. 3. ch. 4. it was enacted, that a person educated in the 
 popish religion, or professing the same, who did not, in six months after the 
 age of eighteen take the oaths of allegiance and supremacy, and subscribe the 
 declaration of the 30th Cha. 2. should, in respect of himself only, and not of 
 his heirs or posterity, be disabled to inherit, or take lauds by discent, devise, 
 or limitation, in possession, reversion, or remainder : and that during his life, 
 till he took the oaths, and subscribed the declaration against popery, his next 
 of kin, who was a protestant, should enjoy the lands, without accounting for 
 the profits ; and should be incapable of purchasing ; and that all estates, terms, 
 interests or profits out of the lands, made, done, or suffered to his use, or in 
 trust for him, should be void. By 3 Jac. 1. ch. 5. 1 W. & M. c. 26. 12 Ann. 
 st. 2. c. 14. and 11 Geo. 2. c. 17. papists, or persons professing the popish 
 religion, were disabled from presenting to advowsons, and other ecclesiastical 
 benefices, and to hospitals and other charitable establishments. By annual 
 acts of the legislature, papists, being of the age of 18 years, and not having 
 taken the oaths of allegiance and supremacy, were subjected to the burthen of 
 the double land-tax. By a statute made in the second session of the first 
 year of Geo. 1st. ch. 55. they were required to register their names and 
 estates in the manner, and under the penalties therein mentioned ; and by the 
 3d Geo. 1. c. 18. continued by several subsequent statutes, an obligation of 
 enrolling their deeds and wills was imposed on them. Such were the principal 
 penal laws against Roman catholics, immensus aliarum super alias acerva- 
 tarum legum cumulus (Liv. 3. 34.) at the time of the accession of the house of 
 Brunswick. 
 
 III. WITH RESPECT TO THE LAWS WHICH WERE PASSED 
 IN HIS LATE MAJESTY'S REIGN FOR THE RELIEF OF RO- 
 MAN CATHOLICS.— III. 1. The only act of any importance, which, till 
 the reign of his late majesty, was passed for their relief, (and that operated but 
 indirect manner for their benefit,) was the act of the 3d Geo. 1. c. 18. On the 
 construction of the 11 & 12 Wm. 3. ch. 4. it had been held, that as it expressly 
 confined the disability of papists to take by discent to themselves only, and 
 preserved their heirs and posterity from its operation, it was not to be construed 
 as preventing the vesting of the freehold and inheritance in them, in cases of 
 descent, or transmitting them to their posterity : but that the disability respected 
 only the pernancy of the profits, or beneficial property of the lands, of which it 
 deprived them during their non-conformity. Whether that part of the statute, 
 which relates to their taking by purchase, should receive the same construction, 
 was a frequent subject for discussion, the statute, being in that branch of it, 
 without any limitation. To remedy this the act we are speaking of was passed : 
 it enacts that no sale, for a full and valuable consideration, by the owner or 
 reputed owner of any lands, or of any interest therein, theretofore made or there- 
 after to be made, to a protestant purchaser, shall be impeached, by reason of 
 any disability of such papist, or of any person under whom he claims, in conse- 
 quence of the 11 & 12 W. 3. unless the person taking advantage of such dis- 
 ability shall have recovered before the sale, or given notice of his claim to the 
 purchaser, or before the contract for sale, shall have entered his claim at the 
 quarter sessions, and bond fide pursued his remedy. The act then recites the 
 
 clauses
 
 391 . b.] Of Warrantie. L. 3. C. 13. Sect. 745. 
 
 [A] Bract, lib. 4. [/j] There is also a court of the constable and marshall, who 
 
 48 e" 3 3 have conusance of contracts of deeds of amies, and of warre out 
 
 13 R. 2. cap. 2. Rot. Pari. 21 R. 2. nu. 19. 1 H. 4. c. 14. 13 H. 4. 4. & 5. 
 37 II. 6. 21. Rot. Pari. 8. R. 2. nu. 31. Fortesc. cap. 32. Rot. Pari. 2 H.4. 74. 
 11 H. 4. 24. 30 H. 6. 6. Staunf. PI. Cor. 65. Stat, de Assignat. 4 E. 1. Br. Cor. 
 196. Rot. Pari. 2 H. 6. nu. 9. Rot. Pari. 5 H. 4. nu. 39. Rot. Vase. 9 H. 4. 
 nu. 14. 8 H. 6. nu. 38. 21 E. 4. 17. b. Catesby. 10 H. 7. per Vavasor. 18 E. 2. 
 Quar. Imp. 175. 6 E. 3. 41. Pasc. 14 E. 3. in Scac. le Count, de Kent's case, rx 
 39 E. 3. cor. Reg. Rot. 49. le Count, de Lane. case. Rot. Pari. 28 E. 3. nu. 8. Mor- 
 timer's case. Rot. Pari. 28 E. 3. nu. 13. le Countes de Arundel's case. 
 
 of 
 
 clauses of the 11 & 12 W. 3. disabling papists from purchasing ; and afterwards 
 enacts that these clauses shall not be thereby altered or repealed but shall re- 
 main in full force. This proviso is couched in such general words, that it 
 created a doubt in some, whether it did not nearly frustrate the whole effect 
 of the act. To this it was answered, that, notwithstanding the proviso, the 
 enacting part of the statute was in full force for the benefit of a protestant 
 purchaser ; and that the proviso operated only to declare, that papists them- 
 selves should not derive any benefit from the act, in any purchases they should 
 attempt to make under the foregoing clauses. This was considered the better 
 opinion, and on the authority of it many purchases of considerable consequence 
 were made. See also 6 Geo. 2. ch. 5. Thus the laws against Roman catholics 
 stood at the time of the accession of his late majesty. During his reign 
 two acts, each of great importance, were passed in their favour. — III. 2. By 
 that of the ISth ofhisreign, ch. 60. it was enacted that so much of the 11 & 12 
 W. 3. as related to the prosecution of popish priests and Jesuits, and imprison- 
 ing for life papists, who keep schools, or to disable papists from taking by de- 
 scent or purchase, should be repealed, as to all papists or persons professing 
 the popish religion, claiming under titles not theretofore litigated, who within 
 six months after the act passed, or their coming of age, should take the oath 
 thereby prescribed. Upon this act, a case was decided in chancery, on the 18th 
 of December 1783, under the name of Bunting v. Williamson. In that case, 
 a bill had been filed, claiming an estate given to a person professing the 
 popish religion, by will, alleging the incapacity occasioned by the act of the 
 11th and 12th of king William. The testator died many years before, and 
 after his death a suit had been instituted by another person who claimed as 
 his heir at law, and that suit was depending at the time when the statute of the 
 18th Geo. 3. c. 60. was passed; but was afterwards dismissed for want of 
 prosecution. The plaintiff filed his bill, some time after the act, claiming in 
 right of his wife as heir at law. The defendants pleaded their title under the 
 testator's will; and, that the defendant, who was beneficially interested, having 
 or claiming the estate under that will, had taken the oath prescribed by the 
 act, and concluded with an averment, that the title had not been before liti- 
 gated by the plaintiff, or any person under whom he claimed. The plaintiff, 
 on argument of the plea, contended, that the words not hitherto litigated, ex- 
 tended to the case then before the court, because the title had been litigated, 
 and was in litigation at the time the act passed. But the lords commissioners, 
 Ashhurst and Hotham, were clearly of opinion, that the plaintiff not having 
 before litigated the title, nor claiming under any person who had litigated it, 
 the case of the defendants was within the benefit of the act, notwithstanding 
 the prior litigation ; and the plea was allowed. — III. 3. With respect to the act 
 of the 31st of his late majesty, cap. 32. That statute may be divided into 
 six parts : The 1st contains the declaration and oath afterwards referred to 
 in the body of the act, and prescribes the method of taking it : The 2d, is a 
 repeal of the statutes of recusancy, in favour of persons taking the oath 
 thereby prescribed : The 3d, is a toleration, under certain regulations, of the 
 religious worship of the Roman catholics, qualifying in like manner, and of 
 their schools for education : The 4th enacts, that, in future no one shall be 
 
 summoned
 
 L. 3. C. 13. Sect. U5. Of Warrantie. [391. b. 
 
 of the realnic and also of things touching warre within the realrue, 
 which may not be determined or discussed by the common law, 
 and also all appeales of offences done out of the realme, and they 
 proceed according to the civil law : but these things more pro- 
 perly pertaine to another kind of treatise, and therefore I shall 
 
 speake 
 
 summoned to take the oath of supremacy prescribed by the 1st Wm. & Mary, 
 sect. 1. c. 8. and 1st Geo. 1. sect. 2. cap. 13. or the declaration against tran- 
 substantiation required by the 25th Ch. 2. — that the 1st Wm. & Mary, sect. 1. 
 ch. 9. for removing papists or reputed papists from the cities of London and 
 Westminster shall not extend to Roman caiholics taking the appointed oath; — 
 and that no peer of Great Britain or Ireland, taking that oath, shall be liable 
 to be prosecuted for coming into his majesty's presence, or into the court or 
 house where his majesty resides, under the 30th Car. 2. stat. 2. ch. 1 : The 
 5th part of the act, repeals the laws requiring the deeds and wills of Roman 
 catholics to be registered or enrolled : The 6th dispenses persons acting as a 
 counsellor at law, barrister, attorney, clerk, or notary, from taking the oath of 
 supremacy, or the declaration against transubstantiation. 
 
 The declaration prescribed by the act is contained in these words; "I, A. B. 
 " do herehy declare that I do profess the Roman catholic religion." Till the 
 passing of this act, the persons, who were the subjects of it, were known in the 
 English law by the name of papists, reputed papists, or persons professing 
 the popish religion. By requiring this declaration from them, the law has 
 imposed on them, and probably will in future recognize them by, the name of 
 Roman catholics. Still when the ancient penal laws against them are to be 
 mentioned with professional accuracy, it may sometimes be found necessary, 
 (and this necessity has been experienced in the course of this annotation,) to 
 mention them under the name applied to them by the abrogatedlaw. 
 
 It is observable, that, as the bill was originally framed, and as it stood, when, 
 having passed the commons, it was brought into the house of lords, the first 
 clause in it directed, that the oath contained in the act of the 18th year of the 
 reign of his late majesty should be taken no longer; but that, the oatli ap- 
 pointed by the bill, should, in future, be administered in its stead, and should 
 give the same benefits and advantages, and should operate to the same effects 
 and purposes, as the oath contained in the 18th of his late majesty. This 
 clause was altered in the house of lords to the form in which it now stands. 
 It does not express, that the oath contained in it shall entitle the persons 
 taking it to the benefits of the act of the 18th of his late majesty: it only 
 expresses, that, it shall be lawful for catholics to take the oath of the 31st of 
 his late majesty, at the places and times, and in the manner therein mentioned. 
 Thus, it was very uncertain, whether persons taking only the oath prescribed 
 by the 31st of his late majesty would be entitled to the benefit of the act 
 of the 18th of his late majesty, so as to be relieved from the penalties and 
 disabilities from which the persons taking the oath prescribed by that act were 
 released by it. The chief of these penalties and disabilities were those inflicted 
 by the 11th & 12 W. 3. which disabled them from taking by disccnt or 
 purchase. From these penalties and disabilities thoy were exposed to much 
 real grievance. It seemed, therefore, advisable for every Roman catholic, 
 who wished to be secure in the enjoyment of his landed property, to take both 
 the declaration and oath prescribed by the act of the 31st and the oath pre- 
 scribed by the 18th of his late majesty. But this uncertainty was remedied by 
 the act of the 43d of his late majesty, chapter 30. which provided that the 
 oath and declaration, contained in the 31st of his late majesty, should give 
 the benefit of the oath contained in the 18th of his late majesty, and thus 
 made the taking of both unnecessary. — III. 4. As to the double land-tax, 
 that, being imposed by the annual land-tax act, a repeal of it could not be ef, 
 fecte'd by any prospective act. It is repealed by omitting from the annual land- 
 tax act, the clause imposing it, The land-tax act of the year 1794 contain- 
 also
 
 391. 1).] Of Warrantee. L. 3. C. 13, Sect. 745. 
 
 speake no more thereof in this place, but only for the satisfac- 
 tion of the studious reader, to quote some authorities of law 
 touching the jurisdiction of the court, that he may have some 
 taste thereof. 
 
 In 
 
 also a clause, which, after reciting, that, lands formerly liable to a double as- 
 sessment, were then possessed by protestants, enacted, that where any place, 
 in consequence of that circumstance, should be rated at more than four shil- 
 lings in the pound, the commissions might, on complaint, examine into the 
 truth of the complaint, and certify the same to the barons of the exchequer, 
 before the 29th of the following September, who were to discharge the excess 
 by the following November. 
 
 It remains to add, that by the 57th Geo. 3. c. 92. for regulating the adminis- 
 tration of oaths, in certain cases, to officers in his majesty's land and sea 
 forces, after reciting "that, by certain acts passed in the reigns of his 
 majesty's royal predecessor, it was provided, that officers in his majesty's 
 royal navy, and officers in his majesty's army, should take certain oaths, and 
 make and subscribe certain declarations, before they should enter upon the 
 offices, or places of trust, to which they might be appointed ; and that doubts 
 had been entertained, whether the provisions of the said acts were still in force 
 in that behalf; and that the practice of taking the said oaths, and making and 
 subscribing the said declaration, by officers, previous to their receiving com- 
 missions in his majesty's army, had been long disused; and that it was expe- 
 dient to remove such doubts, and to assimilate the practice of the two services; 
 it was enacted, that after the passing of the act it should be lawful for his 
 majesty's principal secretaries of state, the lord high admiral of the united 
 kingdom of Great Britain and Ireland, or the commissioners for executing the 
 office of lord high admiral, the commander in chief of his majesty's land 
 forces, the master general of the ordnance, and the secretary at war for the 
 time being, respectively, or any other persons thereunto lawfully authorized, to 
 deliver commissions or warrants to any officer or officers in his majesty's royal 
 navy, land forces, or royal marines, without previously requiring such officer or 
 officers to take the said oaths, or make and subscribe the said declaration." 
 
 IV. WITH RESPECT TO THE COMPARATIVE S1TETION OF 
 THE PROTESTANT DISSENTERS AND THE ROMAN CATHO- 
 LICS, AS TO THE PENALTIES AND DISABILITIES TO WHICH 
 THEY A RE S UBJECTED B Y LA W, IN CONSEQ UENCE OF THEIR 
 RELIGIOUS PRINCIPLES;— -it has been already shown, how the law 
 stands on the corporation and test acts. — IV. 1. The statute of the 1st William 
 and Mary, (commonly called the toleration act), exempts all dissenters, except 
 papists and such as deny the Trinity, from all penal laws relatiug to religion, 
 provided they take the oaths of allegiance and supremacy, and subscribe the 
 declaration against popery, and repair to some congregation registered in the 
 bishop's court, or at the sessions. But there is nothing in this act, which dis- 
 penses, either with the test act or the corporation act, so far as they impose 
 the obligation of receiving the sacrament of our Lord's Supper on persons 
 serving in offices, or elected to serve in corporations; and there is nothing 
 in the act of the 31st of his late majesty, which dispenses catholics from that 
 obligation, in case of their serving in offices, or being admitted into corpora- 
 tions. With respect therefore to the test act and corporation act, these are the 
 only acts which subject the protestant dissenters to any penalties or disabilities; 
 to these the Roman catholics are subject equally with t ho protestant dissenters; 
 there is, therefore, no penalty or disability that affects the protestaut disseuters, 
 to which Roman catholics are not subject equally, but there still remain several 
 penalties and disabilities to which Roman catholics are subject, that do not in 
 any respect affect the protestant dissenters. The principal of these are, that 
 by the 30 Car. 2. Roman catholics, in consequence of refusing the oath of su- 
 premacy, or the declaration against popery, are disabled from sitting in either 
 
 house
 
 L. 3. C. 13. Sect. 74o. Of Warrantie. [391. b. 
 
 In the same manner it is, if a man be attainted of high-trea- 
 son, the warrantie is also defeated. 
 
 " Tlie blood is corrupted betweene them, &c." [*] Aptly is a [*]Staunf.lib.3. 
 man said to be attainted, attinctus, for that by his attainder of 2 /e 3 77/ 
 
 13 H. 4. 8. Vid. Lit. lib. 1. in the Chap, of Dower. (3 Inst. 240.) 
 
 treason 
 
 house of parliament; by the 7th & 8th of Wm. 3. ch. 27. those who refuse to 
 take the oath of supremacy are disabled from voting at elections ; and by seve- 
 ral statutes, Roman catholics are disabled from presenting to advowsons. This 
 is peculiar to them, Quakers and even Jews having the full enjoyment of the 
 right of presentation. It is to be observed, that no person can be presented to 
 a living who has not been ordained according to the rites of the church of 
 England. Previously to his ordination he is examined on his faith and morals 
 by his bishop; he takes the oath of allegiance and supremacy, and subscribes 
 the 39 articles; and previously to his admission,' he subscribes the three articles 
 respecting the supremacy, the Common Prayer, and the 39 articles ; and he 
 makes the declaration of conformity. By the act of uniformity, 13 & 14 Car. 
 2. c. 4. he is bound to use the Common Prayer and other rites and ceremonies 
 of the church of England. — IV. 2. Upon the corporation act, it seems to have 
 been the prevailing opinion, that the election of a person, who did not comply 
 with the requisites of that statute, and all the acts done by him, were void. To 
 prevent the consequences of this, the statute of the 5th Geo. 1 . was passed, inti- 
 tuled, "An act for quieting and establishing corporations," by which it was 
 enacted, that, no incapacity, disability, forfeiture, or penalty should be incur- 
 red, unless the person were removed, or a prosecution against him commenced, 
 within six months after his election. It was also enacted, that the acts of the 
 person omitting to qualify should not be avoided. Upon this act, an import- 
 ant question arose, whether dissenters, being ineligible to public offices, could 
 be obliged to fine for not serving them. This point came to a direct issue, in 
 the case of Allen Evans, esq. It was finally heard, in the house of lords, on 
 the 4th February 1767, when it was determined in favour of the dissenters. For 
 the relief of those who omit to qualify for serving in offices, or for being elected 
 into corporations, an act of parliament is passed annually, by which, after men- 
 tioning the corporation and test acts, and some others, which do not relate to 
 the point under consideration, it is enacted, that persons who, before the pass- 
 ing of the act, have omitted to qualify in the manner prescribed by those acts, 
 and who shall properly qualify before the 25th of the ensuing December, shall 
 be indemnified against all penalties, forfeitures, incapacities, and disabilities, 
 and their elections, and the acts done by them, are declared to be good. There 
 is nothing in this act which excludes catholics from the benefits of it. — IV. 3. 
 By the militia act, it is enacted, that no person shall be enrolled in the militia, 
 unless he takes the following oath: "I, A. B. do sincerely promise and swear, 
 " that I will be faithful and bear true allegiance to his majesty King George, 
 " his heirs and successors. And I do swear, that I am a protestant, and that 
 " I will faithfully serve in the militia, within the kingdom of Great Britain, for 
 " the defence of the same, during the time for which I am enrolled, unless I 
 " shall be sooner discharged." It seems to deserve consideration, whether, under 
 the existing laws, catholics may not claim to be exempted from serving in the 
 militia, upon the same ground, as, in the cited case of Allen Evans, the protest- 
 ant dissenters claimed, and were allowed to be exempted from the obligation of 
 serving in offices, viz. That by law they are ineligible, and consequently are not 
 compellable to fine for not serving. — IV. 4. With respect to the right of Roman 
 catholics to serve on juries, there does not appear to have ever been any law 
 which subjected them to any such disability, except the statutes generally 
 called the statutes of recusancy. The statute of the 13 Car. 2. commonly 
 
 called
 
 391. b.] Of Wammtie. L. 3. C. 13. Sect. 745. 
 
 treason or felonie his bloud is so stained and corrupted, as, first, 
 his children cannot be heires to him, or to any other ancestor, 
 
 and 
 
 called the corporation act, relates to those offices only, which concern the go- 
 vernment of cities and corporations The statute of the 25th Car. 2. com- 
 monly called the test act, (since explained by the 9th of Geo. 2.), regards 
 only civil and military offices. Neither of these acts, therefore, abridges ca- 
 tholics of the right in question. With respect to the statutes of recusancy, 
 among other penalties to which these subjected popish recusants convict, one 
 was, that they became liable, upon conviction, to all the consequences of ex- 
 communication, and it has been generally understood, that persons excommu- 
 nicated are disabled from serving on juries. We have more than once observed, 
 that, in the proper sense of the word, not attending the service of the church 
 of England, alone, and unaccompanied by any other circumstance, constitutes 
 recusancy. Of this non-attendance at church, every Roman catholic, necessa- 
 rily, was guilty, and he might be convicted of it by a very summary process. 
 But till his guilt was established in a judicial manner, the law did not take 
 notice of it ; and therefore, unless an actual conviction had taken place, he was 
 not subject to any of the penalties consequent to recusancy. But it has been 
 mentioned, that there was, besides this, a species of constructive recusancy, to 
 which every catholic was liable, by refusing to make the declaration against 
 popery, and to take the oath of supremacy. This had a more direct operation 
 on their ability to serve as jurors. Now as well the declaration against popery, 
 as the oath of supremacy, might be tendered to a catholic in the very court 
 where he presented himself to serve as a juryman. A refusal amounted to con- 
 viction; on conviction he became subject to all the penalties of excommunica- 
 tion, and one of those penalties, (at least, by the opinion of the old lawyers), 
 was a disqualification to serve on juries. Thus, it was always in the power of 
 the court, and perhaps of any two magistrates present, to convict, on the spot, 
 a catholic of recusancy, and thereby render, problematical at least, his capacity 
 to serve as juror. Such appears to have been the situation of catholics, in 
 this respect, previously to the act of the 31st of his late majesty. Since the 
 passing of that act, they stand, as to the serving upon juries, in the same pre- 
 dicament as the rest of his majesty's subjects. By that statute, they are freed 
 from the penalties incident either to positive or to constructive recusancy. It 
 is observable, that the 8th section exempts the ministers of Roman catholic 
 congregations from serving on juries; it seems to follow, that, without this 
 clause, they would have been liable to serve, and consequently, that all persons 
 out of the reach of this clause are in the eye, of the law subject to the duty, 
 and have, of course, the capacity of serving. — IV. 5. With respect to the right 
 of Roman catholic merchants to be summoned to the meetings of British fac- 
 tories abroad, it appears that they have, and always had, a right to be admit- 
 ted to them. The meetings of the factory in Portugal were regulated by the 
 8 Geo. 1. c. 17. but that act contains nothing which discriminates Roman 
 catholic from other merchants. All the foreign factories are, therefore, in this 
 respect, in the same predicament. Now, if Roman cotholics are excluded from 
 factories by any act, it must be either by the corporation act, or by the test 
 act. But with respect to the corporation act, it is to be observed, that a fac- 
 tory is not a corporation, in the legal acceptance of that word ; and even if it 
 were, it would not fall within the operation of the corporation act, as that is 
 confined to cities, corporations, &c. within England and Wales, and the town 
 of Berwick upon Tweed. The operation of the test act is more extensive than 
 the operation of the corporation act; it expressly mentions his majesty's navy, 
 the islands of Jersey and Guernsey, and persons who should be admitted into 
 any service or employment in his majesty's or his royal highness's household, 
 within the districts therein mentioned. A factory abroad does not, therefore, 
 fall within the operation of that act. Besides, the privilege of being admitted 
 
 to
 
 L. 3. C. 13. Sect. 745. Of Warrantie. [391. b. 
 
 and therefore the warrantie cannot binde ; for thereby heires 
 
 only are to be bound. 
 
 Secondly, 
 
 to the meetings of a foreign factory is not an office, or even a right, of that 
 description which falls within either of those acts. There is reason to suppose, 
 that, in point of fact, Roman catholics have not generally been summoned to 
 attend meetings of factories since the year 1720. But no person, who is ac- 
 quainted with the code of penal law against Roman catholics, particularly the 
 statutes against recusancy, will be surprised at this circumstance, or draw any 
 argument from it against the right contended for, as the operation and tendency 
 of those statutes were such, as induced Roman catholics to forbear asserting 
 some of their most valuable rights, even such as were of the most indisputable 
 nature, rather than obtrude themselves into public notice. If they wish to 
 enforce their right of admission, or their right of voting, they should give notice 
 of their desire to be summoned, and offer to attend at the meetings; then, if 
 admittance should be refused them, or their votes rejected, the proceedings will 
 be illegal : and not only they, but all other persons subject to the proceedings 
 of the factory, will be justified in refusing to pay their contribution-money, or 
 to comply, in any other manner, with the resolutions or orders of the meeting. 
 Besides, a refusal to admit them, to the meetings, is certainly a personal injury; 
 and wherever a personal injury is done to an English subject abroad, the re- 
 medy must be sought in the jurisdiction where the cause of action happens, if 
 it is subject to the king's jurisdiction; if the king has no jurisdiction in that 
 place, this necessarily gives the king's courts a jurisdiction, within which it is 
 brought, by the known fiction of laying the venue in some county of England. 
 This is explained by lord Mansfield, with his usual clearness and ability, in his 
 argument in Mostyn v. Fabrigas, Cowp. 170. See also Phillybrown v. Ryland, 
 in 1 Stra. 624. 2 Lord Raymond, 1388. and 8 Mod. 354. It is to be ob- 
 served, that, in the great case of Ashby v. White, where an action was brought 
 against an officer for refusing a man's vote at an election, the only ground tor 
 questioning the action was, that, there, the house of commons had special 
 jurisdiction. See 6 Mod. 45. 1 Salk. 19. 1 Bro. Pari. Ca. 45. This, it is 
 evident, does not apply to the case now under discussion. What has been said 
 of the right of Roman catholics to insist on being admitted to the meetings of 
 English factories, abroad, and of their means of redress, in case of refusal^ap- 
 plies, with proper qualifications, to every other case, of a similar description, 
 where their right of admission, acting, or voting is refused them. — IV. 6. 
 With respect to the rhjht of Roman catholics to hold offices exercisable abroad : 
 — It has been observed, that the corporation act extends only to cities, &c. 
 within England and Wales, and the town of Berwick upon Tweed ; that the 
 test act mentions only those places, and his majesty's navy, and Jersey and 
 Guernsey ; and that the 31st of his late majesty repeals the statutes of recu- 
 sancy, and relieves from the penalties imposed on Roman catholics refusing the 
 oath of supremacy, and the declaration against popery : it seems therefore to 
 follow, that no law is now in force which disables Roman catholics from hold- 
 in o - offices wholly exerciseable abroad, or from serving or holding office under 
 the East India company, in their foreign possessions. Besides, upon the con- 
 struction of these laws, and of every other law supposed to affect the Roman 
 catholics, there seems reason to think, that, the same spirit, which induced the 
 legislature to repeal so large a proportion of the penal code against them, will 
 influence the judicature in their construction of the unrepealed part of that 
 code, or of any other statute unfavourable to them, in its apparent tendency or 
 operation, so far as it may be open to a doubtful interpretation. — [Note 346.] 
 
 V. In favour of the protestant dissenters, it was enacted, by the 9 Geo. 4. 
 ch. 17, that so much of the Acts of 13 Ch. 2. st. 2. c. 1. 25 Ch. 2. ch. 2. and 
 16 Geo. 2. c. 30. as require the persons therein described to receive the sacra- 
 ment for certain purposes, should be repealed. 
 
 VI. A repeal
 
 391. b.J Of Warrantie. L. 3. C. 13. Sect. 745. 
 
 Secondly, if he were noble or gentle before, he and all his 
 children and posteritie are by this attainder made base and 
 ignoble, in respect of any nobilitie or gentrie which they had 
 by their birth. 
 
 Thirdly, 
 
 VI. A repeal of the acts, which, after the passing of the act of 1791, re- 
 mained in force against the Roman catholics, was effected by the act passed 
 for their relief in the 10th year of George the 4th. c. 7. 
 
 Section 1 of this Act recites, that, by various acts of parliament, certain 
 restraints and disabilities were imposed on the Roman catholic subjects of his 
 majesty, to which other subjects of his majesty were not liable; and recites, 
 that, by various acts, certain oaths and certain declarations, commonly called 
 the declaration against transubstantiation, and the declaration against transub- 
 stantiation and the invocation of saints, and the sacrifice of the mass, as prac- 
 tised in the church of Rome, were or might be required to be taken, made and 
 subscribed by the subjects of his majesty, as qualifications for sitting and 
 voting in parliament, and for the enjoyment of certain offices, franchises and 
 civil rights : it then enacts, that all such parts of those acts as require the said 
 declarations, or either of them, to be made or subscribed by any of his ma- 
 jesty's subjects, as a qualification for sitting and voting in parliament, or for 
 the exercise or enjoyment of any office, franchise, or civil rights, should (save 
 as thereinafter provided and excepted), be thereby repealed. 
 
 Section 2 enacts, that it should be lawful for any person professing the 
 Roman catholic religion, and being a peer, or member of the house of com- 
 mons, to sit and vote in either house of parliament, being in all other respects 
 duly qualified to sit and vote therein, upon taking and subscribing the oath 
 therein expressed and contained, instead of the oaths of allegiance, supremacy 
 and abjuration. 
 
 Section 5 enacts, that Roman catholics may vote at the election of members 
 to serve in parliament for England and for Ireland, and also to vote at the 
 elections of representative peers of Scotland and of Ireland, and to be elected 
 such representative peers, (being in all other respects duly qualified) on taking 
 and subscribing the oath thereinbefore appointed and set forth, instead of the 
 oaths of allegiance, supremacy and abjuration, and instead of the declaration 
 then by law required ; and instead also of several other oaths, as were then 
 by law required to be taken by any of his majesty's subjects professing the 
 Roman catholic religion, and upon taking also such other oaths as might then 
 be lawfully tendered to any persons offering to. vote at such elections. 
 
 Sections 8 & 9 provide, that so much of any acts as require the formula 
 contained in the 8 & 9 of Win. 3. ch. 3, (of Scotland) to be tendered or taken, 
 should be repealed ; and that Roman catholics may elect and be elected mem- 
 bers to serve in parliament for Scotland, but that no Roman catholic priest 
 should sit in the house of commons. 
 
 Section 10 enacts, that Roman catholics may hold and enjoy all civil and 
 military offices and places of trust, and any other franchise and civil right, 
 except as thereinafter excepted, upon taking and subscribing the oath therein- 
 before appointed and set forth, instead of the oaths of allegiance, supremacy 
 and abjuration, and instead of such other oaths as might then be required to 
 be taken, for the purpose aforesaid, by any of his majesty's subjects professing 
 the Roman catholic religion, (section 11), but not to exempt them from taking 
 other oaths. 
 
 Section 12 provides, that nothing contained in the act should extend to 
 enable any persons professing the Roman catholic religion to hold or exercise the 
 office of guardians and justices of the united kingdom, or of regent of the united 
 
 kingdom.
 
 L. 3. C. 13. Sect. 745. Of Warrantie. [391. b. 
 
 Thirdly, this corruption of bloud is so high, that regularly it 
 cannot be absolutely salved but by authoritie of parliament : all 
 which is implied in the same (&c.) (1). 
 
 Sect. 
 
 kingdom under whatever name, style or title such office may he constituted, nor 
 to enable any person, otherwise than he is now by law enabled, to hold or 
 enjoy the office of lord h>'gh chancellor, lord keeper or lord commissioner of the 
 great seal of Great Britain or Ireland, or the office of lord lieutenant or lord 
 deputy, or other chief governor or governors of Ireland, or his majesty's high 
 commissioner to the general assembly of the church of Scotland. 
 
 Section 13 provides, that nothing contained in the act should affect the act 
 of the 7th of his majesty king George the 4th, for consolidating and amend- 
 ing the laws which regulate the levy and application of church rates and parish 
 cesses, and the election of churchwardens, and the maintenance of parish 
 clerks in Ireland. 
 
 Sections 14, 15, 16, 17, and 18 enable Roman catholics to be members of 
 any lay body corporate, and to hold any civil office or place of trust or profit 
 therein, upon taking and subscribing the oath thereinbefore appointed and set 
 forth, instead of the oath of allegiance, supremacy and abjuration ; but not to 
 vote or join in the election or appointments of any person to any ecclesiastical 
 benefice, office or place whatsoever, or to any office in the established church, 
 - ecclesiastical courts, universities, colleges or schools; and that no Roman 
 catholic should advise the crown in the appointment of ecclesiastical offices. 
 
 Sections 19, 20 and 21 prescribe the time and place in which the oaths 
 should be taken, and the penalties of acting in such office without taking the 
 oaths. 
 
 Section 22 enacts, that the oath thereinbefore appointed should be taken by 
 Roman catholic officers in his majesty's land and sea service, and no other 
 required from them. 
 
 Section 23 enacts, that no oath shall be required from Roman catholics for 
 enabling them to hold their real and personal property, other than such as may 
 be by law required from his majesty's other subjects : andthat the oath therein 
 appointed shall be of the same force and effect, to all intents and purposes, as, 
 and shall stand in the place of, all oaths and declarations required or pre- 
 scribed by any law then in force for the relief of his majesty's Roman catholic 
 subjects, from any disabilities, incapacities or penalties. 
 
 Sections 24 and 25 enact, that persons not authorized by law shall not 
 assume the name, style or title of archbishop, bishop, or dean, in England or 
 Ireland, under the penalty of 100?. ; and that persons in judicial or civil affairs 
 in England or Ireland, shall not attend any place of worship, except those of 
 the established church, with the ensigns or habits of such office, under the 
 penalty of 100?. 
 
 Section 26 imposes a penalty of 50?. on any Roman catholic ecclesiastic, 
 and every member of any Roman catholic order, community or society, who 
 shall exercise their rights, or wear their habits, except within their usual place 
 of worship, or in private houses. 
 
 Section 27 declares, that nothing in the act shall repeal the provisions in the 
 act of the fifth year of his majesty king George the 4th, respecting burials. 
 
 Sections 28, 29, 30, 31 and 32 enact, that the members of religious com- 
 munities then within the united kingdom, should, within six calendar months, 
 deliver to the clerk of the peace of the county, a notice or statement, in the 
 
 form, 
 
 (1) The policy and justice of our laws of forfeiture in this respect are 
 most ably discussed in Mr. Yorke's celebrated Considerations on the Law of 
 Forfeiture.
 
 491. b.J Of Warrantie. L. 3. C. 13. Sect. 746, 747. 
 
 Sect. 746. 
 
 A LSO, if tenant iu taile be disseised, and after make a release to the 
 disseisor with warrantie in fee, and after the tenant in taile is attaint, 
 or outlawed of felony, and hath issue and dieth ; in this case the issue in 
 taile may enter upon the disseisor. And the cause is for this, that nothing 
 maketh discontinuance in this case but the warrantie, and warrantie may 
 not descend to the issue in taile, for this, that the bloud is corrupt between 
 him that made the warrantie and the issue in taile (Et la cause est pur 
 ceo, que, * rien fait discontinuance en cest case forsque le garrantie, et 
 garrantie ne poit discender al issue en taile, pur ceo, que le sanke est 
 corrupt perenter celuy que fist le garrantie et issue en taile). 
 
 Sect. 747. 
 
 JpOR the ivarrantie alwayes abideth at the common law, and the com- 
 mon law is such, that when a man is attaint or outlawed of felony, 
 which outlawrie is an attainder in law, that the bloud between him and, 
 his sonne, and all others which shallbee said his heires, is corrupt, so that 
 nothing by discent may descend to any that may bee said his heire by the 
 common law (Car le garranty touts foits demurt a le common ley, et la 
 
 common 
 
 * nul added in L. and M. and Roh. 
 
 form and containing the particulars required, to be set forth in the schedule to 
 that act, under the pain of forfeiting to his majesty, for every calendar month 
 during which he shall have neglected so to do, the sum of 50Z. ; and that if 
 any Jesuit or member of any religious society shall come into the realm, he 
 shall be guilty of a misdemeanor, and banished. But natural-born subjects, 
 being Jesuits or members of any other religious order, may return to the 
 kingdom, and be registered; and his majesty's principal secretaries of state 
 may grant licences to Jesuits and members of other religious orders to come 
 into the kingdom, and revoke the same. 
 
 Sections 83, 34, 35, 36 and 37 make the administration of persons to be 
 members of such religious orders a misdemeanor, and subjects the persons so 
 admitted, to certain penalties, but exempt from them the members of female 
 communities. 
 
 Section 38 prescribes the manner in which the penalties inflicted by the 
 act may be recovered. 
 
 IT is apprehended, that the preceding statement sufficiently shows that, with 
 the exception of the offices and rights from which they are excluded by the act 
 of the 29 of King George the 3d, the Roman catholics are nearly entitled to 
 the same civil rights as his majesty's protestant subjects; but there yet is 
 some confusion and uncertainty respecting the oaths which they must take to 
 enable them to hold their real property. They are yet disabled from pre- 
 senting to advowsons, from establishing foundations for their religious worship 
 and education ; and still subjectto penalties of the acts of 3 Charles 1. ch. 2, 
 and 2 & 3 James 1. for sending" persons abroad for education, or converting 
 them to popery ; and they are still obliged to receive the sacrament and take 
 the oath of supremacy on their being naturalized. It has also been sug- 
 gested, that iu some cases they have not been relieved from the double 
 land-tax.
 
 L. 3. C. 13. Sect. 747. Of Warrantie. [391. b. 392. a. 
 
 common ley est, f ove quant home est attaint ou utlage de felonie, 
 quel utlagarie esi un attainder en ley, que le sanke perenter luy et son 
 fits, et touts auters queux serra dits ses heires, est corrupt, issint que .J. 
 riens per discent poit discender a ascun que poit estre dit son heire per 
 le common ley.) And the wife of such a man that is so attaint, slial 
 never be endowed of the tenements of her husband so attainted. And the 
 cause is, for that men should more eschew to commit felonies. % But the 
 issue in taile as to the tenements tailed is not in such case barred, be- 
 cause hee is inheritable by force of the statute, and not by the course of the 
 common law (Mes Tissue en tayle quant a les tenements tailes n'est pas en 
 tiel cas § barre, pur ceo que || est inherite per force de la statute, et 
 nemy per le course de common ley) : and therefore such attainder of his 
 father or of his ancestour in the tailed, shall not put him out of his 
 right by force of the tayle, $c. 
 
 " rpiIE issue in taile may enter." And the reason is, for that 
 by the attainder of the father, it is now in judgement of 
 law but a release without warrantie ; for albeit the warrantie at (Plowd. 252. a. 
 the time of the release was effectuall, yet it worketh no discon- 3 Inst - 2il -) 
 tinuance unlesse it descendeth upon the issue in taile ; so as if 
 it be defeated, extinct, or determined in the life of the tenant 
 in taile, then no discontinuance is wrought : and so it is if tenant 
 in taile hath issue, and releaseth to the disseisor with warrantie, 
 and after is attainted of felonie, and after obtaineth his pardon 
 and dieth, the issue in taile may enter ; [*] for the pardon doth [*] 27 E. 3. 77. 
 not restore the bloud as to the warrantie, nor maketh the issue g^'I'ss 
 in that case inheritable to the warrantie. But if the issue in taile 9 jf 5 9 / 
 in that case had been attainted of felonie in the life of the father, 31 E. 1. 
 
 and obtained his charter of pardon, and then his father *>'sco ° t - 17 - 
 
 [392. "I had died, the issue cannot enter into the JS®* land in Petit " 2 'o. 
 a. I respect of the corruption of bloud upon the attainder 26 Ass. 2. 
 of himselfe. [h] And it is a generall rule, that having 49 Ass. 4. 
 respect to all those whose bloud was corrupted at the time of the 13 H ss 4 s \ 
 attainder, the pardon doth not remove the corruption of bloud, 13 H. 7. 17. 
 neither upward nor downward. As if there be grandfather, P|- Com. in ( 
 father and sonne, and the grandfather and father have divers ca * e * 1D f u™. 8 
 other sonnes, if the father be attainted of felonie and pardoned, iMscent, Br. 64. 
 yet doth the bloud remaine corrupted not onely above him and Staunf. PI. Cor. 
 about nim, but also to all his children borne at the time of his "^6 Chapter 
 attainder. But in the case of Littleton, if tenant in taile at the f Tenant by tho 
 time of his attainder had no issue, and after the obtaining of his Curtesie, touch- 
 pardon had issue, that issue should have beene bound by the {JJJJJ tbUb.' 
 warrantie; for by the pardon he was as a new creature, tanquam Ante 8 .' a .) 
 filius terrse, whose bloud upwards remaine corrupted; but for [A] Bract. lib. 3. 
 the issue had after the pardon, hee is inheritable to his father; 276 4 Hb. 3 ?.' 
 and if his father had issue before the pardon, and hath issue also 374] Bri ' tt / 
 after and dieth, nothing can descend to the youngest, for that foL 215. b. 
 the eldest is living and disabled. But if the eldest sonne had H«tUb. L 
 died in the life of the father without issue, then the youngest ^^0/435. 
 should inherit. Ant. 8. a.) 
 
 "The 
 
 f tiel added in L. and 31. and Roll. § barre not in L. and 31. or Roh. 
 1 nul added in L. and 31. and Roh. \\ il added in L. and 31. and Roh. 
 
 I &c. added in L. and M. and Roh. "|| &c. added in L. and M. and Boh.
 
 392. a. 392. b.J Of Warrantie. L. 3. C. 13. Sect. 747. 
 
 Vid. Sect. 711, " The warrantie abideth at the common law" The collaterall 
 712. warrantie is not restrained by the statute of donis condition alibus, 
 
 but a lineall warrantie is restrained by the statute, unlesse there 
 be assets ; as formerly at large hath beene said. 
 
 (8 Rep. 171. " And the wife of such a man that is so attaint, shal never be 
 
 Ante, 31. a. endowed, &c." It is to be observed, that the judgement against 
 
 37. a. 41. a.) a man f or f e lonie is, that he be hanged by the neck untill he be 
 27fiT b " 275# dead ; but implicative, (as hath beene said) he is pun- 
 (3 Inst. 17. 47. ished JJ^* first in his wife, that she shall lose hur [~393.~| 
 Ant. 41. a.) dower. Secondly, in his children, that they shall be- |_ b. 
 
 come base and ignoble; as hath beene said. Thirdly, 
 that he shall lose his posteritie, for his bloud is stained and cor- 
 rupted, that they cannot inherit unto him or any other ancestor. 
 Fourthly, that he shall forfeit all his lands and tenements which 
 he hath in fee, and which he hath in taile, for terme of his life. 
 And fifthly, all his goods and chattels. And thus severe it was 
 at the common law ; and the reason hereof was, that men should 
 feare to commit felonies: Ut poena ad paucos, metus ad omnes 
 perveniat. And it is truly said, Etsi meliores sunt quos ducit 
 amor, tamen plures sunt quos coreiyit timor. And so it is a for- 
 tiori in case of high treason. But some acts of parliament have 
 altered the common law in some of those points : first, by the 
 statute of de donis conditionalibus, lands intailed were not for- 
 feited neither for felonie nor for treason, but for the life of tenant 
 in taile. This act was made by king Edward the first, who (as 
 [{] 5 E. 3. 14. our bookes [i] speake) was the most sage king that ever was : [k] 
 9 E. 3. 22. and the cause wherefore this statute was made, was to preserve 
 
 19"H ^ 71 32 ' tne inheritance i Q tae bloud of them to whom the gift was made, 
 See Lit. lib. 1. notwithstanding any attainder of felonie or treason. And this 
 cap. Dow. act in historie is called gentilitium municipale ; for that by this 
 
 Sect. 55. ac< . t jj e f am jii es f m any noblemen and gentlemen were continued 
 
 (7 Rep. 11.) an d preserved to their posterities. And this law continued in 
 [l] 26 H. 8. force from the thirteenth yeare of king Edward the First, untill 
 vfu s' 20 tue M twentie-sixth yeare of king Henrie the Eighth, when by 
 5 E. 6. c'a. 11. ' act of parliament estates in taile are forfeited by attainder of high- 
 treason. But as to felonies (whereof our author here speaketh) 
 the statute of donis conditionalibus doth yet remain in force, so 
 as for attainder of felonie, lands or tenements entailed are not for- 
 feited, but only (as hath beene said) during the life of tenant in 
 taile, but the inheritance is preserved to the issues. 
 [m] Staunf. PI. ["*] The wife of a man attainted of high treason or, petit 
 Cor. 195. treason shall not be received to demand dower, unlesse it be in 
 
 certaine cases specially provided for. But the wife of a person 
 attainted of misprision of treason, murther, or felonie, is dowable 
 riii? « „ i9 since our author wrote, \nl by the statute in that case made and 
 
 [»J 1 Jli. 6. c. 13. . .... ' L J J . , . , , 
 
 5 E.6.c. ll. provided, which is more favourable to the woman than the coin- 
 
 5 El. ca. 1 & inon law is. 
 
 12 H 8 4 \ Ca ' *' C°] -^ a se 'g n i° r i e he granted w ith warrantie, and the tenancie 
 
 Vide Sect. 55. escheat, the seigniorie whereunto the warra'ntie was annexed is 
 
 (8 Rep. 171.) extinct, and consequently the warrantie defeated, and it shall not 
 
 L°J 6 J*- 4 - 1 * extend to the land : et sic de similibus. 
 
 Vouch." 72. If a collaterall ancestor release with warrantie, and enter into 
 
 PL Com. 292. religion, now the warrantie doth binde ; but if after he be de- 
 
 18 h 3 AgC ' 46 ' rai g ned > now Jt is Seated. 
 
 Vouch. 281. 23 E. 3. Garr. 77. See in the Chapter of Villenage, Sect. 200. 
 
 Sect.
 
 L. 3. C. 13. Sect. 748. Of Warrantie. [392. b. 393. a. 
 
 Sect. 748. 
 
 J^LSO, if tenant in taile infeoffe his uncle, which infeoffes another in 
 fee with warrantie, if after the feoffee by his deed release to his 
 uncle all manner of warrantie, or all manner of covenants realls, or all 
 manner of demands, by such release the warrantie is extinct. And if 
 the warrantie in this case bee pleaded against the heire in taile that 
 bring eth his writ of formedon, to barre the heire of his action, if the 
 heire have and plead the said release, $c. (si l'heire avoit* le dit releas 
 et ceo pledast) he shall defeat the plee in barre, $c. And many other 
 cases and matters there be, whereby a man may defeat a warrantie, §c 
 
 J1TTLETON having spoken in what cases warranties may (i R e p. 112. b.) 
 
 bee defeated and extinguished by matter in law, now he 
 sheweth how a warrantie may be discharged or defeated by a 
 
 matter in deed : and hereupon he putteth an example of a re- (5 Rep. 71. a.) 
 lease in three severall manners. 
 
 First, by a release of all warranties. folf 1^164 
 
 Secondly, by a release of all covenants reall. Altham's case. 
 46 E. 3. 2. 45 E. 3. 23. Vid. before in the Chapter of Releases, Sect. 508. 
 
 And thirdly, by a release of all demands. (Ant. 291. b.) 
 
 [q] If a man make a gift in taile with warrantie, this warrantie [?] 14 Ass. pi. 2. 
 is also intailed, and therefore a release made by tenant in taile ^^188 
 of the warrantie, shall not barre the issue, no more than his re- 9 e. 4. 52. b. 
 lease shall bar the issue to bring an attaint upon a (Plowd. 2. b. 
 
 [393.1 false verdict, or a writ of error upon an erroneous ^nTTl^ £ ase ' 
 a. J Jg^-judgement given against the father, nor his gift 20° a. 6 Rep. 7.) 
 can barre the issue of the deed that create the estate 
 taile, nor of any other deed necessary for defence of the title. 
 
 u After the feoffee release." Littleton here putteth his case (5 Rep. 70.) 
 where one is bound to warrant : put the case [f] then that two [r] 45 E. 3. 23. 
 make a feoffement in fee, and warrant the land to the feoffee and (3 Rep. 14.) 
 his heires, and the feoffee release to one of the feoffors the war- 
 rantie, yet he shall vouche the other for the moytie. And so 
 it is if one infeoffe two with warrantie, and the one release the 
 warrantie, yet the other shall vouch for his moytie. 
 
 "If the heire have the said release, &c." Here it appeareth, 
 that the release being made to the uncle being his ancestor, the 
 deed doth after the decease of the uncle belong to him, and 
 therefore he cannot plead it, unlesse he sheweth it forth. 
 
 "And many other cases and matters there be, whereby a man (Vaugh. 387.) 
 may defeat a warrantie, doc." As namely by a defeasance, as 43 E. 3. 17. PI. 
 other things executorie may. Also a warrantie may lose his . Co T' in Brown * 
 force by taking benefit of the same. In a praecipe the tenant 
 voucheth, and at the sequatur sub suo pericido, the tenant and 
 the vouchee make default, whereupon the demandant hath judge- 
 ment against the tenant. And afterwards the demandant brings 
 a scire facias against the tenant to have execution; in this case 
 the tenant may have a warrantia cartce. And if in that case a 
 
 stranger 
 
 * le dit releas et ceo pledast — et pledast le dit releas, &c. in L. and M. 
 Vol. II.— 49
 
 393. a. 393. b.] Of Warrantee. L. 3. C. 13. Sect. 749. 
 
 stranger had brought & praecipe against the tenant, he might have 
 vouched againe, for by the judgment given against the tenant, 
 the warranty lost not his force ; but if the tenant had judgment 
 (Hob. 27.) to recover in value against the vouchee, hee should never vouche 
 
 againe by reason of that warrantie, because he had taken advan- 
 tage of the warrantie. And it is to be observed, that upon the 
 proces of summoneas ad warranlizandum, if the sherife returne 
 the vouchee summoned, and he make default, the tenant shall 
 have a capias ad valentiam ; but if he returne that the vouchee 
 had nothing, then after the sicut alias et pluries a sequatur sub 
 suo pericido shall issue ; and there if the vouchee make default 
 the tenant shall not have judgment to recover in value, for he 
 was never summoned ; and it appeareth of record that he hath 
 nothing, but in the capias ad valentiam it appeareth that he 
 had assets, and he had been summoned before ; but in some 
 speciall cases there shall be two recoveries in value upon one 
 warrantie. As if a disseisor give lands to the husband and wife, 
 and to the heirs of the husband, the husband alieneth in fee 
 with warrantie and dieth, the wife bringeth a cui in vita, the 
 tenant vouche and recovereth in value, if after the death of the 
 wife the disseisee bring a praecipe against the alienee, he shall 
 vouche and recover in value againe. 
 [»] 45 E. 3. [s] So it is where the wife bringeth a writ of dower against the 
 
 Voucher, 72. alienee, he shall recover in value, and after her death he shall 
 
 recover in value againe, upon the same warrantie. 
 (Hob. 28.) In the same manner it is if a man be seised of a rent by a de^ 
 
 feasible title, and releaseth to the tenant of the land all his right in 
 the land, and warranteth the land to him and his heires, if he b5 
 impleaded for the rent, he shall vouch and recover in value for 
 the rent; and if after he be impleaded for the land, he shall vouche 
 and recover in value againe for the land : but in these and the like 
 cases, the reason is in respect of the severall estates recovered, but 
 for one and the same estate he shall never recover but once in 
 (Ant. 367. b.) value; and though the land recovered in value be evicted, yet 
 shall he never take benefit of that warrantie after. And as war- 
 ranties may be defeated in the whole, so they may be defeated 
 [«] 7 H. 6. 43. as to P art °f tne henefit that may be taken of the same. [t] As 
 13 Ass. 8. he that hath a warrantie may make a defeasance not to take any 
 
 94 '^■, 3 'oi? arr ' benefit by way of voucher : in the like manner that he shall take 
 22' H. 6. 51. n0 advantage by way of warrantia cartas, or by way of rebutter. 
 8H.V.6. 
 
 m* Sect. 749. [ 3 ? 3 -] 
 
 A ND it is to be understood, that in the same manner as the collaterall 
 warrantie may bee defeated by matter in deed or in law ; in the 
 same manner may a lineall warrantie be defeated* Sj-c. For if the 
 heire in taile bringeth a writ of formedon, and a lineall warrantie of 
 his ancestor inheritable by force of the taile, bee pleaded against him, 
 with this, that assets descended to him of fee simple,^ which he hath by 
 the same ancestor that made the warrantie ; if the heire that is demand- 
 ant may adnull and defeat the warrantie, that sufficeth him; for the 
 discent of other tenements of fee simple makeih nothing to barre the 
 
 heire without the warrantie, Sec. 
 
 * HERE 
 
 * &c. not in L. and M. or Roh. f which he hath, not in L. and M. 
 
 or Roh.
 
 L. 3. C. 13. Sect. 749. Of Warrantie. [393. b. 394. a. 
 
 HERE Littleton sheweth, that in the same manner that a col- 
 laterall warrantie may be defeated by matter in deed, or by 
 matter in law, so may to all intents and purposes a lincall war- 
 rantie, whereof hee putteth an example of a lineall warrantie 
 and assets. 
 
 11 And a lineall warrantie, &c. with this, that assets descended 
 to him, &c." Here it appeareth by Littleton, that a lineall war- 
 rantie and assets is a good plea in & formedon in the discender; 
 wherein it is to be knowen, that if tenant in taile alieneth with 
 warrantie, and leave assets to descend ; if the issue in taile doth 
 alien the assets, and die, the issue of that issue shall recover the 
 land, because the lineal warrantie descendeth only to him with- 
 out assets; for neither the pleading of the warrantie without the 
 assets, nor the assets without the warrantie is any barre in the 
 formedon in the discender. But if the issue to whom the war- 
 rantie and assets descended had brought a formedon, and by 
 judgement had beene barred by reason of the warrantie and assets; 
 in that case, albeit he alieneth the assets, yet the estate taile is 
 barred for ever; for a barre in a formedon in the discender, which 
 is a writ of the highest nature that an issue in taile can have, is 
 a good barre in any other formedon in the discender, brought 
 afterwards upon the same gift. 
 
 ]\TO W I have made to thee, my sonne, three bookes. 
 
 " rp thee, my sonne, &c." Here our author calleth (as many 
 times in these bookes he hath done) not only his sonne 
 Richard, but everie studient of the law to be accounted his son, 
 and worthily ; for that seeing our author had the honour to be in 
 his time the father of the law, and all good studients in the law 
 justly account themselves thesonnes of the law (for otherwise they 
 are not worthy of the profession), our author, as a carefull and 
 provident father, as it hath manifestly appeared, gave excellent 
 instructions in these his bookes, both to his owne sonne, and to 
 his adopted sonnes, to make them from age to age the more apt 
 and able to understand the arguments and reasons of the law. 
 
 Tomps E. 1. 
 Gar. 89. 
 
 34 E. 1. ibid. 88. 
 11 E. 2. ibid. 83. 
 
 4 E. 3. 24. 
 
 5 E. 3. 14. 
 40 E. 3. 9. 
 14 H. 4. 39. 
 24 H. 8. Taile, 
 Br. 33. 4 Mar. 
 Dier, 139. 
 Lib. 10. fol. 37, 
 38. in Mary 
 Portington's 
 case. 
 
 (8 Rep. 51.) 
 (Ant. 374. a. b.) 
 (10 Rep. 38. 
 Plowd. 440. a. b. 
 Hob. 40. 
 Moor, 55.) 
 
 m 
 
 s^° Tabula. 
 
 The first Booh is of estates which men have in lands and tenements 
 (Le primer Livre est de Estates que homes ount en terres * ou tene- 
 ments) : that is to sat/. 
 
 Of Tenant in fee simple ft Cap. 1 
 
 Of Tenant in fee taile 2 
 
 Of Tenant in f fee taile after possibilitie of 
 issue extinct 3 
 
 Of Tenant by the curtesie of England 4 
 
 Of 
 
 ou- 
 
 -et, L. and M. and Roh. L. and M. or Roh. 
 
 ' The numbers of the Chapters as ffee — the, L. and M. and Roh. 
 above are no| enumerated either in
 
 394. a. 394. b.] Tabula. 
 
 Of Tenant in dower 5 
 
 Of Tenant for terme of life 6 
 
 Of Tenant for terme of years 7 
 
 Of Tenant at will by the common law 8 
 Of Tenant at will by custome of the mannor 9 
 "fOf Tenant by the verge 10 
 
 The Second Booh $ . 
 
 Of Homage Cap. 1 
 
 Of Fealtie 2 
 
 Of Escuage 3 
 
 Of Knights Service 4 
 
 Of Socage 5 
 
 Of Frankalmoigne 6 
 
 Of Homage Auncestrel 7 
 
 Of Grand Serjeantie 8 
 
 Of Petit Serjeantie 9 
 
 Of Tenure in Burgage 10 
 
 Of Tenure in Villenage 11 
 
 Of f Bents 12 
 
 And these two little Boohs I have made to thee for the better under 
 standing of certaine Chapters of the antient Book of Tenures- 
 
 u ~DETTER understanding, &c." And these Institutes have 
 I collected and published to the end that these three 
 Bookes of our author may be the better understood of the stu- 
 dious reader. 
 
 N. B. 
 
 Fitz. in Ha " Antient Boohe of Tenures" This booke may well be ac- 
 
 Preface to his counted antient, for it was composed in the raigne of king 
 
 Edward the Third, (as justice Fitzherbert saith) by a grave and 
 
 discreet man. 
 
 The Third Book %. 
 
 Of Parceners || according to the course of the 
 
 common law Cap. 1 [394.1 
 
 \. Of Parceners according to the custome 2 L D - 
 
 Of Joyntenants 3 
 
 Of \ Tenants in common 4 
 
 Of 
 
 J Of tenant by the verge, not in L. | according to the course of the 
 
 and M. or Roh. common law, not in L. and M. and 
 
 § is added in L. and M. and Roh. Roh. 
 
 f Rents — iii. manner of rents, sei- \. Of parceners according to the cus- 
 
 licet, rent service, rent charge, and rent tome, not in L. and M. or Roh. 
 seche, L. and M. and Roh. ^[ Tenants — tenements, L. and M. 
 
 % is added in L. and M. and Roh. and Roh.
 
 Tabula. [394. b. 395. a. 
 
 Of Estates of lands and tenements upon con- 
 dition 5 
 Of Discent which toll entries 6 
 Of Continual Claime 7 
 Of Releases 8 
 Of Confirmations 9 
 Of Attornements 10 
 Of Discontinuances 11 
 Of Remitters 12 
 Of Warranties, § 13 
 
 * Epilogus, 
 
 • 
 
 A ND know, my son, that I would not have thee beleeve, that all which 
 I have said in these bookes is law, for I will not presume to take this 
 upon me. But of those things that are not law, inquire and learne of 
 my wise masters learned in the law- Notwithstanding albeit that cer- 
 taine things which are moved and specified in the sayd bookes, 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, 
 fyc. For by the arguments and reasons in the law, a man more sooner 
 shall come to the certaintie and knowledge of the law- 
 
 Lex plus laudatur quando ratione probatur. 
 
 " T WILL not presume, &c." Here observe the great modestie 
 and mildness of our author, which is worthy of imitation ; 
 for Nulla virtus, nulla scientia locum suum et dignitatem con- 
 servare potest sine modestid. And herein our author followed 
 the example of Moses, who was a judge, and the first writer of 
 law; for he was mitissimus omnium hominum qui fuit in terris, 
 as the holy historie testifieth of him. 
 
 " That arguments and reasons in the law, &c." Ratio est anima 
 legis ; for then are we said to know the law, when we apprehend 
 the reason of the law ; that is, when we bring the reason of the 
 law so to our owne reason, that wee perfectly understand it as our 
 owne : and then, and never before, we have such an excellent and 
 inseperable propertie and ownership therein, as wee can neither 
 lose it, nor any man take it from use, and will direct us (the learn- 
 ing of the law is so chained together) in many other cases. But 
 if by your studie and industrie you make not the reason 
 
 [395.1 of the law your owne, it is not possible for you fi@~ 
 a. J long to retaine it in your memorie. And wel doth our 
 author couple arguments and reasons together, Quia 
 argumenta ignota et obscura ad lucem rationis proferunt et red- 
 didit splendida; and therefore argumentari et ratiocinari are 
 many times taken for one. And that our author may not speake any- 
 thing without authority, (which in these Institutes we have as we 
 
 take 
 
 § scilicet, warrantie Uneall, warrantie * Not in L. and M. or Roh. 
 collaterall, and warrantie that commence 
 by disseisin, added in L. and M. and Roh.
 
 395. a.] Epilogus. 
 
 take it manifested) his opinion herein also agreeth with that of 
 the learned and reverend chiefe justice of the court of common 
 [y] 11 H. 4. 37. pleas, sir Richard Ilankford, [y~\ Home ne scavera de quel met- 
 talun campane est, si ne soit bien bate, ne le ley bien conus sans dis- 
 [*] 41 E. 3. 22. putation. And another saith, [*] Jeo aye dispute cest matter pur la 
 vvj t0 s w apprender laley . So as our author hath made a most excellent epi- 
 logue or conclusion with a grave advice and counsell, together with 
 the reason thereof, which all good students are to know and follow ; 
 and with scire and sequi I will conclude our author's epilogue. 
 
 " Lex plus laudatur quando ratione probatur." 
 
 Vide Sect. 384. This is the fourth time that our author hath cited verses. 
 
 443. 550. 
 
 When I had finished this worke of the first part of the Insti- 
 tutes, and looked backe and considered the multitude of the con- 
 clusions in law, the manifold diversities between cases aud points 
 of learning; the varietie almost infinite of authorities, antient, 
 constant and moderne, and withall their amiable and admirable 
 consent in so many succession of ages ; the many changes and 
 alterations of the common law, and additions to the same, even 
 since our author wrote, by many acts of parliament, and that the 
 like worke of Institutes had not beene attempted by any of our 
 profession whom I might imitate, I thought it safe for me to fol- 
 low the grave and prudent example of our worthy author, not to 
 take upon me, or presume that the reader should thinke that all 
 that I have said herein to be law : yet this I may safely aflirme, 
 that there is nothing herein but may either open some windowes 
 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 enable him to inquire and learne of the sages, what the 
 law, together with the true reason thereof, in these cases is, or 
 lastly, upon consideration had of our old bookes, lawes, and re- 
 cords, (which are full of venerable dignitie and antiquitie) to finde 
 out where any alteration hath beene, upon what ground the law 
 hath beene since changed; knowing for certaine that the law is 
 unknowen to him that knoweth not the reason thereof, and that 
 the knowne certaintie of the law is the safetie of all. I had once 
 intended, for the ease of our student, to have made a table to 
 these Institutes ; but when I consider that Tables and Abridge- 
 ments are most profitable to them that make them, I have left 
 that worke to every studious reader. And for a farewell to our 
 jurisprudent, I wish unto him the gladsome light of jurispru- 
 dence, the loveliness of temperance, the stabilitie of fortitude, 
 and the soliditie of justice. 
 
 FINIS. 
 
 For the Index, seethe beginning of the First Volume.
 
 COKE UPON LITTLETON, 18th Edition. 
 
 NOTE. 
 
 THE Editor begs leave to suggest, that, in the Table of the Degrees 
 of Parentage and Consanguinity, after fol. 18. b. the words abpatruus 
 magnus, should be translated, the great grandfather' s uncle, on the father' s 
 side; and that, the words, propatruus magnus, should be translated, the 
 father's great uncle, or the grandfather' s uncle, on the father's side; and 
 so, as to the rest. 
 
 He also begs leave to recommend to the Reader's consideration, the 
 Table of Consanguinity, and the Table of Descents, in Mr. Watkins' 
 Essay towards the further Elucidation of the Law of Descents, — and the 
 whole of that excellent work.
 
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