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.
LAW LIBRARY
UNIVERSITY OF CALIFORNIA
LOS ANGELES
lllllUNinn
AA 000 695 609 8
UNIVERSITY OF CALIFORNIA LIBRARY
Los Angeles
This book is DUE on the last date stamped below.
■*
ML 30
" p 2 8 |m
WAR 1 5 1984
Form L9-Series 4939