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 Hh'-i-" 
 
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 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 
 ',>wj--/'^'.(;yi7M.>»;-j'M;.ir ..
 
 T-H E 
 
 LAW 
 
 O F 
 
 f' farQ^^'^-^^^ 
 
 USES and TRUSTS, C^c
 
 ^OOKS printed for R. Gosling, 
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 ATreatife of Teflaments and Laft Wills, 
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 Common Laws, Cuftoms and Statutes of 
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 ments there be. 2. What Perfons may 
 make aTeftament, and who may not. 3. De- 
 fcribing what Things, and how much may 
 be difpofed by Will. 4. Decyphering the 
 Forms, and in what Manner Teftaments or 
 Lafts Wills are to be made. 5. What Per- 
 fon m.ay be Executor of a Teftament, or is 
 capable of a Legacy. 6. Of the Office of 
 an Executor, and of the feveral Kinds of 
 Executors. 7, Shewing by what Means 
 Teftaments or Laft Wills become void. By 
 Henry Swinhiirnc^ fometim.e Judge of the 
 Prerogative Court of Tork. The Fifth Edi- 
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 with all fuch Statutes, Decrees in Chance- 
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 t'o'the Whole 2 Kings xx. i. Put thine 
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 Price I /. \s. 
 
 An exadt Abridgment of all the Statutes .*^' 
 in Force and Ufe, beginning with Magna 
 Cbarta^ in the 9th Year of He72ry III. and 
 now brought down to the 4th Year of his 
 prefent Majefty KlngGeorge's Reign, alpha- 
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 Together with 
 
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 To which is added, 
 
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 ^
 
 [I 3 
 
 THE 
 
 LAW 
 
 O F 
 
 USES and TRUSTS. 
 
 AN USE is where the legal Eftate 
 of Lands is in a certain Perfon, 
 and a Truft is alfo repofed in him, and 
 all Perfons claiming in Privity under 
 him, concerning thofe Lands that feme 
 other Perfon ftialj take the Profits, and 
 be fo feized or pofTefl'ed of that legal 
 Eftate, to make and execute Eftatcs 
 according to the Direction of the Per- 
 fon or Perfons for whofc Benefit the 
 Truft was created. 
 
 9 H
 
 By the Rules of Common Law, he 
 for whofc Ufe fuch Perfon was fo fciz- 
 ed, had neither jW i/i Ke^ nor ad Rem i 
 for i£ he came upon the Land, he was 
 a 'rrcfpafTer ; and the Reafon was, be- 
 caufe where Lands were given to 
 one, to the Ufe of another, according 
 to the Conftruftion of the Common 
 Law, which is meerly upon the Words 
 of a Contra «5^, the Limitation of the 
 Ule was adjudged repugnant and void, 
 becaule by that Law he can't be othcr- 
 v.'ife than a plenary Proprietor; and 
 confcquently he mull have it to whom 
 the Property was firft limited by ex- 
 prcfs Words ; and by another Rule of 
 Law no PcliefTion could pafs from one 
 to another without folemn Livery ; 
 and tho' the Confideration was never 
 fo valuable, if that Ceremony was 
 omitted, nothing was transferred. 
 
 But the Chancery, that examines 
 tlie Confcience, with Regard to Men's 
 Adions, confiders with what Defign A- 
 greements arc made ; and 'tis contrary 
 to natural Equity, that when any Man 
 has taken Lands to keep for another, he 
 flioiild deceive him, and take tlie Pro- 
 fits himfclf ,• or that a Purchafer, 
 when he has paid his Money, fliould 
 not have a fufficient Conveyance in 
 Law executed, and a fpecifick Per- 
 formance
 
 MUs ana %mm. 
 
 formance of the Thing contraded for, 
 and take the Profits according to the 
 Agreement. 
 
 The Original of Ufes was from a Title 
 under the Civil Law, which allows of 
 an ufufruduary Pofleffion, diftind from 
 the Subftance of the Thing it felf ,• 
 and 'twas brought over to us from 
 thence by the Clergy, who were Ma- 
 fters of the Civil Law, for when they 
 were proiiibited from taking any Thing 
 in Mortmain, and after feverai Evaii- 
 ons by purchafing Lands of their own> 
 Tenants fuffering Recoveries, and pur- 
 chafing Lands round the Church and 
 making them Church-yards, by Bull 
 from the ^Pope^ at lafl this Way was 
 invented of conveying Lands to others 
 to their own Ufe ,• and this being pro- 
 perly Matter of Equity, it met with 
 a very favourable Conflrudion from 
 the Judge of the Chancery Court, 
 who was in thofe Days commonly a 
 Clergyman ; and the Clergy thought 
 this a Statute contrary to natural Juf- 
 ticc, and fo could ealily tolerate any 
 Adt in evading it. Thus this Way of 
 Settlement begun ; but it more gene- 
 rally prevailed among all Ranks and 
 Conditions of Men, by Reafon of the 
 civil Commotions between the Houfes 
 of Lcinccifier and Torh^ to fecretc the 
 
 B s Pof- 

 
 4 Mit^ arm drafts. 
 
 PoffefTions, and to preferve them to therr 
 Hue notvvithftanding Attainders : And 
 henee began the Limitation of Ufes 
 with Power of Revocation. And here 
 is to be coniidered, 
 
 I ft, mm \^ m Batute of ace0 at 
 Common Latu* 
 2diy, mm alterations ate matic 
 
 t]) 27 H. 8. 
 
 jficff, at Common latu. 
 
 And here are to be confidered eight 
 Things. 
 
 1 . Who 7;2qy he feized to an Ufe. 
 
 2. What are the 'Properties of aji 
 JEftate in an life' 
 
 3. Who may raife an life, 
 
 4. To whom it may he raifed, 
 
 5. Where J a7id what Co7ifideratio7is 
 ttre necejfary for the raifing an Ufe. 
 
 6. In what Ma2mer Ufes are decla- 
 red, 
 
 7. l*he fe<veral Sorts of Ufes, 
 
 8. The lnco7iveniences of Ufes, 
 
 I Who
 
 Witts ano %mtts. s 
 
 I. Ml)o ma^ lie feifen to an (UCe. 
 
 To that two Things are necefTary. 
 
 1. T'hat the ^ erf on he capable ofCo?i' 
 fidence and T'ruft. 
 
 2, ^kat he take it up nnder the 
 'irufl limited and appointed. 
 
 1. 'ihat the Terfon he capable of 
 Co/ifidence and T^rpji, 
 
 T. Bodies Politick are not capable of i,^*'-^^-- 
 an Ufe or Truft,becaufe they are Bodies p°owJ** 
 framed at the Will of the King, and 558- 
 are no further capable than he wills ^^^J^"-^* 
 them^ and 'tis his Will that they fhould 338.5.10. 
 purchafe for the common Benefit, and 
 for the Ends of their Creation, and not 
 that they fhould ta]ie any Thing in 
 Truft for others i alfo being incorpo- 
 rate, the Chancery had no Procefs on 
 the Perfons to compel them to difcharge 
 their Truft. 
 
 2. Aliens, and Perfons attainted, are 1 Co.ns, 
 not capable of an Ufe, for they can ^°P' ^^* 
 take for no Mans Benefit but the Rep. 384. 
 King's. 
 
 3. The King cannot be feized to an p^p. y^. 
 Ufe, becaufe there is no means to Har. 468. 
 
 B 3 com-^°^^P- 
 
 ■' 392. Bro. 
 
 Feoffment to UfeSf 3 38. C. S. 3 J.
 
 4 mfts anu %rttft5. 
 
 compel him to perform ,• for the Chan- 
 cery has only a delegated Power from 
 the King over the Confciences of his 
 Subje(5ls ; and the King, who is the uni- 
 verfal Judge of Property, ought to be 
 perfe(5tly indifferent, and riot to take 
 upon him the particular Defence of 
 any Man's Eftate, as a Truftee. 
 
 T And. 2. fhat he take it up n?ider the 
 5'?* 'Trtifi limited -y which may be done 
 two Ways. 
 
 1 . !By exprefs Words. 
 
 2. Bx Imj)li cation. 
 
 1. By exprefs Words j as if by the 
 Words of the Deed a Man takes it to 
 his own Ufc, or to the life of another, 
 there can be no Averment that he 
 takes it as a Truftee in any other Man- 
 ner j for there is fuch a Sandion given 
 to allfoieiiin Ads of contracting, that 
 they cannot be conftrued dire(5tly con- 
 trary to their own Expreflions ^ but that 
 muft be where the Deed is executed 
 upon a valuable Coniideration ,• other- 
 wife \\s looked upon as a fraudulent 
 Conveyance againft the Trufts, and has 
 not the Sandion of a lawful Deed, 
 which the Oaths of Men ottght not 
 to defeat. 
 
 2. ^y
 
 Mtts ana Xttito* 7 
 
 2. S}f Ii;ipIicatio7i i which is two-fold. 
 
 1. When one takes a Feoffment, 
 having Notice of the fevcral Ufcs and 
 Trufls, there the Party is fuppofcd 
 to take it under thofe Ufes and Trufts ; 
 for the Law will fuppofe a Man's Ac- 
 tions rather juft than otherwife. 
 
 2. Where a Man takes it upon a va- " And. 
 
 luabie Confideration, there he is fup-^^>^^™' 
 
 pofed to take it to his own Ufe, for Vfes 340. 
 
 otherwife he would not have siiven an ^ 5 c. 6. 
 -T-> • - ^ Dy.5406. 
 
 Equivalent. ^ , And. 
 
 If a Feoffee to Ufes makes a Feoff- 3 '3' 
 ment in Fee by Deed, upon an equita- 
 ble Confideration to J, S. and his Heirs, 
 to the Ufe of his Heirs exprefly, y, S. 
 fliall be feized to his own U'^q^^ tho' he 
 had Notice of the former Truft^ for 
 where the Deed exprelTes the Ufe, an 
 implied one cannot be averred. 
 
 A Feoffee to the Ufe of J. makes 3° "• S- 
 a Leafe to S. referving a Rent, tho^fu//''-^' 
 B. has Notice of the Ufe, he fhall be 339, 47* 
 feized to his own ; for Words of De- \ "^"^^ 
 mife equally pafs an Ufe as if there ^^ 
 were exprefs Words to transfer it. 
 
 If a Feoffee to an Ufe makes a Feoff- 1 Co. 122. 
 ment in Fee upon a valuable Confidera-^^^* ^^' 
 tion, with Notice, the fecond Feoffee 
 fhall be feized to the former Ufes^ for 
 the Confideration imports a Seifin to his 
 B 4 0W11
 
 8 Mttu ana %mfls. 
 
 own Ufe, the Notice, a Seifin to the for- 
 mer Ufes, and where the A6t is capable 
 of a double Interpretation, that mud be 
 taken which confifts moft with Equity, 
 s Co. 122. If a Feoffment be made with Consi- 
 deration, and without Notice, the Feof- 
 fee fliall be feized to his own Ufe, for 
 here the A6t is capable of no other 
 Conftrudion. 
 iCo.122. 1^ ^- ^^ enfeoffed to the Ufe of S. 
 and J» enfeoffs C without Confidera- 
 tion or Notice, 'tis fiill to the Ufe of 
 ^, for tho' when a Man aliens with- 
 out Confidcration, 'tis to the Ufe of the 
 Feoffor, yet in this Cafe it cannot 
 St to the Ufe of J, becaufe he him- 
 fclf held it to the Ufe of jB. 
 ^'e^and A* in Confidcration of natural Affec- 
 Viiiers. tion, covenants to ftand feized to the Ufo 
 7j^^r^^' ^^ ^ii^^^^Jf foi- ti^c, the Remainder to 
 his Daughter for Life, with contingent 
 Remainders over. A, reciting the Ufes, 
 grants the Reverfion to F. and his 
 Heirs exprcfly, but without Confidera- 
 tion, Jp. fliall take it fubjed to the U- 
 les, caiifa qua fupra. 
 Hob. 548. J' S' feized to the Ufe of J, in Tail, 
 Ea^-Jof the Remainder to B. in Tail, Remoain- 
 
 J. join in a Feoffment to three, two of 
 ^vhich have Notice of the former Ufes, 
 and therein they limit new Ufes, the 
 
 new
 
 Wiks am %mus. 9 
 
 new Ufes fliall ftand ,• for J. has a Power 
 to difcontinuc his own Eftate in Tail, 
 and the Remainder alfo ; which is done 
 by this Feoftmcnt ; and they cannot be 
 rc-continued by the Entry of jf. S. who 
 casnot enter contrary to his own A(5l. Hob. 349, 
 
 But S. will have a Jlcmedy againfi- S5^- 
 all the Confederates in the Breach of 
 thisTruft, 'vlz. J. S. the Feoffees that 
 had Notice, and oat of the Eftatc of J. 
 
 If a Feoffee to an Ufe binds himfrlf BraF^af. 
 in a Statute, CTc. and the Conufce l^g^^^J* 
 takes out Execution, he fliall have it ^' 
 to his own Ufe^ for the Chancery will 
 not relieve againft the Ad of Law, 
 where the Property is vefted upon va- 
 luable Confideration, and with no frau- 
 dulent Defign. 
 
 A Feoffee of a Manor to the Ufe of ^r-*' ib. 
 y, S^ releafes to the Tenants, they iiliall 
 not have it to the Ufe of 'J. S. for the 
 Seigniory is drowned in the Tenancy 
 which they had to their own Ufe, and 
 there can be no Trufi without an Eflatc 
 in Being. 
 
 But by the modern Courfe of Chan- Jickfon' 
 eery, if the legal Eflate be merged, and f^^'iCa/J, 
 the Owners of the Land have Notice Nat. Ar^! 
 of the Trufl, the Land is invefled with '4- 
 it, and they fliall be enforced by a 
 Decree in Chancery to fet it up again, 
 for the Land was at firfl bound, and 
 
 attcn-
 
 I© Mtts atto %mRs. 
 
 attendant to anfwcr the Truft ,• and 
 where the Owners of the Land knew 
 of this Truft, 'tis Iniquity in them to 
 deftroy it. 
 1 Rep. ^ DilTeizor, Abator, or Intruder, can- 
 \ll. t i^ot be feized to an Ufe, for they taj^e 
 139' it under no Truft, but defeat the E- 
 flate to which the Truft was fub- 
 joined, and the Chancery has no Power 
 to try the Right of Inheritance between 
 them, for the Right of that Title is tri- 
 able only at Common Law ; but if he, 
 v/ho has the Ufe, exhibits a Bill againft 
 the Feoffee to i^n Ufe, the Chancery 
 will order him to try the Title with 
 the Difleizor at Common Law. 
 I Rep. If a Feoitinent be made to one for 
 ^^^' Life, Remainder in Fee to the Ufe of 
 J. S. and the Tenant for Life aliens 
 in Fee, with Notice, the Alienee fhall 
 not ftand feized to the firft Ufes i for the 
 Tenant for Life has no Power fo to a- 
 lien, and now the Feoflee is in of an 
 EUate by Wrong, quite diifcrent from 
 that to which the Trufts were annexed. 
 I Rep. J Lord by Efiheat fhall not be 
 ^^^'l' feized to an Ufe, becaufo he is in by 
 Bro. Fsoff. a Title paramount, and feized of an E^ 
 358. a. 6. ftate antecedent to that to which the 
 Ufe is annexed. Lord of a Villain, a 
 Lord that enters for Mort?nainj or re- 
 covers by Cejfadty or a L'enant by the 
 
 Qmtefie 
 
 I R 
 
 122.
 
 Mtts ana %mfts. 1 1 
 
 Cmtefie cannot be feized to an Ufc, for 
 they claim by the general Laws and 
 Statutes of the Kingdom, which the 
 Chancery has no Power to alter, and 
 do not take as Subftitutcs under thofe 
 private Contrat^ts, to which Trufts arc 
 annexed, and fo cannot be puniflied as 
 corrupt Breakers of that Trufi: which 
 they never undertook. 
 
 But a Tenant in Dower may be feiz- Hard. 
 ed to an Ufe, for a Tenant in Dower j.^^\ ■ 
 
 . . , 1 -» /r • A ^O. Lit. 
 
 clamis by the Marriage Agreement, 239. 
 and a fufiicient Provifion is made for ^ ^^V- 
 her by Law, which is a third Part of^ro!F"T<,' 
 his Eftate ,• and flnce a private Con-u/e^, 33S. 
 trad \s the Original of her Title, llie ^* ^°* 
 continues the Eftate of her Husband 
 as he purchafed it, and under the fame 
 Truil and Agreements. 
 
 An Occupant may be feized to an Hard. 
 Ufe, for an Occupant continues the '2-\ro.FecW. 
 ftate of Tenant for Life, as his Subfti- to u/es, 
 tute, and fo rauft take it as he had it. 558- «. 
 
 Tenant in Tail cannot be feized to ' 
 an Ufe, for the Land is by the AO: ofcro.'jaci 
 Parliament appropriated to Tenant in 400. z 
 Tail and his Heirs j fo that the Chan- ^g°j f^^- 
 eery, which is bound by the Act ofRo.'iiep, 
 Parliament, cannot turn it to any other 5»5- 
 
 r> _ r ^^0. F. to 
 
 Purpofe. U/..538.1 
 
 a. S. 10. 
 
 Where
 
 1 2 lifts atiD xtttSs. 
 
 ^CciaS. Where there is a Tenant for Life, 
 ^* the Remainder in Fee to the Ufe of 
 
 another, and he in the Remainder en- 
 ters and diffeizes the Tenant for Life, 
 he takes the^Eflate as a Diflfeifor, and 
 is not capable of taking any Eftate 
 after the Trufc ended, for he cannot 
 be remitted contrary to his own A(5t. 
 1 Ro.Ab. If a Man poiieifed of a 'Term in 
 ' °* Truft, commits Treafo/i^ whereby the 
 Term is forfeited to thcX/V/^, the Ki/zg 
 is not fubjedl to that Truft, for he is 
 in the Toft, and the Law difpofing the 
 Property of all Criminals to the Ufe 
 of the King, he cannot take it under 
 the Truft limited. 
 Top. 72, Where there is a Ten a fit for Life^ 
 '^* the Reviaiuder to J, to the Ufe of B, 
 and the Tenant /or Life makes a Fcolf- 
 nicnt in Fee, and A* releafes to the 
 Feoffee, the Ufe is gone for ever^ catifa 
 qua fifpra. 
 Hard. If Mention be made of Perfons in the 
 
 ^^^' Poft, it fjcms, by the Opinion of 
 the Lord Hale, they fliall be liable to 
 the Truft. 
 Bro. F. to If a Man grants a Seigniory to J, to 
 7s; Tt the Ufe of B. and the Tenancy Ef- 
 cheats, J, fliall hold the Tenancy to 
 the fame Ufe j for a Seigniory fuppofes 
 an old Property after the prefcnt Fee 
 is determined, and ftnce J, has taken 
 
 3 it
 
 it up to the Ufc of ^. when the Te- 
 nancy comes in, he ilia 11 have it to 
 thofc Ufes to which the Property was 
 at firft granted. ^ 
 
 Where Feoffee to y/.'sXl|| vouches 
 and recovers Land in Value, he ilSll be 
 feized to his firft Ufe, for the Recom- 
 pcnce muft enfuc the I.ofs, and Ceft?i}' 
 que Ufe loft his Ufe by the Recovery. 
 
 Where J, Feoffee to thf Ufe of B. P,ro. T. t9 
 grants a Rent to C having Notice of ^/"> 3?7« 
 the Ufe, the Rent fliall be to the Ufe f/as.^, 
 of ^. for J. has the Freehold in him, 
 and now at the Common Law may 
 raife a Freehold out of it, but he has 
 the Fee in Truft, and lb in Confciencc 
 cannot raife a Freehold but under the 
 fame Truft; and fince in that Cafe he 
 gave Notice of the Truft, he has cre- 
 ated the Rent under the Truft accor- 
 ding to his Powers and fo if^. makes 
 a Feoffment to ^. without Notice, 
 and B. releafes to Z). after the Stat, of 
 R. 3. and before the Stat, of // 8. this 
 did extinguifli the Rent; for by that 
 Stat, the Releafe of CeJiiJj que Ufe is 
 an Adt fufficient to convey the Freehold 
 of the Rent, and fo *tis merged in the 
 Land. 
 
 But if Feoffee to a Ufe grants to Bro. f. tt 
 7. S» a W^ay or Common for his Beads, Vf''^ 55S. 
 
 tiu:>
 
 14 Mite mh %xnU3. 
 
 this, ex fiattira rei^ cannot be but to 
 the Ufe of the Grantee. 
 Bro. K to The Feoffee to ah Ufe may grant 
 t7/^^^, 339- the Office of a Steward, Bailiff, Keceiv- 
 ' ^^' er, &c. for he is the Inftrument to con- 
 vey the Profits to Ceftuy que JJfe^ and 
 now it may be in his Power to ap- 
 point all Means in order thereunto ,• but 
 Jt)id. this it fecjiis mufl: be by the Confcnt 
 o£ Ceftuy que Ufe v for this Appoint- 
 ment is wholly to convey the Profits 
 to him. 
 Bro. F. to But during the Minority of the Heir 
 ^Ues, r:,9. oi Ceftny cpie Ufe^ all Feoffees may 
 ^* ^^* grant fuch Offices without his Affent, 
 for the Law fuppofes a tacit Confcnt 
 when 'fis for the Benefit of the Infant. 
 Ibid. But they cannot fettle Fees to fuch 
 
 Officer during Life, without the Affent 
 of the Infant when he comes to his full 
 Age, for that may be to his Prejudice. 
 Trin. 9. ^A Feoffee to a Charitable Ufe makes 
 Car.Eaii- r^ Feoffment upon valuable Confidcra- 
 ftead'T tion, and without Notice, the Purcha- 
 cafe, ^ fer fliall not be feized to a charitable 
 ^f^'-rrr Ufc, Tor ttuy Perfons claiming under 
 <;o,6i,62, him, tho they have Notice ^ tor he is 
 ^5- exprefly excepted by the Statute, and 
 the Lands once difchargcd are never 
 after chargeable. 
 
 But
 
 Wiits ant) %md^s. i $ 
 
 But if the Feoffee to a charitable ^iii.ir. 
 Ufc makes a Feoflfmcnt to J. for a va- ton'^'^J^' 
 luable Confideration, and without No- Coie- 
 tice, and A enfeoffs ^. for a valuable ^;;|f* 
 Confideration, without Notice, ^. lliall Heme 
 be feized to the charitable Ufe ; for the i35. i?^. 
 Words of the Statute are, that the Com- l^l] ^^'*' 
 milTioners fhall come and order the 
 Lands and Tenements to be employed 
 according to the Party's Intent, fo that 
 the Statute appropriates the Lands to 
 the charitable Ufes in the Hands of J, 
 and S. his Subftitute takes it under 
 the Charge, and in fctting forth the Ti- 
 tle how he has obtain'd them, he muf.: 
 fhew the original Purchafe which was 
 under the Charge. 
 
 If a Man gives Land to J, and a J^^^^^J"^^^ 
 Rent out of it to charitable Ufes, ^. er/14^^' 
 purchafes the Land, with a good Con- Car. Mic. 
 lideration, and Vv-ithout Notice, he fiiall ^^^^^^ 
 hold it charged ; for firft the Rent is Town of 
 not extind by the Purchafe, becaufe ap- J'',^^^' 
 propriated by the Statute to the cha- p^o^km. 
 ritable ViQ^ and fo cannot be merged Hii!. 14. 
 according to the Rules of Common ^-^-^^ 
 Law while the Charity continues. ,4. x-jeij 
 
 2. 'Tis not within the Exception of E</-i74- 
 the Statute, for that extends only to 
 the Purchasers of the legal Eftate to 
 which the Charity is annexed, and B, 
 has purchafed the legal Eft^te of the 
 
 Land
 
 i6 MUs mm %mM* 
 
 Land and not of the Rent, for thcle 
 are as diftind Rights in J, as if they 
 had been in different Pcrfons. 
 
 2. ''^i^ to ht coiifitsereti tuS^t ate 
 tSc fcucval p^opctticis of an Cftatc in 
 an ^Uu 
 
 1. If an Inheritance be purchafed, 'tis 
 defccndible to Heirs at Law, and here 
 
 rt^s^'to be confidered, 
 
 I Whitt are the ^efcejits of aft Ufe 
 in ToffeJIioj:. 
 
 2. J'l^oat is the T>efcent of an Ufe i?i 
 'Kevevfion. 
 
 I. Of the Defcent of an Ufe in Pof- 
 feflion. If an Ufe be limited to a Man 
 and his Heirs, the Court of Chancery 
 will direct it to go to fuch Perfons 
 as the Common Law has appointed 
 to reprefent him,- for the Chancery can- 
 1 Co.iii. not alter the common Import of 
 Words, or fet up Rules of Property 
 oppolite to the Rules of Law; for 
 there is no legiilative Power in the 
 Chancery i and to abrogate and fet afide 
 Laws, is equal to the Power of ma- 
 king Laws. 
 i^Co.i2i. There \spojfe0ofratris of an Ufe, for 
 B-cp^Jz. the Rules of Inheritance govern in 
 
 Chan-
 
 Chancery j now none can make him- 
 felf Heir, but he that reprefents the Per- 
 fon that was laft in PofTcflfion ,• for he 
 that laft poflelTed it had the entire Do- 
 minion and Property, which none elfe 
 can have but by {landing in his Place ; 
 and no Man can ftand in his Place but 
 one of the whole Blood. 
 
 If Lands defcend on the Part of the Co.L. 13. 
 Mother, and the Party makes a *g^°*^^' 
 Feoffment in Fee, without Con{idera-Dy.'i79. 
 tion, or referving this Ufe to him and Co. L. 22. 
 his Heirs, the Ufe fhall defcend to the iV,,^Hob; 
 Heirs of the Part of the Mother ; for st.Dy. 
 the Land would have gone to the ^54- fff'*-. 
 Heirs of the Part of the Mother, and u/J, 3*58*. 
 a Ufe is but an Eftate in Equity, Part a. s. 10, 
 of the Eftate in the Land ; for the Rule 
 of Law that tends to the Eftabliftiment 
 of Families and Encouragement of In- 
 duftry, is, that thofe that take Bene- 
 fit as Reprefentatives fliould convey it 
 all along in the Blood of the firft Pur- 
 chafer, from whom the Benefit was de- 
 rived, and the Ufe and PoflefTion was 
 derived from the Mother, and the Ufe 
 was never parted with, but the Poffef- 
 fion only ; fo the Ufe muft be all along 
 conveyed to the Heirs on that Side. 
 
 If a Man for a valuable Confidera- gro. F. to 
 tion purchafes Lands, or the Ufe of cr/^j, 337» 
 them, to himfelf, yet they fhail de-j'^^j^^^ 
 G fcendi.
 
 1 8 Mtte ano %tu&s. 
 
 fcend to his Heirs ^ for there wants not 
 the Word Heirs to create an Inheritance 
 in an Ufe ^ for 'tis Equity that a Per- 
 fon, who gave a Confideration for the 
 Fee, fhould have it j and that is not 
 fetting up any other Rules of Property 
 oppofite to the Rules of Law, but mi- 
 cro Er ti§^*i"§ ^"^ difpenfing with the Rules 
 478.' of Law, in particular Cafes, where 
 they fhould happen to fhelter Diflio- 
 nefty and Opprelfion : But now (ince 
 the Statute, no Inheritance can be rai- 
 fed without the Word Heirs, becaufe 
 now the Ufcs are transferred into Pof- 
 feflion, and muft be governed by the 
 Rules of PoffelTions at Common Law, 
 as to the Words that create new E- 
 ftates. 
 
 The TojfeJJio fratris of an Ufe fol- 
 lows the Analogy of Defcents at Law j 
 and fo if a Man feized in Fee of an 
 Ufe, had liTue a Son and Daughter by 
 one Ve7iter, and a Son by another Ve7i- 
 ter, and devifcs it for Years, and dies, 
 and the Son dies during the Term, the 
 Daughter fhall have it, and not the 
 Son ,• otherwife it had been if he had 
 devifed it for Life. 
 1 iiety. -^^ ^^ Court of Chancery cannot 
 . 101. alter the Defcent of the Land, fo it can- 
 5 Ed. 4. 7. not alter the Law and Cuftom of a 
 
 a Ro. A*b. Place ^ 
 
 780. C.L. 23. 13 Co. ^^. Hob. 311 Dy, 134 fc;5^y4.
 
 Place i for all immemorial Ufages are 
 Part of the Laws of the Land : And fo 
 if a Man makes a Feoffment in Fee of 
 Lands in Gavel-Kind, or Burrough En- 
 glifh, without a Confideration, to the 
 Ufe of the Feoffor and his Heirs, this 
 fhall go to all the Sons, or to theBr.959.1 
 youngeft, according to the Cuflom. 5^* 
 
 If there is a Cuftom, that Lands iliall 2Ro.Ab. 
 go to the eldefl Daughter only, and 7S0. 
 the Party makes a Feoffment in Fee j^^^^^^'^^ 
 to the Ufe of him and his Heirs, the Ronsby. 
 Ufe fhall go to the eldeft Daughter. 
 
 2. OfOefcefits of a Iie<verfion which 
 are go'verned hy ihefe Rules, 
 
 Firjiy Where a Man has an Eftate in 
 iiimfelf, and limits an Eflate to his 
 Right Heirs, he is feized of the whole 
 Eftate. 
 
 In the fame Manner, where a Man i Vent 
 has a Ufe in himfelf, and limits a Ufe 580- 
 to his own Right Heirs, the fame Ufe is 
 in him ftill. The Reafon is, becaufe 
 Anceftor and Heir are Correlative j and 
 fo whoever reprefents me as to my E- 
 ftate vefled in him after my Death, I 
 reprefent him during my Life as to 
 that Eftatcj and confequently giving 
 an Eftate, already in me, to my Heir, 
 is not departing with it ^' for 'tis a Dif- 
 C ^ pofition
 
 20 tBlfeiS atilt XtttftiS* 
 
 pofition in other Words to my felf, and 
 fo all Things remain ifi ftatn quo. 
 
 But where I limit a Ufe, already in 
 mc, to my own Reprefentatives, and 
 add a Qualification to thofe Repre- 
 fentatives f tho' this be not Departing 
 with the Eftatc, becaufe thefe are not 
 Words to convey it out of my felf, yet 
 there is an Alteration of the Eftate in 
 my felf, and the Ufe iliall alter and de- 
 
 \ 8^9^* ^•^^"^ ^o ^'^"^y Heirs that came under 
 
 iC6'. 47,that particular Diftin^tion and Qualifi- 
 
 m-^' cation i becaufe the Ufe has always 
 
 Hob.iVheen changed and modified according 
 
 1 Mod. to the Intent of the Parties that have 
 
 ? Ro Ab ^^^ Intereft ; and fuch a particular E- 
 
 8i7, 841. ftate {hall be fuppofcd in them, as may 
 
 6i7- beft anfwer the Intent, 7tt res 'valeat, 
 
 asy/s^l I^ ^ ^'I^" feizcd of Lands in Fee, 
 
 makes a Gift in Tail, or a Leafe for 
 
 Life, Remainder to his own Right 
 
 Heirs, they take by Dcfcent, as in the 
 
 old Revcrlion. 
 
 If J. feized of Lands in Fee, grants 
 them by Fine, during his own Life, 
 the Remainder to his own Right Heirs, 
 the Reverfion is in him, and he may 
 grant it. 
 
 A Fine fur Cotmzaiice de 'Droit qtte 
 
 Dy. 137- il et fa leme ad de foil do?ie to the 
 
 Husband, with a Remainder to the 
 
 Conufor, for Life, Remainder to the 
 
 Right
 
 Jlight Heirs of the Husband, they are 
 in the old Keverfion, and the Wife fur- 
 yiving fhall have it for Life. 
 
 If a Man makes a Feoffment with- e. of Bei- 
 out a valuable Confideration, to the^^j.^'^ 
 Ufe of himfelf, for fifty Years, thepopj^. 
 Remainder to S. in Tail, the Remain- 1 Co.150. 
 der to his own Right Heirs j the Feoffor ^^^'''^' 
 is in the old Reverfion, and he may 
 devife it j for a Feoffment without 
 Confideration does not difpofe of the 
 Ufe thereof; the old Ufe is in him ftill. 
 
 But it hath been held that if the Co. Lit. 
 Feoffment were made upon a valuable ^^^^'^' 
 Confideration, in as much as that is a ^^^^ ^^i, 
 Difpofition of the Ufe, there is an E- 
 jftate in the Feoffees to retain it till 
 the Death of the Feoffors ; and this is 
 an Eftate of Freehold, and affords a 
 tenant to the Trecipe^ and an Eftate 
 to fupport the contingent Remainder. 
 
 If a Man covenants to ftand feized Py^"5 
 to the Ufe of his Heirs, begotten on a ""^f^^^^"'" 
 fecond Wife, that is an Eftate in Tail, iMod-ps, 
 vefted in the Anceftor. lai, 122, 
 
 2. Where a Man limits an Eftate of BJo.F.<a 
 Freehold to me for Life, with a Re- ^/w, 338. 
 mainder to my Heirs, tho' after never fy^^^ 
 fo many particular Eftates, the B^c- from 37^ 
 mainder is vefted in me for three Rea- ?" 3^^' 
 ibnso
 
 32 
 
 Witts anD ^tttCsi. 
 
 Firftj Becaufe otherwife you conftruc 
 the Grantmoft in Favour of the Gran- 
 tor, and let him in to the Reverlion 
 during the Contingency, to punifli 
 IWafte and enter for the Forfeiture. 
 
 Seco7idly^ Becaufe the whole Advan- 
 tage muft be intended to me when I am 
 firft named to take the fame Sort of E- 
 flate in the Conveyance, and the Bene- 
 fit is not defigned to any other particu- 
 lar Conveyance, but to all other Per- 
 fons that bear the Character of my 
 Reprefentatives ; fo that the Limita- 
 tion is for my Sake, and only intends 
 to enlarge my Eftate after the particu- 
 lar Eftates are worn off, yet cannot be 
 conftrued in the fame Manner as where 
 an Eflate is limited to J. the Remain- 
 der to the Right Heirs of S. becaufe 
 there is nothing in the laft Cafe to lead 
 the Mind to fuch an Interpretation j 
 for here is no Benefit originally defign- 
 ed to S. but to his Heir primarily i and 
 fo the Heir takes as a Purchafer. 
 
 But if the fame Sort of Eftate be 
 not limited to the Anceftor as to the 
 Heir, the Heir muft take by Purchafe ; 
 for it is plain the Donor defigned him 
 an original Benefit, quite different from 
 what he defigned the Anceftor. 
 
 T'hirdly^ Becaufe when the particular 
 Eftates are worn pff^ they are as if they 
 
 had
 
 Mtts ma Xtttii;^. 23 
 
 had never been ,• and fo the Heir fliould 
 claim by Defcent, as in his better Ti- 
 tle, and as of the Dying feized of his 
 Anceftors. 
 
 Another Reafon of this Law is, bc- 
 fcaufe it muft be a contingent Remain- 
 der, or a. Remainder vefted ; but it 
 Could not be a contingent Remainder, 
 becaufe of NeceiTity it muft be in the 
 Anceftor, and the Perfon that repre- 
 ients him, and fo conftrued a Remain- 
 der vefted. 
 
 If J. S. makes a Feoffment to the Co. th: 
 Ufe of A for Life, the Remainder to ^o. 91.1; 
 j&. in Tail, the Remainder to the Right Fenwick 
 Heirs of A the Remainder is vefted in ««^^Nut- 
 j4. and his Heirs claim by Defcent. Mo. 284, 
 
 But if y, S, makes a Feoffment to ^. 720. 
 the Ufe of A for a Term of Years, the f^.^^*"' 
 Remainder to B* in Tail, the Remain- Co. Lir. 
 der to the Right Heirs of A the Re- "• ^ 
 mainder is not vcfled in J, but his ^zo. 
 Right Heirs take by Purchafe. 1 Co. 104: 
 
 If an Eftate be limited to A fori And. 70, 
 Life, Remainder to the Heifs Males of i Co. 104, 
 the Body of A and to the Heirs Males 
 of fuch Heir Male, there is a Truft ex- 
 cuted in J. becaufe this is within the 
 Rule ; for here an Eftate is limited to 
 J* for Life, with a Remainder to his 
 Heirs ; and fo the Word Heirs is not 
 a Name of Purchafe but Limitation » 
 C 4 But)
 
 24 Mtts ano Xtttftfi* 
 
 But if an Eftate be devifed, or per 
 , Co. 66, j^^^i^^ ^^ conveyed to J. for Life, the 
 
 iiH. 6.15- Remainder to his next Heir Male, and 
 Co. Lir. to the Heirs Males of the Body of fuch 
 *^" * Heir Male^ there is an Eftatc only 
 for Life in J, and a contingent Re- 
 mainder in his Heir, as a Purchafer, 
 which vefts eo i7ifta72ti that the parti- 
 cular Eftate determines j for tho' there 
 be an Eftate for Life in J, yet the 
 Remainder is limited to his Heir 
 only, in the {ingular Number i and 
 Heir in the fingular Number only, is 
 a Word of Purchafe, and not of Limi- 
 tation. 
 Co. Lir. If iiu Eftate be limited to a Man 
 8. h. and his Heir, he has only an Eftate for 
 Life j for it cannot go in perpetual 
 Succelfion, becaufe no more Reprefcn- 
 tatives than one only is exprcffed. The 
 Heir cannot take by Way of Remain- 
 der, becaufe it is limited by a Con- 
 juM(5tion Copulative i and as Jointe- 
 nant he cannot be, becaufe fhwo eft 
 Hdfes ^noe72tis, 
 Co Lit ^^"^ ^^ ^ ISl^n devifes an Eftate to 
 8, i. a Man and his Heir, a Fce-ilmple 
 pafles, and Heir there is taken as nomtn 
 colWclvviwi^ to anfwer the Intent of the 
 Party, which appears to be, that he in- 
 tended to pafs a Fee, as if it had been 
 limited to the Dcvifce and his Heirs for 
 ever. But
 
 tUfes atto Xmfis. 2s 
 
 But if an Eftate be devifed to ^, aVem. 
 during the Life of S. in Truft for SJ''^^'^' 
 and after the Deceafe of S. to the 
 Heirs Males of the Body of him the 
 faid S. now living ; that is a Remain- 
 der vefted in the Heirs of S. for Heir 
 now living, in that Devife, muft be ta- 
 ken as a Periphrafis of the Heir appa- 
 rent, who is called Heir in Law, as may 
 be obferved by the Words qtiare filmfi 
 (^ Hdrede7n raptiit, 
 
 2. A Feme is not dowable of an Ufe^ i Co.iaj. 
 for the Privilege of Dower was only to*^^*^^ ^ 
 Freeholders Wives j now an Ufe being i ch.Rcp! 
 no Freehold, is not within that Law,i5a« 
 and the Chancery allows the Feoffees 
 
 to be feized to no Body's Ufe, but thofe 
 that are particularly named in the 
 Truft. 
 
 And that being the Cafe, it became^ Co. i.«. 
 a Pradife ; fo the Father and Friends 
 of the Woman, procured the Husband 
 to take an Eftate from the Feoffees, or 
 others feized to his own Ufe, for Life j 
 and then to the Ufe of his Wife, for 
 Life, before or after the Marriage j 
 whieh was the Original of Jointures. 
 
 Nor can the Husband be Tenant by 4 Co. 
 the Curtefie of an Ufe, catifa qua fnpra, **5' ^" 
 
 3. An Ufe is alienable, i/?, at Com- 
 faon LaWj 2dly^ by the Stat* ofR.s* 
 
 a Dov^er
 
 8<5 Mits ani> Xtutts, 
 
 a Dower was annexed to it to alien the 
 Lands. 
 Allen 1 6, I. At Common Law, Cefi^y que TJfe 
 Plow, might alien the U^e, becaufe every one 
 ^*^* • may difpofe of the Rights that were 
 in him i or he may prefer a Bill in 
 Chancery to make the Tertenant exe- 
 cute the Ufe in himfelf. 
 
 But at Common Law, if Ceftuy que 
 Ufe had entered and made a Feoffment 
 in Fee of the Lands, this had not been 
 good to pafs the Eftate to the Feoffee,- 
 becaufe Ceftuy que Ufe had not the 
 Freehold in him., and fo could not 
 pafs it to another ^ but by his Entry he 
 was a Diffeifor : Yet in this Cafe, if 
 the Feoffees of Cefiny que Ufe had re- 
 plow, entered upon the Purchafer, the Feof- 
 fees would not have had the Lands to 
 their own Ufe by the original Truft ; 
 and they would not have ftopd feized to 
 the Ufe of Ceftuy qtie Ufe^ becaufe he 
 had transferred the Ufe to another. 
 
 If Ceft7jy que Ufe makes a Leafe for 
 Years, rendering Rent, the Refervation 
 is void, unlefs it be by Deed ^ for the 
 Rendering Rent to a Man is an Ac- 
 knowledgment of the holding Lands 
 from him i but here the Lands are not 
 held of Ceftuy que Ufe^ but of the Feof- 
 fees who have the Reverfion. But if 
 the Refcrvation be by Deed, the Feof- 
 
 b fee^
 
 tares anD XmVts. 27 
 
 ' fees arc eftopped by their own At5i ^^S^^ ^',3'' 
 deny the Tenure of Ceftz/y que Ufe, ■ sX\,\\^] 
 
 If Ceftiiy que Ufe may make a 'Let- 26. 
 ier of Attorney to give Lvoery^ ^^^''^i ^/."'/./J,. 
 or if the Ad confines it to the Act of i. is/' 
 
 Q/?^J que ufe. 
 
 2. By the Statute of i R, 3. c. i. a 
 Power was annexed to a Ufe, that 
 C^/?/// <7/^^ Ufe fliould alien the Lands. 
 
 The Reafon of that Statute was, be- 
 caufe Ceftny que Ufe in Poflelfion often 
 aliened the Lands, and then the Feof- 
 fees entered, which caufed a great deal 
 of Vexation and Chancery Suits \ and 
 f6 the Statute gave to Cefttiy que Ufe 
 ajn immediate Power of Alienation,^ 
 without the Concurrence of the Feof- 
 fees. 
 
 Firft, Who are ivithin the Statute, 
 Secondly, What Authority is given hy 
 it. 
 
 I. By the Statute Ceftuy que Ufe has Plow, 
 tio Power of Alienation, when he has 3^^-^'^' 
 a naked Right to a Ufc^ and not a Ufe 
 in Bjjfe I unlefs it be in order to con- 
 firm an Eftate in Being ,• becaufe the 
 Intent of the Statute was only to give 
 Ceftuy que Ufe a greater Power, and to 
 transfer his Eftate, and not any other 
 Remedy to regain and reveft it ^ and 
 tinlefs he has the Uf\ he cannot pafs 
 
 tho
 
 ^8 Witts am %m(ts. 
 
 the U/e, much lefs the Pofleflfion to an- 
 other : And Co if Jl, feized of Lands 
 to the JJ/e o£ !B. cnfcofe J. S, and dies 
 without Iflue, C has no other Way of 
 regaining the Ufe but by the Entry of 
 the Fcorfcc J and he has no Power to 
 alien by this Statute till the Uje be re- 
 vcftcd. 
 Plow. But if the Feoffee to a Ufe in Fee 
 
 •551.6.1. i-^Q diifcifcd, and Cefi/jy q7ie Ufe releafc^ 
 to the Ditlcifor, this extinguiilics the 
 Ufe^ and by the Statute bars the Entry 
 of the Fcoifec. 
 Bro F. io Where Feoifces to an Ufe arc DifTei- 
 Vfei, 531- fees, and after the Diffeifor enfeoffs 
 ^'- H 8 C^^ftuy ^^^^ Ufe-, who enfeoffs a Stranger ; 
 * this is good, and iliall bind the Feof- 
 fees i for the Feoffment is good to pafs 
 the PoiTefiion, and Right of the Ufe^ 
 wjiich he had in him ; and the Feoffees 
 Cannot enter to revive an Ufe^ which 
 the Party himfelf by his own Ad has 
 cxtina;uilhcd. 
 
 2. The Statute is to be underflood of 
 
 Cefny que Uft\ tliat has an Ufe in FjTcy 
 
 in Oppolition to him that has only a Re- 
 
 vcriion or Remainder of an Ufe, 
 
 j'low. If a Feoffment be made to the Xlfs 
 
 iCo i"" ^^ ^' ^^^^' ^^^^^-y Remainder to S. in 
 
 b. * *" I'ce, A' may a hen in Fee, becaufe 
 
 the Feoffees claim the whole Efl:atc for 
 
 the Ufe of A. during his Life^, and he 
 
 has
 
 Mtts ano Xtniis. 29 
 
 has the whole Advantage of it ; and the 
 Statute that gives the prefent PofTelfor 
 of the Ufe a Power of Alienation, has 
 provided an immediate Remedy for 
 the Remainder Man. 
 
 But if the Tenant for Ufe of an Ufe Plow, 
 aliens in Fee, and dies, the Feoffees ^damcr 
 may enter on the Alienee j for by the avd Bar- 
 Words of the Statute, the Alienation ^^^!^\^^ 
 is good againft Cefl^i)^ que Ufe and hisp^;^J„/ 
 Heirs, and Perfons claiming only to his foived, 
 Ufe : So when Feoffees claim to the 
 Ufe of the Remainder Man, the Feoff- 
 ment of Tenant for Life, according to 
 the Authority given by the Statute, is 
 no longer valid to bar the Feoffees of 
 the Entry ; for their Right is by the 
 Common Law. 
 
 But if there be a Feoffment in Fecpiow. 
 to the Ufe of A, for Life, the Remain- 250- *• 
 der to g. in Fee; S. has no Power of f/^^J^"-^' 
 Alienation by the Statute, during the 339. fc.44. 
 Continuance of the Eftate for Life, J ^o-*^^- 
 becaufe the PolTelTion is, as is faid, to 
 the Ufe of J. only, during his Life, and 
 fo the Remainder Man has nothing to 
 do with the PolfeiTion j and if the Re- 
 mainder Man would enter on the Feof- 
 fees and make a Feoffment, either the 
 Ufe of Tenant for Life would be de- 
 ftroyed, or the Feoffees muft re-enter 
 and create a particular Eftate to them- 
 
 felves.
 
 felvesj without being fubjed to IDower 5 
 for by the Common Law, every par- 
 ticular Eftate is derived out of the Fee 
 Simple by the Agreement of the Par- 
 tics in Interefl: ^ but here are no Par- 
 ties to fuch Agreement, and the Sta- 
 tute has not altered the Law in this 
 Cafe, 
 
 Plow. But if there be a Tenant for Life, 
 
 Remainder in Fee, he in Remainder 
 may make a Lcafe for Years, or grant 
 a Rent-Charge to begin after the Death 
 of Tenant for Life ,• for he cannot en- 
 ter and take the Pofleflion out of the 
 Feoffee j but *tis an Executory Cen- 
 tral on which the Statute operates af- 
 ter the Death of Tenant for Life. 
 
 Tenant for Life to the Ufe of A. 
 and the Reverfion is granted with At- 
 tornment to another, to the Ufe of B» 
 for Life ^ the Reverlion in Fee is grant- 
 ed to a third, to the Ufe of C i* and 
 C may grant their Eftates prefently, 
 becaufe there is a Divifion of EftateSj 
 and each has a Tertenant of his own 5 
 fo that the transferring one Eftate does 
 not difpolTefs another Tertenant, or 
 make any particular Eftate than what 
 is created' by the Parties. 
 
 iCo.iaS. A Feoffment to the Vfe of A'T, 
 Remainder to the Ufe of S.in Tail, Re- 
 mainder to J» in Fecj A, makes a Fcoft- 
 
 ment
 
 ^its attti XrttftjS. 3 1 
 
 ment to the Ufe of himfelf, for Life, 
 the Remainder to his eldeft Son in 
 Tail, and then the Statute of H* 8. is 
 made, and the Father dies ^ the firft 
 Feoffees may re-enter, and revive the 
 former Ufe ; for y^, could only make a 
 Feoffment in Fee determinable upon 
 his own Life ,• but as this Contract 
 rnufl be taken ftrongeft againft them, 
 'tis a Difpofition and Alteration of the 
 Remamder in Fee, according to the 
 Vfes limited. 
 
 2. What Juthority is given by the 
 Statute* 
 
 If a Lord or Grantee of a Rent, be Co. Lir» 
 alfo Cejitiy que Ufe of the Land, and 5^- ^^ 
 makes a Feoffment in Fee accord- 
 ing to this Statute, the Rent is extin(5t ; 
 but if the Tertenant gives a Letter of 
 Attorney to the Lord or Grantee of a 
 Rent-Charge, and he makes a Feoff- 
 ment accordingly, this does not ex- 
 tinguifh the Rent j for in the firfl 
 Cafe he paffes alfo his own Interefl 
 and Eftate in the Land ; but in the 
 laft Cafe he himfelf pafles nothing, for 
 he is but fubflitute to another, and 
 the Eflate paffes only from the Ter- 
 tenant, 
 
 If
 
 32 Wiits anti Xmtts^ 
 
 Co. Lit. If Ceftiiy que Ufe makes a Feoff- 
 
 Bro! F. ai nicnt in Fee upon Condition, and af- 
 
 Vfes^ 558. ter enters for the Condition hrokeny 
 
 ^* *5- he fliall be feizcd of the Eftate in the 
 
 Land ,• for the whole Eftate is diverted 
 
 out of the Feoffees by the Feoffment, 
 
 and they cannot enter for the Condition 
 
 hrokeny becaufe no Parties to it. 
 
 This Statute does not give Cefttjy 
 
 que Ufe any Power to dcvife the Land j 
 
 for there are no Words that alter the 
 
 Law in that Point. 
 
 D. 14;. If Cefttiy que Ufe in Tail, aliens the 
 
 Vfes, fs?!^^"^ ^y ^^^^^ ^"^ Releafe, or Feoff- 
 s. 2I9? menti this only binds the Feoffees du- 
 37H.8.15. ring his Life, becaufe he has no longer 
 Power of Alienation ; 'vid. the Stat. If 
 this Ceftuy que Ufe aliens by Fifie^ this 
 is good, and bars the Entry of the Feof- 
 fees after his Death j for that would 
 difpoffefs the Eftate in Tail by the 
 Stat, of 4 H. 7. and if he aliens by 
 Reco'very, it does not bind the IJJhey 
 Ibid. s. 7. becaufe he is not Tenant to the Tre- 
 cipe ; fo that would be no Bar at 
 Common Law, and this is not helped 
 by any Statute : For tho' a Recovery 
 here be exprelly mentioned, and fo binds 
 the Party himfelf, yet the Right of 
 the Eftate in Tail is fevered. 
 , Ch.Caf. If Tenant in Tail of a Truft levy a 
 2 ch.caf. Fii^^3 or fuffer a Recovery, this is an 
 63. 64. equi-
 
 Mtts ano %vufis. 33 
 
 equitable Bar of the Eftate, tho' the 
 Tiuftec does not join in the Recovery 
 to make a legal Tenant to the Tr^- 
 cipe i for as the Fine and Recovery pafs 
 the Entail in a legal Eftate at Com- 
 mon Law, fo it palTes the Entail of a 
 Truft in the Court of Equity. 
 
 But if Tenant in Tail of a Truft ^ ^^ ^^^^ 
 makes a Mortgage, or acknowledges 119, lao! 
 a Judgment or Statute, and then le- 
 vies a Fine and fettles a Jointure, the; 
 Jointrefs fliall hold it fubjed to the 
 Mortgage or Judgment, in the fame 
 Manner as if the Mortgagor or Conu- 
 for had been Tenant in Tail of the 
 legal Eftate, and after the Mortgage 
 or Judgment had levied a Fine and 
 made a Jointure ; bec^ufe the fubfe- 
 quent Declaration of the Ufe of the 
 Fine is mcerly the Adt of Tenant in 
 Tail, and he cannot by any A6t of his 
 dvVn make a fubfequent Conveyance 
 take Place of a precedent -, and the 
 rather becaufe the Feme claims under 
 that Fee which Tenant in Tail got 
 by the Recovery or Fine ; and that 
 Fee was fubjed to ail the Charges 
 he had laid upon it. 
 
 If a Man recovers by an erroneous 5,,^ j: ^^ 
 Judgment, and makes a Feoffment to Vfei, 337. 
 his own Ufe, and upon a Writ of Er- ^-5^ g 
 ror the Judgment is reverfed, the Party ^ 
 
 D ihaU
 
 34 ^ffS atlD Xttld^S. 
 
 fliail enter without a ^SV^/r^ facias a- 
 gainft the Feoffees j for this is with- 
 in the Letter of the Statute. 
 Bro. F. ai If Cejifjy que life makes a Leafe 
 ^^^. 537. for Years, referving a Rent, he jliall 
 2*7h!8.i3. ^^^^'c an Adion o£'Deht upon the Con- 
 trad i but he iliali not ^C(?iy, becaulb 
 the legal Eftate of the Reveriion is 
 ftill in the Feoffees, fince he has put 
 the Eftate out of them but for a 
 Term ; but the equitable Eftate is in 
 him, and he may difpofe of it, and 
 the Rent paffes i but the Feoffees ihall 
 punifh for Wajie done by the Tenant, 
 and enter for a Forfeit ure-^ &c. 
 Bro. F. ai If Cefltiy qne Ufe makes a Leafe for 
 ujes, 338. Years, referving a Rent, this fliall 
 5.2;, 359. go to his Heirs ^ for fince the Statute 
 B.F.«/u/"ei has given him Power to make Eftates 
 Co^iJr!^' ^^ Law, they are governed by the 
 47. Rules of Common Law. 
 
 ^^8* s^T* ^^ ^^J^W ^^^ ^fi makes a Leafe for 
 ^^ ■ '^ ' Years, referving a Rent, with a Claufe 
 o£ He-entry for Nonpayment of the 
 Rent, and the Rent is behind, Ceftfiy 
 qtie iffe may enter i for he only can 
 take Advantage of his own Condition. 
 And fince the Statute allows the Adl 
 of Re-entry by allowing him Power 
 to make Leafes, he Ihall for ever keep 
 the PoffefTion againft the Feoffees, 
 2.ii<£re tamm^ 
 
 4- 9
 
 For the Reafon why Lands were 'Treatife of 
 not originally devifeable, was, becaufe ^^"''''" 
 the Ceremony of Lwery was required i co. 
 to the Tranfniutation of the PodelTion, ^-s- ^' 
 which is not NecelTary to the Difpofal ^ " . ^'^ 
 of an Ufe i for Lhery is to give No- h. s. 8. 
 tice asrainft whom the Triccipe is to^^^-^""* 
 be brought, and the Tr^cipe is only zz, h. 8. 
 of an Eftate of Freehold. 
 
 If a Man makes a Feoffment in Fee 6 Co. 18. 
 to the Ufe of his laft Will, the Feoffor ^;';/'^^- 
 has it to the Ufe of himfelf and lusb.ziz.b. 
 Heirs; for until a Man has actually Buir. 200. 
 difpofed of the Ufe, the Ufe is in him \l^- J"'* 
 only: It is fo in this Cafe,- and if heSemainVj 
 devifes, the Parties muft claim their ^''^* 
 Intereft by the Devife. 
 
 But if a Man makes a Feoffment in ^ ^°- ^^• 
 Fee to t\\Q Ufe of fuch Perfon and^/^j^. i.* 
 Perfons, and of fuch Eftate and Eftates 
 as he fhall appoint by his laft Will i 
 there by the Words of the Conveyance 
 he has a qtialified Fee, determinable 
 upon the Limitation of other Eftates ; 
 and the Feoffment mentions the future 
 Eftates that fliall rife on his Denomi- 
 nation, which plainly conveys an Exe- 
 cutory Fee to the Perfons nominated ; 
 and 'ti$ pnly the Office of tlie WiH to 
 D 2 nomi-
 
 36 Witts ano Xtutts. 
 
 nominate ; for the Intereft is transfer- 
 red and difpofed of by the Feoff ?nent. 
 But in the former Cafe there is in the 
 Feoffment no Words of Difpofition, (^c. 
 and there the Parties muft claim by 
 the Detife, 
 4 Co. 25. If a Copyholder furrenders to the 
 2 Leon, ufe of his laft Will, the Land is ftill 
 ^^^' in the Copyholder ^ and he may difpofe 
 of it by an Ad in his Life-Time j if 
 he does not, by any Will, it iliall go 
 to his Heirs y if he makes a Will, it 
 Cro. El. palTes by the Surre?ider^ and not by 
 441, 2- the Will ; for the Property of the Co- 
 pyhold is not altered by a private A(5t 
 of the Tenant, but by an open and fo- 
 lemn Att in the Lord's Court ; but at 
 Common I^aw the Ufe of the Land 
 may pafs by a Demfe^ as is faid -, and 
 the Freehold it felf fince the Stauite, 
 6.C0. 18. If ^ Man fufifers a Reco'vety to the 
 Hob. 349. Ufe of his Lafl Wilh ^^ ^ri^y difpofe 
 of the Eftate by a Conveyance de no'vo 
 during his Life j but he cannot, during 
 his Life, limit new Ufes on the old 
 Recovery^ fo as to be thereby bound 
 from any Alteration ,• for the whole In- 
 tereft of the Recovery was declared to 
 be to the Ufe of his Wilh which is 
 changeable in its Nature. 
 B.F.«/T7/. A Man makes a Feoffment in Fee 
 337./. 79. to the Ufe of his Laft Will, and in 
 
 the
 
 the Deed he expreffes the JJfe of the 
 Will to be to hiiTifclf for Life, and 
 then to his Son in Tail, and afterwards 
 makes a Leafe for Years, and dies; this 
 fhall bind the Son ,• for it being ex- 
 prefly declared to the UJe of his Will, 
 it fuppofes a Power in him to change it. 
 
 Ceftf/y que Ufe devifes, that his Feof- B. F. 558. 
 fees may alien the Land to J*S, the 
 Feoffees may enfeoff B, and ^. may 
 alien to J. S, 
 
 Ceftuy qtie Ufe devifes, that his Feof- ibid. 
 fees fhould alien the Land for Payment 
 of his Debts, the Creditors may compel 
 him in the Court of Chancery to do it. 
 
 If Cejluy que Ufe devifes^ that his ibid. 
 Feoffees lliould alien the Land, this is 
 in the Heir till Alienation. 
 
 5. 'T/x 7iot extendable or Affets, 
 
 Becaufe there is no Procefs at Law Rep. i. 
 but upon Eflates at Law; and Ufes are ^'pl^/u/. 
 meerly Creatures of Equity, on which 5 59-5.25. 
 the Common Law can award no Exe- J^^'j^s.'^' 
 cution I and they are not Jjfets^ becaufe 
 they go in the Courfe of Inherica?ice^ 
 and not to Executors, 
 
 But if a 'Term be limited to attend "^^'''i' 
 a Fee, this fhall be Jffets for the ^ ^' 
 Payment of juft Debts ; for the Court 
 ©f Chancery will not carry it out of its 
 
 D ? due
 
 3$ Mtts antj grafts. 
 
 due Courfe, where there is any Preju- 
 dice or Inconvenience. 
 
 But by the Stat of i^. 3. 'tis held ex- 
 
 tejidahk upon a Statute Staple or Mer- 
 
 cha7it ; for this is in the Nature of a 
 
 B.F. aivf. Qra72ty or Leafefor Tears j and Grants 
 
 559.S.25. of Leafes are made good againft Ceftuy 
 
 i^^o-^Si- ^^^Q jjj} ai^d the Feoffees^ by the Statute. 
 
 I Chan. But finco the Statute of Frattds and 
 
 Rep. 128. ^gjyiiries^ they feem to be Jjjets in the 
 
 Heir for the Payment of juft T)ehts\ the 
 
 Heir being obliged to pay all juft 
 
 Debts out of a real Eftate that de= 
 
 fcends from the Anceftor. 
 
 6. '^is not forfeitable. 
 
 Hard. 1. Not for Telony ; for in Cafe of 
 
 ^sSfJdSo ^^^^^^y ^^^ Lands are caft on the Lord 
 ig.F.^/u/.of whom they are holden, for Want 
 339- s. of Heirs ^ but a life is holden of no 
 55^- Body. 
 
 Hard. 2. Not for Treafon ; for all Tenures 
 
 492, 495' are forfeited by the Breach of Fidelity 
 and Duty owed to the Lord ,- for un- 
 der that Condition the Tenants take 
 their Eftates, and confequently all 
 Breaches of Allegiance forfeit the E- 
 ftate to the King, fince it originally 
 came from him, confequently the E- 
 ftate which is holden may be forfeited ; 
 
 but
 
 hvLt a Ufe is holden of no Body : But 
 this is altcr'd by the Statute. 
 
 If a Term be limited in Truft, and ^^ "• s^ 
 Ceftiiy que T^ritft commits 7'reafiu orH.s^f.io'. 
 JFeJofiy^ the Term is forfeited 5 for the ^n joha 
 perfonal Property goes with the Perfonsi ^^r?^*"^ * 
 when the Polfeflion is forfeited, the Par- Alien kj. 
 ty is incapable of perfonal Property, Holland'^ 
 and confcgucntly the Right is in the ^^^'^{'^'/i^*^. 
 Publick, and the King has the Ufe of 44- Hani. 
 the Term in this Cafe. ^^^> 495- 
 
 3ut if a ^er7/2 be limited to attend Hard. 
 the Inheritance in Truft, it is not for- ^^7* 
 feited for Felo?iy^ becaufc it does not 
 veft in his Perfon and go to his Execu- 
 tors, but belongs to the hiheritance^ 
 like the Charters which are not for* 
 feited. 
 
 3. KLIfio map 5ecliire t^ tnife tlje W.t^. 
 
 I. Since the Chancery^ as hath been 
 faid before, does not fet up Rules of 
 Property contrary to Rules of Law, 
 thofc that have not a difpofing Power 
 •by the Law, cannot raife a JJfe j and 
 .<:onfequently a Husband and Wife can- 
 not declare Ujes upon a Feoffment, 
 fo as to bind the Wife. 
 
 But Baron and Feme may levy a Mo, 197. 
 Wine which will bind the Wifc^ for^Co.j?-*. 
 
 P 4 h<^f^ 75)S.
 
 ^o tlfesi auD Xmfts. 
 
 ' here the Law allows her a difpofing 
 Power, becaufe Hie is privately exa- 
 iiiin'd, confcqucntly the Chancery muft 
 allow them to declare what is the De- 
 lign of that Fine; and therefore fuch 
 Declaration by them both fhali bind 
 the Wife. 
 jiC9 57,.T. If the Husband only declares the 
 f^l^'""'' Ufes, this fliall bind the Wife; for 
 fince fhe joins in the Fine, flic muft 
 be prcfumcd to concur in the Defign 
 of that Fine, uniefs the contrary ap- 
 pears by fome manifeft Sign of her 
 DiiTcnt. 
 ? Co. 57. But if the Husband declares the 
 BcX'^^' LT^j- of the Fine one Way by Deed, and 
 w^th'sCafeAho Wife another by Deed, this binds 
 ^iixre the Husba^id during the Coverture, but 
 il/e^ecia- ^"^^t the W^ifc aftorwards ; for the Huf- 
 '^ation be band cannot declare the Ufes without 
 'f,otn,eeriy Concurrence of the Wife, " becaufe he 
 2C0.57.rt. has no Eftate ; and ilie cannot be pre- 
 ^' 5S'^' fumed to concur where the contrary 
 appears by her Deed i and flie cannot 
 declare the Ufes alone, becaufe during 
 IvTarriage fhe is not fi/i juris ; and with- 
 out the Husband ilie has no difpoling 
 Power: And if there be no Ufe declar'd 
 iipon this Fine, it is to the t/fe of the 
 Wife j for where there is no other In- 
 tent of a Fine declared, it is fuppo- 
 icd tp be deiign'd fs a farther Security
 
 to the prefcnt PofTcflbr i and the Ufe ' 
 is ftill in the Wife, fince in this Cafe 
 ilie has not departed with it. 
 
 If Hz/sba/^d and IVife fell the Lands ^^o- 57' 
 for Money, and levy a Fine, the Ufes ^ r^aW 
 may be averred without any Deed vjS. 
 from the Wife, to prove her Aifent. 
 
 If S^arou and Fe?//e levy a Fine, and ^ ^p- Ab, 
 there be an Indenture in the Name of p^j^".^^^' 
 the Husband and Wife, declaring the 
 Ufes^ which is brought to the Wife to 
 feal, and flie refufes, the l/fes do not 
 bind the Wife ,• for fhe cannot be pre- 
 fumed to concur after fuch a Refu- 
 fal. 
 
 If Baro?i and TemCj zuithiu Age, 2R0, ai>. 
 levy a Fine, this fliall bind her : for ^^5 „ 
 
 ,1 T r I - 1 - Co. 58./!. 
 
 tho an ijijafit ought not to levy a q^ r^h&' 
 Fine, yet when done it is valid, becaufe '^^^»' ^^« 
 there is no Averment againfl: Records -, ^Zr}lhh 
 and if the Law allowed it to be valid, /o)- the 
 it is reafonable the Parties fliould have ^'"^f."^ 
 Power to declare the Intent of it. duvm^hm 
 
 ^aro7i and ¥€7ue levy a Fine of the Niw^.^e ; 
 Land of the Wife, and both feal an f-^^l 
 Indenture; and in Confideration of El. 129,* 
 Money, limit the JJJe to the Conufee, ^5?- 
 and there is a Claufe of Re-entry upon ^ ^^ ' 
 Payment of the Principal nnd 10 per 
 Ce//t. which is more than the lawful 
 Intercft, whereby it becomes an Ufuii- 
 Qus Contrad, becaufe the Parties cn- 
 2 joyed
 
 4^2 WLits anti Xtitfts* 
 
 joyed the Profits of the Land ; bcfides, 
 if the Husband afterwards, and before 
 the Fine be engrolfed, rectifies it, and 
 explains their Intention by another 
 Deed, wherein the Conufce covenantSj 
 that the 'Baron and Feme ihould take 
 the Profits in the mean Time, altho" 
 the Wife docs not agree to the fccond 
 Deed, it iliall bind lier ; for the firft 
 Deed declares the Intent of the Fine, 
 and pallcs the Ufes^ and the laft Deed 
 only declares the Intent of the firft to 
 reftify the Matter of the Ufury. 
 
 « C0.5S.4- A Man of 71071 (me Mej/iory may de- 
 clare tjic Vfe of a Fine levied, canfa 
 qna fupya, 
 
 3.Co.^Sa. 2, Every Man may dcciai'C and 
 difpofe of the Ufe according to the 
 Eftatc and Intereft he has in the Land ^ 
 and therefore if two Join tenants levy 
 a F/;/f, and declare the Ufes feverally, 
 each Man difpofes of his own Moiety ^ 
 but if they declare no UfeSy they arc 
 feifcd as before. 
 
 'Ibid. If Tenant for Life^ and he in Re- 
 
 mainder in Fee join in a Fi/^e^ with- 
 out declaring any Ufes, they are feifed 
 as they were before. 
 
 IJjid- J, feifed of certain Lands, and Bo 
 
 a Stranger join in a Fh/e^ it lliall be to 
 
 the Ufe of J. ioi' iince there is no 
 
 2 Con-
 
 Confideration to part with the Land, 
 the Ufe is ftiil in him. 
 
 So if J, feized in Fee of certain a R. Ab. 
 Lands, and S. a Stranger joins in a^^^* 
 Common Recovery, without declaring 
 any Ufes, the Ufe fliail arife to him 
 that had the Intereft in the Landj and 
 not to the Stranger. 
 
 4. Co tMljom a afe map hz taifetr^ 
 
 I. Not to Aliens. 
 
 An Jlieu could not compel the Feof- Ai. kj. 
 fees to execute a Ufe ; for 'tis contra- ^'^•'^' ^^• 
 ry to the Policy of the Law that auip. '*' 
 Jlleu fhould plead, or be impleaded, Sryle zi. 
 touching Lands, in any Court of the 
 Kingdom. 
 
 The King fhall have the Ufe of an All. id. 
 'JlieT^ upon his Purchafe ; for the Ad- ^^'^°' 
 vantage a Man receives from his Duty j^y, * 
 can extend no farther than the Obliga- 
 tion of that Duty reaches, but the 
 Allegiance of an Jlieu is temporary, 
 therefore fo is his Property ; and lince 
 he is incapable of Perpetualnefs of Sub* 
 jedion, he cannot be prGte(5ted in any 
 Eftate that is of perpetual Conti- 
 nuance ; and the Inconvenience is the 
 fame if this be a Freehold at Law, or 
 a Tritft. 
 
 But
 
 44 ^ftSf ^ttO %tti(tS. 
 
 Sty. 40. But in this Cafe the King fhall not 
 feize the Land of an Jlie/i^ unlefs it 
 be executed in him by a Decree in 
 Chancery ; for there was no Right in 
 the Cefttiy que JJfe to feize the Lands 
 without a Decree, and the King has 
 only the Rights of the Ceftuy que 
 life. Q, 
 B.Ea/u/. Secondly^ Tho' the King cannot have 
 338- «. Feoffees to his Ufe^ becaufe he cannot 
 * ^^* take but by Matter of Record ; yet 
 he may take it when the Ufe is found 
 of Record, where an Office is found of 
 the whole Matter. 
 'B.F.aivf. 'Thirdly^ A Mo7ik cannot have a Ufey 
 |?9- a, becaufe he has vowed perpetual Pover- 
 ty, and therefore cannot have Property ,• 
 but he may be an Executor, becaufe 
 polfeifed to another's Ufe. 
 8 H. 7. 8. Fourthly^ The Limitation of a Ufe 
 rpl^^*^^ the Poor of the Parifh of "Dak, is 
 s.^19.' good, tho' no Corporation i for tho* 
 Mich. 10. they are capable of no Property at 
 ha*m V. ' Common Law, in the Thing trufted, 
 Warren, becaufc the Rules of pleading require 
 ^J*^"^' Perfons claiming to bring themfelves 
 War- under the Gift ,• and no indefinite 
 vick. Multitude, without publick Allowance, 
 JlY"i4a. can take by a general Name, yet they 
 33 H. 8. are capable of a Truft ; for here the 
 '- IP' Complainants do not derive to themfelves 
 ^4/^5!^' any Right or Title to the Eftate, but 
 
 ihew
 
 fKcw that it has been abufed and mif- 
 employed by the Owners, contrary to 
 Confcience, 
 
 Fifthly, 2B6ere anti iDftat Confitiera^ 
 tion 10 neceffacp to tfje Kaifing of 
 
 It being, (as is faid) the Ufe of the 
 Country to deHver Lands to be fafely 
 kept, the meer Alteration of the Pof- 
 felTion does not in Equity give a 
 Right, but it fhall be to the Ufe 
 of the Donor, unlefs in two Cafes. 
 
 1. Where the Ufe is exprejfed. 
 
 2. Where there is a 'valuable Cofifi- 
 deration, 
 
 I. Where the Ufe is expreffed on the 
 Tranfmutation of the PolTefTion j for 
 fince there is no Property without a 
 Power of Difpofal, the Chancery, with- 
 out oppofing the Rules of Law, can- ^ 
 not fet afide a Difpofition, or prefume 
 that it is delivered in Truft for a Man's 
 felf, againft his own exprefs Words i 
 and therefore here no Confideration is 
 necelTary to the raiiing fuch an Ufe» 
 
 If a Man levies a Fi?ie to the Ufe 2 Ro. Ab. 
 of J. a Stranger, this is good without ?^s» 7?^* 
 any Confideration. 
 
 So
 
 4^ Mks atio XtttftiS* 
 
 2 Ko. 79. So if a Man levies a Fine, and in 
 Znv.^' Confideration of Blood, and the Mar- 
 Sonard. riagc of his Baftard-Daughter, covenants 
 that the Comifee fhall be feized to the 
 Ufe of the Daughter ; this is good. 
 2C0. 7<J. In a Fine fiir Grant dx Refider 
 a. Ibid. ^\^Q Confideration is exprefled to be pro 
 fi72ali co72cordia ; and when a Confide- 
 ration is exprelTed, no Confideration 
 can be averred but what flands with 
 the exprefs Confideration. 
 1 Co. 1 76. The fame Law is on a Recovery or 
 *• Feoffment. 
 
 aRo.Ab. If a Man raifes Ufes upon a F/W, 
 ^ c* 6 ^^of^^^^^^^-i ^^ Reco'verj^ he may referve 
 l. Poft' ' to himfelf a Power of making Leafes ; 
 i%^' but he cannot do it on a Covenant to 
 {land feized, or on a Bargain and Sale j 
 for upon a Fine, Feoffment, or Reco- 
 very, a Ufe may be raifed without a 
 Confideration, and therefore will arife 
 to thofe Leffees without Confideration , 
 and the former Eflates which were raif- 
 ed without Confideration, may be de- 
 feated without it J but in a Bargain 
 and Sale, and Covenant to ftand feized, 
 no Ufes will rife without Confideration, 
 therefore not to the Leffees j for where 
 the Perfons arc altogether uncertain, 
 and the Terms unknown, there can 
 be no Confideration ; and for which 
 Reafon the former Eftates, raifed upon 
 
 good
 
 Mice atiD Xmtts. 47 
 
 good Conlideration, cannot by fuch 
 Leffees be defeated. 
 
 The two Confiderations upon which 
 a Deed is allowed to be valuable, are 
 Marriage and Mo7i€y -, for Marriages 
 being not only for the Hopes of Pofte- 
 rity, but being likewife induced by the 
 Contrads and Settlements that are 
 made at the Marriage, fuch Contradls 
 are allowed to be valid, fince the 
 Marriage had not been but on the 
 Foot of thofe Contracts, and therefore 
 po voluntary Deed, tho' prior, dxc* 
 
 Secondly, Where the Tarty can frove 
 a Co7iJideratio7i, 
 
 Confiderations are two-fold, i. ^lood^ 
 
 2. Money. 
 
 Firji^ Blood J if a Man parts with^Ro.Ak 
 any Lands in Advancement of his Iflue, ^^*» ~^^' 
 and to provide for the Contingencies 
 and necelTary Settlements of his Fami- 
 ly, 'tis lit the Chancery fhould make 
 them fuch good Conveyances the' 
 they want the Ceremonies of Law ; 
 for 'tis the Defign and Intent of the 
 Court of Equity to mitigate the Seve- 
 rities of Law, fo as they may beft 
 comply with the Peace of Families ; 
 for their Eftablilhment is Part of the 
 Nature and End of Government. 
 
 9 There-
 
 4$ ^tts Attti XtnttSi 
 
 RolKib. Therefore if a Man, in Confidera^ 
 
 tion of natural Love and Affedion, co- 
 
 venants to ftand feized to the Ufe of 
 
 his Son or Brother, this is a good Ufe. 
 
 Vid. poft But if a Man covenants to ftand feiz- 
 
 ca. ed to the Ufe of J. S. in Confidcra- 
 
 tion that he is an intimate Friend, or 
 
 School-Fellow, or that he was bound 
 
 in a Recognizance, this is not good to 
 
 raife a Ufe i for the Obligation that a 
 
 Man has to his own Family, is fup- 
 
 pofed by all Governments fuperior to 
 
 all Obligations of meer Gratitude ; and 
 
 therefore the Chancery will not pre- 
 
 fume 'tis the Party's Intent to difpofe of 
 
 aRo.Ab. Lands out of the Family where any 
 
 7^3' Ceremony is abfent that is necelfary in 
 
 Law to the making fuch a Contra(5t. 
 s Ro Ab. A Covenant to ftand feized to the Ufe 
 ^^^' of a Baftard, in Confideration of natu- 
 ral Love, is not good j for fince that 
 Copulation is unlawful, the IfTue ought 
 not to have fi om the Government the 
 Privilege of a lawful Son. 
 a Ro.Ab. Tho' Blood be a good Confidera- 
 7^3' tion to raife a Ufe, yet muft the In- 
 tent of the Party be declared by Decd^ 
 and the Chancery muft follow that In- 
 tent i for it Would be mifchievous that 
 any Words of Kindnefs that exprefs at 
 future Defign of Parting with an E- 
 
 flate
 
 Mtts ana %tnG^s. 49 
 
 ftate, Ihould be conftrued as a prefent 
 Settlement. 
 
 If a Man covenants to ftand leized 
 to the Ufe of fuch Perfons as J. S. fhall 
 name, this is void, tho' J. S, names 
 one of the Covenantor's Sons. But if 
 a Man covenants to ftand feizcd to the 
 Ufe of fuch of his Sons or Coufins as 
 J, S' ihall name, this is good ; if he 
 makes the Nomination for a general 
 Covenant, that extends farther than a 
 Man s own Kindred, it is void, and falls 
 not within an equitable Conlideration i 
 and being in its Creation void, it can 
 never be made good. 
 
 Secondly^ Money, if an Equivalent 
 be given, tho* the Contra<5t be not exe- 
 cuted with all the Formalities of Law, 
 yet in Equity the Ufe of the Lands 
 ought to be in the Purchafer. 
 
 If a Man, in Confideration of Blood, Co. Ut. 
 makes a Charter of Feoffment, with a ^^^^ ^j,. 
 Letter of Attorney to deliver Seifin, 787. 
 and no Seifin be delivered, no Ufe fhall 
 arife j for the Court of Equity muft 
 follow the Intent of the Parties ; and 
 they have expreffed their Intent not to 
 part with the Eftate until the Cere- 
 mony is performed. 
 
 But if a Man, in Confideration of co. Lir. 
 Money expreffed in the Deed, fells his 49- ^- 
 
 E Land, ;,^;-'^''- 
 
 8 Co. 94. Vid. J Ra Ab. 7S7« March 50,
 
 50 Mtts atia Xtttftiai* 
 
 Land, and gives a Letter of Attorney 
 to deliver Seifin, this palTes the Ufe be- 
 fore Livery j becaufe the Equity to 
 pafs the Ufe arifes from the Payment 
 of the Money ,• and therefore now, 
 fince the Statute of 37 jy. 8. he may 
 chufe to have it one Way or the other, 
 according as he firft wills, either to 
 enroll the Deed, or take Livery, Qvid. 
 Bargain and Sale) but if the Confide- 
 ration be not exprelfed in the Deed, it 
 muft pafs at Common Law. 
 
 But if Tenant for Life and the Re- 
 mainder Man in Fee, make a Charter 
 of Feoffment, and a Letter of Attor- 
 ney to make Livery, and Livery is 
 made accordingly, this is good i and 
 the Remainder fhall pafs by the De- 
 livery of the Deed ; for when a com- 
 pleat Conveyance appears at Common 
 Law_, the Court of Chancery does not 
 intermeddle therewith. 
 
 Selling ex 'vl termini fuppofes my 
 Transferring a Right of fomething for 
 Money, the common Medium of Com- 
 merce. But if there be no fuch Con- 
 iideratipn, it may be an Exchange, a 
 Covenant to ftand feized, a Grant, dxc. 
 but it can be no Sale. 
 
 If
 
 Mits anu %t\xtts. 5ri 
 
 If a Man bargains and fells Lands * Co. 
 for divers good Confidcrations and Jvioi/' 
 Caufes, it is void, unlefs Money bo a- 57S, 502, 
 verred. 
 
 If there be a Confideration of Mo- Moor 
 ney expreffed in the Deed, no Averment 578. 
 or Evidence can be admitted againft itj 
 for the Affirmative is proved by the 
 Deed, and 'tis impoffible in Law or E- 
 quity the Negative fhould ever be pro- 
 ved. 
 
 If the Deed fays for a competent Moor 
 Sum of Money, *tis fufficient, without 5 7 8. New 
 averring the Sum j tor tis a Sale ir Rep. 
 there be any Money. 
 
 A Man in Confideration of 70/. 1 Co. 17 6. 
 bargains and fells to his Daughter and ^^0.76./*. 
 jf. S. in Tail, who intermarry, it may 
 be averred, as well in Confideration of 
 Marriage, as alfo of Seventy Pounds j 
 for a Man may aver any Confidera- 
 tion confident with that in the Deed. 
 
 If a Man in Confideration that y. ^S*. Cro. el 
 was bound in a Recognizance, and 594- 
 other Bonds for him, and for divers 
 good Caufes and Confiderations, bar- 
 gains and fells his Land to him and 
 his Heirs*, that is not good ; but it* Ante 29= 
 had been good by Way of Covenant ^°"^^' 
 to ftand feized, had there been apt 
 Words. 
 
 E s If
 
 52 mus ano %t\xits. 
 
 Cro. El. If J bargain and fell my Land to 
 
 ^^^* my Son, no Ufe arifes, unlefs there 
 be a Coniideration of Money, cat/fa 
 qtia fiipra. 
 
 I^y-SS?"*- If a Man, in Confideration of fo 
 much Money, to be paid at a Day to 
 come, bargains and fells, the TJ(& 
 paffes prefently, and after the Day the 
 Party has an Action for the Money ; 
 for 'tis a Sale, be the Money paid pre- 
 fently or hereafter. 
 
 Dy.i(Jp.4. An Averment cannot be allowed by 
 the Heir, that the Confideration is falfe 
 againft the Deed and Conveyance of 
 his Anceftor, caufa qua ftipra. 
 
 Co. Rep. If a Man conveys Lands to J. for 
 
 Lambert *^^ Payment of his Debts, and J. 
 
 and Bain- pays Debts to the Value of the Land, 
 
 ton- he is a Purchafer. 
 
 Sixthly,
 
 Sixthly, i/t what Marnier Ufes may 
 he raifed. 
 
 1. Hoiv they viay he raifed with or 
 voithoiit ^eed. 
 
 2. By what Words they may he raif- 
 ed. 
 
 3. How they may he raifed hy ImpU- 
 eation of Law, 
 
 I. How they may he raifed with 
 UJeed or without it* 
 
 If a Lord releafes to a Copyholder z Ro.Ab, 
 in Fee, to the Ufe of another, this is 7^^- 
 a good Ufe ; for (ince the Seifin and 
 Ufe of the Eftate is in the Lord, he 
 may transfer the Seifin of the legal 
 Eftate by pafifing the Ufe to another, or 
 not, as he pleafes. £fj^re^ if the Law 2 Ro.Ab; 
 is not the fame of Releafes that enure 7^^- 
 by Way of Enlargement, and trarif 
 mittifig of an Eftate ; but otherwife f^-^^^- 
 of Releafes that enure by Way of tranf 
 mitti7zg a Right and Extijigmfh?ne7it ; 
 for in thefe Cafes the Releafor has not 
 the Ufe and PoifelTion of any Eftate ; for 
 that is in the Difteifor. 
 
 If a Husband covenants with his Wife 2 Ro.Ab. 
 to ftand feized to her Ufe^ this is void j ^^^^1^ 
 for Husband and Wife in all Matters of n:. 
 E 3 P^o-
 
 54 ^its attO %tnM. 
 
 Property, by the Rules of Law, are as 
 one Perlon ; and no Man can covenant 
 with himfelf. 
 5C0.264. If a Man makes feveral Declarations 
 of the Ufes of a Fi/^e^ or Reco'very 
 fubfequent, the laft Declaration fhall 
 ftand J for each Declaration is to ma- 
 tt ifcft the Intent of the Fine ; now all 
 A(fts follow the laft Determination of 
 the Mind, and confequently the Fifie 
 follows the laft Declaration of their 
 Intent. 
 jCo.2<j.4. If a Man declares Ufes by T>eed^ and 
 after declares other Ufes by Tcirol^ 
 and the Fine or other Conveyance be 
 purfued according to the Deed, tho 
 firft Ufes fhall ftand -, for a Deed can- 
 not be contradided but by fomething 
 of equal Validity. 
 5C0. is.h If the Declaration of the Ufes and 
 2 Co. 76. the Fine differ in Perfons, in Quantity, 
 2 Ro.Ab. or Quality of the Land, or any other 
 799. Circuniftances, and there be no other 
 Declaration, this lliall ftand ; for the 
 Law prefumes that this Deed declares 
 the Intent of the Fine, tho' they differ 
 in Circumftances ,• becaufe it ought to 
 fupport Men's Contracts, and take 
 them ftrongeft againft the Grantors; 
 but there is no Room for a Prefump- 
 tion, or GuefTmg at their Mind, where 
 a contrary Intention is exprefled.
 
 If a Man declares Ufes by Deed, and sCo.zC.h. 
 afterwards declares other Ufes by Ta-^ °'^^' * 
 roly and thefe two Declarations differ in 
 thofe lefTer Circumftances of Quantity, 
 Time, or Perfon, and the FtTie is con- 
 formable to the laftDeclarationjthat fhall 
 (land ,• for this is not an Averment contra- 
 ry to the Deed : For then they muft be fo 
 apparently different that both cannot be 
 confiflent. But where the Averment de- 
 clares the Ufe of a different Fine, 'tis not 
 contrary to the former Deed : But the 
 Fine mentioned in the Deed, and the 
 Fine levied, being in their Circumftances 
 really different, they cannot be prefumed 
 to be the fame by the Law, becaufc the 
 Intent of the Fi/ie levied is exprefled to 
 be different from the Intent of the Fi/ie 
 mentioned in the Deed. 
 
 Now tho' the ExprefTion of a Man's 
 Mind cannot be contradi<5led, but by 
 ExprefTions of equal Solemnity, yet 
 where his Mind is only prefumed, it 
 may be contradided by any Expref- 
 fion. 
 
 If the Indentures preceding, and thofe 5 Co. 16. 
 fubfequent to the Fme differ, the Fine '*• ^* 
 cannot be dire(5ted, Part by the one, and 
 Part by the other j but, (as it is fa id) it 
 muft be by the latter ,- for the latter Con-' 
 tradt of the fame Nature always deftroys 
 the former* 
 
 E 4 If
 
 56 Mtts atm Xmfts. 
 
 ^Co.io.a. If a Man levies a Fine or fuffers a 
 
 782.° Reco'ver}'^ he may afterwards declare 
 
 the Ufes, for the Ufes are in him in 
 
 that Cafe ; and therefore 'tis Equity 
 
 he fhould difpofe of it when, and as he 
 
 pleafes to bar himfelf and his Heirs. 
 
 9 Co. 10. If a Man levies a Fine, and then 
 
 ao Car. <^cclares the Ufes by Parol, and after- 
 
 4. c. wards by an Indenture declares other 
 
 Ufes, yet the firft fhajl ftand ; for the 
 
 firft is a Difpofition and Transferrence 
 
 of his Ufe j and therefore there can 
 
 be no other Difpofition, for nothing is 
 
 in him to difpofe of,- and this is al- 
 
 fo executed now by the Statute, and 
 
 cannot be divefted. 
 
 pCo.ji.,?. If a Man levies a Fln-e, and after* 
 
 wards grants a Rent-Charge, and then 
 
 declares the UfeSy Cefitiy que Ufe fhall 
 
 hold it charged, unlefs he can prove 
 
 a com pleat Agreement before the Grant 
 
 of the Rent-Charge i for otherwife he 
 
 muft take it as a Subftitute of the 
 
 other, and as he could grant it. 
 
 J Ufe cannot he ralfed without a 
 ^eed or Feoffment* 
 
 % RocAb, If a Man levies a Fine of a Rent^^ 
 
 '^^* he cannot limit the Ufe of it to a 
 
 Stranger, without a Deed ,• for the Ufe 
 
 and PoflelHon of that which has its 
 
 Nature
 
 Witts anti %tn1!ts* 57 
 
 Nature and Being by a folemn Agree- 
 ment by Deed, cannot pafs without 
 fuch Agreement ; for otherwife there 
 would be a greater Evidence that the 
 Z/fe continued with the Party, than 
 that it was difpofed of. 
 
 On a Fi/w, fur Coniifajice de 1)roit 
 taiitum^ Ufcs may be raifed without a 
 Deed ^ for affe^io tua ifupofzit nomen 
 operi Uio j and therefore where-ever 
 there is an A6t that alters the Polfefifion, 
 the Party's own Words may declare 
 the Intent of the Ad ,' and this being 
 according to the Policy of the Com- 
 mon Law, has not been altered by 
 any Statute. 
 
 On a Fine fur Grant & Render^ a 
 different Ufe cannot be averred by 
 Words only ; for in this Fifie there is 
 a Ufe implied, becaufe there is a Con- 
 iideration, {mz) pro finali concordia^ 
 (^c» and where-ever a Ufe is either 
 expreflfed or implied, there can be 
 no verbal Averment to the contrary ; 
 for there is a greater Sign that the 
 Minds of the Parties are altered from 
 the verbal Agreement, than that they 
 continue the fame, when they leave 
 no folemn Teftimony that there was 
 fuch a one. 
 
 But
 
 58 mts atto xttifts. 
 
 A Co. 7 5, gut by Deed a Ufe may be raifed 
 1 AnV. upon a Fine /^r Grant & Render; 
 So,8i,82. for other wife the Deed muft be wholly 
 
 pK^^'?! ^^^ '^^^^ ^^^^^^ *^^ Parties have never 
 cancelled, for that is capable of no 
 other Meaning j but the Fine has a 
 plain and diret^ Senfe, different from 
 the Implication of palTing a Vfe^ (piz) 
 to pals the legal Eftate ; and here it 
 paffes that only, becaufe when two 
 Contracts are niade, there muft be fuch 
 a Conftru(^ion of them, if poffible, that 
 both may have Effect; efpecially here, 
 where by the Words of the Deed it 
 appears, a Relation was dedgned to 
 each other. 
 
 But if the Fi7ie differs from the 
 Deed in Quantity or Quality, or of the 
 Land, or of the Perfons, or in any 
 other Circumftances, a verbal Aver- 
 ment may be allowed to reconcile 
 them ,• and the TJfes may well pafs by 
 the Deed catifa qua fnpra„ 
 
 A Man feized of a Manor in Fee, 
 to which there is an Jdmwfon appen- 
 dant^ bargains and fells them in Fee, 
 rendering Rent to the Bargainor in 
 Fee, provided the Bargainee regrant 
 the Advowfon for Life, ^c. The Bar- 
 gainor covenants to levy a Fiiie of the 
 Manor, cJ'r. to the Bargainee, and the 
 Bargainee mutually covenants to render 
 
 back
 
 Mtts atio %tuV^s, 5P 
 
 back the Rent, by the fame Fi/ze^ to 
 the Bargainor, the Bargainor and Bar- 
 gainee join in a Fine to J, S. who 
 grants and renders the Manor, (^c» 
 to the Bargainee in Fee, and the Rent 
 to the Bargainor in Tail, the Remain- 
 der in Fee to J, N. tho' the Bargain- aCa/ww 
 or and Bargainee join in the Fine to 70 to 82. 
 y. S. whereby the abfolute Eftate^^^^"^^ 
 feems to be lodged in him, and the to Sp. 
 Condition difpenfed with, and he ren- ^^°?' 
 ders over the Eftate to the Bargainee, q^// 
 as abfolute as he had it ; yet is not the 
 Bargainee f&ized of an abfolute Eftate 
 by the Grant and Render ; for the JJfe 
 of this Grant and Render will rife, on 
 the Deed declaring the Intent of the 
 Fine, Cmfa qua ftipra ; and according 
 to that the Bargainee has but a Con- 
 ditional Eftate ; And tho' the Deed 
 and Fine differ in Perfons, it being 
 levied to J, S. and in the Manner of 
 limiting the Rent, yet the Ufe as in 
 the Deed, may be averred to be the 
 Intent of the Fine. 
 
 At Common Law any Ufe might be 2 inft. 
 raifed by Words only. ^^^' 
 
 For Averment of Confiderations, fee Dy. 229. 
 Confideration, 1 1 Co, 
 
 Secondly,
 
 Secondly, ^j what Words Ufes ?/iay 
 he raifed, 
 
 vid. By A Man, in Confideration of S.'s 
 
 w'^rd ur ^^^^^^'^S^ ^^^^^ ^^^ ^°^ ^' covenants, 
 may he ^^at after his Death, the Lands iliall 
 raifedjtnce remain to the faid J» and S. and the 
 
 Fo/id'' ^^^^^ ^^ ^' ^^^' *^^ Marriage takes 
 Effed, yet the Ufes do not rife by this 
 Covenant ; for here the Seifin of the 
 Father is not appropriated to the feve- 
 ral Ufes, but only a Remainder limit" 
 ed after the Father's Death, which can- 
 not be without a particular Eftatej 
 nor that without a particular Contrad, 
 and no Man can contract with him- 
 felf. 
 aRo.Ab. The fame Law is if a Man grants 
 '^^* the faid Lands to his Son JB. after his 
 own Deceafe, to have and to hold to 
 S. and the Heirs of his Body begotten, 
 the Remainder to C in Tail. 
 2 Ro.Ab. If ^ Man feized in Fee fuffers a 
 787- Common Recovery, in Truft and 
 Confidence that the Recoveror would 
 execute it to him in Tail, Remainder in 
 Fee to his Son j tho' no Confideration 
 be exprelfed, or any Covenant to com- 
 pel him to execute it, the Court of 
 Chancery would have formerly forced 
 
 him
 
 MM ann %tms, a 
 
 him to it, and confcquently the Statute 
 will now execute it in him. 
 
 If a Man feized of Lands in Tally le- 9 Co. fo. 
 vies a Fiue, or fuffers a Recovery ^ and ^ ^ "^j^^ 
 declares no Ufes^ the ZT/^ refults to the 7, 8/9. 
 Tenant in Tail, and he becomes feized Jenk.cent 
 in Fee byVirtueof the Recovery ,becaufe *'** 
 the Recoveror is Tenant in Fee Simple, 
 and then no Ufes are declared of that 
 Recovery j and where no Confidera- 
 tion appears from the Recoveror, the 
 Recovery can be to no other Purpofe 
 than to dock the Entail. 
 
 If the Ufes of a Fine or Recovery 
 be declared by a precedent Indenture, 
 all Parties are eftopped from averring 
 any other Ufes of fuch Fine or Reco- 
 very, becaufe that was the original In- 
 tention of fuch Fine or Recovery ; but 
 if the Ufe be declared by an Inden- 
 ture fubfequent, no Parties are eftopped 
 from declaring other Ufes^ but fuch as 
 are Parties to the Deed j becaufe it does 
 not appear to be the original Intention 
 of fuch a Fine ^ and therefore a De- 
 claration of other Ufes may be averred, 
 and no Body is eftopped from fuch an 
 Averment, but thofe that are Parties 
 to the fubfequent Deed. 9 Co* 10, h^ 
 ill a* Caf inTarL 144, 145. 4 Mod^ 
 163. 5 Co. 26. a. Cro,Jac. 29, 
 
 But
 
 €2 Mtts atiD %mft6. 
 
 But if the Fi^e varies from the pre-* 
 cedent Deed, then any Perfon, as well 
 the Parties to fuch Deed as StrangerSj 
 may aver any other Ufes ; becaufe the 
 Deed not referring to the fame Time 
 is fubftantive, and the Ufes may be 
 averred as if there were no Deed at 
 all. 
 
 But by 29 Car. 2. of Frauds and Per- 
 juries, the refulting Ufe upon any Fine 
 or Recovery could not be altered with- 
 out Deed ; and then it became a Doubt 
 whether the refulting Ufes were not 
 executed, and thereby any fubfequent 
 Deed excluded : And therefore for 
 that Purpofe the Stat of 4 A;w. c. 16, 
 declares again, that a fubfequent Deed 
 may limit the Ufes of fuch Fine and 
 Recovery, 
 a Ro. Ab. If a Man gives, grants and confirms 
 78<>, 787. Jiis Lands to H. and his Heirs, with a 
 Claufe of Warra72ty^ and the Deed be 
 indented and enrolled, this fhall raife 
 an Ufe j becaufe it does not appear ta 
 be the Intent of the Parties to pafs it 
 by Way of Feofifment, notwithftand- 
 ing the Warranty ; inafmuch as a Ce- 
 fiuy qm Ufe can rebutt by Force of the 
 Fo. 2z. Warra7ity^ tho' he cannot vouch. 
 "B-Eaivf. If a valuable Confideration was gl- 
 F0.53.S.4 ven, the Fee palfed without the Word 
 Vid. Fo. jj^jjrj . for it was Confcience to con- 
 vey
 
 vey the Fee, (as 'tis faid) but the Law 
 is altered. 
 
 A Ufe may be entailed j for the co. Lit, 
 Chancery is bound up to the Mind of ^o- ^■ 
 the Donor by the Intent of the Ad of {^; ^l' 
 Parliament i and this Ufe may be bar- 
 red by the Fifie or Reco'very of the 
 Tenant in ^ail^ notwithftanding the 
 Party has not the legal Eftate, if there 
 be a Confideration for fuch a Convey- 
 ance ; for fuch a Perfon is out of the 
 Reach of the Statute : But where 
 there is no Confideration there is lefs 
 Equity in the Cafe, and therefore lefs 
 Reafon for the Chancery to interpofe. 
 
 If a Man feized of Lands in Fee 
 makes a Leafe for Life, and then co- 
 venants on valuable Confideration, to 
 ftand feized to the Ufe of Tenant in 
 Tail, and then Tenant for Life fuffers 
 a Common Recovery voluntarily, this 
 is no Forfeiture ; for tho' he has only 
 an Eftate for Life by Law, and confe- 
 quently it would, by the Rules of 
 Common Law, be a Forfeiture, yet 
 iince he in Reverfion held it under fur- 
 ther Trufts for Tenant for Life, he is 
 out of the Rule ; for there is no E- 
 quity that a Man fhould forfeit that 
 to another, which the other is bound to 
 preferve and keep for him^ and cannot 
 
 lay
 
 64 Wiits mn %mtt8. 
 
 lay hold of at any Time for his own 
 Advantage. 
 
 Thirdly, Hozv an Ufe may he raifed 
 hy Lnpli cation of Law. 
 
 a Ro.Ab. If a Man feized of Lands alone, 
 ^9' or with a Stranger, levies a Fine and 
 ^' ^^^' limits no Ufe^ it fhall be (as has been 
 faid) to his own Ufe by ImpHcation of 
 Lawj and the fame Law is of a Re- 
 covery or Feoffment. 
 "^ If a Man feized of Lands in 'Tail^ 
 
 levies a Fi72e or fuffers a Keco'very^ 
 and declares no TJfes^ the Vfe refults 
 to the Tenant in Tail, and he be- 
 comes feized in Fee by Virtue of the 
 Recovery, becaufe tne Recoveror is 
 Tenant in Fee ,• and when no JJfes are 
 declared of that Recovery, and no 
 Confideration arifes from the Reco- 
 veror, no Intent for levying that Fine, 
 ^c* it ihall be conftrued only to dock 
 the Entail. 
 
 If the JJfe of a Fine or Recovery be 
 declared by a precedent Indenture, all 
 Parties are eftopped from averring any 
 other Ufes of fuch Fine or Recovery; 
 but if the XJfes be declared by an In- 
 denture fubfequent, no Parties are e- 
 ftopped from averring other Ufes but 
 fuch as are Parties, cJ'c. Vid. all this 
 ante. If
 
 mtts ano %mfis. 6$ 
 
 If a Man makes a Leafc for Life or ^ Ro.Ab. 
 for Years, this fliall be to the Ufe of the '^^' 
 Lciree,or if a Leflce forLife orYears grants 
 over his Term, it is to the Ufe of the 
 Grantee ,• for (as is faid) the IJje of the 
 Country to declare Lands to be fafely 
 kept, has made the meer Delivery of 
 PoffelTion no Evidence of Right, without 
 a valuable Confideration. But thefe 
 leifer Eftates were not ufed to be deli- 
 vered to be kept for the future Sup- 
 port and Proviiion of the Family, and 
 therefore the meer Ad of delivering 
 PolTeirion palTed a Right, without Confi- 
 deration j fince there is no Prefumpti- 
 on from the Ufe of the Country that 
 thefe Eftates were transferred under fe- 
 cret Trufts ; efpeciaJly fince Rents were 
 ufually referved, and they fubjed to 
 Wafte and other Forfeitures. 
 
 If Leffee for Life or Years grants over a Ro. Ab. 
 his Eftate, and limits the Ufe but of Par- ^^^* 
 eel of the Eftate to the Grantee, the Re- 
 mainder of the Eftate fhall be to the 
 Ufe of the Grantee by Implication of 
 Law, cat fa qua ftipra. 
 
 Seventhly, %\)t fctjeral €)0^tj3 Of Wz^. 
 
 I. Jhfohtte or Contingent^ of which 
 hereafter* 
 
 F 2. Sole
 
 66 tilfes ana %t\xtts. 
 
 2, Sole or coujoi/Jt JJfes^ and co7ipi7it 
 Vfes may he dwided i?ito Eftates of 
 Jointenancy and 'tenancy in coin-, 
 mon, 
 
 Jointenancy comes under a two-fold \yV 
 vifion. 
 
 1. ^oint l*rufls» 
 
 2. Joint Bjfi ate s in life of'Truft, 
 
 FirAj Joint trufls are again two-fold^ 
 with or without an Intereji. 
 
 With an Intereft ; as if one devifeshis 
 Land to his Executors, to be fold, or 
 his Land to be fold by his Executors j 
 Co. Lit. which is all one, and equally transfers 
 i36,i8i.6|.j^g-£(^^^g„ for to devife Lands fignifies 
 to give, grant or difpofe of it by Will. 
 Without an Intereft ; as if one devifes 
 that his Executors fhall fell the Land j 
 for this does not only transfer it^ for to 
 grant that another iliall difpofe of it by 
 an A(ft of his, is not, till the A(ft be ac- 
 compli (lied, any Difpofition. 
 Co. Lit. And in the former Cafe the Intereft 
 xSi.^. furvives, and the Truft with it. 
 Cr^o'car ^^ ^" Bi^oXe be granted to J, and $. 
 ;ijj' j^j' for their Lives, to the Ufe of C. for Life, 
 if ^^. and g. die, the Eftate of C is deter- 
 mined. 
 
 But
 
 But if an Eftate be granted to thei>yi8<f.^. 
 Husband and Wife, hahend to the Huf- J^\\ '^' 
 band and Wife, to thcUfe of them and 244,5. 
 the Heirs of their Bodies, this is an E- 
 ftate in Tail, vefted in the Husband and 
 Wife; but this is not a Grant of an Ufe 
 divided from the Eftate, but a Grant of 
 the Eftate and the Ufe to the fame Per- 
 fon i fo that either the Word, mz* to the 
 Ufe Jiiuft he fet afide^ or that whole 
 Sentence, <viz, to the JJfe of them and 
 the Heirs of their Bodies, becaufe the 
 Parties have appointed no Pofteflion out 
 of which the Ufe of an Eftate Tail 
 may arife. 
 
 If there be a Joint Truft,'and one re- Co. Lie, 
 fufes, &€. to a6t according to the Truft^ ^J3- 1- 
 the other can a(5t only as to his Intereft. ^/?^„ •' 
 As if ft Man devifes Lands to Execu- 33S. 4. ^ 
 tors, to be fold, and one of thofe Join- ^®* 
 tenants refufes, (^c* the other could on- 
 ly fell his Moiety at Common Law ; but 
 now in this he may fell the whole, per 
 21 ZT. 8. c» 4. tho' the other refuTes or 
 diesk 
 
 Secondly, Joint Irufts without cifi 
 Interefi. 
 
 At Common Law thefe Joint Trufts Co. Lie. 
 are taken as Authorities, and don't fur- "*• ^^ 
 vive, for the Common Law judges of a 
 F 2 Man's
 
 68 tlfts atiD Xtufts* 
 
 Man's Defigns from his Words only j and 
 tlicrefore if a Man dcvifcs that J, S* 
 and J. N. fliall fell his Land, and one 
 of them diesj iince he has authorized and 
 put both of them into his Place, one 
 only can't reprefent him. 
 
 But if a Man devifes his Land to J^ 
 for Life, and that, after the Death of A. 
 his Executors, or that his Sons-in-Law 
 Co. Lit. {]^al[ fell it, and makes four Executors, 
 VAnd.^' o^ ^'^'•^^ ^^^ Sons-in-Law, and one of them 
 145' dies, the Survivors may fell it ^ for the 
 Authority remains with the Plural Num- 
 ber of them, by the plain Words of the 
 Dcvife^ for he has made thofe Perfons 
 that come under the Denomination, as 
 to that A-^, his lawful Reprefentativesi 
 and fince that Land was to be fold after his 
 'Death, 'tis highly probable that as one 
 of the four might die during his Life, 
 he could not abfolutely intend the Sale 
 fhould be by them all. 
 3 And. But if in this Cafe all die but one, he 
 l^^'. . has not an Authority to fell at Common 
 
 Lock a»d r r r 
 
 Loghing. Law, ca/ija qria fnpra, 
 Co. Lit. But the Court of Chancery, that con- 
 ii2,ii3- j],-]^.j.s the Nature of the Truft, will im- 
 power him to do it, and compel the 
 Heir to join with him, as if it be for the 
 Payment of Debts or Legacies, or to be 
 divided among Nephews or Relations f 
 for 'tis equitable that fuch an honefl: and 
 
 rea-
 
 Mtts anu XmCts. 69 
 
 rcafonable Dclign fhould be fupported, 
 tho' it can't Effed by thcRules in conftru- 
 ing thofe Words that ncccfl'arily govern 
 at Common La\v. 
 
 The Executors in the Cafe may fell ^^^'^^'J' 
 without Deed, for they arc btit Kepre- 
 fcntatives of the Tertator, and the \'cn- 
 dee is in by the Will. 
 
 If it be dcvifed that Executors fliould 
 fell, and one refufed^at Common Law, 
 the other could not fell any Part of it, 
 caufa qm fhpra ; but now he may fell 
 the whole, becaufe it is within the Equi- 
 ty of the Stat, of //. 8. 
 
 The Executors may fell any Part of Co. Llr, 
 it as they find Purchafers; for if they ^^3" '*• 
 have Authority over the whole they 
 have it over every Part ; for a Man can't 
 make void his own Ad by doing lefs 
 than his Authority, when he does an Ad 
 that he is authorized to do. 
 
 If one Executor refufes to fell or ad- ^°; ^^^' 
 minifter, the other can't fell the Land j And':^], 
 to him ; for fmcc they are authorized to 
 fell, they muft of Necelfity be excluded 
 from buying, fo that no Power was by 
 the Will given to fell to any of them, 
 but to all other Perfons excluiive of 
 them. 
 
 F 3 Second ly3
 
 70 Witts ftttD %tniiS. 
 
 Secondly, Jowt Eftates in a Ufe or 
 Truft. 
 
 1 Ro.Ab. j£- ^ y^^^ enfeoffs or levies a Fiqe to 
 ^5'co.55, ^. in Fee, to the Ufe of himfelf, and 
 ^' S. and their Heirs, they are at Com- 
 iRo.Abr! rnoi^ Law Jointenants of the X/fe, the 
 791.^ Eftate in a Ufe vefts according to the 
 CafL' Intent of the Parties, which was to place 
 the entire Ufe in them, and the Poffef- 
 fion only in J, and fince the Statute 
 executes the PolfefiTion in the fame Man- 
 ner as the Ufe was, they were not Te- 
 nants in Common, as one in by the 
 Common Law, and the other by the Sta- 
 tute, but Jointenants by the Words of 
 the Statute. 
 
 If a Man makes a Leafe for Life, Re^ 
 niainder in Fee to the Right Heirs of 
 y, S. and y. Nf alive, the Heirs are 
 Tenants in Common, for when J, S* 
 dies, his Heirs have either a fole Proper- 
 ty of the Fefe, or he has it with others j 
 he can't have it with others, becaufe 
 there is none in Being to take it with 
 him i and if he had a fole Property of 
 the Fee, it can't alter without fome Ad 
 of his own i but he can't have a fole Pro- 
 perty in the whole Remainder, for that 
 were exprefsly contrary to the Convey- 
 ^nce i he muft thqrefore have a fple Pro- 
 perty
 
 mite ano %tntts. 71 
 
 perty of the Fee in a Moiety ; which is 
 a Tenancy in Common. 
 
 But in Cafe of a Ufi Perfons may be ^g°g/-j^'^ 
 Jointenants that don't take at the fame j^Co'^6. 
 Time; as if a Man enfeoffs fuch a onei>M40'^ 
 to the Ufe of himfelf for Life, and of^\ 
 fuch a Wife as he fliail afterwards take, 
 they are Jointenants ^ for here the Huf^ 
 band has no Property in the Land, nei- 
 ther jf^/j iri re, nor ad rem^ but the Feof- 
 fee has the whole Property at firft to the 
 Husband only, and upon the Contingen- 
 cy of Marriage to them both entirely; 
 and this is the only Rule of Equity to 
 fupport the Truft in the fame Manner 
 the Parties have limited it, and now it 
 is executed by the Statute in the fame 
 Form as it was governed in Equity. 
 
 If a T^iffeifm be made to the Cy^^aLif. 
 of two, and one agrees at one Time, , co. jk. 
 and another at another Time, yet they Co. Uu 
 are Jointenants i for every fubfequent ^^Lcon, 
 Confent is equal to a Command pre- 225. 
 cedent; and if both had commanded 
 the Diffeizw, the firft Adt had been the 
 Ad of both i and therefore from that 
 Ad done, they are now efteemed as 
 Joint T)iJJeifors, 
 
 If a Man infeoffs A to the Ufe of A "^ff/^^ 
 and ^. they are Jointenants, tho' S.gave 
 no Coniideration, becaufe the Ufe is dif- 
 pofcd of exprefly to him. 
 
 -' F4 u
 
 72 tmfes antj %n\tts. 
 
 Cha.Rep. If Father and Son join in the Pur- 
 
 Scroope chafe of Lands, on a valuable Confide- 
 
 uerfus ration, and the Father afterwards devi- 
 
 Scroope. £^3 ^hofe Lands, the Court of Chancery 
 
 will not fuppofe the Concurrence of the 
 
 Son was only in Truft for the Father ; 
 
 but that he was made Jointenant for his 
 
 own Advantage ; and this was the anti- 
 
 cnt Way of Purchafe to avoid Wardfhips, 
 
 Eighthly, -CIjc Jnconijcnicncieg of 
 
 Tho' thefe Ufes had a very equitable 
 Beginning i yet like all new Models and 
 general Schemes of ordering Property, 
 it introduced a great many unforcfeen In- 
 conveniencies, and fubverted in many In- 
 ftances the Inftitution and Policy of the 
 Common Law. 
 
 Firft:, Eftates paffed by Way of Ufe^ 
 from one to another, by bare Words on- 
 ly, without any folemn Ceremony or 
 
 Stat. 27, permanent Record of the Tranfacftion ; 
 
 H.8. CIO. -vvhereby a third Perfon that had Right 
 
 4. °* ^^'knew notagainft whom to bring his Ac- 
 
 1 And. tion. 
 
 Poph. 73. Secojidly, UJes pafling by Will, the 
 ^* Heirs were dilinherited by the inadver- 
 tent Words of dying Pcrfons, 
 
 Thirdlj:,^
 
 "Thirdly, Lords loft their Wardfliips, ibid. 
 Reliefs, Marriages and Efcheatsj the 
 Truftees letting Ceftuy que Ufe continue 
 the Poflcilion ; whereby the real Tenants 
 that held the Lands could not be difco- 
 vercd. 
 
 Fonrthl}\ The King loft the Eftates ibid 
 of Aliens and Criminals ^ for they made 
 their Friends Truftees, who kept PofteC 
 fion, and fccretly gave them the Profits 
 fo as the Uje was undifcovered. 
 
 Fifthly, Purchafers were unfecure jfor ibid, j 
 the Alienation of Cefttiy que Ufe in Pof- 
 feflion was at Common Law a T>ifjeifiriy 
 and I R. 3. f. I. gave him Power to a- 
 lien what he had ,• yet the Fcoftces may 
 ftili enter to reveft a Remainder or con- 
 tingent Ufe, which were never publiflied 
 by any Record or Livery, whereby the 
 Purchafer could know of them. 
 
 Sixthly, The Ufe was not fubjcd to ibii. 
 the Payment of Debts, caufa qua fiip'r/^ 
 fol. 7. 
 
 Eighthly, Many loft theit Rights by ibid. 
 Perjury, in Averment of fecret Ufes. 
 
 Ni/ithly, Ufes might be allowed in ^bld. 
 Mortmain. 
 
 See The Meratio7i of 'Property by 'the 
 Stat. 27 H. 8. cap. i6. 
 
 The Defign of this Law was utterly Vaugh. 
 to abolifti and deftroV that pernicious 5^- 
 
 ^Vay
 
 74 ^ft^ ^tto %mtts. 
 
 Way of Conveyance ,• and the Means 
 they took to do it was to make the 
 Poueflion fall in with the Ufe in the fame 
 Manner as the Ufe was limited i and 
 where they were all Freeholds, it was 
 thought they would be then fubjcd to 
 the Rules of Common Lawj but the 
 Method has not anfwered the Legifla- 
 ture's Intent ,• for it has introduced feve- 
 Tal Sorts of Conveyances quite oppofite 
 to the Rules of Common Law : For 
 now wherever a Ufe is raifed,the Statute 
 gives Cefttiy que Ufe the PoiTefTion ; fo 
 that 'tis only neceUary to form a Ufe^ 
 and the PoltelTion palTes, without any 
 Li'very or Record at all, and the Re- 
 Co. Lit. verfions, without the Attornment of par- 
 ^°^' ticular Tenants ^ and how the other 
 Purpofes of the Statute be evaded will 
 after appear. 
 
 Here is to be confidered,- 
 Firft, ^he federal Sons of Ufes executed 
 hy the fonner Clanfe of the Statute^ ajid 
 their fe'veral Incidents, 
 Secondly, I'he Execution of Jointures 
 
 hy the latter Qlaufes cf the Statute. 
 .Thirdly, ne Cafes out of the Statute, 
 
 Firjl;, Of the feveral Kinds of Ufes i and 
 they are two-fold ^ c^/^, 
 
 I. Ufes //ijEffe. 
 
 ;z* Ufes in Poflibility, 
 
 Firft,
 
 Mtts anu %xms, 75 
 
 Firftj Ufes tu Effe ,• aud they are rai- 
 Jed by T'ra?ifjmitatio7i of ToJ}e[fio?ij or 
 without tt. 
 
 Firft:, Of Ufes raifed by Tranfmutatlorx 
 of Pofleffion i as upon a Fine^ Feoff"., 
 pe7}t^ or Reco'very* 
 
 If In what Ma7mer they are rait 
 fed. V. Poftea. 
 
 2. I/i what Mariner they are exe- 
 0itedfince the Statute. V. Poftea, 
 
 3. In what Manner they are plead- 
 abko 
 
 pirftj In what Manner they are raifed 
 iince the Statute, dj'c. 
 
 !• ^J ^^^t Rules of Law Ufes are go- 
 ^er72ed. 
 
 A Feoffment is made to the TJfe of ^''^•^^ 
 J. S. and his Heirs Males lawfully be- Dy.159. 
 gotten, with Remainder oyer, this does ^ Co. S7. 
 not pafs an Eftate Tail, but a Fee Si7Jiple^ Co.Lie.iq 
 fincethe Statute j for fincethc Statute has 
 brought theUfes into PoffefTion^they ought 
 to be governed by the Rules of Eftates 
 in Poflefifion, as to the Words that are 
 elTential to the creating fuch Ufes. 
 JSpWj if there be no Words eflential to 
 
 the
 
 76 Mfts ano %vn1is. 
 
 the Creating of an Eftatc,- there is no 
 fuch Eft ate at Common Law, and the 
 Statute has not abrogated the Common 
 Law fo far as to allow an Eftate in 
 Being, without Words neceflary to cre- 
 ate it ; and here no body is limited 
 from whence the Heirs of the Tail 
 may proceed. Alfo no Fee Simple 
 can be created in Ufes^ without the 
 Word Heirs y fmce the Statute, for the 
 fame Rcafon. 
 aRo.Ab. j£ ^ j^j^^^ makes a Feoffment to the 
 
 Sed o.pcr Ufe of himfelf for Years, the Remain- 
 ?J^» . -^ dcr to B. in Tail, Remainder to his own 
 order to Right Hcirs, and after B. dies without 
 make this Ifluc, living the Feoffor, the Remainder 
 d^Zl'lin- to the Right Heirs, is void, becaufe it 
 gent, the bcing Contingent, there is no Eftate of 
 Limhatt- Fi'eehold to fupport it ; for here is no 
 ^ot'toLtoT'^^^^^it to the Trecipe; and the not 
 iheVfe ^/having a perpetual Tenant to the 
 rear7 Re- '^^^^clpe was an Inconvenience the Sta- 
 mainder to tuto cxprefly defigncd to redrefs, and 
 B.;» Trti/, confequently to this Rule the Statute has 
 der^To"' fubmitted all Ufes. 
 He right If a Man makes a Feoffment in Fee 
 c%1he ^^ *^^ Ufeoij, for Life, the Remainder 
 Cafe^as re- to his firft Son in Tail, the Remainder to 
 fortedin ^^ [^ Fcc ; \£ A. dics, liis Wife being 
 taken he"e,P^'^''^^^^^^^t 'E7tfie7it ^ and a Son is aftcr- 
 doeinot wards born, he fhall take nothin g : for 
 ancar to •£ ^}^^ Remainder does not veft*the De- 
 
 be a con- ^ , 
 
 Singent Remainder, Stc. tcrmmatibq
 
 WLtts ani) Xnifts. 77 
 
 termination of the particular Eftatc, 
 it iliall never veil: ,- for, as is faid before, 
 the Statute does not change the Na- 
 ture and Being of Eftates that were 
 fettled at Common Law, and a Re- 
 mainder ^-x ci Termifii fuppofes a par- 
 ticular Eftate, of which it doth remain. 
 If a Man makes a Feoffment in Fee 
 to the Ufe of J. his Son for Life, and 
 afterwards to the Ufe of every Perfon 
 that iliall be his Heirs, for Life only, 
 'tis not good to the Heir ,• for it is a- 
 gainft the Rules of Common Law, that 
 a perpetual Freehold for Life only 
 iliould defccnd, becaufe it creates a i C0.13S 
 Perpetuity ; but it feems in this Cafe, '^' 
 as if the Chancery (fince there is fup- 
 pofed a good Confideration) would have 
 executed a Fee in J. according to the 
 Intent of the Parties. 
 
 2. What Rt/ks of Law are fet ajide hy 
 the Statute* 
 
 If a Man makes a Feoffment in Fee^ 
 to the Ufe of A in Fee^ but upon Pay- 
 ment of 1 00 /. or any other Contingen- 
 cy to the Ufe of S. in Fee, if the Con- 
 tingency happens, the Fee fhall be 
 executed in B, for though, according 
 to the Rules of Common Law, a Fee 
 cant be limited on a Fee, becaufe a 
 Tee Sivipk is the largell Eftate that 
 
 can
 
 can be limited ; and therefore will not 
 bear a Remainder over, by Way of 
 Limitation j and this can't be conftrued 
 a conditional Eftate ; becaufe, to avoid 
 Maintenance, the Common Law al- 
 lows no Stranger to take Advantage of 
 a Condition: But the Neceflfities of 
 Commerce and Family Settlements in- 
 duced the Chancery to pafs by this 
 Rule, and the Statute has executed the 
 PoifeflTion in the fame Manner and Form 
 as the Party had the Ufe, Now fince he 
 had but a conditional Fee in the TJfi 
 before the Statute, he can't have an ab- 
 folute and unconditional Eftate, fince 
 the Statute ; for that is to fet up an E- 
 ftate diredly contrary to the exprefs 
 ^Words of the Statute* 
 
 Secondly, I/i what Mcumer Ufes are ex^ 
 ecuted by the Statute. Ante, 
 
 If there be a Tenant in Tail, the Rd- 
 
 rnainder in Fee, and Tenant in Tail 
 
 makes a Feoffment in Fee, and dies, 
 
 the llTue lliall not be remitted, 
 
 t)avtfon*f Where a Feme is Tenant to Life, Re- 
 
 ^Y*' mainder to the Heirs of the Husband, 
 
 aaz. and the Husband makes a Feoffment in 
 
 iin 348 Fee, to the Ufe of himfelf and his Wife^ 
 
 for their Lives, the Remainder to their 
 
 own Right Heirs, the Husband dies, the 
 
 Wife ij not remitted. The
 
 The Reafon is, becaufe no Man can 
 be remitted contrary to his own A^ft, 
 and a Statute is interpreted to be the 
 Ad of every one, and therefore the Feme 
 Covert and Heir, that are in by the Sta- 
 tute^ can't be remitted. 
 
 If a Man fuffers a Recovery 07i the Ro* Ab. 
 Morrow of all Souls^ and an Indenture is ^^harfon 
 dated the Firft of Noveinher^ wherein andWcm- 
 he expreiTcd, that all Recoveries here- ^°^^'*' 
 after to be fuffered between the Parties, 
 ihall be to the TJfes contained in this 
 hideiiture^ the JJfes limited in this /«- 
 dejitnre fhall not be executed on the Bje^ 
 covery fuffered before ^ for tho' the Term 
 be as of one Day, and Judgment as of 
 the kft Day of the Term, the Reco- 
 veries being taken as common Afluran- 
 ces and JJfes^ according to the Parties 
 Intent, the Word hereafter excludes the 
 JJfes from being executed on the Re- 
 covery. 
 
 If a Man pofTeffed of a Term afTigns Pop, 7^' 
 it over, or grants it to a Ufe^ this is not 
 executed by the Statute, becaufe the 
 Words of the Statute are, whofoever 
 is feized to a Ufe^ the Ufe ihall be ex- 
 ecuted, ^c* But there is Seifin only of 
 an Eftate of Freehold, and the Incon- 
 veniencies, that this Statute defigns to 
 redrefs, lay in Freeholds only. 
 
 But
 
 So Mits atiD %tntt&. 
 
 ainft.ijjr. g^t a Man may limit the Ufes of a 
 1^^^- 55. Freehold for Years, and the Z7y^ lliall be 
 
 executed by the Statute. 
 
 To the Execution of a Ufe four 
 
 Things are ncceflary. 
 
 1. There ot/ght to be a Person Seized^ 
 
 2. Ceftuy que Ufe in Rerum Natura. 
 
 3. J Ufe //^ Effe ?';/ ^offe[fi07U, Recer- 
 fioji or Remai?ider» 
 
 iCo. ii5. ^. That the EJiate of the Feoffees 
 may 'veft in Ceftuy que Ufe, and 
 here o?ily the fir ft and fourth Thing 
 is to he confidered j for the fecond 
 and third Confideration fall under 
 co7itingent Ufes. 
 
 Tirfi^ There ought to be a Perfon 
 feized, for the Words of the Statute are, 
 if any Perfon ftand or be feized, and 
 if the Feolfees be dilfeifed, and then 
 the Statute were made, the Feoffees 
 have only a Right of Poffeffion, and that 
 be executed 5 for the Words of the Sta- 
 tute are, that the Eftate, Right and 
 iCo. la^. Polfeflion fhall be in Ceftuy que Ufe^ 
 *• yet this muft be referred to the pre- 
 
 ceding Words, and that is in Cafe 
 where the Feoffees ftand feized. 
 
 Thirdly,
 
 Mits tim %vnns. 8 1 
 
 Thirdly, //? what Manner they are 
 pleadable. 
 
 If a Man makes a Feoflfment in Fee Owen u, 
 to J, to the Z7/^ of S. S. may plead 
 this Feoffment, and fliew that J, S* dif- 2,7wir- 
 feized him, without laying any aUual m"an. 
 Entrjr\ for the Statute executes the Pof- 
 lefTion in him ^ he may alfo plead it 
 without iliewing any Agreement there- 
 to, becaufe the Freehold is in him, un- 
 lefs he difagree, and then it mufl: be owen S7, 
 iliewn on the other Side, for thereby . 
 the Freehold is immediately out of 
 him. 
 
 But in Trefpafs he muft fhew an ac- 
 tual Entry ; for this Adlion is grounded 
 on the Difturbance of his PolTcilion, or 
 the Violation of his Right by taking the 
 adual Profits, which no Man could 
 hinder him from, or difturb him in, till 
 he fliews he was in Poifefiion. 
 
 In Tkadi72gt\ic Party iliew'd that A^^Si^'of- 
 was feifed to the Ufe of B. and lay a ^"5, 
 ^ijfeiziny without fhewing how he c. 8. 10. 
 came to be feized, and it was held good ,• ^/^vf ''■^ 
 Ceftity qm Ufe can't juftify the taking 338.1.13, 
 of Beafts lDa?nage-feafa7it before the 
 Statute, becaufe he had no Eftate at 
 Common Law i but he may iince the 
 Statute. 
 
 G if
 
 82 mts atiD XtuRs;. 
 
 Bro. F. If a Man pleads that he bought the 
 l[^{c\ S. Land for 20 /. without (hewing the Mo- 
 j 5. a. ncy paid, or a Day alledged for the Pay- 
 ment of it, this is good; for Buying 
 implies Payment of the Money; and if 
 there was none paid, the Plaintiff may 
 reply, he did not buy, dc. 
 
 Secondly, Of Ufcs that pafs without 
 "Traufmutation of TofTeffto/iy and they 
 are two-fold according to the two- 
 fold Confideratiofi before*Me/itioued» 
 
 tirft, Raifed hj Way of Bargain a7id 
 Sale, on the Conjideration of Mo?iej\ 
 
 Secondly, 'By Way of Covenant tojiand 
 feizedy on the Confidemtion of Blood. 
 
 Flrjl^ By Bargain and Sale. Bargain 
 and Sale is a Contract in Confidera- 
 tion of Money, pafling an Eftate in 
 Lands by Deed indented and inroUed, 
 if a Freehold of Inheritance; if other- 
 wife, by Word only j and here it is to 
 be coniidered, 
 
 li ithe fe'veral Tartr ff the Defini- 
 tion. 
 
 2. T'he EfeB of this Conveyance. 
 
 3. ^he Expq/ition of it, 
 
 4. The Pleading of B^rgsilns and 
 Sales, 
 
 Firji,
 
 Firfiy The feveral Parts of this Defini- 
 tion, and they are five, 
 
 fi. W^o may Bargain and Sell* 
 ,2. !7o Whom, a7id both thefe are im\ 
 plyed i7i its being a Coiitra'ci- 
 
 3. T^he Confideration, of which is al- 
 ready /pokeu, 
 
 4. What may be Bargained and Sold, 
 
 5. In what Maimer a Bargain and 
 Sale may be made* 
 
 Firft, Who may Bargain and Sell. 
 
 The King and all other Perfons that 44 eHz.^ 
 can't be feized to a Ufe^ can t bargain ^' g'"^°^* 
 and Sell i for when a Man had fold his ki„s and 
 Land for Money, without giving Li- Lung. 
 *very^ the Ufe pafled in Equity, as it is 
 faid; and this is executed and becomes 
 a Bargain and Sale by the Statute, and 
 antecedent to any fuch Execution i 
 here muft be a JJje well raifed, which 
 can't be without a Perfon capable of be- 
 ing Seized to a Ufe, 
 
 If T^eiiant in T,ail bargains, and fells icCo.'p^^ 
 his Land in Fee, this pafles an Eftate ^\^^^ 
 determinable upon the Life of Tenant in .^o, Ui\ 
 Tail J for at Common Law, the JJfe could 
 not be granted of any greater Eftate 
 than the Party had in him. Now Te- 
 G 2 nant
 
 S4 tmfejs mh %t\tfts. 
 
 nant in T^ail had an Inheritance in him, 
 but he could difpofe of it only du- 
 ring his own Life, and therefore when 
 he fells the Ufe in Fee, Ceftf/y que Ufe 
 has a Kind of Inheritance, yet deter- 
 mining within the Compafs of a Life ; 
 and the Statute executes it in the fame 
 Manner as he has the Ufe^ and confe- 
 qucntly he will have fome Properties of 
 a T^e7ia7it in Fee^ and fome of a l!e' 
 iC.i4,T5. fiant for Life onlyj but if T'e/iant for 
 ^tub^ Life bargains and fells in Fee^ this paf- 
 fes only an Eftate for Life, for he could 
 not pafs the Ufe of an Eftate for Life 
 to the Bargainee, and the Statute ex- 
 ecutes the PofTeflion as the Party has 
 the Ufe* 
 
 Secondly, To who7n a Bargain a?id Sale 
 maji he made. 
 
 7 Co. 40- A Man may jBargai/z and Sell to his 
 
 Cro^Eh''"* ^^"5 ^"^ y^^ *^^ Confideration of Mo- 
 394. TiSy ought to be expreffed, and it ought 
 I Vern. to have all the other Circumftances of 
 ^^^' a ^Bargain and Sale 3 but this ihall ope- 
 rate as a Co'venant to ft and Seized^ if 
 there be none but the Confideration of 
 natural Love and Affedion exprefled. 
 loCo. 24, A Man may bargain and Sell to a 
 ^R Ah Corporatioji', for they may take a Ufe 
 jss!" '^'tho' the Money be given by the Gover- 
 nors
 
 Witts mh Xtufts. 8 J 
 
 nors in the natural Capacity, and a JBar- 
 gain and Sale in Truft to them is good, 
 tho' the Truft be void when limited to 
 other Perfons, cciufa qua fnpra. 
 
 Thirdly, Of the Confideration^ of which 
 fufficie7it hath heenfaid before. 
 
 Fourthly, What may he hargai7ied and 
 fold. 
 
 Any Freehold or Inheritance in Pof- 3^^°- 54- 
 feflion, Reverfion, or Remainder up- J^^2^\, 
 on an Eftate for Years or for Life, or co. 69. ^ 
 in T^ail may be bargained and fold, and 
 it fliall be enrolled. A Rent in B.Jfe may 
 be bargained and fold, becaufe this is a 
 Freehold within the Statute. 
 
 A Man pofTeffed of a Term can't bar- Pop. 76^. 
 gain and fell it fo as to be executed 
 by the Statute, caufa qua fiipra, A7itea. 
 
 But a Man feized of a Freehold may ^^nft.^yT. 
 bargain and fell it for Years, ca7ifa ^^Ip^^"', 
 qua fuprUr^ ibid. And this fliall be exe- 6, 94, ■ 
 cuted by the Statute of l/fes, but it ^f""-^^^ 
 need not be enrolled by the Statute of* 
 Enrollment. 
 
 Before the Statute, a Rent newly 
 created might be bargained and fold ; 
 becaufe when the Money as an Equi- 
 valent was given, and Ceremonies or 
 Words of Law were wanting, the Chan- Roll 8;, 
 G 3 eery
 
 8^ Wiits atiti %t\xtts* 
 
 eery fupplied them ; therefore this was 
 good to pafs the Eftate without any 
 Words of Granting. 
 1 Co. 125. But fince the Statute, a Re^t newly 
 iAnd.327 created, can t be bargained and fold, 
 becaufe there ought to be a Freehold in 
 fome other Perfon to be executed in 
 Cefttiy que TJfe ,• but there can be no 
 Seizin or this Re7it in the Bargainor, be- 
 caufe no Man can be feized of a Rent 
 in his own Land ; and confequently 
 there can be no Eftate to be executed in 
 the Bargainee. 
 Keii.84. If a Man fells 20/. Worth of his 
 « Co. ^-l'. Land, parcel of a Manor, this is void, 
 for that 'tis neither certaiii in it felf 
 nor reducible to a Certainty i for no 
 Man is made a Judge of the Value ; 
 otherwife it feems, if he had granted 
 the 20 Acres Parcel of this Manor, for 
 an Acre is a Thing certain, and the 
 Situation may be reduced to a Certain- 
 ty by his Eledion. 
 Keil. S4. If a Son bargains and fells the Inhe- 
 J^'c ^ ' ritance of his Father, this is void • be- 
 caufe he hath no Right to transfer, and 
 the fame Law is of a Releafe, 
 
 But if the Son makes a Feoffment of 
 
 the Inheritance of his Father, this paf- 
 
 fes an Eftate during the Son's Life^ for 
 
 Co. Lit. it is a Dijfeiziii to the Father j and the 
 
 ^^5'"^ Son after the Father's Death, can't a- 
 
 void
 
 tares atin Xrufts; 87 
 
 void it ; for no Man can al ledge an In- 
 jury in any voluntary A6k of his own. 
 
 But if the Son rekafes^ with Warra7ity^ ibid. 
 he and his Heirs are for ever hereafter 
 barred of the Rebutter. 
 
 If there be two ^ointejiants-^ and 
 one of them bargains and fells all his 
 Eftate, and before Inrollment the o- 
 ther dies, the jBargaiuee hath only a 
 Moiety, and the Bargainor is in of a 
 Moiety furviving. 
 
 If Husha?id^ feizcd of Lands, in Right j ?"^'' 5* 
 of his Wife, or Tenant in Tail h^^- ^^l i„^°' 
 gains and fells Trees in the Lands, and Biuingly 
 dies before Severance, the ^^"g^^^^^^'fc^^ca/e, 
 hath nothing ; for they are not Chat- Moor 41! 
 ties ; and as fuch, not difpofable till Se- 
 verance. 
 
 Fifthly^ In what Ma7mer it may he Bar- ainft-^75' 
 gained and Sold ; a72d here is^ i ft. To 
 he cofifidered^ hy what Words it may 
 he Bargained a7id Sold, sdly. Of the 
 Inrollment. 
 
 Firft, By zvhat Words it f/iay he Bargain- iina.eis- 
 ed aTid Sold. 
 
 At Common Law, Lands might be P7,u^^'. 
 bargained and fold by Words only, for cJ/e. 
 it was the Coniideration that in Equity Poph. 4S, 
 raifed the Ufe j but,fmce the Statute oi'ttr/.. 
 1 4 the and Co.
 
 88 MttS mh %Xttii&. 
 
 the 32 o^ H. Z.cap, 16. Lands can't pafs 
 without an Indenture, 
 py. 169. 'Tis not necelTary to a TJfe that the 
 Words 'Bargain and Sell are there, but 
 any Words equivalent are fufficient to 
 make a Covenant to ftand feized j for va- 
 luable Conlideration will raifea JJfe-^ fo 
 will theWord Gm^ Grants and Co7ifirm. 
 Cro. jac. The Words Bargain and Sell will 
 Moor -4.^^^* P^^^ ^ Reveriion until Attornment, 
 iCro. El. unlefs it be enrolled^ but the Word J- 
 ^^^' lien will i nor will the Words Gi've and 
 Grant J without a valuable Confideration 
 or Attornement, pafs a Rent, tho' the 
 Deed be inrolled. 
 
 'Tis already fnewn that if a Man makes 
 a Charter of Feoffme7it upon valuable 
 Confideration, with a Letter of Jftor- 
 ney to deliver Seizin\ the Party may 
 chufe either to receive Li'very^ or to 
 have the Deed inrolled, and fo take it by 
 Bargai?^ and Sale, 
 aCo. 35. A Man demiles, Bargains and Sells 
 wa/d'j ^ Manor, Part in Demefne, and Part in 
 X^afe. Tenants Hands, for 17 Years, the Party 
 may chufe either to take it by Way of 
 Leafe at Common Law ^ and then the 
 Tenants rauft attorn i or by Way of 
 Bargaifi and Sale without Attornment; 
 and this agrees with the Policy of the 
 Common Law, to#take every Man's 
 Grant, fo to pafs an Intcreft, as fliall be 
 
 moft
 
 mtts attu %tntts. $9 
 
 mofl: advantageous for the Grantee: 
 And fince in this Cafe the Words allow 
 a double Way of taking it, the Grantee * Leonard 
 fliall be at Liberty to judge which is moft ^f b\. 
 beneficial : So at Common Law, if J, Co. Lie. 
 makes a Leafe for Years to S. and after- 49- 
 wards makes a Charter of Feoffjiisnt to B* 
 who is in PolfelTion, by the Words T>ecli 
 O'Co/iceJJi with aLetter of Attorney ^to de- 
 liver Seizin, before Livery he may make 
 Ufe of the Deed as a Confirmation, and 
 afterwards as a Feoffment ^ and a Grant 
 to Tenant at Will, may enure as a 
 Confirmation, fince no hwerj is necef- Dy. 169, 
 fary to one in Poffellion. 
 
 Where Tenant for Years makes a Char- 
 ter of 'Feoffment upon a valuable Confide- 
 tion, by the Words 2)^^/ CJ Conceffi^ with 
 a Letter of Attorney, to deliver Seizin, 
 which is done accordingly ^ this is a For- 
 feiture, for this ilitdl not be taken as a 
 'Bargain and Sale^ whereby the Term^y*-*^-- 
 only is palled, which the LelTee might 
 lawfully pafs ^ but here Livery of Seizin 
 is authorized by him, which ever paf- 
 fes a Freehold, and is a DilTeizin to the 
 Reverfioner, and confequently a For- 
 feiture of his Term, 
 
 J. hy hide ?it we y\\i Confideration of na- 
 tural Affedion, grants to B. a Rc7it in 
 Effej hahefii to B. for Life, the Remain- 
 der to C in 'lail^ the Remainder to the 
 
 Right
 
 49 
 
 Right Heirs of J. after J.\ Death, and 
 
 there is an Attornment, and it is found 
 
 C was Coufin to J, and adjudged that 
 
 this lliould rife by Way of JJfe without 
 
 Attor7iment ; for there can be no Eftate 
 
 jackfon'/^t Common Law by Attornynent after 
 
 Pafch. *^^® Death of the Grantor ,• for to every 
 
 1 6 5 7« Contract a Grantor and Grantee is necef- 
 
 Co. Lit. £^j.y ^ ^^^ j£ ^j^y q£ ^q{q are wanting 
 
 when the Contra(f^ begins to take Ef- 
 fed, 'tis wholly void and infignificant. 
 
 Secondly^ Of the Enrolhnent^ it has 
 been already fhewn, that the Statute of 
 the 2'jH.^.cap. i o. by executing all i7/fx 
 raifed, introduced a fecret AVay of Con- 
 veyance, contrary to the Policy of the 
 Common Law ; and to remedy this, the 
 Enrollment of the Deeds o£ Bargaiji and 
 Sale was invented ; which \)ycap,i6, was 
 to be within fix Months after the Date. 
 And here three Things are to be con- 
 fidcrcd. 
 
 1. 'J he Relation hetweeji the Enroll- 
 ment a7i.d the Deed, 
 
 2. What E dates are to he em'olkd. 
 
 3. Whefz they are to he enrolled* 
 
 Fir fly The Relatio7i ■ between the JEI//* 
 rolhiiefit and the T>eed, 
 
 At Common Lazv^ the Ufe paflfed from 
 ipiie Delivery or Date of the Deed ^ by 
 
 the
 
 the Sfat, of the 27 of //.8. c. i o. the Tof 
 Jejfion pafTed, as the Party had the Ufe^ 
 which then was from the Delivery of the 
 Deed; but 'twas thought convenient to 
 add further Circumftances to thefe Con- 
 trafts; and therefore cap* 16. provided, 
 ^hat the Toffeffioji jJjojtld not ftafid or 
 alter from one to ajiother -■, or any Vfe he 
 made^ hy Reafoji of any bargain and 
 Saky nnkfs it he hy *Deed ijidented ajid 
 enrolled within fix Months, So that the 
 Bargain and Sale is void and ineffc(5lual 
 to any Purpofes^ unlefs it hath the 
 Qualifications required by the Statute : Dy. 218. 
 But if it hath thefe Qualifications, it "^^^^^ 
 hath the fame Effed it had before at4Co. 71. 
 Common Law, (to wit,) to raife thefol-57- 
 Ufes from the Delivery j for the Words 
 of the Statute are only to add fome 
 Things, and not to abolifh or fet afide 
 the Force it had formerly j and if the 
 Ufe palfes from the Date of the Deed, 
 the PolfelTion muft pafs in the fame 
 Manner by the 27 //. 8. c. 10. for this 
 Statute of Enrollment doth not deftroy 
 the Operation of the Stc\tute of Ufes^ 
 if the Conveyance be made cftcdtual 
 by all Circumftances required by this 
 Statute j and then the Statute of Ufes 
 muft have its Effetft, according to its own 
 Words, and pafs the PoflelTioa imme- 
 diately. 
 
 From
 
 From hence it follows, that the.^^r- 
 gai7iee hath not the Freehold till En- 
 rollment j for till then, there is no Con- 
 tract effectual to alter the Property. 
 M?"l!!* ^ ^^ ^ ^^^ bargains and fells his Manor -y 
 jac. in to which there is an Advowfon appen- 
 ^'"'"S^y daiit^ the Bargainee can make no Title 
 fe"y-jC/j/e,^o prefent before 'Rjtrollment, 
 Mackrcis A Heleafe to the Bargainor before 
 m'\ Co. ^^^^ollment^ is good ,• and it enures to 
 56.' rt. ' the Bargainee, becaufe the Releafor 
 can't claim the Right that he hath paf- 
 fed out of himfelf by his own Rekafe, 
 Bro;Tir. jf there be two Jointenajits^ and one 
 -Ti. Is. of them makes a Bargain and Sale of his 
 9. 6 E. 6. own Eftate in Fee, and then the other 
 Cro.jac. ^-^^^ the other Moiety fhall furvive to 
 Co. Lie. the Bargainor ; for fince the Freehold 
 3^8^. is in the 'Bar^ai^ior. the Joi72tme con- 
 
 j^ tniues. 
 i*Rep. If a Man bargains and fells his Land, 
 JJ*"'^'-' and then fuifers a Reco'ver}'^ levies a 
 Mo^or Fine, or makes a Feqff7ne7it to the Bar- 
 681, 337- gainee, and then the Deed is E^^rolkd ; 
 ?6t"l*o^-! ^^^ L^nd paifcs by the Reco'very., Fine 
 4Leon. 4. or Feoffment \ for fInce the Freehold 
 Poph49. and life is in the 'Bargamor till En- 
 -o ^^^'j-ollment, it muft pafs by the Recove- 
 ry, (jc. And when it has pafTed by the 
 Recovery, the Ufe can't rife, nor the 
 Poffcfifion be executed from the Date 
 of the Deed. 
 
 But
 
 Wiits ano %tnfis. ^3,^ 
 
 But if the Land had been in any City, ^'^;['^ 
 Burrough or Town Corporate^ that have Jjj^^"^:^* 
 the Privilege of Eftrolhie?it^ it had 
 been otherwife ; for they are excepted 
 out of the Statute of Enrollment ^ and 
 fo the PoflefTion is executed from the 
 Date of the Deed. 
 
 If a Man "Bargaitis and Sells Land 
 to J, and then grants a Kefit-Charge to 
 S. and then levies a Fi7ze to the K.i7ig^ 
 and then 'tis to be enrolled, he fhall 
 hold the Land difcharged ; for the Land 
 paffes by the Grant,- for Grants to 
 the King muft be by Matter of Record, 
 and not Deeds recorded, as are the Sales 
 of common Perfons ,• and there can be no 
 Averment or Proof againft a Record ; 
 and by the Record, it appears, if any 
 Intereft were transferred, it palled from 
 the Date which was before the Fine : 
 Alfo when fuch Deed is acknowledged • 
 in Court, 'tis good without Enrollment ; 
 for *tis not the Enrollment, but the Ac- 
 knowledgment of it, in a Court of Jufcice 
 which gives it the Sanation of a Record. 
 
 Fro?n hence it likewife follows^ that af- 
 ter Inrollment, the Freehold is in the 
 Bargainee /f^;// the Date of the Deed, 
 
 If the bargainor or Bargainee dies ^^n&.6U' 
 before Enrolhnent^ it may be enrolled ; f ^^nd.'*^* 
 
 tor 229, vide 
 Godbolr, C«/ff 537.
 
 94 ^ftsf atio %m(ts* 
 
 for here are Parties to give and take 
 the Iiitereft when it begins to veft ; for 
 it vefts from the Date of the Deed ; o- 
 therwife it is in Cafe of Attornment- 
 
 If a Man Bcirgm72S and Sells his 
 Lands, the Bargainee may be T^e7ia?it 
 to the ^Precipe before Enrollment. 
 
 He may, by the better Opinion, re- 
 ceive a Heleafe before IBjfirolhneiit, 
 I And. The ^^r_^^///^^ may maintain an Jf- 
 ^^^* pze before Ejirollment. 
 
 If there be two JointeiiantS', and one 
 of them Bargains and Sells to another 
 Statuvi fmirn in Fee, and dies before ILti-^ 
 rollment^ and after *tis enrolled, his Moi- 
 ety pafl'es to the Bargainee^ and fhall 
 not furvive. 
 Hale ani If ^ Man "Bargains and Sells a Re- 
 iaJhcs verfion, and the Rent is incurred ^ and 
 151. afterwards the Deed is enrolled, the Bar- 
 isid. siOgr^//;^^ {hall have the Rent unpaid ^ but 
 2odboit, if the Rent be once paid to the Bar- 
 Cafe io9'gainor, that will be a good Payment 
 by the Tenant of the Land ; and the 
 Bargainor is not accountable ; becaufe 
 the Contrad had not any Effeifr to pafs 
 the Eftate from the Bargainor before 
 Enrollment; and the Relation of the 
 Law can't make void an Adt that was 
 lawful J for it can't be fct afide, but by 
 an exprefs and pofitive Law, 
 
 If
 
 If a Man makes a Leafe for Life, Owcn ^ 9, 
 with a Claufe of Re-entry^ referving a 
 Rent i and then 'Bargains and 4^^//^ the 
 K.e'verfiojij and the Bargainee demands 
 the Rent, and the Leffee refufes, and 
 then the Deed is enrolled, the Bargai- 
 nee can't E72ter for the Forfeiture -, for 
 till E7irolhnent, he is not Grantee of 
 the Reverfion within the Statute, ca- 
 pable of the Duty j and confcquently 5 h. s, 
 at the Day, could make no legal De- ^- 54- 
 mandj which was precedently necelTa-. 
 ry to his Eutry* 
 
 If Tenant for Life be impleaded af- 
 ter a 'Bargain and Sale of the Rever- 
 fion, and then the Deed is enrolled, the 
 Bargainee fliall be received ; though no 
 Man fhallbe received by the Stat.Weftm* ^vvcn 70, 
 2. that purchafes the Reverfion, pe7i' 
 de?ite lite. 
 
 If a Man feized in Fee^ is bound m Owen 70, 
 a Recog7iiza7ice^ and then Bargai7is \> *• 
 and Sells all his Lands, and then the Re- 2i"nft.<i74*. 
 cogmza7ice is forfeited ,• and then a 
 fcir.fac* is ilTued againft the Lands in 
 the Hands of the Bargai7io}\ and then 
 the Deed is enrolled j this Scir. fac» is 
 not maintainable. 
 
 If a Man JBargai7is and Sells his 
 Land to A* and before Enrollment 
 Bargai7i5 and Sells it by Deed to S. and 
 the laft Deed is firft enrolled, the laft
 
 96 tifesi atto xttx&s. 
 
 Deed is of no Effe(5t i for after Efiroll- 
 me?2t within the Time Deeds have 
 their Eflfed according to Common 
 Law i and confequentiy the firft Deed 
 Moor 42. j^^^th the whole Effeft, and the other 
 pafTes nothings the fame Law is of a 
 Fme levied to S. 
 Cro. Jac. If Land be "Bargained and Sold to J, 
 2inft.<)7 5.^"^ before H^zrolhnent A* the Bargainee 
 Hob. 15,6. Bagains and Sells it to ^. and^.'s Deed 
 Noy 10, i3 flj.ft enrolled, the Sale is good to B- 
 ' ' But QiJare \iBh Deed be firft enrolled ; 
 becaufe when the Contract firft becomes 
 effedual to pafs an Intereft, J, had no 
 Intereft transfctrred to him by any ef- 
 fcdual Contract, which he could pafs 
 over to B» and if a Contrad hath all 
 the Circumftances required by the Law 
 to make it of Force, and yet pafl'es no 
 Intereft, it can never pafs an Intereft af- 
 ter, according to the Rule, quod ah Ini- 
 tio non 'valit ex traUu teviporis 92071 
 co7walefcit. 
 z And, If Lands are Bargai?ied and Sold^ and 
 ^^^' a Stranger enters, and then the Deed is 
 enrolled, and the Bargainee dies, his Wife 
 fhall be Efidowed. 
 
 But if Lands are Bargained and Sold^ 
 and the Bargai72ee dies before Enroll- 
 ment, his Wife ihall not be endowed ; 
 for the E^ght of HDower is according to 
 the Rules oiQoinmon X^o', confummatc 
 
 by
 
 mtts ano %t\xtt8. 97 
 
 by the Death of the Husba7id j and at 
 the Death of the Husha7id^ the "Bargain 
 and Sale had no Effed; to veft the 
 Lands in him \ and tho' the Freehold, 
 after Enrollment has a Retrofped: to 
 the Date of the Deed,- yet there can't 
 thereby arife to the Wife a new Title 
 of 'Dower ^ contrary to the Rule of Com- 
 mon Law, without an exprefs Proviiion 
 by the Statute. 
 
 But if a Man 'Bargains and Sells Cro. Car. 
 Lands by Indenture^ and then takes a 5^9* 
 Wife^ and dies, and after the Deed is 
 enrolled, the Wife fhall not be en- 
 dowed* 
 
 If there be a Cuftom in Copyhold Cro. Car, 
 Lands, that the Wife of the Tenant 5^^' 5^9' 
 ihall be endowed of the Lands of which 
 he died pofTcffed, and the T'ena7it be- 
 comes a Bankrupt, and the Commif- 
 lioners of Bankrupts Bargain and Sdl Parker 
 the Lands, and the T'ena?it dies, the g^^^j^g 
 bargainee is admitted ; his Wife fliall 
 not be endowed; for aifter Enrollment 
 or Admittance, the Bargainee is in 
 from the Date of the Deed ; and con- 
 fequently is in paramount to the Wife's 
 ^itle of T>ower^ and all other Incumbran- 
 ces whatfoever made in the mean Time, 
 
 H 2. What i
 
 98 MUs ano %mfxs. 
 
 2. Wh^f BJiates ought to he e7irolkd<. 
 
 An Eftate of Freehold or Inheritance 
 *^"^*-7i- muft be enrolled,- but not Terms for 
 Years ,• for they are not within the 
 Words of the Statute. 
 
 If a Man Bargains and Sells Lands 
 t Co. 40. to his Son, in Confideration of Mojiey^ 
 
 ^a(f' ^^^^ ^^^^ *^^"^ ^^ Efirolled, 
 *^^' But if the Father in Confideration of 
 
 Mici 5.45) Natural Love and AffeUioii., and alfo 
 w^s^ 'rtwrf "^ Confideration of Money ^ grants Lands 
 Dick'i to his Son, this need not be enrolled i 
 ^s^\' qs ^*°^' Covenants to ftand fcized are not 
 Co,\m. * within the Words of the Statute i and 
 Lit.45K where the Confideration of Blood is 
 expreiTcd, it may enure as a Covenant 
 to ftand feizedi but *tis only a Sale 
 when the Confideration of Money is 
 alone expreffed j for that excludes all 
 other tacit Confiderations : And Cities, 
 Burroughs, (^c* that have the Privilege 
 of Enrollments, are not within the 
 Ad '3 for tho' the Intent of the Makers 
 of that Statute might be not to 
 have excepted them from Enrollments 
 in the Courts of Wejijmnller -, yet the 
 Statute IS fo worded, that they are dif- 
 charged from any Enrollment at all. 
 The Words arc," Provided always, that 
 il this Adl, nor any Thing therein con- 
 tained
 
 *^ tained extend not to any Mami':, 
 " Lands^ &c. 
 
 3. Wloeji it inay he eiir oiled* 
 
 It muft be enrolled zmthin fix Mo?tths 
 from the Date which lliall be account- 
 ed according to the Computation of 
 twenty-eight Days per Month ; for a^^"?-^74. 
 Month in its proper and original Signi-cafl^n-*' 
 fication is the Space Time meafured by<ius 5^. 
 the compleat "Courfe of the Moon ^ and 
 the Year is meafured by the Compli- 
 ment of the Sun's Courfe. 
 
 From the T)ate^ and from the T>ay of Co. fup, 
 the Tiate in this Cafe, is taken ail one, nl'ifelf 
 
 n 1 r^ n c i^ 5 Dalilon4. 
 
 as it IS m ail Other Cafes or Computa- Hob. 140. 
 tion ,• and therefore the Enrollment may ^"^^^"^ 40f 
 be on the 1)ay of the T>ate^ or on the oinft.674. 
 laft Day of the fixth Month after the 2R0.520. 
 T>ay of the T>ate; for tho' when an ^^;l^^' 
 Intereft palfes from the Day of the<5Coj,<5» 
 Date, the Day itfelf is excluded j yet 
 when a Time is ftinted, in which an 
 A(5t ought to be done, it is in Order 
 to haften the doing of that A(5t \ and 
 therefore the doing it on the Day from 
 whence the Period is firft reckoned, 
 within the Time appointed, and the 
 laft Day of the fixth Month, is within 
 the Words of the Time given. 
 
 H 2 If
 
 loo mfes ant) Xmfxs. 
 
 Hob. T40. If the 7)eed has no T>ate, the fix 
 Moo/42. Months are to be reckoned from the Ve- 
 liceryy but not otherwife. 
 
 Secondly, I'he EfftU of a Bargain anS. 
 
 Sale. 
 
 It works no Difcontinuance* 
 
 Sand.260. A Tenant in Tail, bargains and {cWs 
 Moor 42! ^is Lands in Fee, only an Eftate of 
 Freehold pafTes j bccaufe it is determina- 
 ble within the Compafs of a Life, and, 
 therefore he can't devife it ^ for the Sta- 
 tute of 32 ^. I. 35^. 8. 3. give only a 
 Power to devife a Fee Simple, which 
 is the exprefs Expofition of the Word 
 hiheritaiice, 
 iCo. 98i. gut- yet ^-j^e 'Bargainee hath feveral 
 25i. ' , Properties of a Teuant in Fee^ he is 
 1jifpfJ7iiJl3ahle of Wdfte^ doth not forfeit 
 by Alienation ; and the Reafon is, be- 
 caufe, as he gave a Coniideration for 
 the Ufe of the Fee, 'tis fit he fhould 
 have all the Properties of the Fee that 
 were not prejudicial to the Right of 
 ibid.Sandthe IJfue in 'Taily and were not within 
 the Power of the Father to difpofe of. 
 ^ If the Wife he dowahle, 
 J Sand. ^^t i^ Tenant in Tail Bargains and 
 a6i. Sells Lands in Fee, and afterwards Le- 
 Br^ Feoff. '^^^^ a Fine:, the bargainee is then 
 7*^/337.3.5. 7, lu H. 8. 21, fcizcd
 
 fcifcd of a Fee-fimpk determinable on 
 the Eftdte Tail, inafmuch as the Iffhe 
 in Tail is barred by the Fi/ie^ for that 
 bars all Parties and Privies, tho' not 
 the Remainder Man j and when the 
 Right of the Tenant is extinguiflied 
 the JJJhe hath no Claim againft the 
 Tenant of his Anceftor; but if the JBar^ 
 gai/jee had levied a Fl/^e^ the Iffue, by 
 the Statute of Fines has five Years from Cro. tii'i, 
 the Defcent ,• for the Anceftor could ^^'^• 
 not claim in his Life-time. 
 
 If the bargainee in this Cafe dcvi- 
 fes the Lands, and 6^v:^s^ and afteru^ards 
 the Bargainor levies a Fine^ the Heir 
 of the Bargainee fhall have it, and not i Sand. 
 the Devifcc, for the Devife is Con- ^•^* 
 fummate at the Time of the Death of 
 the Devifor, and if then it be void, it 
 cannot after be made good. 
 
 If Tenant in Tail Bargaijis and Sells * ^^"^' 
 his Land in Fee, and then levies a Fi72e ^ 
 in Fee to a Stranger, thu Bargainee hath 
 a Fee-fi?nple determinable upon the E- 
 ftate Tail ; for Tenant in Tail hath to 
 all Purpofes departed with his whole 
 Eftatc, tho' the Right of the Iffne is 
 fav'd, and confequently he can pals no- 
 thing to the Conufee of the Fine. 
 
 A Bargain and Sale works no For- 
 feiture ; 
 
 But if a Man levies a Fine of an 
 
 Jdvo^J^jon^ or any Thing lying in 
 
 H 3 C&antj
 
 162 Mtts ano Xvnfis. 
 
 Grant ; tho' this divefts not the Re'ver^ 
 fion^ yet it works a Forfeiture, 
 
 For a Forfeit nre Is a Punifhment, for 
 doing fonicthing contrary to the Nature 
 and Being of the Eftate he hath, and 
 contrary to the Truft and Fidelity due 
 to the Perfon from whom it was deri- 
 ved, or his Subftitutes ^ therefore if the 
 Tenant for Life, by Feoffment or Grajit* 
 i72g it by Recordi or any other A6t, took 
 upon him the Right to the Fee, it was 
 a Forfeiture; but otherwife, it was, if 
 he fold the life in Fee ; for Ufes are on- 
 ly the Creatures of Equity, and not 
 taken Notice of at Common Law \ and 
 the Chancery in Favour of a Purchafer 
 W. fvof. for a valuable Conilderatidn, fince there 
 tig ("2. ^s no Prejudice to the Reverlioncr, will 
 allow this, as a Man grants the C^/'t' or 
 an Eftate for Life, and the Statute ex- 
 ecutes the Pofleflfion, as the Party has 
 the Ufe^ which is only during the Life 
 of the "Bargainor^ and works no For- 
 feitnre. 
 4 Co. 115. A "Bargainee cannot VoUclo by Force 
 '•• of a Warranty^ annex'd to the Eftate of 
 
 ft "9 a.' t^**^ Lands j for he that is in by the Sta- 
 tute, is in the ^Poft 5 for he is not inf 
 . the Poftlftion by the meer Contract of 
 the Party, but by the general LaW of the 
 Land ; and therefore by the Writs of En- 
 try^ cannot be faid to be in thcp^r, that is 
 
 H
 
 by fucli a one ; and he that is in the Toft 
 can't vouch •Jox9.lVarra7itj/ i^^Co'venafit^ 
 annexed to the Freehold, whereby the 
 Party agrees to take it up when con- 
 troverted, and to defend it -, it can there- 
 fore only extend to thofe that claim 
 the Freehold from him, and not to thofe 
 that come to it any other Way, but he 
 may Rebut ; for tho' he hath not cove- 
 nanted to defend the Lands to him, yet 
 he can t claim them, becaufe when a- 
 ny Man covenants to defend the Lands, 
 be it to whom it will, it appears there- 
 by the W^irrafitor can have no Right to ^Ro. Ab. 
 claim them, unlefs a new Title appears '' ^* 
 after the Wcirra?ity. 
 
 The Ufe and TojfeJfio7i palTcs to the^^"^;^54.^,. 
 fame Intent j and therefore a Man may 
 bargain and Sell^, referving a Rent ; 
 for tho' no Refit be referved out of an 
 Ufe^ for a Re7it had its Nature and Being 
 at Common Latv^ and accordingly refer- 
 vable I yet now the TJfe and Poffeffion 
 carry a Relation to the fameMoment that 
 the Rejit is well referved, and there is an 
 Eftate out of which it may ilfue. 
 
 If a Man fells a Re^jerfwn upon a j„ Mal- 
 Leafe for Life or Years, the ^argai?i£e\or'sCafe^ 
 fliant take Advantage upon a Demand ^5 Co. 114. 
 of the Rcjit^ without Notice of the cro. Jac. 
 Bargain and Sale\ for Ic was never the u^j- 
 Intent of the Statute of Jlnrollment, 
 H 4 that
 
 1 04 mifes anti Xtnixs, 
 
 that tlie Farmer ^ould be forced eve- 
 ry fix Months to fearch for the Efiroll- 
 7nents in Defence of his own Tenure. 
 Co, Lit. At Common Law^ no Man could re^ 
 ^^^' ''' ^ leafe to T!e7iant for Tears^ unlefs in Pof-r 
 fefTion i for all PoffelTions were transfer- 
 red by Livery folemnly, and there can 
 be no Livery where the Party is in Pof- 
 fcifion before ^ therefore there the Inte- 
 rcft muft pafs by Way of Releafe ; but 
 where he is not in Polfeflfion, he is with- 
 in the Rule, and therefore muft take 
 by Li'vejy. 
 Co. Lit. If a Man makes a Leafe for Life 
 Vau-h. o^* Tears^ and after grants the Rever- 
 44,5^6,7, fion for Life or Tears^ and the Te7ia7it 
 s,9, 51- attorns, the Leffor rnny releafe to the 
 Grajitee ; for there is no Need of a new 
 Grant and new Attornment, where the 
 Party is already in Attornment of the 
 lleverfion. 
 Cro. jae. if a Man Bargains and Sells Lands 
 f^'^' , for Years, he may releafe to the Bar- 
 
 Liuvvych . '. , -' Til 
 
 -J. Mihov. gai7iee^ without Lntryj or it he bargains 
 and fells the Reverfion for a Year, he 
 may releafe to the ^argainee^ without 
 JttoYiimeiit^ becaufe the PoflefTion is 
 vefted in the Lejfee by the Statute 5 
 and confequentiy is capable of a Releafe^ 
 
 ^ ^ caufa qua fupra, 
 
 F"-^-^--. If a Man, dcfigning to convey Lands 
 -s^'^plc ^^ ^' ^cmifes, grants, bargains and fells 
 
 v'car. B. R. Grotton Lejfee of Sir John Dorrel. them
 
 Mtcs ano Xmfxs. loy 
 
 .tliem to J. for Years, and afterwards 
 Releafes them to J. for the Ufe of B, 
 this Releafe is good before there is any 
 Agreement of J. to take the Rckafe by 
 Way of Bargain and Sale -, and if J^ 
 afterwards chufes to take this as a Rer 
 leafe at Common Law, whereby a 
 PolfefTion would be neceffary to the O- 
 pcrationof a Rekafe; yet iliall not this 
 deftroy the Eftate of R. becaufe J, be- 
 ing exprefled to be made ufe of but as 
 an Inftrument to convey it to R. fuch ar> 
 Expofition muft be made, as will make 
 him capable of doing it ; and not {ugh 
 as would make the Conveyance of no 
 Signification. 
 
 Thirdly, 'The '^xpofition of a Bargain aH-y.^-^t 
 a7id Sale. 
 
 Every Bargain and Sale fhall be ex- 
 pounded equally and indifferently be- 
 tween both Parties, becaufe they had 
 their Original in Equity i but other- 
 wife it is of Gifts and Grants at Com- 
 mon Lazv^ which are taken ftrongeft a- 
 gainft the Grajitors. 
 
 If before the Statute, a Man had Kdi. 85, 
 Bargained and Sold to J, and after- 
 wards had executed an Eftate by Lii'e- 
 rj to B, the firft Vendee had been with- 
 out Remedy, ca7ifa qua fupra, 
 
 A Bar-
 
 106 Witts ann Xmfis. 
 
 Cro. Jac. A Bargain and Sale of Land to 7. S. 
 659, 660. .^ p^^^ ^.^j^ ^ Provifo, that if the^Bar- 
 gai7ior pay fo much at fuch a Time, 
 the ^argaiji and Sale fhaJl be void j 
 and the Bargainee covenants not to in- 
 ter-meddle with the Profits ; but for the 
 Default of Payment, the Bargai7ior is 
 Dowfly ^. Tenant at Will to the Bargainee-, and 
 BUck- if he makes a Leafe for Years, he is no 
 Bridg- T)ij)eizor to the Bargainee, becaufe no 
 man 121. Wrongful Intention ; and when the Leafe 
 expires, he is T^enant at WiU* 
 
 Fourthly, The Manner of T leading 
 Bargains and Sales. 
 
 Co. Lit. A Bargain and Sale is a Deed En- 
 V^'h rolled^ and as fuch muft be pleaded j 
 ii]. L ^^^ Deed it felf, whereby the JJfe it 
 5C0. 53.4:. felf originally pafles, is a Matter in 
 jP^/j, and muft be iliewn to the Court, 
 and not the Tenor of the Deed 
 ' which is on the Roll of Record j for 
 the Enrollment is the Tranfadtion of 
 the King, or his Courts of Juftice ,• and 
 therefore they have the Efteem of un- 
 doubted Fruits i and confequently Grants 
 to the King, or Inftruments to any Sub- 
 jeds made in open Court, are Records, 
 and uncontroulable ; but the T)eeds of 
 Subjc(5ts privately made, not in open 
 Court, when the Party claims from the 
 
 Date
 
 tmfcs auo Xmtts. 107 
 
 Date or Execution of thcfe Contrads, 
 have not the Sanction of Records:, tho' 
 the Deeds be after pubiickly Jckuozu- 
 ledged and Enrolled; for the private 
 Co^itrad may be faifely and fraudulent- 
 ly dated, or ill executed ; and therefore, 
 'tis ncGcfiaKy they themfelves fhould be 
 fhevvn, fince the Party from their Com- 
 mencement derives his Title. 
 
 But the Tenor of an Enrolhie?it Is a ibid. 
 Record which can't be produced; be- 
 caufcj tho' 'tis certainly an authentick 
 Copy, yet it may be the true Copy of 
 a falfe Deed. 
 
 But the A(5t of Efirolhnetit is a Tranf- 4C0. 71. 
 adion of the Court, and therefore can't 
 be denied,- but as all other Rf^rorix may, 
 by Pleading Nut tiel Record^ and the ^Ro.Rep 
 only Trial is, by fhewing it ,- but the ^ ^* ^^°* 
 Time of Enrollmejit ^ when it doth not 
 appear on the Rolls it felf, as antiently 
 it did not, was to be tried by a "^tiry ; 
 but when the Time doth appear on the 
 Roll it felf, as it hath done (ince the 
 Office of Efirollments^ it lliall be tried 
 by nothing but it felf. 
 
 Hence it follows, that if an /;/- alnft'«>75' 
 f{i?it Bargaius and Sells his Lands 
 by Deed, indented and enrolled, yet 
 he may plead Nofiage ; for notwidi- 
 ftanding the Statute, the Bargainee 
 claims by the Deed as at Common Eaw^ 
 
 which
 
 1 o8 Mfts aitD %tms. 
 
 which was, and therefore is ftill defea- 
 fable by Nonage, 
 «inft.675. Y>\Xi if an hifant contrads in open 
 'Enroll ^ Court \ as if he acknowledges a Statute^ 
 528. (J-f. he can't plead Nonage again ft it ; 
 5-5,1 i>i4- for if the Court have allowed him to 
 have a contrading Power, there can be 
 no Averment to the contrary. 
 iinft675. If an Jnfa72t makes an Obligation, 
 Bro. ibid, ^j^j afterwards acknowledges and en- 
 rolls it in open Court, he can't plead 
 Nonage ; for the Recognition of any 
 Perfonal Contradl, amounts to the ma^. 
 king of one, for the Defign of all Perfo- 
 nal Contracts is but to acknowledge an 
 Obligation, which, when done in Court, 
 is not to be controverted; but in real 
 Contrads, the Defign of the Statute is, 
 that the Inftrument it fclf, with apt and 
 lignificant Words Should pafs the In- 
 tereft, and not the Recognizance^ which 
 is only a folemn Act appointed for fur- 
 ther Notoriety; and therefore* the Par- 
 ty muft claim from the Words that 
 transferred the Eftate, which are only 
 in the Deed, 
 ^inft.^yd. But if an Infant acknowledges the Sta- 
 tute or Obligation in Court, he may avoid 
 it by an Audita Querela^ for he is infped- 
 ed in Court, and the former Ad may 
 be annulled by an A6t of equal Autho- 
 rity. 
 
 By
 
 By the Commou Law^ a Deed ac- 
 knowledged by the Hushaiid and Wife^ 
 binds only the Husband ; for the Wife 
 can't be examined by any Court, with- 
 out a Writ, and there is no Writ allowed 
 in this Cafe, for the better Security of 
 WweSy who are, by our Law, entirely 
 fubjcdted to the Will of the Ihsha72dj 
 fo that the Court is not impower'd to 
 take fuch an Ohligatmi^ but it is an 
 A(ft extrajudicial. 
 
 But the Ciiftoin of London^ that al- g^^^^/j5- 
 lows them to trade feparately, binds s. °7. 
 them alfo by fuch Ohligatioji, 
 
 If a Man acknowledges and enrolls ^'■°-^^''^* 
 a Deed, he can't afterwards plead Moor 4:, 
 'Durefs, 
 
 If a Man makes a JLeafe for Tears ^*®" '. 
 the I oth of May^ and afterwards Bar- Thomas 
 ga'ms and Sells his Land, and antedates HowardV 
 the Deed, the Acknowledgment and En- ^"^^ 
 rollment the loth of Aprils the Lefl'ee 
 is without Remedy ,• becaufe there is an 
 Averment againft the Record. 
 
 The Party that claims by any Bar- Ydv.iij. 
 gain and Sale muft fhew in what Court ^^^-i-'h 
 the Deed is enrolled \ becaufe he muft 
 fliew all Things in certain that make 
 out his Title, and otherwife his Ad- 
 verfaries would be put to an infinite 
 Search before he could traverfe with 
 Security, 
 
 Secondly,
 
 no Mke ano %t\iUs. 
 
 Secondly, Of Co've7ia7its to Jfandfeized 
 npon Conjideratioji qf Blood j ofijohich 
 fee before. 
 
 Billing- The Original of it was in tl>is Man- 
 Moriey'! "^^ before 27 H^ 8. When any Man co- 
 Mich. 9! venanted to ftand feized to the JJfe of 
 ^' another, the Remedy was twofold. 
 
 Firfl^ By jUmi at Co?u7mn Law 
 upon the Covenant, and thereby 2)/i- 
 mages only were recovered. 
 Bro.Fwf. Secondly^ In Chaiicery \ and here the 
 1%. Remedy arofethus; when any Man co- 
 5. 1(5. venants to do a Thing, the Party is 
 firft bound in Confcience to perform the 
 Thing it felf \ and if that can't be, then 
 to render T^amages for not doing of it -, 
 therefore the Chancery that examines 
 the Confcience of Men's Atflions requires 
 ti fpecifick TcrforiJiance of the Thin^ it 
 felf, where it can be had : But the Coifi^ 
 mo7i Law could not carry this Covenant 
 Plow. fo far without offering Violence to its 
 Com. 508. ^^^^ Rules j for the Com7no7i Law re- 
 quires Lwery^ and to allow an Adion ; 
 for a fpecifick Terfoniiarice makes the 
 Agreement binding without it ,• but by 
 the 27 ^. 8 thefe Ufes are executed, and 
 therefore no A(5tion lies ; for there can 
 be no Complaint for not transferring 
 the Thing, when the Statute transfers it 
 to the Party himfeif. Co've-^
 
 nits ana %mns. 1 1 1 
 
 Cove?ia?its to ftatid Seized in Confi- P'ow. 
 deration of Marriage, need not be in- ^°™'5°'' 
 dented or enrolled, for they are not 
 within the Statute of the i6th i for Mar- 
 riage makes it publick, and it was not 
 thought fit to publifh it any otherwife. 
 
 And here 'tis to be confide red, 
 
 i. Wl^o 7nnji Covenant to ftani Sei- 
 zed, and to whom. 
 
 Seconly, What Confideration is necef- 
 jary to a Covenant to flajid feized. 
 
 Thirdly, ^y mhat Words a Man may 
 Covenant to ftafid Seized. 
 
 Fourthly, The EffeU of a Coveiiant to. 
 Jia?id feized, 
 
 Firft, Who may Covenant to ft and Seized^ 
 a7id to whofu. 
 Tenant in Tail Covenants to ftand Cro. El. 
 Seized to the Ufe of himfelf for Life, %\^,^^. 
 Remainder to his eldeft Son in Tail ,• field's 
 fince he had only the Power of difpo- ^^■^^•. ^"^ 
 fing of an Eftate for JLife^ by the Sta- ^Xn and 
 tute de T)QmSy which he hath not paf- Biyth- 
 fed out of himfelf, it is ftill in him as ^^"^ ^.^ 
 it was before ^ and the Remainder is void 
 in its Creation,and therefore there can be 
 no Execution of it, for the Execution^ 
 muft be immediate by the Statute of 
 TJfes':, and therefore a Fi?ie afterwiirds 
 levied can't help it. 
 
 But
 
 1 1 2 Witts ano XtnUs. 
 
 But it feems in this Cafe, that before 
 the Statute, the Chancery would oblige 
 to a Specifick Terforma7ice by Fi^^e a- 
 ga'md the Party hinifelf, but not againft 
 his IJIf/e i ^lare. 
 
 Secondly, What Confideration is iiecef- 
 fary to a Covenant to fiand Seized, 
 and how far it extends^ 
 
 Tho' a Man can't Bargain and SM 
 but upon Co7ifideratio7i of Money ^ yet he 
 may Co'venant to ftand Seized upon o^ 
 ther Confiderations befides that of 
 Blood* 
 Cro. 1:1. If a Man, in Confideratioii that 'j. S. 
 35>4- was bound in a Recognizance for him> 
 Ccvenants to ftand Seized to his Ufe^ 
 this is good j for the Chancery will o- 
 blige a Specifick Recompence upon any 
 Agreement, where a Confideration was 
 performed on one Side -, and where the 
 Chancery would raife an Ufe the Sta- 
 tute executes it. 
 1 Leon. If a Man, feized of certain Lands, in 
 1,^5- , Confideration that J, S. will pay his 
 Caf^. ' Debts, and certain Sums of Money that 
 he fhall appoint, out of the Profits of the 
 Land, Covenafits to ftand Seized to the 
 Ufe of jf. S. for twenty-four Years, this 
 fhall not raife a Vfe-^ for fince the 
 Debts are to be paid out of the , Profits 
 
 " of
 
 Mtts ano %mtts. u? 
 
 of tHe Land ; this is no Confideration 
 to part with them, or veft an Intercft in 
 y. S- for the Confideration arifes from 
 his own Property, and not from any E- 
 quivalent j but otherwife it had been, 
 if the Debts were to be paid out of the 
 proper Lands ofy. S. can fa qua fnpra» 
 
 If a Man Covenants to ft and Seized 
 to the Vfe of three Perfons, for the per- 
 forming feveral Trufts to himfelf, his 
 Wife and Children, and one of thefc is 
 his Brother, to him alone there is a 
 Confideratio7i ,• and therefore he alone Cro. Car. 
 is feized of the Intereft under the T^rufi 529* 
 aforefaid. ^^^ 
 
 There is a Difference between a Co- 1 Leon. 
 (venant to ftand Seized and a Feoffment; ^^5- jo- 
 for if a Man Coveiiajzts to ftand Seized piowdei. 
 to the Ufe of A> a Stranger for Years, Com. 307 
 Cjc. the Remainder to B, his Son in *^°"^' 
 Tail, this is void as to A. for Want of 
 a Confederation^ and the Ufe vefts im- 
 mediately in B. and a void Ufe is as if 
 no TJfe be limited; and if no Ufe be 
 limited, B. muft take immediately, and 
 not by Way of Remainder, or elfe he 
 can*t take at all ; for a Remainder ex 
 li T^ermini fuppofes a particular Eftate, 
 •and B» muft not be excluded, becaufe 
 Ufes being Creatures of E^//?Vjr,theParties 
 Intent muft be made good as far as pof- 
 fibicj where there is a juft and good 
 I Ground 
 
 et 
 
 ens
 
 114 Mtt6 ano %t\xfts. 
 
 Ground for any Part of the Conveys' 
 ance. 
 i Leon. gut if a Man makes a Feoffment in 
 
 197. 
 
 per Man- ^^^ ^o ^^^ Ufe of A. and a Stranger, 
 wood. or Baftard for Life, the Remainder to 
 his Son in Tail, this is good to A, for 
 upon a Feoff?/ie7it there needs no Co7i fide- 
 rat io7i to raife the Ufe^ as is faid. 
 •5 C0.8. b. If a Man, feizcd of three Acres, 
 makes a Leafe of one to A, for Life, 
 and of another to ^.for Life, and of ano- 
 ther to C' in Tail, and then reciting the 
 feveral Eftatcs, Co'veiiants after all the 
 Eftates finifhed, toftandfeized to the Ufe 
 Q,{\x\^Br other in Fee ^ if ^.dies, the Bro- 
 ther fliallhave the Rcverfioji of that Acre 
 immediately, and not expect till the 
 other Eftates are determined j for it 
 muft be conftrued fecu7idum ftihjeBciiii 
 materiam\ and the Co've7ia7itor hath 
 three diftinct Kc'VerJmis in him. 
 
 Thirdly, By zvhat Words a Ma7t viay 
 co've7ia7it to fta7id feized. 
 
 Vent. 158 If a Man, in Confideration of Natu- 
 M^d Re"' ^'^^ Loz!ey and for Angme7ttatio7i of his 
 /row 1 7^5^ daughters Tortio7i^ Gives, Grants, Bar- 
 ^^ i79» gains and Sells, Aliens, Enfeoffs and Con- 
 aRo. Ab. ^j,j^^ certain Lands to 5- S. his Daugh- 
 ter, with a fpecial Warranty, and the 
 Deed is enrolled, this enures by Way 
 
 of
 
 MUs ano Xxnas. 1 1 $ 
 
 of Co'vefiant to (land Seized^ in Rcfpcd 
 of the Co7ifideratkn. 
 
 But if the CoiifidcratioJi be not ex- cp- fup. 
 preffed in the Deed, it feems no life a- ^capo^'g 
 rifes. Cafty 
 
 If a Man, in Co7?fideration of Mar- ^^^^'^^ 
 riage of his Son's Di3\;ghter, covenants iioorus. 
 that his Land fliail Defcend, Come and ri. 267. 
 Remain to him, or her, this is only a ^yo-^^'^' 
 Cooejiant Executory^ upon which an 
 A(5tion lies, and the Force of the Co'Ve- 
 nant is not to alter the Defcent; but 'tis 
 no Co've7ia72t to ftand Seized^ whereby 
 he may be intitled in Chancery to a 
 Specitick Performance. 
 
 If a Man feized of a R.e'verfio7i Ex- 1 ^^"f- 
 petla7it upon an Eftate for Life, Gives, ^^n ^^^ 
 Grants, and Confirms the fame to his Jones 
 Son in Fee, in Co?ifideratio7i of Nattt- ^^^^^' 
 red Lo've and AfftUio7i^ exprelTed in the ^. dix. 
 Deed to the Vie of himfelf for Life, the 
 Remai7ider to his Son in 'Tal/y the Re- 
 7nai7ider to a Daughter, without Attor7i- 
 me7it or Enrollment, this Conveyance is 
 void, and can't enure by Way diCove7iant 
 to ftand Seized; for if it enures by Way 
 of Cove72a7it to ftand Seized the legal 
 Eftate out of which the Uje^ rife re- 
 main in the Co'Ve7ia7itor : But the Intent 
 of the Conveyance is to raife the U/es 
 by Way of 'Ira7if?iintatio7i of Tojjejji- 
 077 y and to transfer the Freehold, out 
 I 2 of
 
 116 Mtts atiD ^mftsf. 
 
 of which the Ufes are to rife to the 
 Son ; but this Conveyance will not pafs 
 that Freehold for Want of Jttorn7ne7ity 
 and fo the Ufes can never arife by this 
 Deed. 
 
 Fourthly, 'The EffeU of a Covenant to 
 ftand Seized. 
 
 2 Ro. Ab. If a Man Covenants to ftand Seized 
 190. N. 5. of the Manor of T>. to the Ufe of J. S. 
 this is void, though he afterwards pur- 
 chafes the Manor in Fee. 
 NoyF.ip. If a Man Co'venants to ftand Seized 
 401.' ^'* ^^ *^"^^ 'L^nd that he Ihall hereafter pur- 
 chafe to the Ufe of his Son, and after 
 purchafes Land to the Ufe of himfclf 
 and his Heirs, the Fee is in the Father. 
 For if a Man binds any Lands, you 
 muft fuppofe him to have a Power to 
 oblige them ; for no Man can do that 
 which he hath no Power to do ; but he 
 that hath no Inter eft, hath no Power to 
 Ibid, per oblige them ^ and therefore fuch a Co- 
 omnas, cjenant in Equity^ before the Statute, 
 could not oblige him to a Specifick ^Per- 
 formance^ for that were in Equity, to 
 bind the Land, which is abfurd j and 
 fince the Co'venafit is void in Equity, 
 there can be no Execution by the Sta- 
 tute; for the Rules of Law are equal- 
 ly ftri^ in avoiding this Repugnancy j 
 
 for
 
 Mits atiD Xmfts. 117 
 
 for in Law, every Difpofal fuppofes a 
 precedent Property ^ and by Confe- 
 quence, every Co've/iaut to ftand Seized 
 prefuppofes a precedent Seizi//. 
 
 By the fame Rule tis faid, that if^oT. 
 the Mortgagor, in Confideration of fo 
 much Mo7iey paid by J. S* Covena7its, 
 that after Redemption, he will ftand 
 feized to the JJfe of 5* ^- ^"^ ^^is Heirs, 
 this is a void Covenant i but if a P^o^- Noy i$. 
 i'/V^/^? be made to A» to enfeoff JB» to 
 the £/)^ of C and J, enfeoffs B. with- 
 out the Limitation of any Uje i yet it 
 iliall be to the Ufe of C 
 
 So if a Man covenants to purchafc 
 Land by Michaelmas next, and before 
 Eafter following, to levy a Fi72e to fuch Cro. El. 
 Vfes, and accordingly purchafes Land, *°^- 
 and levies a H//^, it ihall he averred to Noy 19. 
 i^e to the JJfes limited in the Covenant, 
 
 For a Man may declare the Intent of 
 a future Ad:, which he had no Power 
 to do at the Time of the Declaration ; 
 for to declare the Intent of a future A^l, 
 doth not fuppofe an immediate Power 
 of doing it j but the doing any A(5l it 
 felf, which the Law allows to be good 
 and effe(5tual, prefuppofes the Power of 
 doing. 
 
 Another Reafon why the Ufe deck- Cm EL 
 red upon the Covenant in the tirft Cafe ^J' j^ 
 of Land after purchafed is bad, is this ; 
 I 3 be-
 
 1 1 8 tares ano %mti&. 
 
 becaufe the Uje muft be limited by the 
 T>onor or Feoffor -y for he muft limit the 
 ljft\ that at the Time of Limitation 
 had the Difpofal : Now in this Cafe the 
 Donor limits the Fee to the Purcha- 
 fer, which controuls the Intent of the 
 Cove7iant. 
 
 Secondly, Of Ufes in Poflibility. 
 
 Firft^ Of Executory Fees. 
 Secondly, Contingent Remainders. 
 
 F/V/?, Of Executory Fees. How Ex- 
 ecutory Fees begun, and how the Rule 
 of Law, that no Fee can be limited upon 
 a Fee, is evaded, is already fhewn ,• and 
 when an Executory Fee is well raifed, 
 that it can't be deftroycd but upon Alie- 
 nation, upon good Confidcration, (jc» 
 is fliewn ; and how Executory Fees 
 may be limited, is here to be confider- 
 ed, and they are to be governed by three 
 Rplcs. 
 
 1, That all Limitations that tend to 
 the Pi'ovifion of the Family, and to fe- 
 cure againft Contingencies that are with- 
 in the Parties own immediwate Profped, 
 arc to be favoured. 
 
 2. All Limitations that Perpetuate 
 or tend to Terpetttity^ are in themielves 
 
 void
 
 void and repugnfint to the Policy of 
 the Law. 
 
 'Jfid therefore it is to he feeji what is a 
 Perpetuity. 
 
 A Perpetuity is the Settlement of an Ca[e cf 
 Intereft defcendable from Heir to Heir, ^'g^t?;; 
 fo that it fhall not be in the Power of Arg. 6. 
 him in whom it is vefted to difpofc of p^p- 79» 
 it, or turn it out of the ChafweL iCo. i;S, 
 
 The ///^o/zc^^/i/tv/cav of which are, that 9. i And. 
 the Eftate is made uncapable of anfwer- J^^^^^^ep 
 ing the Ends for which perpetuity is 221.' 
 maintained and eftablifhed ,• for it puts 
 it out of the Power of the Owner to pro- 
 vide for the Necefllties of his Family, 
 or the Extremity and various Changes 
 of his own Affairs out of die Eftate; 
 befides it would be of univerial Damage 
 to the Common Wealth ; for it would 
 fhut up allConverfe, by making theWay 
 of Communication between Land and 
 Money utterly impradicable ; to know 
 therefore how far a Limitation maybe 
 alio wed, without theDanger of being con- 
 ftrued a Perpetuity ^ 'tis to be confidered, 
 what Limitations are confiftent wi^ 
 thefc Rules of Reafo7i and Tolicy. 
 
 Fir ft ^ the Law in all Cafes, allows 
 the Liviitations of Eftates foi' Life, to 
 Perfons in Being ; for there can be no 
 Danger in fuch a Common Limitation,
 
 .I2 Mtts ano %mRs. 
 
 nor any Defign to Terpettmte-^ and therct 
 fore here the Party is reftrained from A- 
 lie7iation farther than for his own Life. 
 
 Seco7idly^ The Law allows of no E- 
 ftate of Inheritance that goes in lineal 
 SuccelTionj but what is under the Power 
 of that Pcrfon to whofe Reprefentatives 
 the Eftate mufl: defcend, and to eftablifli 
 a Right of SuccefTion, and yet to reftrain 
 the Power of Alienation is X.oTerpetuate ; 
 and therefore to limit an Eftate of Suc- 
 cefTion, determinable upon remote Con- 
 tingency, tends to a 'Perpetnity^ fincQ 
 none can purchafe with Security, while 
 fuch a Cloud hangs over the Eftate. 
 
 Which Rules are equally obfervable. 
 in Freeholds and Chattels. 
 
 Firft, l7i Freeholds, 
 
 Cro.jac. j^ ^^ -g^^^g ^^^ deviled to J.S, in 
 
 Roll. 2. Fee, and if he dies without Iftue in the 
 
 Rep.i9(j, Life of 7. iV. then to J, K. in Fee, this 
 
 Lcon.^64. is good ; for an Eftate determinable up- 
 
 ^Y' 44. on the Compafs of a Life, is equally a- 
 
 ^^' '• greeable to the Policy of the Common 
 
 Law, and can't but be as good as the 
 
 Limitation during a Life ; for why may 
 
 not a Fee be contraded to an Eftate for 
 
 Life, as an Eftate for Life be prolonged 
 
 Per Holt xo a Fee upon a Contingency. 
 
 Dy "44.^' But if an Eftate be limited to J. S. 
 
 i^y- 7- in Fee while J, N. hath Iffue, Remain- 
 
 Vaugh, <^ej.
 
 Hlfes atio Xrufts;* 121 
 
 fler to 5- ^- this is void to J, 2). for this 
 comes within the Danger of a Perpetui- 
 ty, and doth not determine within the 
 Common Compafs of anEftateforLife, 
 
 Secondly, Chattels. 
 
 A Grant of a Leafe for Years to J, S» co. 8 il 
 for Life, Remainder to y. N. is not 95« 
 good to y. N. for as Leafes for Years 
 being under the Power of the Freehol- 
 der, they are recovered as Chattels, and 
 go to the Executors ; and a Chattel 
 can't be limited for Life with a Re- 
 mainder overi becaufe this would cre- 
 ate great Infecurity in Common Traf- 
 fick. 
 
 But in Cafe of TicjifeSy the Courts 
 of Common Law are governed by the 
 Jlules of Equity to fupport the Intent of 
 the Teftator : and therefore fince the 
 Time of H. 8. when long Leafes could 
 firft be made with Security, a Devife of 
 a Terrn for Years to one for Life, with 
 the Remainder oyer, has been allowed, 
 and the Chancery has forced the Te- 
 nant for Life, to give Security to the 
 Remainder Man j but becaufe this was 
 found to multiply Suits and Vexation, 
 it was thought more convenient, that the 
 Tenant for Life fliould alien according 
 to the Intereft he had in him, which 
 was only during his own Life. 
 
 But
 
 122 Ilfesatta Xnxus. 
 
 SCO. 87. But the 7:>ecife of a Term for Years 
 Lov"*^^' in Tail, with Remainder over, is void 
 Cafe. to the Remainder-Man ; for that, accor- 
 iiiq.Ab. ^jj^g |.Q ^j^g former Rules, would intro- 
 
 vcnfthorpduce a Perpetuity. 
 and A{h~ fhc Limitation of a Term for Years 
 l^Ar^V^'^ Tail, is an abfolute Difpofition of 
 Rcevc'i the Term, and it Hiall go to the Ex- 
 C'^f^' ecutors, 
 
 Mod.Rep If ^ Term for Years be limited to a 
 115. Bur- Man and his IlTue, and if the Man dies 
 Burses^ without Iflue, the Remainder over, this 
 Not. I.* is void, becaufe the Contingency is not 
 ^.'•^•^: to happen till after a Succelfion. 
 Buck- " If ^ Term be limited to J. for Life, 
 hurifs Remainder to his ifl^ 2 J, and 3 J Son in 
 ^''^'' Tail fuccefUvely, the Remainder to a 
 Daughter, or to B. (a Terfou i/i ^Jfe) 
 if the Party hath no Sons^ but after- 
 ward a Daughter, neither the Daughter 
 or B^ fliall take this Remainder i for 
 this is an Affe(5tation of a Perpetuity, and 
 is not a Limitation meerly upon an E- 
 ftate for Life ; but it amounts to a Limi- 
 tation upon the Failure of tlie Perfon in 
 the lineal Order to Succeed into the 
 fame Efrate. 
 ^/' '• But if it be limited to J. and if he 
 xz.zArg.dies without Iflue, to S. the Remain- 
 19. Hale ^(.j. i^ gQQ^ . £qj. |^gj.g j^ isnota Limitati- 
 
 44^ vide on to the IfTue, but upon a Contingen- 
 QhMandcy^ which if it doth not happen, it 
 Sllcro "I'^^kes the whole Term veft in the 
 Can 459* Party
 
 Witts ana %m^&. 123 
 
 Party; and if the Contingency doth 
 fall, the Remainder - Man has it up- 
 on the Determination of an Eftate for 
 Life. 2 Not. I. Jrg, i^, 17. 
 
 If a Term be devifcd to J. for 1 8 
 Years, the Remainder to S, for Life, 
 the Remainder to the firft Iffue of B* 
 this is good. 
 
 If a Term is limited to H. and the j. , e 
 Heirs of his Body, and if T, dies with- Norfolk".^ 
 put Iffue in the Life of/f. Remainder c^/^.Tnn 
 to C' and his Heirs, this is good; forS^Car. 2. 
 Zf.'s Term is not taken from him by 
 any Contingency, which muft of Nccei- 
 fity happen, during the Life of him in 
 whom the Eftate is vefted. 
 
 Where a long Leafe is limited to J. Trin. zu 
 for 60 Years, if he lives fo long. Re- car. 2. 
 mainder to !B» his Wife for 60 Years, saunders. 
 if fhe live fo long. Remainder to C Pol. 35. 
 his Son, and his Executors, if he out- 
 live J. and S. but if he dies in their 
 Life-Time, leaving IlTuc, then to the If- 
 fue ; and if he died without Iffue, li- 
 ving J, or B. the Remainder to 2). In 
 this Cafe, if C dies without Iffuc in 
 the Life c^ J. or B. T>. iliall have 
 the Remainder ; for the Remainder of 
 the whole Term is vefted in C. which is 
 not divefted out of him, and vefted in 2). 
 upon Failure of lineal Succeffion to C 
 but not till the Death of C without If- 
 fue, during the Life of A or. S. 
 
 A5
 
 124 ^f^s ann ictttfts* 
 
 ■?^<"- ^- As the legal Eftate of a Term may 
 ^''^' ^' be devifed, fo the Truft of a Term 
 
 may be limited. 
 Chan.^ A Limltatio/i of a Term for Years 
 Gonng* to twenty diftindt Perfons in EJfe is 
 find Bick- good ,' but the Lifnitation of a Term 
 erftaff. ^^ j^ ^^^ jj^^^ ^j^^ Remainder to the 
 
 Right Heirs of "B, a Perfon in EJfe^ is a 
 void Remainder ; and after the Death 
 of J, it fhall revert to the Donor ; be- 
 caufe this might tend to theEftablifhing 
 an Eftate of Inheritance in a Chattel, 
 and putting it out of the Courfe the 
 Law had fettled for it, whereby it ought 
 to go to the Perfonal Reprefcntative. 
 
 If a ^erjii be limited to J, for Life, 
 the Remainder is in the Donor ; if a 
 Chan. l^etin be limited to J, for Life, the Re- 
 Rcp. 8. maindcr to the Right Heirs of the Do- 
 nor, this is a void Limitation, becaufe 
 the Re'verjmi is in him. 
 
 If the Traft of a Term be limited 
 to J. for Life, the Rejnaijider to 2^. S. 
 * may difpofe of the Keviaiiider \ but if 
 a 'Term be devifed to A* for Life, the 
 Rej/iainder to S. S. can't difpofe of this 
 Remamder ; for by theRules of Common 
 Ch. Rep. Law, a PolTibility can't be granted o- 
 
 Co. 4. R. ^^^» ^^^ ^ -^^^ that only may have 
 
 66, 6, 10. Right, has at prcfent no Right in him ; 
 
 ^•47' and while the Rules of Law fay 
 
 he has no Right, it is contradictory 
 
 and
 
 and repugnant, to allow him to a<5t as 
 a Perfon having Right by transferring 
 an Intereft to another. JB» in this Cafe 
 has only a Poflibility to have a Right, 
 becaufe the Eftate of J. being of uncer- 
 tain Duration may outlaft the Term for 
 Years ; but in Chancery, where the 
 Truft is examined, they allow a Man 
 to provide for his prefent Occafions out 
 of what he may poflfibly have ; and 
 a Purchafer of it fliall not lofe the 
 probable Advantage, fince he hath gi- 
 ven for it a valuable Confideration. 
 
 As to FjXec7itory FeeSj there is ano- 
 ther Difference, where they rife by 
 Way of Ufej and where by Way of 
 
 Firft, If it rifes by Way of Z7r^,Cro.Ei. 
 there muft be a Seizin in Somebody wood ^wi 
 to be executed in the Grantee of the Reynolds 
 contingent Ufe, whenfoever the Con-*^°"^^' 
 tingency happens ,* for if there be not Cro. Jac. 
 a Pei^fon that can be feized of a Ufe^ l^^- 
 there can be no Ufe ; and confcquent- ^^i ^„j 
 ly there can be no Execution of it ,• 74^- 
 therefore if a Man covenants to ftand 
 Seized to the Ufe of himfeif in Fee, 
 till fuch a Marriage takes Effcd, and 
 then to the Ufe of himfeif for Life, 
 the Remainder to his Wife, his Son, 
 (^C' and before the Marriage he makes 
 a Feoffment in Fee, Gift in Tail, or 
 
 Ixafe
 
 169 
 
 1 26 mus ano %tnUs* 
 
 Leafc for Life, upon good Canfiderati- 
 on, without Notice of the U/eSy the E- 
 ftates limited after the Marriage fliall ne- 
 ver arife ^ bccaufe here is Nobody feiz- 
 cd to fuch UfeSy and the fame Law is 
 of Feoftments to fuch contingent Ufes. 
 Cro.El. gut if in this Cafe he had made a 
 Wood <T?ny Leafc for Years, he would not have 
 Kcynoids deftroycd the future UJe^ but only 
 ^J°- J'^'^'have bound it i becaufe there is a Sei- 
 zin, out of which jhe Ufe rifes i and 
 at Common Law, if the Feoffees 
 had made a Leafe upon good Confi- 
 dcration, as in this Cafe, it would have 
 bound the Lands, and confequently 
 Cejhiy que Ufe niuft have the Profits of 
 the Land thus leafed ; and in this Cafe, 
 fmce the Statute, the Covenantor has 
 the fame Power of obliging the Fee,- 
 and therefore thofe to whom the con- 
 tingent Eftates are limited muft take 
 it under the Charge, ^nere. 
 
 Feoffment to the JJje of A' in Fee, 
 and if S. pays fo much, ^c> then to B* 
 in Fee ^ J. devifes his Land, and dies, it 
 dcftroys the Contingent Eftate; other- 
 wife it is, if he had devifed Portions 
 out of the Land, for that could not 
 alter the Freehold, 
 cro. ]ac. A Keco'very doth not bar an Execu- 
 )9i, 3- toty Fee y for the Recoveror with No- 
 tice, and without Conlideration, is feiz- 
 ed to the former Ufes, Seco7idz 
 
 I Moor 
 733*
 
 Seco/idh':, By Way of T>e'vife j if a 
 Man devifes Lands to J. in Fee, and 
 upon fuch Contingency to B» m Vce, 
 A. makes a Feorfment in Fee ^ this^Ro-Ab. 
 doth not deftroy the Co7itinge7icy ; for ''^^* 
 by a Devife, the Freehold it felf is 
 transferred, and there needs no Per- 
 fon to be feized to execute aw Eftate 
 in the Devifce, ns mufl: be where a 
 Feoffment is made to Executory TJfes. 
 
 But if a Man devifes it to jj, for^Ro. Ab. 
 Life, with a Contingent Remainder; 793« 
 if J, makes a Feoffment in Fee, this 
 deftroys the Conti?igent Remaifider ; be- 
 caufe there is no particular Eftate to 
 fupport it. 
 
 Secondly, Contingent Remainders -, a72d 
 here it is to he co7ifidered:> ift, Li 
 what Ma7i72er they are to he execu- 
 ted. 
 
 As if a Feoffment be made to J, S. 
 in Fee, to the JJfe of J. for Life, Re- 
 mainder to his i^, 2d and 3J Son, the 
 Remainder to B. in Fee, there are 
 three plain Preliminaries to this En- 
 quiry. 
 
 jR>/?, There ought to be a Peffon iCo. iii> 
 feized to the Ufe at the Time when "■ 
 b the
 
 128 Mits auD Xtntts. 
 
 the Ufe is executed j and this, as is faid 
 before, is Plain by the Words of the 
 Statute J <viz. If afiy Terfo7i Jia7id or 
 he feized* 
 
 Pop- 74' Secondly J The Eftate for Life is imme- 
 diately executed in J, the Remainder 
 in Fee to S. by the Statute; becaufe 
 the Ufe is immediately in them, and 
 they have the PoffeiTion in the fame 
 Manner they have the Ufe. 
 
 I Co.ia^. thirdly y No PofTeffion can be imme- 
 iCo°^i5^' diately executed in the Sons, becaufe 
 *, ' they are not in Being ,• and therefore ca- 
 pable of no Property, neither in Ufe nor 
 Tojfeffion. 
 
 The Non-performance of all thefe 
 Rules, caufed two falfe Opinions in 
 this Matter in the Debate of Chudkjs 
 Cafe. 
 
 F/V/?, Some thought, according to 
 this fccond Rule, that the whole Pof- 
 Pop. 75. fefifion muft be executed in J, and B^ 
 ]^°j5^^and therefore that the contingent Ufe^ 
 when it falls, was executed out of the 
 firft Livery; and the Eftate formerly 
 in Feoffees; and this by the Words of the 
 Statute ; the Eftate that was in the Feof- 
 fees fliall be in Ceftuy que Ufe-j and 
 hence they inferred, that fince the 
 c Eftate
 
 Eftate was executed by the Power of 
 the Statute, it muft be preferved till 
 fuch Execution by the fame Power ; 
 and therefore they faid, the Contingent 
 Remainders were in Jheyafice^ and not 
 extinguilliable by the Alienation of Te- 
 nant for Life. 
 
 But this is a Miftake, Firft, becaufei^o. 13^, 
 
 this is contrary to the firft Preliminary ;jAnd.'"'^ 
 for that fuppofes an Eftate in J. S* at 
 the Time of the Execution. 
 
 Secondly, Becaufe it is contrary to the 
 Nature of an Jbeyance by the Rules of 
 Lawj for if there be Tenant for Life, 
 Remainder to the Right Heirs of J, S. 
 living, if Tenant for Life dies, or ali-Co.iji3l| 
 ens, during the Life of y, S. the Re- 
 mainder is deftroyed. 
 
 Thirdly, Becaufe it Would create a Per- 
 petuity. 
 
 Some add another Confequence of i Co 358. 
 this Do(5trine, that a Ufe would rife?'^^P'5' 
 out ot a l/Je. 34i.p.8r.. 
 
 iCo. 15(5, 
 
 Others held a different Opinion j ^3°;^^' 
 and they thought there was an im- 
 mediate Remawder vefted in J. S> 
 to ferve the Contingejit Ufe when 
 it fallsj ^nd that this Eftate was deter- l^o. u^. 
 K minablc"^'
 
 130 tstfes atin %vni!ts. 
 
 mlnable upon the Rifing and Execution 
 of the Eftate in the Sons, (^c» 
 
 But this could not bejFirftjbecaufe this 
 is contrary to the fecond Preliminary j 
 for thereby an Eftate is immediately 
 iCo. 129. vefted in J, and B. but by this Opini- 
 on, the Eftate in B, is only jExecutoiyy 
 for it arifes to him upon the fame 
 Contingency that the Eftate of J, S> 
 rifes, for he could not have a Fee 
 before j for then there would be a dou- 
 ble Fee, 
 
 Secondly, Becaufe y. S. would have a 
 ^emaiuder without any Grantor, and 
 iCo; 128. the Law leaves it to Parties to limit their 
 own Eftatesj and where Nobody has 
 limited an Eftate, there can be no le- 
 gal Limitation. 
 
 Thirdly, If a Remainder be vefted 
 in y, S. he muft ptmijh Wcifle^ and en- 
 ter for a Forfeiture -y but the Party de- 
 figned him no fuch Benefit, but made 
 him only an Inftrument to convey it 
 to others. 
 
 The true Opinion isy that the legal 
 Eftate is executed in A, and S. but the 
 contingent Remainders are not utterly 
 loft, becaufe the ^ojfejfion by the Statute 
 muft be executed in the fame Manner 
 as thp life is limited i therefore there 
 
 re-
 
 remains a Poflibility of T^ojft^ffiou to 
 the Feoffees, to this Purpofe only, that 
 when the Contingency happens, then 
 the Poffellion may be transferred to 
 the Remainder-Man ; and if this is an 
 Eft ate not known before, and fo has 
 no Determination at Common Law, 
 yet it is fuch a one as muft be raifed 
 by the Intent of the Statute, and all 
 its Ends could not be anfwered without 
 it ; and therefore to fuppofe, as in the 
 other Opinions, no Eftate in the Feof- 
 fees, or to reduce it to the Standard 
 and Rules of Common Law is equally 
 falfe and impracticable. 
 
 Secondly, How they may he defeated. 
 
 I ft. Where there is no Tower of Re- 
 'vocation gioe?i, 2dly, Whe7i there is 
 exprefs Tozver qf Relocation, 
 
 Firfiy Where there is no Power of 
 Revocation expreifed ; fince Executory 
 Fees, as is faid, and Contingent Re- 
 mainders tend to Perpetuities, they are 
 conftrued according to the ftrideft Rules 
 of Law, and as far as pofifible, put un- 
 der the Power of the Eftate that fup- 
 ports them.
 
 132 Mtts ano XtuUs. 
 
 And hence came the Diverfity be- 
 tween deftroying and contingent Re- 
 mainders, and an Executory Fee. 
 
 A Remainder is the Rcfidue of a 
 particular Eftate difpofed of by the fame 
 Conveyance,- therefore ex ci T'ermini 
 it fuppofes,. 
 
 Firftj J particular Eftate i?i Being, 
 
 Secondly, Tihat indim dual Eftate that 
 
 was made hy the fame Convey aiice as 
 
 the 'R.emainder, 
 
 Pop. /row Thirdly, It fuppofes an Exifte7ice of 
 
 70/083. ^y^^-j. mi^f^ when the other goes out 
 
 of Being, 
 Fourthly, Jt fuppofes the Eftate JJoould 
 remaifi in the fame Manner as it tvas 
 difpofed, 
 
 tCc. from Therefore if a Man makes an Eftate 
 ITo!" to the life of A for Life, Remainder 
 lAnd. to his jft^ 2d, and ^d Son in Tail, Re= 
 from 509 niainder to ^. in Fee, and J, makes a 
 chadiey'i Feoffment in Fee, and then a Son is 
 Cafe. barn, the Contingent Remainder is de- 
 ^^r^*. ^^oycd ; for by the Feoffment, the par- 
 ticular Eftate is extinguiflied, and after- 
 wards, by the firft Rule, there would 
 arifc no Remainder of it. 
 4 Leon. If Lands be given to one in Tail,if ^. ^5*. 
 237- comes to Wejimi7ifter^ and the Remain- 
 der to him in Fee, Tenant in Tail dles^ 
 
 th©
 
 theEftatedcfcends on Copartners^ they 
 make Partition, tho' J. S* docs come 
 to Wefimijifier^ &c. he fhall take no- 
 things for the individual Eftate is alter- 
 ed, and the Freehold altered by the 
 Partition contrary to the fecond Rule. 
 
 If Lands be given to J, and B' for 4 Leon, 
 the Life of C the Remainder to the -37« 
 Right Heirs of the Survivor ; if J, re- 
 leafes to B. the Heirs fliall take no- 
 thing, caiifa q7ia fnpra. 
 
 A. feized in Fee devifes his Land to Ray. 28. 
 his eldeft Son Thomas for Life, and if^^^'Jj^^p 
 he dies without IlTue living at the Time J, 9^ '^^' 
 of his Death, to Leo7iard another Son, iSaik. 
 and his Heirs j but if T^homas has liTue ^^"^^ ^^5' 
 living at the Time of his Death, then 
 that the Fee fliould remain to the Right 
 Heirs of T! horn as for ever. T!homas en- 
 ters after the Death of the Devifor, 
 and fuffers a Comvioii Keco'very ,• it was 
 refolved that the Fee that defcends to 
 l^ho?Jias immediately after the Death of 
 the Devifor, did not merge the Eftate 
 for Life, contrary to the exprefs Words 
 of the Devife ; for the Remainder to 
 Leonard muft be conftrued to be a Con- 
 tinge jit Rejnaindery becaufe it is limited 
 to take Place upon the Determination 
 of the Eftate for Life: for and can't be ' 
 conftrued as an Executory Fee ; becaufe 
 K 3 there
 
 i 34 M(t& ano %m&s* 
 
 there is no Fee limited to Thomas, but 
 upon a Contingency- and therefore if 
 the Law iliould conftrue the old Inhe- 
 ritance that defcends to 'Thomas^ in the 
 mean Time to be a Merger of the E- 
 ftate for Life, it would immediately 
 have deftroycd the Co7iti72g€nt K.e?nai7i- 
 ders i for the Eftate to Leonard would 
 not arife as an JP^xecutory Fee out of the 
 Inheritance, (ince that was not devifed, 
 but dcfcended j and therefore they con- 
 ftrucd the Eftate for Life to have a 
 Continuance in I'koiiias^^infX that the Re- 
 verfion did not execute in him ^ for if 
 they had not conftrued it to be a diftind 
 Eftate for Life in T^homas^ there would 
 have been no Foot for a Co7ttingent 
 'Kemai7ider to Leo7iard ^ and they could 
 not conftrue it as an JExeaitofy Fee^ 
 in Leo7mrdj when there was no 'Pre- 
 cede7it Fee limited to T^hoiiias \ and 
 {ince it was a Co7itifige7it Re7nai72der in 
 T^homas^ the Recovery deftroyed the 
 particular Eftate \ and by Confequence 
 deftroyed the Co7iti7ig€7it 'R.e7iiai7ideY^ 
 before fuch Contingency happened, i 
 Leo, fol. 1 1 . Tkmket and Hohnes. 
 % Saund. A Man dcvifcs Lands to his Wife for 
 £787.^° Life, and if ilie has a Son, named 
 Sampfcn Sci7/ipjon^ thc Remainder to him and 
 Sheironj j^j^ Hcirs, thc Dcvifor dies, thc Wife 
 '''^'' takes
 
 takes another Husband; the Hoir at 
 Law, to whom the Revcrfion dcfcended, 
 bargains and fells in Fee to the Hus- 
 band and Wife j a Son called Savipfoii 
 is born, he iliall not take the Remainder ,• i Sand. 
 for when the particular Eftate deter- 5^^* 
 iiiines by Merger, the Remainder can't 
 vei\ and though the Wife had after 
 difagrred to the Purchafe, this would 
 only have revived her own Eftate, but 
 would never be good to limit on it a 
 new Remainder. 
 
 But if it had been by the fame Con- 1 co. Sq. 
 veyance, it had been otherwife ,• as if a Levin. 
 Feoffment in Fee had been made to ^^^^^ * 
 ^, S» to the Ufe of a Husband and Co. Lie. 
 Wife, Remainder to the Eldeft Son in ^\^^^ 
 Tail, Remainder to the Husband's 587. 
 Wife in Tail, ^~c. here is a Tail exe- 
 cuted in the Husband and Wife imme- 
 diately j but this doth not drown the 
 Contingent Remainder i but when a 
 Son is born, the Eftate opens and lets 
 it in, after the Eftate for Life in the 
 Husband and Wife is determined. 
 
 For in Equity, the Trufts arofe in 
 this Manner, becaufe this appeared to 
 be the Parties Intention by their own 
 Limitation, and the Statute executes 
 the Toffejfiofiy as the Ufe is limited. 
 
 K4 Te-
 
 2 3^ Mf t6 ana Xtutts. 
 
 Tenant for Life with a Contingent 
 Remainder, Tenant for Life is diffeized. 
 
 Fop. 8^. the Contingency happens, the Remain- 
 der vefts ; for fince Tenant for Life is 
 put out by Wrong, he has a Right En- 
 try, and in Judgment of Law his E- 
 ftate continues. 
 
 Tenant for Life, with a Co/zti/^ge/Jt 
 Hemaijider^ Tenant for Life is diffeiz- 
 ed, a Collateral Warranty bars the 
 Co7it'mge7tcy ; tho' it afterwards hap- 
 pens, during the particular Eftate; be- 
 caufc no Man can claim that which 
 he is obliged, as Heir, to defend to 
 another. 
 
 a Ro. Ab. If a Feoffment is made to J, S. to 
 
 l^s'd'ti ^^^ ^ ^^ ^' ^°^ ^^^^' Remainder to 
 Lp, 157'"^* ^^^^ Wife for Life, Remainder to C. 
 for Life, Remainder to the firft Son 
 of C. in Tail, J. makes a Feoffment 
 in Fee, this doth not deftroy the Cofi- 
 ti?ige7it Ke?j2ai7ider to the Son of C 
 for Life, who had a Jiight of Efitry for 
 the Forfeiture ^ and a particular Eftate in 
 Right, on which the ConWigeiit Re- 
 mahider will depend. 
 
 If in this Cafe, the Wife had enter- 
 ed after the Husband's Death i this 
 could not only have revived her Eftate, 
 but the Eftate of C and the Contin- 
 gent Remainder thereon, which had 
 
 never
 
 Witts mt) %mfi6. 137 
 
 never been put out of Being ; other- 
 wife 'tis, as is faid, in Sampfou Shekons 
 Ccife^ if the Contingent Remainder had 
 depended upon the Eftate of B. 
 
 If in this Cafe, the Son had been 
 born during the Life of C and neither 
 S. nor C» h^d entered, the Son could 
 not, but the Feoffees might,- for the 
 Poffeflion of the Feotfees muft be ex- 
 ecuted by the Statute in the Son, be- 
 fore he can have a Remainder by the 
 Rules of Common Law ^ till therefore 
 by the Entry, they have revived the 
 Eftate, the Son has nothing i if J, S* 
 in this Cafe, releafes to the Feoffee of 
 J, or to the Difleifor, the Cojitingent 
 Re?mi7sder could never veft ^ for J. S. 
 could never enter contrary to his own 
 Releafe, 
 
 J. makes a Feoifment to the Ufe of 2 Ro* Ab» 
 his Wife for Life, Remainder to ^. his ^^^J. El. 
 Son for Life, Remainder to him in 630, 
 Tail, that fhall be the eldeft Iffuc of 
 S. at his Death J ^.dies, the Wife makes 
 a Leafe for Years to B, who makes a 
 Feoffment and levies a Fine to 7- ^• 
 this does not veft the Contingent Re- 
 mainder -, but if B. dies having Iffue 
 in the Life of the Wife, the Iffue fhall 
 take it ; for the Feoffment of B. drowns 
 his own Eftate for Life, and is a For- 
 feiture
 
 t3S Wifts atiD %mtts. 
 
 felturc to the Wife, and her Entry prc- 
 ferves the Conti?ige7it Ufe^ which now 
 immediately depends upon her Eftate, 
 as if S.'s Eftatc were worn out by Ef- 
 fluxion of Time ^ and if it be the Re- 
 fidue of any of the fame Eftates that 
 were created by the fame Convey- 
 ance, it anfwers the Notion of a Re^ 
 maifider. 
 Hoy 1 2a. A Man covenants to ftand feized to 
 Cro. Jac.the Ufe of his Son for Life, Remain- 
 ^Ro.^^lj,dcr to fuch a Wife as he ilia 11 after- 
 793- wards marry, the Covenantor makes 
 ?.°vvil- ^ Lcafe for Years , this will not prevent 
 fen. the Rifmg of the Contingent Remain- 
 der ^ nor bind it; for the Ccvenantor 
 has no Power to demife any thing but 
 the Re'verfion ; and confequently the 
 Freehold remains unaltered to fupport 
 the Contingent Remainder ; but if the 
 Covenantor, in this Cafe had referved 
 for himfelf a Power of making Lea- 
 fes, this Leafe would have been good ^ 
 and a Revocatiofi of the former Ufes. 
 Moor 742 Tenant for Life, Remainder to his 
 \.A'v. Wi^^ ^or Life, and if fhe be difturbed 
 Burton, during her Life, the Remainder to the 
 Wife in Fee, the Husband makes a 
 Leafe to begin after the Wife's Death, 
 tho' flie be difturbed, fhe fhall not have 
 the Reverfion ; for the Leafe has alter- 
 ed
 
 Mks and Xmfts. 139 
 
 ed it ; fo there is the fame Eftate to be 
 executed in the Wife as was in Being 
 at the Difpofition of the particular 
 Eftate. 
 
 If J' gives Lands to $. for Life, Re- 2 Ro. Ab. 
 mainder to the firft Son of S. Re- 794^^^ 
 mainder to the right Heirs of S. and i^^, ^^' 
 B' makes a Leafe for Years ; and then 
 a Son is born, this iliall not deftroy his 
 Eftate i for there is the Rent of the 
 fame Eftate as was limited ; for the 
 Freehold it felf receives no Variation by 
 the making of a Leafe for Years, and 
 if the Remainder to the Son arifes, it 
 can't be bound by the Leafe for Years ; 
 for Tenant for Life had only Power to 
 devife it during his own Life i Qnare ta- 
 men* 
 
 If A* feized of a Copyhold in Fee, ^ Ro. Ab. 
 furrenders it to the life of his laft Will, 794. 
 and after devifes it to S. for Life, with ^„7low. 
 a CoTitingent Kej/iai7ider j and after S. dall 
 is admitted Tenant, and after he fur- 
 renders it to the Lord of the Manor to 
 the Ufe of his Will? the Contingency 
 happens, S. dies, his Surrender did not 
 deftroy the Cont'mgent Kemainder j for 
 in Copyholds a Surrender doth not 
 put the Eftate out of the Tenant, as 
 it doth in t\\QQsi{Qo£Fra7ihTe7ie7ne7its i 
 ^nd therefore there is a particular E- 
 
 ftatc
 
 K40 ^ftS *tl6 XttxS^S. 
 
 (late to fupport the Conti?tge7it 'Kevtaiii- 
 der. 
 Hughes Tenant for Life, with a Co7itinge?tt 
 Rep. 27i ^ejnainder^ Tenant for Life bargains 
 Cafe 0,0. and Sells the Lands in Fee^ this doth 
 Hard.4,5,not deftroy the Remainder, for this 
 pafl'es but an Eftate for Life, as is faid 
 before ^ and fo the Eftate of the Bar- 
 gainee will fupport the Re?namder, 
 
 Secondly, Where there is a Tower of 
 Revocation. 
 
 Co. Lit, A Teoffment or F/;/^, ^c. with Pow- 
 ^57- ■^er of Re'voccitiofi is void at Common 
 Law as to all Power of Re'voccition j 
 for the Words of Enfeoffing or Grant- 
 ing, &£. transfer the whole Right, Pro- 
 perty and Power of Difpofal to the Feof- 
 fee, &€. and therefore for the Party 
 to limit to himfelf a Power of Kevo- 
 catio7i^ and Difpolkl is repugnant to the 
 Force of the precedent Words, and 
 would introduce a double Power feated 
 in diftind Pcrfons over the fame thing, 
 which the Common Law difallows j 
 but this Rule of Law was fet aiide by 
 the liime Conftrudion that hath brought 
 in Exec7itory Fees ; for when before the 
 Statute UJes were limited with Power 
 to revoke, as the Occafion, Cireum (lan- 
 ces
 
 Mtts ana %m^s, 141; 
 
 ces and Mind of the Party altered it, 
 it was thought reafonable that the Party 
 Ihould have Liberty to Revoke accor- 
 ding to their own apparent Intent, by 
 which JJfes are ever governed ; and 
 iince the 'PoJJejJion is executed by the 
 Statute, as the Party had the Ufe^ the 
 Eftate continues Rewcabk, 
 
 A Tower of Revocation is two-fold -, Hard. 4^3 
 ift. /z Tower relatmg to the Laiid. F- "ak. 
 
 2. J Tower fmij^ly Collateral to the 
 Xjdudi 
 
 Firft-, A Power relating to the Land 
 is where a Power is limited to one 
 that had, hath, or ihall have an Eftate 
 or Intereft in the Land. 
 
 This is again two-fold. 
 
 X. Appendant or Annexed to the ^^Hardfii, 
 pate in the Land* 
 
 ■2, In Grofs, 
 
 P/r^, Appendant or annexed to the 
 Eftate in the Land, is when a Man hath 
 an Eftate in the Land \ and a Power of 
 Rez>ocation^ and the Execution of the 
 
 Power
 
 142 M(ts atio %m&s* 
 
 Power falls within the Compafs of the 
 Eftate in the Lands ,♦ as if Tenant for 
 Life with Power to make Leafes or 
 'Re'vokcy Grants a Re^t-Charge^ and 
 then makes a Leafe according to his 
 Power, the Leffee fliail hold it charged 
 during the Life of the Tenant for Life* 
 for he hath Power to charge his own 
 Intereft, which, by his own Ad can't be 
 avoided. 
 
 And if in this Cafe, he covenants to 
 (land feized to the Ufe of a Stranger, 
 he can t, by any After- A-d, Revoke the 
 t/fes i for fincc, as is faid, the Executi- 
 on of this Power falls within the Com- 
 pafs of the Eftate; fo that, unlefs it 
 be executed during the Continuance of 
 the Eftate, it can never be executed ; 
 therefore whatever A6t palles away the 
 Eftate hinders the Execution of this 
 Power of demifing ; for a Man can't 
 demife that Eftate which he hath paff- 
 ed away to another. 
 
 Seco72dly^ In Grofs^ is where a Man 
 hath an Eftate and Power of Revocati- 
 on, and the Execution of the Power 
 falls out of the Compafs of the Eftate ,* 
 as if there be Tenant for Life, Remain- 
 der in Tail, with a Power lodged in 
 Tenant for Life to make a Leafe for 
 Hftra.^U^i Ye^rsj to commence after his Death, 
 
 to
 
 to raife Portions to his Daughters ; this 
 is a Power i/i Grofs i and if Tenant 
 for Life ^ar^ains and Sells the Lands 
 in Fee, this doth not deftroy the Pow- 
 er J for fince the Execution of the Pow- 
 er doth not fall within the Compafs of 
 his own Eftate^ the felling of his own 
 Eftate only doth not hinder the ma- 
 ing Ufe of the Power. 
 
 But if he had levied a Fifie^ or made Hara.41^ 
 a Feoffment in Fee^ this Power had 
 been deftroyed, for here he abfolutely 
 paffes the entire Eftate, and diverts all 
 the Remainders, and thus, by pafllng 
 the whole Eftate to another5he hath dc- 
 4lroyed all the Power of Kemcatio?i^ 
 and limiting new Ufes to his own Be- 
 nefit j for this Power can't be executed 
 but out of the Remainders i and he hath 
 prevented the Execution of it by ha- 
 ving already difpofed of the whole Eftate 
 to another. 
 
 He mayRe/eafe fuch a Power o£Ke<vO' ^^^d. 415 
 cation to the Remainder-Man j for he that q^^^^^ ' 
 is to have an Intereft by any^ Poilibility 10 €0,48. 
 may releafethe fame to the prefent Poftef- 
 for,as well as if he had a future Right, for 
 'tis according to the Policy of the Law, 
 for the Qiiiet and Peace of the PolTeffors. 
 
 Secondly^ Where the Power of i^^-Harcl.415 
 vocation is (imply Collateral, 
 
 s. And
 
 144 ^fes! atio %t\ifts. 
 
 And that is, where a Man hath no pre^ 
 fent Intereft in the Land, and by the Re- 
 mcation of the Eftate is to have nothing* 
 
 In this Cafe, a Fi/ze or Feoffment of 
 the Land is no Extinguifhing of the 
 Parties Power ,• for tho' uvery Man is 
 eftopped to claim any Intereft contrary 
 to his own Ad, whereby he paflfes an E- 
 ftate to another \ yet if a Man makes a 
 Feoffment, or levies a Fi7ze, and theri 
 F^iiokes ; whereby a Stranger claims an 
 Intereft ^ the Stranger, who is the only 
 Perfon that can claim, is not Eftopped 
 to claim it j for no Man is Eftopped 
 from demanding his own Right by the 
 Adt of another ; and if there be no 
 Ejioppell in this Cafe, the Stranger hath 
 a Right by the Contra(a, 
 
 Jnd here of the Majijier (/Revocation J 
 
 Co. Lit. Firfl, If a Man is Tenant for Life, 
 iCo. 17? ^^ving a Power of Re'vocation, upon 
 174.* ' Re'Dokiug he is feized of his former 
 Eftate, without Entry or Claim ; for 
 he is in Poftelfion already ,• and there- 
 fore there can be no Entry, and the 
 Claim where the Party is already in 
 PofTefifion is a void Solemnity,- for it 
 doth dot make any Change of IProper- 
 ty notorious. 
 
 5 Secofidi
 
 Mtts atiD Xxntts. 14!? 
 
 Secondly^ If there be Tenant for Co. Lit. 
 Life, with a Power to Revoke the^^^* 
 Remainders, and limit new oncs,he may 
 do both by the fame Conveyance. 
 
 For lince wpon Revocation the for- Lie/ 
 mer JJfes are void ipfo fa5toy without 
 any Solemnity ; there is nothing to 
 hinder why the fame Convftyance 
 iliould not create new ones, and the 
 Law to fupport the Contra(ft will fup- 
 pofe the Deftrudion of the antient Ufes 
 to precede the Creation of the new 
 Ufes, 
 
 "Thirdly, He may Remke Part at{Jj;^*^^' 
 one Time and Part at another ; for ibid.Rcp, 
 this is not entire, like a Condition, for a ^o- ^^^* 
 Condition is entire, becaufe the Eftate*'^* 
 muft be defeated in the fame Manner that 
 it is made ; for otherwife the Solemnity 
 of the Entry will not be equivalent to 
 the Solemnity of Livery ; but a Revo- 
 catiofi is in the Nature of a Limita- 
 tion^ and there is no Solemnity necef- 
 fary to the Defeating the Eftate j and 
 therefore it may be done by Parts ; con- 
 fequently if a Fifte be levied of Part, 
 that is a Revocation only of that Part. 
 
 Fourthly^ The Power of Revocation 
 follows the Eftate. 
 
 A Covenant to fland feized to the^cc^55.^^ 
 life of S. and his Heirs, with Power cj/I" ' 
 of Revocation upon Payment of Mo- 
 L ney
 
 146 Witts atto %xutts. 
 
 ney by S. and his Aflfigns ; B, dies, he 
 may tender to the Heir who is in Law 
 the Affiqjiee to this Purpofc. 
 
 Fifthly^ a Power of Re'vocatio/i is in 
 fomc Cafes a Forfeiture. 
 
 If there be Tenant for Life, with 
 Power o£ Rcvocatiofi over the Eftates 
 i^ent'**^" R^'niaindcr; and the Re<vocation de- 
 i28foi3s. pends upon Circumftances infeparably 
 annexed to the Perfon of Tenant for 
 Life, this cannot be forfeited ; but if it 
 depends upon Circumftances, it may be 
 performed by another, the King fliall 
 take Advantage of it, and Remke the 
 Ufes y as if the Re'vocatiou is to be by 
 Writing under the Parties own Hands 
 and Seals, this cannot be forfeited to the 
 Kingi but if the Re'vocatiou is to be up-. 
 on Tender of a Ring by himfelf, or any 
 other for him during hisLife^ this Pow- 
 er is forfeitable. 
 I Vent. Sixthly^ If a Man makes a Teoffment 
 2R0 Ab ^^^ Power of Revocation^ when he 
 a6'i. ' * hath executed that Power, he cannot li- 
 mit new Ufes upon the fame Teoff?ne?it j 
 but otherwife it is, if he had a Power 
 to Re'voke and limit new ones on the 
 fiime FeoJfme7it^ with a fecond ^ower 
 of Rcvocatiof2y &€. and fo />; iufimtmi* 
 
 Second-
 
 Witts atiD %mM. 147 
 
 Secondly, "The Exectitiofi of Jomtures ^'K.e^.i.h 
 by the la ft Claiife of the SiaUite. 
 
 The Original of Jointures was in this 
 Manner i nioft Lands were fettled in 
 Ufe^ whereof Women were not ^owa- 
 hle J and therefore the Wife upon Mar- 
 riage ufed to procure the Husband to 
 take the Eftate of the Feoffees^ and fet- 
 tle it to the TJfe of him and herfelffor 
 Life or in Tail, with what Remainder 
 over he pleafedj for therd was no Con- 
 fidence at all in thofe Times in the 
 ^ozver at Comino7t L.aw, 
 
 Upon the Execution of Ufes^ there 
 were feveral Maxims at Common LaWy 
 which would have given the Wife a dou- 
 ble Provilion, as that no Right could 
 be barred before it accrued, and no cal- 
 lateral Thing could be received in Sa- 
 tisfittion of" a frank Tenant, in which 
 it muft have been adjudged, that the 
 Wife muft have Do^juefy notwithftanding 
 her Jointure j and therefore the Statute 
 provides, that the Intent of the Parties 
 m this Change of Property, which is 
 made, fhould be obferved, as that the 
 Wife (hould not claim both her Dower 
 and Settlement, contrary to Juftice. 
 
 To make a good Joi72t7ire within the 
 Statute, (ix Things are regarded. 
 
 L 2i Ti^'Jif
 
 148 ^its atiD Xtntts. 
 
 Firfi, The Eftate muft of Neceffity 
 take Efedt immediately after the Death 
 of the Husband. 
 
 If the Husband be Tenant for Life, 
 the Remainder to the Wife for Life, 
 this is a good Jomture^ tho* not with- 
 in the exprefs Examples of the Statute, 
 for *tis within the Equity and Deiign of 
 it. 
 4 Rep. If the Remainder be limited to the 
 Alhton's Wife, upon Condition, her Acceptance 
 ^'*''' of fuch a Conditional jointure makes 
 it goodj for this Eftate fupports the 
 Wife well enough, and 'tis in her Pow- 
 er to continue it during her Life ,• there- 
 fore an Eftate durante iiiduitate is a 
 good Jointure. 
 4 Rep. 5. If ^" Eftate had been made to the 
 Husband for Life, the Remainder to 
 7. S. for the Life of the Husband, to 
 fupport Co7itinge7it Refnainders^Reniain- 
 der to the W^ife^ this is a good Join- 
 ture. 
 Hutton If an Eftate be made to the Hus- 
 M- band for Life, the Remainder to the 
 * ^P' 5* Wife for a 'Joi?iture i this is no good 
 ^ointf/re ; for 'tis not within the Words 
 or Intent of the Statute j for the Sta- 
 tute deiigned nothing as a Satisfa^^rion 
 for T)owery but that which came in the 
 3 fame
 
 Mfts attD Xttttte. 149 
 
 fame Place, and is of the fame Ufe to 
 the Wife j and tho' J. S. dies during the 
 Life of the Husband ,• yet this is not 
 good J for every Intercft not equivalent 
 to T)ower^ being not within the Statute 
 is a void Limitation to deprive the Wife 
 of her Dower^ and a void Lifmtatio?i 
 is as if there were none at all. 
 
 If an Eftate be made to the Ufe of 4 Co. %. 
 J. for Life, the Remainder to the Wife "°^- ^5«- 
 for Life, this is not good, tho' J. dies 
 living the Husband. 
 
 If an Eftate be made to the Husband Hotron 
 for Life, the Remainder to J, S. for ^[^^^ 
 Years, the Remainder to the Wife for 35. 
 her Jointure^ this is not good. 
 
 If a Man makes a Feoffinejit to the 
 Tffe of himfelf for Life, Remainder to 
 the Son and his Wife, and the Heirs of 
 the Body of the Son, this is no good 
 Jointure^ tho* the Wife hath an imme- ibid, 
 diate Franktenemeiit \ for to be within 
 the Cafes of the Statute, whereby 
 IDozver is barred, the Wife muft have 
 a fole Property after the Death of her 
 Husband. 
 
 A Jointrefs o£h2inds mortgaged, and Bertue 
 it was decreed in Chancery,that the Wife ^ifan"^^* 
 fiiould pay the Mortgage, and to hold Rep. 171, 
 the Land, not only during her Life, but 
 till fhe and her Executors be re-paid 
 with Intercft. 
 
 L3 A
 
 1^0 tllfes atiD %mftB. 
 
 A Feoffment in Fee to the Ufc- oi 
 the Feoffee for Life, the Remainder to 
 1 Sid. 3-4. the Ufe of his fccond Son for Lifej Re- 
 Bride- Hiainder to the TJfe of fuch Wife as 
 man, the Son fliall take. Remainder to the 
 ch. Ju- Heirs of the Son, the Father dies, the 
 Son marries and dies, the Wife is not 
 by this Settlement barred of her Dozi'- 
 er i for this at the Time of the Creati- 
 on, was no certain Provifion for the 
 W^ife's Life; for the Son might have 
 married and died in the Life of the 
 Father. 
 iBulf. It may be immediately either after 
 a^H 4. the Natural or Civil Death; and there- 
 Co. Lit. fore if the Husband be baniflied, the 
 '3*- Wife fhall have Tjocufr. 
 
 Seco7idlyi it muft be for Term of her 
 
 own Life, or a greater Eflate, otherwife 
 
 it doth not anfwer the Defign of the 
 
 Co. Lit. ^ozver; therefore if an Eftate be made 
 
 3*^* to the Wife in Tail or in Fee, this is 
 
 a good Jointure* 
 
 If an Eftate be made for the Life 
 or Lives of many others, this is no good 
 Jointnre* 
 Ibid. A Leafe of loo Years, if the Wife 
 
 jive fo long, or abfolutcly is no good 
 Joifiture, 
 
 For the Statute provides, that when 
 the Wife hath an Eftate for Life by 
 Settlement, fhe fhall be barred of her 
 
 Vozuer
 
 jD,ozver at Cofmno7i JLaw^ if fhc hath a- 
 ny greater Eftate, fhe hath an Eftate 
 for her own Life included in it ,• but if 
 fhe hath any lefs Eftate 'tis out of the 
 Statute. 
 
 T^hirdly^ it muft be made to her felf, Co. Lir„ 
 and not to others in Truft for her, tho' ''^* 
 by her AiTent, and expreffcd to be in 
 Satisfaction of her T>ower ; for the Sta- 
 tute only bars the Dozver, when by it 
 the Poffeflion (which was formerly a 
 life) is executed in her. 
 
 Fourthly, It muft be in Satisfadion Co Lit. 
 of her whole T)ozver^ and not of Part 5^_^- 
 only; for if it be in Satisfadion ofl ^" * 
 Part, 'tis uncertain, for what. Part ; 'tis 
 in Satisfaction of her jDotver: But if it be 
 expreffedof what Part, J^j^re li good. 
 
 If an Eftate be made to the Wife in 
 Satisfaction of Part of her T)ozver be- 
 fore Marriage, and after Marriage o- 
 ther Lands are conveyed, wherein it is 
 faid to be in full Satisfaction of all her 
 ^oiver^ if fhe waives the Lands convey- 
 ed to her after Marriage, fhe fhall have 
 T>ower for all the Lands of her Husband, 
 notwithftanding the Settlement is in Sa- 
 tisfaction of Part. 
 
 Fifthly^ It muft be exprefted to be in Co. Lit. 
 Satisfaction of T)ower, 5<J^*- 
 
 An Averment is fufficient j for fince 1 ^^' * 
 before the Statute, all Lands were fet- 
 L 4 tied
 
 IS 2 Mtts atio Xtnfts. 
 
 tied by Way of Ufe, it was not neccf- 
 fary it fhould be expredcd in the Con- 
 veyance, that it was in Satisfadtion of 
 UDozvery fince the Wife was not 1)ovjahle 
 of Ufes I and if the Heir could not take 
 Benefit in fuch Cafe by Averment, the 
 Dcfign of the Statute, as to many Ca- 
 fes, would have been avoided. 
 Ibido A T>emfe of an Eftate for Life cannot 
 
 be averred to be in Satisfaction of a 
 'Dower y unlefs it be exprefled fo in the 
 Will, for there can be no Averment 
 contrary to the Will, and confcquently 
 there can be no Averment contrary to 
 the Conflderation implied in every De- 
 vije^ which is the Kindncfs of the Tcfta- 
 tor ; and fo it cannot be averred, that the 
 quitting of TDoM/^r was the Conflderation 
 Owen 3 5. of this ^D^e^Z/^jbecaufe'tis not fo exprefled. 
 
 If an AfTurancc be made to a Wo- 
 man for her Joijitiire^ and this is not 
 exprcflbd in the Deed but averred, fuch 
 Averment is not travcrfable ; for 'tis not 
 material by the exprefs Words of the 
 Statute i and therefore 'tis not a necef- 
 iary Point to entitle themfelves to it by 
 the Benefit of this Difcharge. 
 
 Sixthly^ A Jointure may be made 
 either before or after Marriage. 
 
 If it be made before Marriage^ fKe is 
 Sole, and as fuch under no Man's Pow- 
 er ,• if after Marriage^ ihe takes a Join- 
 ture 
 
 Co. Lir. 
 
 36.6. 
 
 4 Rep. 3 
 a. 
 
 Co. Lir. 
 36. b.
 
 tnre in Satisfa6tior> of a 'Dower^ fl^.e 
 may wave it after Coverture ; but if 
 ilie enters and agrees thereto, ilie is 
 concluded i for tho' a Woman is not 
 bound by any Ad:, when ilie is not at 
 her own Difpofal j yet if (he agrees to 
 it when fhc is at Liberty, 'tis her own 
 Ad, and (he cannot avoid it. 
 
 If a Joif/ture be made to the WifeiBuiC 
 before Co'verti/re, and the Husband and^^'^,|j. 
 Wife alien by Fir/e^ the Wife iliall not ^6. i. 
 afterwards be endowed of any Lands 
 of her Husband's; for fince flic quitted 
 her Doiver when flie was at her own 
 Difpofal, fhc can claim nothing but 
 the Jointtire ; and that flie has piiiVd 
 away by the Fi7ie levied; but if the Joiji- 
 tnre was made during the Coverture, 
 and then ilie rclinquifVied it by Fint\ yet 
 fhe fliall have her Dozver of the other 
 Lands ,• for the Acceptance of a yoiu- 
 ture^ during the Coverture, is no Bar 
 of her 'Dozver.y and fhe pafTmg it by F.h/t\ 
 cannot be conflrued as an Acceptance 
 of Property in them, fince that Ad is 
 capable of another Conflrudion ; ( cv'^:. ) 
 to bar her of her T)ower in thofe Lands. 
 
 The Wife may waive her Joifiture y^o. zS. 
 by Tarol in pais^ for the Ufe may be p ^^^ 
 limited by Parol at Common Law ; 
 and therefore may be devefted by Ta- 
 rolj aiid the 24 H» 8. by its cxprefs 
 
 Words,
 
 1^4 ^f^s attif 5Ltttfts. 
 
 Words, has no Power to execute the 
 Freehold in her when {he refufes. 
 Co. Lit. If an Eftate fee made to the Wife for 
 3.9. i. ]ier Joi7iture during the Coverture, the 
 Remainder to J, S» in Fee, and the 
 Wife ijoaves this Joinuire^ J» S* fhall 
 liave the Remainder j for here was a 
 particular Eftate at the Time of crea- 
 ting the Remainder ,- fo that it had the 
 Circumftances of a Remainder, being 
 the Refidue of a particular Eftate then 
 in Being j and fince the particular E- 
 ftatc was dcfcafablc by an Ad that could 
 not hurt the Remainder, the Remain- 
 der upon fuch Dcftrudion of the par- 
 ticular Eftate comes in Being. 
 
 A Man covenants to ftand fcizcd to 
 the Ufe of hiinfelf in Tail, the Re- 
 mainder to his Wife for Life, the Re- 
 mainder to S. in Tail, and then he 
 makes a Tcoffme^n in Fee to the Ufe of 
 himfeif and his Wife for their Lives as 
 a JoiiJtnre^ the Remainder to C* and 
 Co. Li"r. dies without lifuc, the Wife is Remit- 
 348- '*• ted i for where a Later, and Defcafa- 
 ble, and a Former, and Indefeafable 
 Title concur in the fame Perfon, there 
 muft be a Remtter. 
 
 But in this Cafe the Wife hath two 
 Titles both waivable by her, the firft 
 indefeafable by any third Perfon ; the 
 later defeafable by a third Perfon; 
 
 for
 
 for upon her Claiming by the fccond 
 Title, ihe waives the firft, and confe- 
 quently the Remainder in B- commen- 
 ces, and he fhall have his Adion j and 
 therefore fhe mufl: be in her former Ti- 
 tle to fave the Contention and Trou- 
 ble of the Action. 
 
 But if an Eftate be made to the Hus- Co. Lir. 
 band in Tail, the Remainder to the Wife y^'^ ^^ 
 for Life, the Remainder to the Right /,.*'* 
 Heirs of the Husband ; the Husband after- 
 wards makes a Fcoff?/ie7it in /vt' to the Uje 
 of the Husband and Wife for their Lives, 
 the Remainder to the Right Heirs of 
 the Husband J the Husband dies with- 
 out Iffue, the Wife may claim, by which 
 fhe pleafes, and is not Remitted tiokns 
 'Volens\ becaufe here are not two Titles, 
 the one indefeafablc, and the other de- 
 feafable by a third Pcrfon,but both equal- 
 ly firm; for the Right Heir of the Huf 
 band, upon the W^aiver of the firft E- 
 ftate, by the Wife, can claim nothing 
 in the Land, contrary to the FeoJf?/ie7it 
 of his Jjicejior j and therefore that E- 
 ftate which the Wife claims is inde- 
 feafable, and no Stranger is prejudiced, 
 by being put to his Action. 
 
 'But if fhe makes no Elc^ion, fJie^Ro.Ab. 
 fliall be fuppofed to be in of her elder ^^\\^^ .^ 
 Eftate, becaufe every one is prefumed 19. 
 to chufe what is moft for his Benefit. 
 
 If
 
 1^6 Witts atiB %tutts* 
 
 Cro. Jac. If the Wife has an old Right before 
 *^°* the Coverture, and afterwards takes a 
 jointure of the fame Lands flie fhall 
 be Remitted. 
 Hob. 72. An Eftate fettled to the Husband for 
 Life, Remainder to the Wife for a Joifi- 
 turt\ except fuch of the Lands as the 
 Husband iliould dcvifc, this Exception 
 is repugnant to the Grants becaufe the 
 Scttlenncnt might be avoided by the 
 Husband devifins the whole. 
 
 •a 
 
 Of Pleading Jointures. 
 
 Hob. 7i. In a Writ of 'Dower the Tenant 
 pleads a Joifiture in Bar of ^ozver^ 
 and concludes that the Wife claimed 
 after the Cocertwe^ by Force of the 
 Joijiture^ the Wife makes a Title to 
 the fame Lands by another Conveyance, 
 and concludes her Replication without 
 traverilng the Claim a Hedged in the Bar^ 
 but the Tenant cannot rejoin, that the 
 Wife claimed by Force of the yo/«///rf , 
 Cro. JfCo ^yithout traverfmg her Claim by the Ti- 
 ^^^' tie alledged in the Replication ;and the 
 Reafon of the Difference is this, the 
 Claim by Force of the Jointure alledg- 
 ed in the Bar is out of Time, and idly 
 pleaded ; and therefore requires no Tra- 
 verfe ^ for by the general Words of the 
 Statute a jQinture is a good Plea in Bar
 
 Witts atiD Xvntts. 1^7 
 
 of TDozver ; but there is an Exception "ob. lu 
 in thefe Words, provided if the Lands 
 be affurcd, during the Coverture^ ilie 
 may have Liberty to refufe them -, fo 
 that the Wife, to avoid the Bar of the 
 Statute, muft plead that fhe is within 
 the Exception of the Statute ; for fhe 
 muft lliew what is for her own Purpofe 
 and Advantage ^ but when fhe fets up 
 a Claim by another Conveyance in the 
 Replication, the Tenant cannot plead a Cro. Jac. 
 Claim by the Jointure without tra-'*^°* 
 verfing her Claim by the other Con- 
 veyance, bccaufe the Matter muft be 
 brought to Trial when any Difterence 
 in Fa(5l is ftated ; and he that denies 
 the Fad of any thing properly and fit- 
 ly pleaded muft draw to the Ifluc by 
 offering a Travtrfe, 
 
 Of the jrifey Jllez/atiou of her Join- 
 ture. 
 
 By the \i H* 7. 20. If a Woman 
 hath an Eftate in Joijitiire or in ^oo;- 
 er^ and aliens by Recoi'erjj or other- 
 wife, he that hath an Intereft, and to 
 whom the Land ought to belong, may 
 enter as if the Woman were dead, with- 
 out T}if continuance or Recovery. 
 
 A IJje at Common Law, fettled by 
 the Huiband on the \yife for her Join- 
 ture^
 
 tnre^ is within the Intent of theStatute; 
 for 'tis an Hereditament within the 
 Words of the Statute j and tho' the 
 Statute fpeaks that it muft be by Di- 
 fcent or Purchafe of the Husband j yet 
 it mufl: be an JJfe newly raifed to be 
 within the Law; becaufe 'tis Part of 
 the old Eftate which the Husband had 
 by Difcent or Purchafe. 
 
 Since the Execution of Ufes^ an Ufs 
 fettled in Marriage on the Wife by the 
 Husband, \s within the Statute ^ lor it 
 comes within the exprefs Words (given 
 to the Husband and Wife, by any feiz- 
 ed to the Ufe of the Husband) for eve- 
 ry one is Party to an A6t of Parliament; 
 and therefore the Feoffees transfer their 
 Intcrefl in the Manner that it is fet- 
 tled. 
 
 A Woman feized of Lands in Fee 
 Simple takes a Husband, and has IlTue 
 a Son, and fhc and her Husband levy 
 a Fine of her Lands with a Grants an4 
 Keitder back to them both in fpecial 
 Tail, the Remainder to her Right 
 Heirs, if the Husband dies, and the 
 Wife after levies a Fine of thefe Lands, 
 this is no 'J)ifco72tinuance within the 
 Statute; fo if a Woman conveys Lands 
 to the Anceftors of her intended Huf- 
 band, who re-conveys it to the Husband 
 and Wife in Tail, the Wife, after the 
 
 Co-
 
 Mtts auD Xxtitts. 159 
 
 Coverture may alien ; and yet be out 
 of the Danger of the Statute j for the 
 Statute intended to redrefs the Mifchief 
 of the Wife's Alienation of the Huf^ 
 band's Lands, and thefe were originally 
 her own. 
 
 If Lands be fettled to the Ufe of the 
 Husband and Wife in Tail fpecial for 
 her Joijiture^ the Husband dies, the Wife 
 AUe7is in Fee^ the lifue may enter in 
 the Life of the Wife; for by the i Kich. 
 3. c. I. the Ads of Oftuy que Ufe fliall 
 bind the Feoffees, and according to his 
 Title and Intereft in the Lands -, fo that 
 the Feoffee of a Ufe in Tail might 
 have entered after the Difcontinuance of 
 Ceftii)/ qt^e Ufe in Tail, without being 
 put to their Fotiuedou ; and therefore 
 if the Statute of H> 7. did not give an 
 Entry in the Life of Ceftidj que Ufe in 
 Tail, it would be to no Purpofe. 
 
 Husband and Wife, Tenant in Tail Brown'f 
 Special, Remainder to the Heirs of the^''-^^*. 
 Husband, -the Husband dies, the I{fueRep'j„ 
 k'vies a Flne^ and by it grants all his 
 Intereft to J, S. tlic Wife makes a Leafe, 
 for three Lives, not warranted by the 
 32 ^. 8. 7. S. may enter immediately, 
 and ouft the LefTeci for J. S. is the Per- 
 fon that has an Intereft, and to whom 
 the Lands ought to belong ; for the 
 Fine concludes the IfTue of the Tail ; 
 
 by
 
 1 60 tifes ano %xn1is. 
 
 by the 52 ^. 8. 35. a p//^^ levied of a* 
 ny Lands intailcd to any of the Ance- 
 ftors of the Conufor is a Bar to all In* 
 tents and Purpofcs^ and the Remainder 
 is granted by the Common Law ; fo 
 that 7' ^' ^^^^ the next immediate 
 Intercft, and confequently may enter 
 for this Alienation in the Life of the 
 Wife. 
 
 If the Wife be Tenant for Life of the 
 Husband's Lands, the Reverlion to the 
 I(fue in Tail, and Tenant in Tail fuffers 
 a Reco^'ery by Diffeizin of the Wife, and 
 then the Wife rcleafes to the Recoveror 
 with Warranty, the Wife dies, the Iflue 
 in Tail dies leaving IfTue, his Iflue fhall 
 not avoid the Collateral Warrajity of 
 the Wifcj for if the immediate Heir in- 
 heritable, either before, or at the Time 
 of the Alienation, confents upon Record, 
 he is not within the Benefit of this Sta- 
 tute by the laft Provifo j but if after 
 the Alienation of the Wife, the Iflue in 
 Tail had releafed upon Record, this 
 had been no Bar of the Tail ; for when 
 the Iflue has any Right as Tenant in 
 Tail, he cannot by his Adt bar his Iflue,^ 
 Wefij/nnft, 2 C i . and fince the Statute 
 de ^ofiis is not repealed by exprefs 
 Words, a Confent to part with any 
 Right accrued to Tenant in Tail, is 
 within the Verge of the Statute. 
 
 There
 
 There is a Difference between this Sta- 
 tute and the 6 of R, the 2* for there 
 the next of Kin to the Perfon raviihed 
 fhall enter, and by the Words of the 
 Statute, (hall hold it y//re Hareditatis ; 
 and therefore if a Daughter entered 
 and held it Jure Hareditarioy the Son 
 born afterwards fliall not diveft itj but 
 here the Statute fays, That the Terfm 
 that has Inter eft fljall enter and hold it j 
 and therefore if a Daughter enters^ a Son 
 born afterwards Ihall diveft it. 
 
 Thirdly, Of the Cafes out of the Sta- 
 tute, and they are two-fold, 
 
 1. Where Ufes are limited tipon Ufes. 
 
 2, Where the Ufes of Terms are li- 
 mited, 
 
 Tlrftt Where Ufes are limited upon 
 TJfesi if a Man bargains and fells his 
 Lands to A, to the Ufe of B. the Sta- 
 tute cannot execute the Ufe in S. for by 
 the Bargain and Sale, which implies a 
 Confideration, there is a Ufe in J. and 
 before the Statute it was impoflible that 
 two diftind Perfons fhould have the Vfe 
 of the fame Land. 
 
 And by the Statute, tiie firft C5^canno|t 
 
 be executed in J, fince there could not 
 
 be two plenary Polfcff^lirs, and the fe- 
 
 M cond
 
 1 62 MUs anhXtufxS. 
 
 coiid L'fe being contrary to the Difpofi- 
 tion to J, muft be null and void ^ but 
 Vangh^5. ^j-je Qba/jccr}' that looks upon the latc- 
 ii^, -1,5.* reft of the Parties in Conveyances, con- 
 ftrucs yj. only as an Inftrument to take 
 the legal Eftatc, and that in Confcience 
 he is bound to anlwer the Truft to S. 
 which he hath taken ,• Qtiacre taine7iy if 
 the Confidcration moves from J, 
 Pop. Si. If a Man doth Enfeoff another to 
 the Ufe of J, S» and his Heirs, and up- 
 on this Confidcration, that if y. N. Uiall 
 pay fo much Money, then the faid y. S» 
 and his Heirs fnali be feized to the Ufe 
 of y. N. and his Heirs, y. N. pays the 
 Money, the Ufe is not executed in him 
 by tlie Statute, cmifa qua fnpra i bu*t 
 the Court of Cha?icety will undoubt- 
 edly fupport fueh Truft. 
 4 Rep- 4' A 'Dc'vife fuppofes a Co7ifideratiofiy 
 and therefore it cannot be averred to 
 any other Ufe than to the Ufe of the 
 Devifce, for that were an Averment 
 contrary to the Dcfign of the Will ap- 
 pearing in the Words, 
 a Vent. But if an Ufe be expreffed, it fliall 
 3'^' be to the Ufe of Ceftjiy que Ufe^ and 
 will execute ; for the Will has only an 
 implied Uf\ where no other is limited, 
 and Expreffum facit Ceffare T^acitim. 
 a Venr. But if Lands be devifed to A' during 
 Che;!"" the Life of J5. in Truft for ^^. the Re- 
 PurdanL- ' juaindcr
 
 mainder to the Heirs of !B. now living ^ 
 this is a ChctJicery I'ruji in j§. and not 
 executed by the Statute ; for this was 
 the Defign of limiting an Eftate to J, 
 that a T'ail might not be executed in j§. 
 whereby he might have a Power to 
 dock it. 
 
 Secondly, Where the Ufes of 'Terms 
 are limited out of the Statute^ fee 
 before ; and thefe Limitations are 
 tzvo-fgfd, 
 
 Firft, Of Such as wait on an Lzhe^^ 
 
 rita7ice. 
 Secondly, Terms in Grofs* 
 
 Firft^ Such as wait on the Inheritance: TJ.-.e Cafe 
 The Original of this was in the Time j(^^'^^^°? 
 of ^tieen Elizabethj when Mortgaging ton'^ Ar- 
 by Way of raifing Terms was invented igument, 
 and then if a Marriage Settlement was ^'^* 
 made, or a Purchafe upon valuable 
 Confiderationj and the Mortgage was 
 difcharged by the Purchafe-Money, or 
 the Marriage-Portion, it was thought 
 fit to take an Alignment of the Term 
 in Truft to the fame Perfons to whom 
 the Inheritance was limited, to prote(5t it 
 againft latter Mortgages. 
 
 And hence it is that the Inheritance c^/e of 
 v/as limited in Tail, with Remainder ^'.^''^^fV 
 M 2. over, 6, n.
 
 164 ilfes atrt Xtntts. 
 
 over, the Truft of the Term might be li- 
 mited in the fame Manner,- and there- 
 fore if the 'Tail was docked by Fi/ie and 
 Recovery -i the Truft of the Tail and 
 Remainders ceafed, and attended the 
 Inheritance in Fee, for the Trufts could 
 not protcdl or attend thcfe Eftates that 
 were not in Being, and the Truftee, who 
 is but an Inftrument to protc<^t others 
 cannot have it to his own TJfe, 
 
 The Intailing a Term is not within 
 the Statute de l^onis Condit, jEpr that 
 
 ibid.5.ii.5t.^t:ute extends only to Eftates of In- 
 heritcince, and not to Chattels, which the 
 the Rules of Common Law have car- 
 ried into another Channel. 
 
 And therefore in this Cafe the Truflee 
 and Tenant in Tail may difpofe of it 
 
 ibU.j.i I. without a FiKc or KeccJery ; and this 
 upon \'aiu; ble Confidcration, will bind 
 the hi'ue .; becaufc. tince the Chancery are 
 not bouud by tli'^ St itute, they are at 
 LiUrty "j dir d the Kulcs of Equity, 
 and 'tis not Equity to fet up the Truft 
 to uie Jijtic when the Jncefior has re- 
 ceived ior it a Vcdnchle Co7ifideratio?i, 
 
 Ibid 3. 11. Aid it 'v,Il be Jjjlts to pay Inte- 
 r.ires Dcbr^. for nil Chattels of Inte- 
 fi-atos fre .^i/k/ ac Ccv.vion Laiv ; and 
 'tis 1:01 8i:^uiry ro direct it oth'-rwl{e. 
 
 Eut if t! Inhcrittince of an TJfe be 
 
 int liltd, ti:o Alienation of Tenant 
 
 2 in
 
 in Tail, will not divefl it out of the If- Co Lit.;] 
 fue, for 'tis within the Intent of the ^° 
 Statute de T)oms^ which fays that if 
 an Eftate be thus limited, the 7Jo7/ee 
 iliall not alien to prejudice his liTue ; 
 and the Chancery in interpreting Mens 
 Contracts, is bound by the Intent of 
 an JU of Tarliaiiiait, 
 
 If a T^erin be given to A. in T'ruft I'ukeof 
 for J5. in Tail, with Reinaindcr over, cl}f ^'''' 
 attendant on an Inheritance, and A. fur- mu i. 
 renders to B, this fliall not dcdroy the -^'■'^- »• 
 Remainder ^ for tho' the Surrender de- * '^'^* ^ ' 
 ftroys the Eftate at Laiv^ yet the Truft 
 remains in Equity^ if the Party had No- 
 tice, 
 
 But in Cafe, if J, or B. had aliened cafe of 
 upon valuable Confideration, without '^'^''^'^'- "• 
 Notice, this would have deftroycd the 
 Equity of the IlTue and the Remain- 
 der Man. 
 
 Secondly, T'evms in Grofs. Of Execu- 
 tory Trufts, or Terms J7i Grofs, ii al- 
 ready fpoken in the Laic of Execu- 
 tory Trufts. 
 
 If a Leafe be limited in ^rufl'^ and Chan, 
 the Trufhe renew the Leafe, it iliili bj ^^^^'- '''* 
 to the Benefit of Ccfttiy que Irfj/t; for 
 if the Truftee takes on him the Truft, 
 he takes upon him to ad for the Bene- 
 
 :^i s fit
 
 166 Hftsano %tufi^. 
 
 fit of the Party to whom the Advan- 
 tage of the Term was originally de- 
 figned. 
 
 The Father made a Truft for his 
 Will, and dcvifed 500/. to each of the 
 Daughters^ payable at their full Age 
 or Marriage ; or if any or all of them 
 died before, then to others ; the "Triiftee 
 out of this cannot allow Maintenance to 
 the Daughters, tho' they have no other 
 Maintenance, becaufe the whole is de- 
 vifed to others i and therefore, if the 
 ^I'rtiftee dcduiSts any Part of it, they do 
 not follow the Intent of the Will. 
 1 Co,iio. Where J. lince the Statute of the 
 ^^' 27 of //. 8. enfeoffed B. in Fee to the 
 Ufe of himfelf and his Heirs, during the 
 Life of C then to the Ufe of the firft 
 Iflue Male of C. in Tail, fo on to the 
 tenth lUue ; then to the Ufe of 2). in 
 Tail, then to the Ufe of F. in Tail, 
 Kemainder to the Ufe of the Right 
 Heirs of ^, 21 enfeoffed C before the 
 7 C?>.i37. g^.^h of any Iflue, without any Confi- 
 deration ; and having Notice of the Ufes^ 
 afterwards, on a Trial between the 
 Feoffee of C. and his liTue, this Matter 
 came in Queftion ,• and the Point of the 
 ? Co. 13 5. Cafe was, whether or no thefe contin- 
 ^' gent Ufes are dcftroyed by the Feoff- 
 
 ment to C. and it was refolved that 
 they arc. In handling this Cafe, I fhali 
 
 firft
 
 firft endeavour to'fhew that C the Feof- 
 fee of S. did not ftand feized to the for- 
 mer [7/^J notwithftanding the Feoffment 
 was made without Conlidcration, and 
 he had Notice of the Ufes ^ for this 
 Feoffment divefts all the Ertate out of 
 others, and by it S. gained a new E- 
 flate iw Fee by Wrong, which he palT- 
 ed over to C fo that C. is not feized 
 of the old Eftate, fubjed to fuch and 
 fuch XJfes^ but he has a new Eftatc that 
 is fubjcd to no Ufes^ becaufe not cxpref- 
 fed or limited i and the Law, by Con- 
 ftrU(5tion, will not make his Eftate fub- 
 jed to tZ/e-j annexed to an old E-fcatCj 
 now gone and only remaining in Right ^ 
 for were the Land chargeable with the 
 Jjfes into w^hofefoever Hands it cair.e^ 
 this would be a Terpettdty \ for by 
 limiting a great many contingent TJfcs^ 
 and charging the Lands with them ra- 
 tmie poffejfionis^ into w^iole Hands fo- 
 evcr it came ; and it being in the Pow- 
 er of Nobody to bar and defeat thcfe 
 contingent £7/6^j (as it cannot be) (were 
 the Lands charged into whofe Hands 
 foGver it came) with them, all the'e 
 Inconvenicncies, the neceffiry Cop.fj- 
 quences of a Perpetuity, muft need foi- 
 low. Therefore a Ufe \\-c\s not a Thing 
 at CommoJi Laiv annexed to the Pof- 
 felTion of the Land, but the Privity of 
 ?J 4 Eil'-ite J
 
 16% tafefi ana Xtiitts. 
 
 Eftate J iherefore the Chancery did not 
 charge all the Perfons that had the 
 Lands, but only thofe Perfons that came 
 into the Lands by Privity of EftatCy 
 and with the Truft and Confidence at 
 firft repofed in the TCertmants i and that 
 for the Reafon aforefaid, left they 
 might encourage Perpetuities ; and they 
 Bro. ""S conftrued in a Court of Equity^ the 
 #. Pi.Vo." Limitations of Ufes^ as thofe of Eftates 
 in PolTeflion were at the Courts of 
 Coimnon Law j for the Chancery would 
 not fet up a Rule of Property diftin(5t 
 from that at Comvton Law^ efpecially 
 in Cafes fo inconvenient ; for if the con- 
 tingent future Ufes might not be de- 
 ftroyed as well as contingent Remain- 
 dersi then by the Limitation of them, 
 a% Eftate of Inlieritancc would be fo 
 fettered, that Nobody would meddjc 
 with the Purchafe of it ; and what Rear 
 fon can there be afTigned, why a contin- 
 gent UJe cannot be deftroyedas well as 
 a Ufe in EJfe^ which was daily deftroy? 
 ed, and that by the Conftru^ion of the 
 greateft Equity j for if the Feoffee to an 
 l/fe^ had for good Confideration cn^ 
 feoffcd another who had no Notice, the 
 JJfe was dcftroyed, tho' the Feoffee 
 came in by Privity of Eftate j and this 
 tor the fame Reafon, for if the Landi 
 lyp^P phargcd with the Ufe into who ' 
 
 Hands
 
 H^nds focvcr they came, the Inconvc- 
 piencies ♦£ a Terpetjjity would imme^ 
 diatcly follow ; for who would meddle 
 with Lands, that they could with no 
 Poflibility know whether it was charg- 
 ed with a JJfe-i or not ; for that it might 
 be limited in fo fecret and private a 
 Manner, that it were impolfible to 
 come to the Knowledge of \t. There- 
 fore fuch Feoffee ftood feizcd to his own 
 JJfe; and the only Remedy for the for- 
 mer Cefti/y que UJe, was to complain 
 in Chancery of the Feoffee's Breach of 
 Trufl. So if T>iffdzor had entered up- 
 on the Feoffee^ he had not ftood feized 
 to the TJfe^ &c. but the FeoflPge mud 
 have entered, and then have revived thclf'^'Hr^v 
 Ufe^ which as it feems to me, he might ^"^fJ^Jj^ 
 be compelled to do in Chancery i and to defeat 
 if he had ftood feizcd to the UJh he *^^ ^'^Z; 
 would have been punifhed by Law, as i'/„cfwtth- 
 a Wrong-Doer, for taking the Eftatc, /'»'"'''»iJ 
 ^nd thofe Profits to himfelf he had no{;f J/^^ 
 Jlight to J and yet would have been an- d. Nor/ 
 fwerablc to the Cejiuy que Ufe for thc^a. H 
 Profits, as was the Feoffee i bcl~idcs he 
 came not in Privity of Eftatc, and fo 
 was not liable to any Contrad or A- 
 grcemcnt made by other Pei ions concern- 
 ing thofe Lands he claimed not by or 
 from any of them ; neither was any 
 Confidence rcpofcd in him. An jliefiee^ iCo.iii. 
 
 nor
 
 nor Pcrfon JttaiM^ were not capable 
 of having any Lands to the JJfe of o- 
 hfeemsanXX^cr Pcifons i for they were not capa- 
 ^'rTS ^^^ ^^ having any Lands themfelves, 
 "o'^nVfe. for the BenlJfit of any but the King ,• 
 Harcl.46S. the Pcrfon Attaiiit is only capable to 
 have a Purchafe of Lands for the Ki7i^s 
 Ufe and Benefit, and that excludes all 
 others;. neither can an Alien have Lands, 
 and then he cannot be feized to an Ufe, 
 A Corporatio7i ^cannoty by the Comvion 
 ZjaiJOy be feized to a JJfe \ for in their 
 Conftitution, they* are a Body of Men 
 colleded by Force of the King's Z/f?- 
 ters Tateiity to fuch Intents and Pur- 
 . pofes; all which are only for the Bene- 
 fit and Advantage of the Corporation 
 And therefore they cannot have Lands as 
 a Corporation (which implies to the 
 own ijfe and Behalf) to the Vfe of an- 
 other ; for they we not at firfl: created 
 to that End, and they having no Pow- 
 er as a CorporatioJi^ any other than 
 they receive- by Force of the Letters 
 Tate7its y and by that they being con- 
 ftitutcd only' to fuch and fuch Ends 
 they want Power as a Corporation^ to 
 take 'Lands to the Vfe of other People-j 
 for that is an End Nobody could think 
 of, in the Ercdion 6{- o, Corpona'tion y 
 neither fliall the King fland feized to a 
 Ufe. for all the Lands he is feized of, 
 
 he
 
 be is feizcd /;/ Jiire Coro//^^ for the 
 Maintenance and Support of his Crown 
 find Dignity, and the well Government 
 of the Common Wealth , which is a 
 Ufi the Law defigned him pri?mtfis^ 
 and confcqiiently 'tis exclufive of all o- 
 ther TJjt'S : Neither can it be imagined 
 that the King fliould in Point of Ho- 
 nour ftand feized of Lands only to the 
 Benefit and Advantage of another, and 2R0.7S0. 
 fo be a Sort of Bailiff to him. 
 
 'Tennnt by the Conrtefy^ or Te7ia7it 
 in T}oiur cannot be feized to Ufcs^ be-Hard.4d9 
 caufe they come to thefe Eftatcs by 
 the Difpolition of Law, for the Ad- 
 vancement and Encouragement of Ma- 
 trimony,- and thofc Eftates are given 
 them for their own Maintenance, and are 
 confequently exclulive of all other ZTj^j, 
 for the Advantage of other People. 
 
 2^/dre if at this Day ah Eftate be Qnjcrc, 
 given to a Man and his Heirs, to the Ufe 
 of him and his Heirs, in Truft for ano- 
 ther and his Heirs, whether the Wo- 
 man iliall be endowed without anv 
 Traft ; for if flic be not, then here will 
 be an Eftate of inheritance in Fee Sm- 
 ph\ fo fettled that no Woman can have 
 HJdzvcr of it i for a Woman is notdow- 
 able of a Truft ; ideo Qjicsre, Lord by 
 Efcheat cannot be feized to an Vfe^ for 
 he comes in and claims above the 
 
 Vfe
 
 172 Wiks atio %vtttt8. 
 
 Ufey by a Condition in Law fccrct- 
 ly annexed to his Eftate in its Com- 
 mencement ; 'viz* That, if the Feoffee 
 died without Heir, he ihould re-enter i 
 and fo he claiming in by Force of a 
 Title Paramont to the Ufe, ihall never 
 be fubjcd to any Charges that take 
 their Rife and Date from an inferior 
 Time and Title, 
 
 Bcfidcs he has the Land in Satisfac- 
 tion for his Services that arc now gone j 
 but what Satisfaction will it be if he is 
 ft ill to hold the Land charged with 
 the l/fi- 
 
 A Man pofTcfrcd of a ^erm in j'rufi 
 for another, is attainted of Treafon ; the 
 Kw(^ is not fubjcdt to this trnft* i 
 Roll 780, 
 
 Othcrwife of ^e72atit in 'Dower ; be^^ 
 caufe fhe comes in in the per^ by the 
 Afifignmcnt of the Heir, and not in the 
 pofty as lenaiit hy the Courtefy, i In^, 
 239, or 'Bro, Feoff, Ufis 338, a. makes 
 a Difference between Uoiver at Cop/j^ 
 inon L^zv^ and ad ofilfjm Ecclefi^^ and 
 ex Jffe7ifn patris-, for they arc by ex- 
 prcfs Alfignment, 
 
 Where J, Feoffee to the Ufe of B, 
 grants a Rent to C. who has Notice 
 of the IJJe, he fliall hold the Rent to 
 the l/Je of J?, and if J, enfeoff !D. with- 
 out Notice, and B, after Stat, R. 3. re- 
 
 ieafcs
 
 leafcs to 2). by this the Rent of C is 
 extin(5t. Bro. 337. Cb. lo. 14 ^.8.4. 
 
 If Feoffee to Ufe grants to J, S. or 
 Common^ this ex Natt/ra Rei could 
 not be to the Ufe of Ceftiiy que Ufe, 
 'Bro* 338. 10, See Contingent Remain- 
 ders. 3. b» 
 
 Where a Feoffee to Ufe makes a 
 Leafc for Life or for Years, or a Gift 
 in Tail, either with a Rent referved, 
 or without, tho* the Leffee or Donee 
 have Notice of the former Ufcs ; yet 
 he fliall not ftand feized to thofc Ufcs 
 but to his own. Bro, 339. 47. 340. a. 
 
 1 Jrid, 314. If a Seigniory be held to 
 the Ufe of J, and the Tenancy efchcats, 
 that ihall be to the Ufe of ^. fo if 
 Feoffee to an Ufe vouches and reco- 
 vers in Value, he lliall be feized to the 
 firft Ufe, Bro. i^Ji.pL 10. 
 
 Where a Feoffee to Ufe enfeoffs ano- 
 ther upon Coniideration of Blood, that 
 Feoffee iliall be feized to the former 
 Ufes ; but *tis otherwife, if the firft Feoff* 
 ment were in Confideration of Blood, 
 
 2 Roll, Ah. qqS' 3 Co. 81. 2 JRo. 781. 
 2 L.tott, 15. T);'. 340. h. 
 
 Where 5- ^- is a Feoffee to the Ufe 
 of A. in Tail, Remainder to B. in Tail, 
 Remainder to the Right Hc^rs of A* 
 and the Feoffee and J, join in a F^off- 
 mc^t to three, (two whereof have No- 
 tice
 
 1 74 Mks ano XtnUe. 
 
 tice, the other not) to nevy Ufis^ they 
 Ihall be feizcd to the new U/es ; for J. 
 had a Power over his own Eftate for 
 Life and in Fee ; but the two Feoftees 
 ought to make Recompence to J. for 
 the Lofs that every body elfc fuftained. 
 
 Hob. 349. 
 
 If a Feoffee to an Ufc doth enfeoff 
 one upon a valuable Confideration, who 
 has Notice of the former Vfes to ex- 
 prefs Ufes, he fliall (land feized to thofc 
 e.xprefs Uj'es^ and not to the former 
 Ujes. Hob. 349. 2 J/id. Sro. Feoff, al 
 UfeSj 340. Dy. 341. h. i Jud. 313. But 
 Qj^itsre if a Reverfion be fubjed to fu- 
 ture Vfes^ and is granted to a Man 
 and his H'.'irs without Confidcration, 
 to the Ufe of the Grantee and his Heirs ; 
 yet whether 'tis fubjei^ to the former 
 Vfes, 2 Roll. 79. T>y. 340. h. 2 KgIL 
 ']o6. 1 Sid, 124. 157. ($4. A. agrees 
 with B. to make him a Leafe of Black- 
 Acre for Years, then makes a Feoffment 
 to C. upon a valuable Confidcration, 
 who has Notice of the JJfe^ he fhall be 
 compelled to make it. 2 Roll. 781. ?/. 
 Com. 3 5 1 . I D*. 1 2 2. S. 
 
 Feoffee to an Ufe cannot appoint a 
 Bailiff without the Confent of Ccfluy 
 que ilfe-y nor allow him Fees unlefs the 
 Ceffjy que UJe be an Infant. jBro. 338 
 to 339. 27. 
 
 2 Thus
 
 Thus have we fhcwn how Jjfes in 
 EJfe were deftroyed at Common Lazv^ 
 and by Confequcncc how thofe that are 
 FuUivey and which 'tis uncertain whe- 
 ther ever they will come in EJfe^ may 
 be deftroyed i for the fame Arguments 
 that hold for the Deftrudion of prefcnt 
 UfeSj hold good for the Dcftrudtion of 
 future Contingent IJfes : For if he that i Co. 121, 
 comes in of another Eftate, than that^' 
 which the Feoffee to the Ufe had, fhall 
 not be feized to the JJfes in EJfe ; by 
 the fame Reafon, neither fliall he bo 
 to future and contingent Ufes. 
 
 The fame Law is of Corporations, A- 
 liens, (^c. If then (x Ufe ho, not a Thing 
 annexed to the Land, it will be asked Ccw«/ee\/ 
 of me,.What it is? To which I anfwer, ^^f^^^'.^.^ 
 that a U/^ is an equitable Right to have io vfes. ' 
 the Profit of Lands, the legal Eftatc ^ro^ss?- 
 whereof is in the Feoffee^ according to ^' 
 the Truft and Confidence repofed in 
 him, which equitable Right alfo extends 
 it felf to thofe that come to the Lands 
 in Privity of Eftate to the Feoffee, and 
 under the fame Truft and Confidence 
 that he did i fo that, to every Ufe two 
 Things are incident j a Confidence in 
 the Pcrfon, and a Privity of Eftate ; 
 and when any of thefe failed, the Ufe 
 w^as either fufpended or deftroyed, 
 
 A '
 
 176 MttS um iCttifiS* 
 
 A life is defined by my Lord Coke 
 
 to be a Tiuft arid Confidence, which h 
 
 not ilTuing out o£ the Land, but as £t 
 
 Thing collateral, annexed in Pritity 
 
 to the Eftcitey and the Perfon touching 
 
 the Land^ 
 
 tCo. 151. The acknowledging a Statute by 
 
 Sro. ""9 Ceftuy que tlfe^ was the fame Thing as 
 
 25.' ^' making a Leafe within I K. 3. and 
 
 Hard. 49 5 therefore the Feoffees Land was ex- 
 
 J,^^''^"tendable upon it. 
 
 Ufes were to fonie Intents reputed in 
 Law as ChattelSy and therefore were 
 devifable j for the Cotirt of Ooancery^ 
 in the dircding and judging concern- 
 ing UfeSy always made luch Conftruc- 
 tions as were moft reconcilable to the 
 Intent and Will of the Parties, where 
 no Inconvenience would follow ^ there- 
 fore it appearing to be the Intent and 
 Defign of the Parties, that the Vfe 
 ihould be to the ^Devifee^ they ad- 
 judged it in him i yet there was a Tof- 
 feffiofr arris of a £7/9, and it was intail- 
 cd within the Statute de 'Donis^ &c» 
 for Reafon would that the Sifler of the 
 whole Blood ihould have the Ufe before 
 the Brother of the half, for the fame 
 Reafons as hold good in Freeholds, 
 and the Chancery in Equity fupported 
 the Will of the T>onor y fo if the Ufe 
 fliould come to his IlTuc, for that the 
 
 Intent
 
 Intent of the Parties is there a great 
 Diredion for the Guidance of .the Judg- 
 ment j Ufes were neither Jjfets to the- 
 Heir or Executor, their original Infti- 
 tution being for fuch Intents and Pur- 
 pofes, that no Execution, cJ'c. might be 
 had of them. But £.^dre why in E- 
 quity, they fliould not have been li- 
 able to Execution, (^c» 
 
 It may be asked. What this Privity 
 of Eftate iS) that is requifite to the 
 {landing feized to an UfeF And it is 
 when a Perfon comes into the fame 
 Eftate the Feoffee to Ufe had in and 
 by Contrad with him, for a Diffeifor 
 comes into the fame Eftate, but not by 
 Contrad and Agreement ; and therefore 
 he is in the pqfi j /. e. claims not hy or 
 from the Feoffee : And why a Privity of 
 Eftate is requifite to the ftanding feiz- 
 ed to a Ufey has been already accounted 
 for in a great many particular Cafes i 
 But in genera], 'tis becaufe he that comes 
 not in Privity of Eftate claims not the 
 Eftate by and from the Feoffee^ who 
 ftood feized to the Ufe^ and confequent" 
 ly claims not the Eftate as it was fub- 
 jcd: to the Ufes; but one above that clear 
 and free ; and he that claims an Eftate 
 by no Contrad or Agreement with the 
 Feoffee^ but either by Title above his^ 
 or by the Difpofition and Gift of Law, 
 N cannot
 
 178 Mtts anti %x\ifis. 
 
 cannot (land feizcd ; for this would in a 
 Manner defeat his Title, and fruftratc 
 the Benefit of the Eftate the Law gave 
 him, and why fhould a Man ftand feiz- 
 ed to an Ufe when he claims not theE- 
 ftate by Agreement with him that did 
 fland feized, or has not the Eftate that 
 was charged to the Ufe j for Confidence 
 in the Perfon is as well rcquifitc as Pri- 
 vity of Eftate i for fo firft began Ufes^ 
 by enfeoffing fome Friend to the Ufi^ in 
 Dy.^o.h. whom the Feoffor repofed a Confidence 
 and Truft ; and if the Feoffee perform* 
 ed not the Truft, the only Remedy for 
 the Ceftuy que Ufe was to punifh him 
 for his Breach of that Truft. But where 
 there is no Tf/^, there can be no Breach 
 of ^rtift^ and confequently no Puniili- 
 ment for it i of NecelTity therefore^ 
 wherefoever the I'rujl and Confidence 
 fail, the Ufe is gone, becaufc the Re- 
 medy is gone -, and before we have 
 file^vn feveral Reafons why the Ufes 
 muft ceafe, the Lands not being charg- 
 ed with them rat tone poffeffionis^ for the 
 Danger of a Terpetmty i but only the 
 Perfon being charged, is refpondent of 
 the Privity of Eftate^ and Confidence 
 repofed in him. Confidence in the Per- 
 fon is either exprefs or implied, and if 
 that fails, the Ufe is gonej as if a Feof- 
 fee to an Ufe^ for good Confideration, 
 4 doth
 
 Mit8 ano %mas. 179 
 
 doth enfeoff one who has notNotice of the 
 UJe-) the Ufe is gone, for here is no Truft 
 in him ; he not knowing that there were 
 any Ufes, no Truft could be repofcd in 
 him to lit the Cejiiiy que Ufe take tha 
 ProfitSi but if he had Notice, a Truft 
 might well be faid to be repofcd in him, 
 becaufe he took the Land, knowingly, 
 wath the Ufes: If the Feoffment had 
 been without Confideration, tho* he had 
 no Notice of the Ufe i yet he ftood feiz- 
 ed to the Ufe-, for the Law implied No- 
 tice of the Ufe^ and fo there is a Truft ^ 
 and this introduces no Manner of In- 
 convenience in charging him with a 
 Ufe J becaufe he lofes nothing, having 
 given no Confideration ; for he would 
 be feized to the Ufe of the Feoffor, if 
 no Ufe were limited, and then the 
 Feoffor muft be anfwerable for the Va- 
 lue of this Ufe to the Cefiuy que Ufe^ 
 which would be a vain Security. It 
 feems, tho' this Teoffmeiit were to Ufes 
 exprel^ly, yet the Feoffee fliould ftand 
 feized to the old Ufes,, becaufe he came 
 to the Lands, without any valuable 
 Confideration, and perhaps the firft Feof- 
 fee to Ufe was not refponfible for his 
 Breach of Truft ; but the other Cafe 
 of a Feoffment^ with Confideration, 
 without Notice of the Ufes^ is widely 
 different from this ; for were he is charg* 
 N 2 ed
 
 iSo Witts ans %xvifts. 
 
 ed with all the Ufes^ all the Inconvc- 
 nicncies of a Perpetuity inftantly follow. 
 For the Limitation of Ufes may be fo 
 fccretj that it is impofliblc to know of 
 them, and then who would purchafe 
 Lands; fothat ofNecefllty, Land would 
 be fo fettled, that it would not be in 
 the Power of the ^I^erte7ia72t to difpofe 
 Piow.^ of it, but it muft neceffarily remain in 
 °'"'^^°' the Family which is a Perpetuity. There 
 is a Diverfity taken in Tlozvde/i between 
 the Feoffment of the Feoffees and of 
 Ceftiiy que life ; for if the Cejit/y que 
 XJfe for Life or in Tail made a Feoff- 
 ment in Fee, either with or without 
 Confideration, all the old Ufes weredif- 
 continued, and the ancient Eftate which 
 the Feoffees had, is gone, and they have 
 a new Eftate fubjed to thefe new Ufes 
 created by the Feoffment ; for when 
 Ceftuj que JJfe made a Feoffment in 
 Fee, which by the i Rich* the 3d. he 
 might lawfully do, he palfed a Ufe in 
 Fee Simple to the Feoffcci which being 
 ii new Ufe to the Feoffee, all the old 
 Ufes were difcontinued, and confequent- 
 ly the Eftate of the Feoffees muft be 
 altered ,- for were it the ancient Eftate, 
 it were ftill fubjcdt by the former and 
 elder Limitation of Ufes to the old Ufes; 
 therefore have the Feoffees, by Con- 
 Ilrudicn, a new Eftate to the new Ufes j 
 4 but
 
 Mtts ant) Xttxtts. 18 1 
 
 but if the Feoffees themfelves had made 
 a Feoffment without Confideration, the 
 Feoffees had ftood feized to the old 
 Ufes, for here was no Ufe nor new E- 
 ftate ; but as it feems they both agree 
 upon the whole, for if one have an E- 
 ftate for Life to the Uiie of another, 
 and he makes a Feoffment in Fee, (and 
 this is really the Cafe of Ceflny que Ufe) 
 the Feoffee iliall not (land feized to an 
 Ufe, for he has a new Eftate, and not 
 the old one fubjcd to Ufes. Qj^ure 
 whether, by the Feoffment o^Ceftiiy qite 
 Ufe^ only a Ufe paffed, or whether the 
 legal Eftate paffed ; for it feems by Tlozu- 
 den^ that only a Ufe paffed ; but by i Co. 
 Confequence the legal Eftate paffed, '52- a. 
 which, as it feems, is Law ; the Lands Trufts 
 were liable in the Hands of the Feoffees ^^^^ 4/*- 
 to an Ufe to Execution for the Debt of {'^//, 
 Cefttiy que Ufe ,• and for Relief and He- 2 Cap. 3- 
 riot after the Death of Cefiuy que Ufe, 
 after the 19 ^. 7. c. 15^. 
 
 Having thus Ihevved, that by the Co///- 
 mon Lctiv^ fuch a contingent Ufe as in 
 the Cafe firfl put, had been deftroyed by 
 the Feoffment, we come now to fhcw 
 the 27 H. 8. did not intend the Prefer- 
 vation of them i for the very End and 
 Delign of that Ad upon Confiderati- 
 on of the many Mifchiefs and Inconve- 
 nicncies that had been introduced by 
 N 3 Ufes,
 
 1 82 tmfes ano %t\ifts. 
 
 iCo. 124. Ufes, was utterly to extinguifli and 
 fupprefs them ; if therefore it fhould be 
 conftrued fo far in the Favour of Ufes 
 as to fupport and preferve contingent 
 Ufes in thefe Cafes, where before at 
 Common Law they were utterly de- 
 flroyed, the A<5t would be expounded 
 againft the End of its Sandion, and all 
 thofe Inconveniencies it was made to 
 fupprefs, would be ftill in Beings for 
 who could be furc of a Purchafe of 
 Lands, when by the Limitation of a future 
 Ufa in a fecret Manner, which by no Ad 
 could be deftroyed or defeated, he jliould 
 loofe his Land j when that came in Play, 
 the Makers of the 27 ^. 8. r. 10. thought 
 
 I Co. 12 5. tj^^f ^fi-gj. that A(5t,no Land could pafs by 
 Way of Ufcjbutby Common Law, which 
 was the Way they dcfigned to retrieve 
 and bring in an Ufc again ; and there- 
 fore they provided by a Saho for the 
 Right of all others, that they had before 
 the making of that Adj yet they pro- 
 vided no Saho for any body's Right af- 
 ter the Statute ; but feem to give all 
 Lands that are feized in Truft to the 
 Ceftf/y que I'mft^ without any Man- 
 ner of Provifion for the Rights of other 
 People,- therefore if J. do diffeize ^. 
 fincc the Statute, and makes a Feoff- 
 ment to C in Fee, to the Ufe of 2). 
 in Fee, the Right of £, is not favcd 
 
 by
 
 mtts atiD %nx(ts. 183 
 
 by the exprefs Letter of th^ Ad, for 
 that gives the Land to 23. without any 
 Manner of Sitho for the Right of j&. 
 but by equitable Conftrudion the Judg- 
 es have faved the Right of B* fince 
 that Way of Conveying is in Ufe, which 
 the Makers of 27 II. 8. thought would be 
 no more in Pradice ; and therefore made 
 no Provifion for the Right of thofe af- 
 ter the Ad ; but this the Makers of the 
 Ad took for granted ; for the Way of 
 conveying byUfeis not any Ways prohibi- 
 ted by the Ad, but only the PolTellion ex- 
 ecuted to the Ufe. Therefore this Man- 
 ner of Conveying not being prohibited, 
 and being much pradifed, the Snho for 
 others Right is abfolutely ncceflary for 
 every Man's Safety ,• but becaufe the Ma- 
 kers of the Ad thought the Way of Con- 
 veying by Ufe, would ft ill be ufed by 
 Way of bargain and Sak^ that that 
 alfo might be notorious, and on the 
 fame Level with Conimo7i Law AlTu- 
 ranees, they afterwards, at the fame 
 Parliament Enaded, That they fhould 
 be enrolled; and this fliews,that the In- 
 tent of the Law-Makers was not to 
 fliew any Manner of Favour to Ufes in 
 JBjffe or Co72ti7igeiicy \ and as the Prefcr- 
 vation of contingent Ufes is clearly out 
 of the Intent of the Statute, fo it is out 
 of the Remedy of the Body of the 
 N ^ Ad
 
 1 84 Witts atto xtttftjs. 
 
 Ad provided againft the Mifchiefs that 
 were before the A61 \ for the only In- 
 tent and Dcfign of the Ad is to execute 
 the PolTefTion in thofe that have the Ufe ; 
 fo that to the Execution of every Ufe 
 within the Intent and Meaning of the 
 Ad, it isneceifary that fome body fhould 
 be feized to the Ufe of fome other Per- 
 fon j fo that if there be no Perfon feized 
 to the Ufe, there can be no Execution 
 of the Ufe, by the Force of the Statute, 
 and there muft be a Ufe in Bffe^ and 
 not a Right of an Ufe only, for the 
 Words of the Ad are, That every Ter- 
 fo72 that haSj or hereafter Jhall have a- 
 fiy Ufe:, &c. So that the Ufe muft be in 
 EJfej in Poflefiion, Rcverfion or Remain- 
 der, and the Ceji^jj que Ufe muft be in 
 Effe-, for the Words of the Ad arc, 
 St a7id feized to the Ufe of any Terfon 
 or Terfo7is ; for how can the Ad exe- 
 cute the Ufes to the PoffefTion, if there 
 be no Perfon to take the Ufe in Being ; 
 and the Eftate of the Feoffee, muft 
 veil in Cejity que Ufe ; for the Ad fays, 
 " That the Eftate of fuch Perfon feiz- 
 *^ ed to an Ufe fhall be adjudged in 
 " Ceftuy que Ufe' : And when any of 
 thefc fail, there can be no Execution by 
 Force of the Statute ; and this Con- 
 (Irudion is abfolutely ncceftliry, that the 
 Words of the 27 //. 8. may have their 
 
 full
 
 full Scope and Meaning ; fo the Makers 
 of the Ad did wifely in making no Pro- 
 vifion for Ufes /;/ futtiro ; for if they 
 had, all thefe Inconvcniencics at Co7n- 
 vion Law had ftill remained, and Per- 
 petuities had been preferved by the Li- 1C0.78.L 
 mitation of contingent Remaifiders^not 
 to be deftroyed ; Eftates would have been 
 fo fettered, that no body could have dif- 
 pofed of them ; fo that the Statute ha- 
 ving made no Provifion for thefe Remai/i- 
 ders^ they are left to the Conftrudion 
 of the Common Law ; and then the con- 
 tingent Remainder in the Cafe firft put 
 had been deftroyed for the Reafons be- 
 fore, when we treated concernin.^ thefe 2 Leon. 
 Remainders at Co?nmo7i Law : IF there ^59« 
 be no Seizin, in the Feoffees, when the 
 Ufe comes in Effe, it cannot be execu- 
 ted, drC' and if the Feotfees be barred 
 of their Entry and Right to come at 
 SeizWj the Tojfejfion can never be exe- 
 cuted to the Ufe i were the Lands charg- 
 ed with contingent Ufes, into whofe 
 Hands foever it came by Force of this 
 Statute i then a Corporatioji Diffeifor of 
 the King, (^c, fhould ftand feized to the 
 Ufe, as before has been fliewn thev 
 cannot ; and the Nature of the Ufe would 
 now be quite altered ,• for before it was 
 a Truft and Confidence in the Perfon, 
 now it would be a Sort of Attendant
 
 186 Mtts anu Xmfts* 
 
 on the Land, or annexed thereto j and 
 tncn it were a new Hereditament ,• by 
 Conftrudion of this Statute, the Heir 
 of the Part of the Father, fhould have 
 the Ufc, tho' the Lands moved from the 
 Mothers Side,- and thi§, would be con- 
 trary to diverfe fettled Refolutions. If 
 
 2 Tnf a. there be a Tenant for Life, the Remain- 
 
 l^ °' ^^^der in Fee, and the Remainder-Man co- 
 venants, that if the Tenant for Life 
 fhall die in four Years, he will ftand 
 feized to the Ufe of J, S. in Fee, and 
 the Tenant for Life makes a Feoffment 
 in Fee, the Feoffee likewife covenant- 
 ing to ftand feized to the Ufe of 7« N' 
 if the Tenant for Life dies in four Years, 
 the Statute cannot preferve and execute 
 both thefe future Ufes at once ; there- 
 fore one of them mufl be toll'd, and 
 then the Statute has not the Effe<5t to 
 preferve future Ufcs. Before the Statute 
 if the Feoftee had bargained and fold, 
 and made over no legal Eftatc to the 
 Bargainee, no Ufe had paffed j for the Pri- 
 vity of Eftate and Contidcnce remain ; 
 and therefore the old Ufe continues. 
 
 OhjeH. But then it may be objc(5tcd, if future 
 contingent Ufes are not preferved and 
 all executed by the 27 H. 8. how can 
 the PolfefTion be ever executed to them, 
 fincc the whole Eflatc is out of tho 
 
 jirfp. Feoitces. To this I anfwcr, that only 
 
 that
 
 tltts ano Xxiifis. 187 
 
 that Eftatc is executed to the Ufc, by 
 the 27 //. 8. that has the Requifites be- 
 fore-mentioned to the Execution of a 
 PoiTelTion to an Ufe,- and it is impoffiblc 
 a future Ufe fliould have the PofTeflion 
 executed to it by the Statute, when 'tis 
 uncertain whether it will ever come in 
 Ejje or no : But the Feoffee has a PoiTi- 
 bility to ftand feized to the Ufe, and 
 when the Ufe itfelf comes in Fj[l'e, thcnij^o- ^^9- 
 the Poifibility is come to a Certainty ^ y- ^"^ "• 
 ^iz. an Eftate to the Ufe of Ceftii)^ que 
 TJfe^ and fo is executed by the Statute ; 
 but if the Eftate of the Land be alter- 
 ed by a T^ijS'eifin or Feoffment, fo that 'p<»« ^»^ 
 the Poifibility of the Feoffees is fuf-^t/'" 
 pended, there he muft enter to revive iivaytheh 
 the future Ufe is abfolutely deft roved, ^"''"y* 
 
 1 T^ n . • I 1^ V ^ Leon. 
 
 and no Eitate remains in the rconeej^js, 259. 
 for the Benefit of a future Ufe i 
 for then, if a Feoffment were made to 
 the Ufe of a Man for Life, and then to 
 the Ufe of his firft Son, not yet born, 
 in T^ail^ the Kemaiiider to 'B> in I^ee^ 
 he would be a Tenant for Life, the 
 Remainder to the Feoffee and his Heirs, 
 as long as the Sons fhould have Heirs of 
 their Body, the Re?naijider to 'B. in Fee^ 
 and fo there would be a Fee upon a Fee^ 
 and the Feoffee might punifh tlie Te- 
 nant for Life for Wafte, or perhaps en- 
 ter for a Forfeiture, when perhaps the 
 
 con-
 
 1 88 WeiSattD XtnUs. 
 
 contingent Remainder would never 
 come in EJJe : So that of Ncceflity he 
 mufthavc nothing butaPolTibilityjWhich 
 when it comes in Ejfe^ is fuch an E- 
 ftate in him as may ferve to anfwer the 
 future Ufe, and be executed to it accor- 
 dingly, by Force of the Statute j for as 
 he had a whole Fee to fuch Ufes, fo the 
 Statute parcels out of his Eftate, accor- 
 ding to the Ufes ; and as there had been 
 no Execution of the PolTelTion, he muft 
 have flood fcized to the future Ufe, 
 when it came in EJfe : So now the Sta- 
 tute gives that Eltate in PolfefTion to 
 the Ufe, when it comes in EJfcy as it 
 does to Ufes in Ejfe prefently. But if 
 when the future Ufe comes in Effe, there 
 is an Eftate adjudged in the Feoifee, it 
 may be asked what Eftate there is in 
 78^°*^^' liinij or what Eftate did he gain when 
 1 C0.12CJ. he enters to revive a future Ufe ^ for his 
 ^57- old and antient Eftate he cannot get 
 when that is executed by Force of the 
 Statute in others. It feems that in both 
 Cafes, he has but fuch an Eftate as may 
 ferve to be executed by Force of the 
 2j H^ 8. in the Ceftt/y que Ufe ; for ho 
 cannot diveft the Eftate lawfully vefted 
 before by the Forceof that Aft of Parlia- 
 ment. So that if the future Ufe be for 
 the life of Cefiuy que Ufe, when this 
 comes in J^//^, it fcems the Fcoftee has 
 
 a legal
 
 Witts ano XtuftiS* 189 
 
 a legal Eftate to him and his Heks, du- 
 ring the Life of Ceftj qm life-, ^vbicll 
 is that Inftant executed in the Ceftiiy qne 
 Ufe^ by Force of the Statute ^ the llimc 
 Law is, if he had entered to revive the 
 Ufci fo if the Cejiffj/ que Ufe had an E* 
 date Tail in the Ufe, the Feoffee ihall, 
 when this Ufe comes in Being, have an 
 Eftate to him and his Heirs as long as 
 the Cefiity que Ufe has Heirs of his Bo- 
 dy. Then it may be asked. How he 
 can have fuch an Eftate which is a Fee, 
 and yet many Eftates Tail, and a Re- 
 mainder in Fee expectant upon it ? But 
 it may be anfvvered, if he hath it only 
 of Nccefifity, that the Ceftuy que Uje 
 may have an Eftate Tail in him, 
 which is eo irijianti executed in him, the 
 Thing being momentaneous -, and fo 
 there can be no Manner of Objc(5tion 
 made of the Inconveniencics following 
 upon the Limitation of a Fee upon a 
 Feci there muft be an Eftftte in the 
 Feoftees to ferve the future Ufe ; for the 
 Statute fays. That the Eftate that was 
 in fuch Perfon, (j'c* iliould be adjudged 
 and deemed in him that has the Ufe, ^c» 
 fo that of NecelTity, fome Eftate muft 
 be adjudged in the Feoffee, that it may iCo. 129, 
 be executed by Force of the Statute ^ c^^T^., 
 and tho' the Feoffee hath a particular iCo. 13 7* 
 Eftate in the Land by his Entry without '^• 
 
 any
 
 190 tlfes mh Xrtiiis. 
 
 fliiy IDomr^ this is not any Abfurdity, 
 it being done by Force of the Statute, tho* 
 regularly at Common Law, no fuch 
 Eftatecan be created. No Limitation of 
 a Ufe is good, but where the like Limi- 
 tation of an EJiate in PofTclTion were 
 good at Common Law -, for the Defign 
 of 27 //. 8. was to revive the ancient 
 Common Law, and this Conftrudion 
 muft be allowed of NecelTity j for now 
 the fame Reafon that had forbidden, 
 
 jCo.ijo.'^'Jch a particular Limitation of Eftate 
 in Polfeliion at Common Law, forbids 
 the like Limitation of a Ufe j becaufe 
 the PoficiTion is by the A6t executed to 
 
 iCo, 158. the Ufe ; therefore muft the fame Incon- 
 veniencies necefiarily enfue ; fo that if 
 a Man makes a Feoffment to the Ufe 
 of one for Years, Remainder to the Ufe 
 of the Right Heirs of J. S. who is li- 
 ving, this Ufe limited tothe Heirs o^J. 5". 
 is cwJ, for the fame Reafon as if an E- 
 ftate had been made to one for Years, 
 Remainder to the Right Heirs of J, S> 
 becaufe that the Freehold is now here, 
 fo that there cannot be a Tenant to the 
 Ti'djcipe^ (yet this were good of a Ufe 
 at Common Law) and fo if any one 
 hath a Caufc of Adion, he may be de- 
 layed of his Right, and the like Incon- 
 venience there is in a Ufe fo limited ,♦ 
 
 for
 
 for no Eftate is left in the FeofieCjas be- ^Co. i35' 
 fore has been faid, but only a Poifibil'^v. '*' 
 So in all other Cafes , the Execution of 
 the PoffefiTionto aUfCjis conftrued accor- 
 ding to the Rules of Coiitmo7i Laiv^ be- 
 caufe the fame Reafons hold there. So 
 if a Feoffinefit be made to the Ufe oij. 
 for Life, and then to the Ufe of her who 
 fliould be the Wife of B. J, dies, 'B. 
 takes a Wife, flie {hall take nothing be- 
 caufe a contingent Remainder ought to 
 veft at Commo7i Law ; either during the 
 particular Eftate, or eo l?ifta?iti that 
 the particular Eftate determines. Yet 
 perhaps in both thefe Cafes at Common 
 Law^ the Chancery might have fup- 
 ported the Ufe in Remainder, becaufe 
 there was no Inconveniency in it then, 
 ?.s there would be now. 'Tis objeded, 
 that if a Privity of Eftate is requi- 
 lite, then no future Ufe can be ex- 
 ecuted by the Force of the Statute ,• 
 for when the Statute has executed 
 the prefent Ufe in EJfe^ they are in 
 the Tofi^ that have the Ufe fo ex- 
 ecuted; and fo are not Privies in E- 
 ftate to the Feoffee^ from which the 
 future Ufes may arife. To this I 
 anfwer, that the Statute requires that 
 thefe Eftates that were limited by 
 
 Way
 
 192 %Uts auD %mfts. 
 
 iCo. 150. w^iy of ijj-^ in the fame Convey- 
 ance with a future Ufe^ and were ex- 
 ecuted by the Statute, iliould ftill 
 remain and continue till the future 
 ZJJe comes in Fffe j and this Privity, 
 of Eftate is, where two Perfons have- 
 an Intcreft created by the fame Con- 
 veyance in one Eftate, by one Con- 
 veyance; becaufe then they come .to 
 one Eftate by a Contrad or Agree- 
 ment, to which both are Parties and 
 Privies, (/. e.) conufant; and why the 
 Eftate jliould continue till the future 
 Z/Jes would arife, we have already 
 accounted for, to prevent the Danger 
 of a Terpcti/itj' ; and for many other 
 Reafons; which fee before. All Statutes, 
 that have been made in fupprelTing the 
 Inconvcnicncies arifing from Ufes<, have 
 always been extended by Equity 
 iCo. 138. beyond the Letter of them. It was 
 "I'A^l' '^' the Opinion of fome Judges, m Chttd- 
 leys Cafe, that the future Ufes^ limi- 
 ted upon a Conveyance were in j4' 
 hj'a?ice J and alfo the Eftate being 
 executed to them by Virtue of the 
 Statute, it was one - entire Eftate in 
 Jhejarice, But the other Judges for 
 very good Reafons were of a contra- 
 ry Perfwalion i for thq Statute, as before 
 
 has
 
 lias been faid, extends only (by the very 
 exprefs Words of it) to execute the Pof- 
 feffion to the life where the UJe is in 
 Effh and not to a Pofifibility of a Ufe, 
 and what Ground can there be for an ^ *;^' 
 equitable Conftrudtion to carry an E- 
 ftate in certain to the Pofifibility of an 
 Ufe^ when the Words of the Statute 
 warrant no fuch Expofitions i fo that 
 a future Ufe^ notwithftanding the Sta- 
 tute, remains as it was at Covimon 
 LaWy 'till it comes in Bffe^ and then 
 the Statute executes the PofleiTion to it. 
 It was alfo held in Clmdkys Cafe, 
 that future Ufes muft not arife out of 
 the Eftate of Ceftiiyque Ufe:, but out 100.157. 
 pf the Eftate of the Feoffee ; therefore "*' 
 if J. doth infeoff S. to the UJe of C. 
 and his Heirs, and if T>. fliould pay 
 C 100. then C iliould ftand feifed 
 to the JJfe of Z). and his Heirs, this 
 XJfe to i>, is Vt)id, not being raifed out 
 of the Eftate of the Feofee -, the Rea- 
 fon of which Refolution feems to have 
 been, that he that ftands feifed to an Ufi^ 
 muft come in in Privity of that Eftate 
 to which the Ufe is annex'd j but here 
 the Cejiuy que Life comes in by the 
 Statute, and fo in the ^Poft ; but 
 now it feems to me that the Li- 
 mitation to 7). would be fupportcd 
 as a Cha?icery Tirnjl^ fince they have 
 O found
 
 194 ^ft^ atm %nifis. 
 
 found out a Way to creep out of the 
 Statute, if a Feoffment be made in 
 Fee to the Ufe of the Feoffee and his 
 Heirs in Truft for J. S. and his Heirs ; 
 f/r ^^^'^^'^j Whether this Eftate be not exe- 
 Poph. 8i. cuted in y. 5'. by the Statute ; for as 
 it feems, the Feoffee is in by the Coi/i^ 
 V1071 Law ; and fo the Statute not fa- 
 tisfied ; fo that it feems the Way of 
 Bargai7i and Sale is good to raife a 
 Truft i yet it was adjudged that if a 
 ^^ ^-7- ]VIan bargained and fold his Lands in 
 Fee to one, to the l/fe of one for Life^ 
 with other Limitations of Ufes to O- 
 thers, that they were void, becaufe a 
 Ufe could not be limited of a Ufe^ 
 which is the only Reafon of the Cafe 
 next before.. 
 
 Feoffee to an Ufe of a Manor re- 
 ieafes to the Tenants, they cannot 
 have the Services to the Ufe of Cefttty 
 que Ufe^ becaufe they are drowned ; 
 and there can be no Truft without an 
 Eftate in Being. Bro, 138. a. But it 
 feems in fucli Cafes, they would be 
 compelled by the Court of Chancery, 
 to anfwer the Rents to the Ccftuy que 
 Ufe* Duke of Norfollis Cafe^ 140 
 2 Co. 78. h. 
 
 Sir Edzvard Cooke being obliged by 
 Order of the Councii-Table^ to make 
 a Settlement -of his Eftate in this M"" •-
 
 ner, (that is to fay) to covenant to 
 ftand feized to the Ufe of himfelf, 
 for Life, then to the Ufe of Elizabeth 
 UattoUy his Wife, for Life, then to the 
 Ufe of his Daughter Elizabeth y for 
 Life, for a Moiety of thofe Lands, and 
 then to the Ufe of her Sons in ^ail^ 
 'till the Tenth Son, and then for the 
 other Moiety to the Ufe of his other 
 Daughter Frances^ for Life; then to 
 the Ufe of her firft Son in Tail, and io 
 on 'till the Tenth Son, with Crofs Re- 
 mainders to each of the Daughters, if 
 the other died without Iflue, then to 
 the Ufe of the Right Heirs of Sir Ed- 
 ward Cooke ; yet that he might have 
 it neverthelefs in his Power to defeat 
 or preferve the contingent Remainders 
 to his Daughters Sons, for which End 
 he covenanted to ftand feized, and fo 
 no more was out of him than what was 
 vefted in the Ceftu^ que TJfe^ and did not 
 make a Feoffment to Ufes^ and put 
 the whole Eftatc out of him, and put 
 it in the Power of the Feoffees to pre- 
 ferve or deftroy them, as it was in 
 Chfjdkys Cafe ^ but here he makes a 
 Lcafc to one for Years, and then 
 grants his Reverfion to another in Fee, 
 without confidering, that fo he coming 
 in in Privity of Eftate, under the Confi- 
 '^^nce Sir Edward had, might ftand 
 Q 5 feized
 
 196 Mks an& ICmfts* 
 
 feized to the future Ufes^ that the E- 
 ftate of Sir Edward was fubjedt to, and 
 then he makes a Feoffment in Fee to 
 others ; fo that had he feen Reafon to 
 fupprefs thefe future Ufes, he would 
 have deftroyed the Deed of Grant of 
 the Rcverfion, and trump d up the 
 Deed of Feoffment,- but had he feen 
 any Reafon to preferve the Remain- 
 ders, he would have fuppreffed the Feoff- 
 ment, and fliewed only the Grant of 
 the Reverfion i but none of thefe 
 a Roll. Things being done, it became a ^^•" 
 rvent! ft^(>^^ between the Feoffees and the Son 
 i88, ^. of one of the Daughters, (the other 
 dying without IfTue) and 'twas refolved 
 in Favour of the contingent Ufe^ and fo 
 ' againft the Feoffees i a particular Te- 
 nant having entered after the Feoff- 
 ?nent made by Sir Edzvard, but 'twas 
 agreed that if Sir Edward had made 
 a Feoffment before he made a Grant 
 of the Reverfion, the future Vies had 
 been deftroyed ; for then the Feoffees 
 had come in of another Effate, not of 
 that fubje(5t to the U/^j-, as was before 
 fliewed in Chrdkys Cafe^ the future 
 Ufes were to have arifen out of the 
 Efti^te that Sir Edward had in him, as 
 in the Cafe of the Feoffees it doth out 
 of their Eflate; and if he had paffed 
 away the whole Fee then, as in the 
 
 Cafe
 
 Cafe of the Feoffees, a Pofifibility only 
 remained in him, then when Sir Ed- 
 ward Cook grants away, by legal Con- 
 veyance, his Eftate to another, with- 
 out Confideration, the Gra7itee of this 
 Eftate bein*g in the Privity of Eftate, 
 Sir Edward had, and under the fame 
 Truft and Confidence, implied by Law 
 that the future Ufes may well rife out 
 of his Eftate. The next Thing then 
 to be confidered is, what is to be opc-= 
 rated to the Deftrudion of thofe future 
 Ufes, by the Feoffinent that Sir Ed- 
 ward made, and that can have no 
 Operation to their Deftrudion j for 
 though he thereby difcontinued all the 
 Eftates, and the Feoff^ee ftood fubjc(5l to 
 the new Ufes^ yet when the particu- 
 lar Tenant entered, then all the E- 
 ftates again were recontinu'd, and con» 
 fequently the Eftate of the Gra7itee 
 of Sir Edward^ was again fubjed to 
 the future Uje\ but this Leafe made by 
 Sir Edward would have bound the fu- 
 ture Ujes, though not the Remainder 
 Men, becaufe the future JJfes were to 
 arife out of the Eftate of Sir Edtvardi 
 and fo far as that was defeated, fo far 
 was the contingent JJfes -, and had that 
 'been wholly dcftroyed, the future UJ'es 
 had been fo too.-^If a Man Bargain^ 
 and Sells Lands to one for Life, thcf] 
 3 tP
 
 ,198 mfes ana %tu1l8^ 
 
 to .his firft Son in Tail, who is not yet 
 born, it feeiiis this is a good contingent 
 'Re7nawder^ rifing put of the Eftate 
 of the bargainor ; but 'tis faid by 
 Judge Ntidigatei that by Bargain and 
 Sale only, no contingent Ufe can be 
 fupported, it feems he means by the 
 iEftate of the bargainee , but Qu^^- 
 re. Whether it may not, ut ante^ 
 but it feems a Feoffment or Fine is 
 the fureft Way, and fo to put it out 
 of the Power of the Owner of the 
 Land to drftroy the future Ufes. ^^re^ 
 Whether the Confideration given by 
 the Party in Ufes will create a JJfe to 
 one not in B.j^e, 
 
 A, pofleffed of a Leafe for Term of 
 Years, grants it over to B* and C. and 
 their Alligns, to the Ufe of Ao and his 
 Wife, and the longer Liver of them i 
 A" grants away to another fuch In- 
 tereft as he then had in the faid Lands, 
 Cj-c. and it was adjudg'd that Ah Grant 
 was void > for he had nothing but a 
 Pyc:c ^rufi^ which he could not aflfign over j 
 aVn'ft. ^"^^ ^ T^rufl cannot be afligned over, be- 
 ^71. caufe it lies in Privity ^ and though A' 
 4 inft. 85. jjiay repofe a Urufi and Confidence in 
 the Lejfee, yet his Affignee^ that is no 
 Party to the Agreement, cannot do ]it, 
 becaufe not privy (/. e>) not conufant of, 
 nor Party to that Agreement i where- 
 by
 
 by by the Contrad between the Parties, 
 a 'Tn(ft was repofed in the Tenant 
 of the Land ; for though he might be 
 willing to ftand intrufted for the Benefit 
 of his Friend, it does not therefore fol- 
 low that he would for every Body's 
 Advantage. But it feems to me, in 
 this Cafe, that if J, had afifigned over 
 the Land itfelf, it woutd be good 
 by I i?. 3. but the Words he ufed 
 were not fufficient to pafs the Land 
 itfelf, for he had no Intereft therein ; 
 for 27 ^.8. executes no PoflelTion to 
 ^ Ufcy but where fome Body is feized 
 to the Ufe of another for Years, Life, p^ph. -ji 
 drc. fo that the Tenant muft have a 
 Freehold in the Land, elfe the Statute 
 executes no Polfelfion to the Ufe ; but 
 if a Fifie be levied to the Uje of one 
 for Years, then it is executed, for the 
 Conufee of the Tim is feized. A Man 
 Bargains and Sells his Land for Years, 
 that is executed by the Statute, if the 
 Bargainor had a Freehold for only a 
 Ufe paifed at Common Law, and fo 
 had flood feized to an fjfe ; and what- 
 ever Intercft the Ceftuy que Ufe lias in 
 the Ufe^ 'tis executed by the Statute, 
 if any Body be feized to that JJfe, 
 J. Feoffee to the Ufe of :^. and his 
 |ieirs before the Statute, Bargains and 
 Sells the Land to C and his Heirs, 
 P 4 PQ
 
 200 Witts attti Xtntts. 
 
 I in^- no Ufe had paffcd to C for there cannot 
 i7I. h. -^ - * - . . - 
 
 S72. a. 
 
 *^*' ' be two Ufes of one and the fame Land, 
 
 and the Ufe of S. continued, for the 
 Privity of Eftate and Trufl: and Confi- 
 dence remained, and therefore did the 
 Ufeo^ !B. prior to C's Title; for Ufes 
 cannot be deftroyed nor altered without 
 a Tranfmutation of the PoffefTion, by 
 which the Privity of Eftate, or the 
 Truft and Confidence is altered and 
 gone. The fame Law is of Covenants 
 to ftand feized. 
 7 Co. 72. J' covenants to fuffer a Reco'very of 
 ^- ^ fuch Land to the Ufe of B. and his 
 vlnll'An Heirs, rendering to J. an annual Rent 
 ^z. ^ ' of 42/. it was held that upon the 
 Recovery J, Ihall have the Rent exe- 
 cuted in him, by 27 H. 8. c, 10. and 
 may diftrain for the Rent ; for though 
 there be no Claufe of Diftrefs nor Co- 
 venant; for the Reco^eror was feized 
 to the Intent another fhould have the 
 Rent ; and though the Appointment of 
 the Rent was after the Limitation of 
 the Ufes; as if the Defign was that the 
 Rent fhould ilTue out of the Eftates 
 executed by the Statute ,- yet that is 
 not material, for the Intent being that 
 a Rent fhould IfTue there, fuch Con- 
 ft ruction fhall be made ^t Res mcigis 
 valeat quam per eat* 
 
 But
 
 Witt& ano Xtnfts. 201 
 
 But if J. difTcizes S. to the Ufe of 
 6*. and his Heirs, and then Bargai/is and 
 Sells the Lands to 2). a Ufe will pafs 
 to him j for though J, committed the 
 DifTeifin to the UJe of £, and his Heirs, 
 yet has S- no fuch Ufe as can be exe- 
 cuted by the Statute, <viz- an equitable 
 Right to take the Profits; for a 2)//- 
 feizor cannot ftand feized to an Ufcy 
 there being no Privity of Eftate, nor 
 Confidence, and fo no Ground to fuh- 
 fciina him to Chancery; and they cannot 
 there take Notice of his Title ; for 
 they are not to determine the Right 
 of Inheritance ; but the T>ijfeifin being 
 done to the TJfe of C. it feems he may 
 enter upon B» and have the Lands, 
 the' he have no fuch JJfe as is to be 
 executed by the Statute. 'Tis regu- 
 larly true, that if the Cefttiy qm Ufe 
 enters upon the Feoffee, he was a Tref- 
 paflbr ; yet in fome Cafes, by Intend- 
 ment of Law, he might enter and oc- 
 cupy the Lands at the Will of the 
 Feoffee ; therefore if a Man before the 
 Statute made a Feoffment in Fee^ to 
 the Intents to perform his Laft Will, 
 yet might the Feoffor enter and occupy 
 the Land at the Will of the Feoffee ,• 
 and fo as it feems, in the Cafe of a 
 Feoffment to future Vfes^ the Feoffor 
 might enter and occupy at Will. If 
 
 the
 
 502 Mtt$ anD Xttttts. 
 
 the Weoffment were made without Con- 
 fideration, as the Cafe is to be intend^ 
 ed J for the Law gave the Feoffor and 
 his Heirs a Ufe till the future Ufe came 
 in EJJe ; and a Ufe is nothing but a 
 E.ight to take the Profits to that End j 
 Hard, therefore it gave him Leave to enter 
 ^^' and occupy the Lands at the Will of the 
 Teoffee $ and fo as it feems from Lit, 
 1 Sid. ^^^. ^S/\, may his Heir do after him, 
 *^ ' and in giving him the Ufe in the mean 
 Time^ till the future JJfe comes in 
 JEffe^ it gives him Leave to take the 
 Profits. But then 'twill be obje(aed. If 
 the Law gives not a Man Leave in Cafe 
 where there is a Ufe exprefly limited 
 to him, but makes him a Trefpailbr, 
 how can it give him Leave to enter, 
 ^r. where there is no fuch exprefs 
 Limitation to him? To which I an- 
 fwcr, that where the Law by Intend- 
 ment gave him an JEnirj to occupy at 
 Will, 'tis but to give him Leave to 
 take what the Law gives him ; but 
 when a Ufe is exprefly given to a Man 
 there to give him Leave to enter, is 
 to make a Cooftrudion quite contrary 
 to the Meaning of the Parties expreifed 
 in their Deeds, by which it appears^ 
 that the Feoffee was to have the Pof- 
 feflion and Occupation of the Land^, 
 ■and to anfwer over xk^.^ Profits to the 
 
 Cefmy.
 
 Ceftt/y que Ufe; fo that the Difference 
 is this i in the one Cafe there is but a 
 reafonable Conftruftion made to let a 
 Man have that prefently which he 
 would have at the Iqng run, that is to 
 fay, the Profits of the Land, when 
 there is nothing repugnant to fuch Con- 
 ftrudtion,- in the other Cafe to ex- 
 pound the Entry of the Feoffor to 
 be lawful, is to make a Conflrudion 
 quite contrary to the plain Intent and 
 Meaning of the Parties fully expref- 
 fed, which would be to introduce all 
 Manner of Uncertainty in the Expoii- 
 tion of Deeds. "Where the Will of the 
 Parties ought to be fupported, if no 
 Inconvenience follow from it, it ap- 
 pears by Lit, SeB* 464. what Ufe5iCo.4», 
 were at Common Law j for there he^- 
 fays that Cejiuy que life fhould be a l^^ 
 Juror, if the Land were worth 40 s* 
 per Awi, therefore when the Statute 
 ordained that a Juryman fhould have 
 40/. fer Ann* the Judges con (trued it 
 according to the Common Law, that 
 Ceftuy que Ufe fhould be the Perfon, 
 arid not the Feoffee, 
 
 ^fj0
 
 $04 Mtts atiD XtttCtS* 
 
 mi)o map fitiU a Wz. 
 
 All. 516. If an Ufe be limited to an Jlie//, 
 Bro. 339. j^g cannot have it, but it is forfeited to 
 Stiles 40. the King, who cannot feize the Lands, 
 Hard.49 5. but may have a Stihpoejia to get the Pro- 
 
 t'°v^'i9' ^^^ ^^ ^^^^ Eftate executed to him. 
 29- The King cannot have a Ufe^ becaufc 
 
 I Co. 23, j^g cannot take but by Matter o£ Record-, 
 I Hern, but if the Ufe be found by Office, up- 
 '32- on Record, then he may take. 
 
 If a TJfe be limited to the Poor of 
 
 \ the Parirfi, 'tis good, thovigh they are 
 
 no Corporation. 
 
 vid. poll When a Man makes a Feoffment in 
 
 nvhere this Fee, to the Intcnt to perform his Lafl 
 
 Diftinaion ^j|i_^ ^j-i^ afterwards devifes the Lands 
 
 IS reje e . ^^ another, and dies, the ijecifee is 
 
 in by the Will j but if a Man makes 
 
 a FeoffjJiejit in Fee to the Ufe of fuch 
 
 Perfons, and of fuch Eftate as he fliall 
 
 2inft47i.appoint by his Laft Will, and then li- 
 
 *• j^ mits the Ufe^^ by Will to another, the 
 
 A. 112. f. Devifee is in by the Execution of Ufes 
 
 6C0. iS. upon the Feoffineiit^ by the Statute- 
 
 ^' and the Reafon of the Divcrfity feems 
 
 to be this, in the firft Cafe, he having 
 
 limited no TJfes^ and having a Ufe to 
 
 him and his Heirs, the Feoffviejit in 
 
 both Cafes being made without Con- 
 
 lideration, the Statute executes the E- 
 
 ftate
 
 Witts mt^ Xrufts* 205f 
 
 ftate fully in him again, and leaves no- 
 thing in the Feoffee; but in the latter 
 Cafe, there being Ufes exprefly named, 
 tho' the Feoffor had his Eftatc again, 
 yet there is a PolTibility left in the 
 Feoffee^ which becomes an Eftate when 
 the Contingency happens: But then it 
 will be objed:ed that the firft Feoffment 
 being made upon Frnft and Cojifi- 
 dejice to perform his Laft Will, this was 
 a JJfe in Contingency ,• and fo there is 
 the fame Reafon for this Cafe as for 
 the other,- but it may be anfwered. 
 That this is no JJfe ,• or if it were one 
 at Common Law^ yet that 'tis now de- 
 ftroyed by the Feoffee^ who can never 
 perform the Truft repofed in him, be- 
 caufe the Eftate is prefcntly by the 
 A<5t out of him, at Common Lciw^ it 
 might be a Ufe^ for he had an Eftate 
 in him, fo that he could perform the ^ ^"^' ^5- 
 Will of the T)evifor ; but in the other 2 Roll. 
 Cafe the Will is but a Direcfrion of 780. 
 the Perfons and the Eftates they ftiall ^^'°;J''' 
 have according to this Power refcrved i Rol. 
 upon the Feoff iiieiit^ and there upon the ^^P 555- 
 original Feoff)nent there was nothing ^. 
 for the Feoftees to do.— —Tenant in -^^oor 
 Tail cannot ftand feiz'd to an Ufe ; for ^°]^'^^ 
 the Intent of the Statute 2)^ doiiis z Ands-, 
 was, that he fliould have the Lands y^^*^ 
 and the Profits of them, and he cannot ".^^^ 
 
 execute
 
 206 Mtt& atiD %mtts. 
 
 execute the Eftate to the Ufe^ arid 
 therefore cannot anfwer the End of the 
 Creation of Ufes, {viz^ that the Ter- 
 tenant fli6ufd make Eftatcs according 
 to the Dircdions of Cefitiy que Ufe ; 
 and it appears by the Intent and Scope 
 of the A<^5 that the Makers did never 
 intend that the Tuejiant in T^ail ihould 
 (land feized to an TJfe^ for they have re- 
 ftrained him to alien to prejudice his 
 Iflue i but if he u^ere to (land feized to 
 an TJfe^ as it was a Part of the Truft 
 rcpofed in him to make Eftates accord- 
 ing to the DirC(5tion of Ceftiiy que Ufe ; 
 fo it would be a Prejudice to the If- 
 fue f and the Statute would never have 
 fo carefully prefervcd the Land to the 
 lifue, if he might have it only to an- 
 2 inft. other's Ufe.-' — If a Baftard hath gotten 
 1 1 5' ^- a Name by Reputation, to be fuch a 
 Dyer 574* One's Son, yet 'tis not a Confideration 
 h' fufficient to raife a Ufe to him^ for ftill 
 
 in Law, he is look'd upon as 72ulliuS 
 filius i therefore the Law can ne- 
 ver fupport that as a good Ufe to 
 him, as the Son of fuch one, in re- 
 fpe6t of the natural Affedtion that a 
 Father bears to his Sons, when by an- 
 other Maxim the Law fuppofes, and 
 fays, he is miUHis films ^ and fo no 
 Body can have any natural Aifedion 
 for him. 
 
 A Maa
 
 Wifts ana Xtntts* 207 
 
 A Man levies a Fine, and cove- ^^o. 75, 
 nants by Indenture, in Confideration of ^*„^^/ ''' 
 natural Love and Afeftion, Blood and 
 Marriage of his Baftard Daughter, that 
 the Conufee fhall (land feized to the 
 Ufe of the Baftard Daughter, tho' this 
 be not a fuflicicnt Confideration to raife 
 a Ufe upon a Covenant, yet .'tis expref- 
 five of the latent of the Party ,• and 
 therefote fliall ferve as a fufficient De- 
 claration of a Ufe upon the Fine, 
 where there needs no Confideration. 
 Ufes, (as has been faid) may be raifed 
 either upon the Tranfmutation of Pof- 
 feflion, as upon a Fine, Feoffment or 
 Recovery, Cyc, or where there is no 
 Tranfmutation of PolTeflion, as upon a 
 Covenant or Grant upon good Confide- 
 ration, as upon a Bargain and Sale, 
 where there muft be quid pro quOy 
 fomething given for fomethingi but if 
 in a Covenant there be but a good 
 Confideration^ though nothifig he gi<ven^ 
 it is fufficient; and here it will be 
 rcquifite to fee what is a good Confi- 
 deration to raife a Ufe upon a Cove- 
 nant. And firft, in the Cafe of Sher- 
 rington and Tie ad ale ver. Strotton^ it 
 came to be a Queftion, Whether a Co- 
 venant in Confideration that the Lands 
 Ihould remain to the Heirs Male of 
 the Body of the Covenantor, and in 
 
 Confide-
 
 2d8 mits ano %mfts* 
 
 Confideration of Brotherly Love and 
 Affedion ; and that the Lands lliould 
 remain in the Blood of the Covenan- 
 tor, were fufficient to raife a Ufe ; for 
 'twas objcded that 'twas not, becaufc 
 nC) Advantage came to the Covenantor 
 by that Confideration ; for 'twas unne- 
 teffary, and 'twas no more than was 
 before, and would be afterwards ,• but 
 the Court did adjudge that the Ufes 
 did well rife upon thofe Confiderations, 
 and in the Refolution they feem to 
 have regard to each of thefe Confide- 
 rations, as if any of them fingiy were 
 fuflicient to raife a Ufe, as indeed they 
 feem to be ; for as for the firft, in Confi- 
 deration, that the Lands lliould remain 
 to the Heirs Male of his Body, he co* 
 venants to ftand feized to the Ufe of 
 himfelf for Life, then to others for 
 Life, and then to the Heirs Male of 
 his own Body ,- this it feems is a fuffi- 
 cient Confideration to give him an E- 
 ftate Tail, tho' he does not part with 
 his Eftate j and fo in other Cafes it 
 would remain in him, as before ^ as if 
 a Man makes a Feoffment in Fee to 
 the Ufe of J, S. in Tail, the Remain- 
 der to his own right Heirs^ he has his 
 old Reverfion in him ; but here the 
 ^j Confideration of preferving the Lands 
 
 505. to the Heirs Male of his Body, by the 
 5 Creatiori
 
 Witts anti %mtts. 209 
 
 Creation of an Eftate Tail ; and fo ha-^ 1"^- "' 
 ving the Force of the Statute 2)^ ^o-/co. 13.&, 
 /;/x to prcferve the Inheritance; for the If- 1 Vcnt, 
 fue being a good Confideration to raife 5^^^^ 
 a Ufc, that Eftate, which the Owner 495, 505. 
 of the Land had, is changed and quali- ^5j^o.55« 
 ficd into an Eftate Tail. Accordingly Rcp^io^, 
 my Lord Coke fays, that if a Man 
 makes a Fcoftment in Fee to the Ufc 
 of one for Life, the Remainder to the 
 Ufe of the Heirs Male of his own Body, 
 this is an Eftate Tail in him ,• yet here 
 the Ufes were not out of him i fo that 
 a Man, may modify a Fee that conti- 
 nues in him i but he cannot take a Fee 
 as de no'vo^ when he has_ the old one 
 in him. In the Cafe of Tyhns and 
 Mitford^ it was held, that if a Man 
 covenanted to ftand fcizcd to the Ufc 
 of his Heirs Male, begotten on the 
 Body of his fecond Wife, he had there- 
 by an Eftate Tail. 
 
 A Father makes a Feofifment in Latev Aw 
 Fee to his Son, with a Letter of Jttor-*}""''^'" , 
 
 ' , _. . . feem to in- 
 
 ney to make Lrjerj^ but no Jui'very is\ii„e that 
 made, no Ufe fhall arife to "the Son ; this (halt 
 for it appears to be the plain Intent oi^'f^^mm 
 the Parties, that the Land fhall pafs by to fiand 
 the Common Law by the Feoffment -J^'^^^- 
 and that the Feoffee fliould be in the 
 ^ei\ and it would be unreafonable to 
 make fuch Conftrudion as to raife a 
 P ufe.
 
 210 Mks atiD XmHts. 
 
 TJfc-i and fo make the Son come in by 
 the Statute -, and in the "Poft^ contrary 
 to the exprels Agreement of the Par- 
 ties mentioned in the Deed. It feems 
 the Diverfity taken before, came in 
 by a Conflrudiion made in Favour 
 6Co. i8. of Lords, upon the 32^ 34^. 8. to 
 ^ hinder the Difpoiition of one third Part. 
 
 When the Feoffment was made to the 
 JJfe of the Feoffors Lafl: Will, this was 
 expounded to be no more tlian refer- 
 ving a Power tc> difpofe of the Land 
 by Will, which, as Owner, he might 
 do before, and not that he dclign'd him- 
 felf to raife a particular Authority ta 
 limit an Ufe to this or that Perfon, upon 
 the Feoff7ue72t i fo the Feoffment being 
 made without Confideration, was to 
 the JJfe of him and his Heirs ; and there- 
 fore when he difpofes of the Land, tho"^ 
 he did it as having a Power by the 
 Feoffment^ yet the Will took Effed, as 
 he was Owner of the Land ^ but this 
 Diftindion feems to me to have no 
 Manner of Reafon or Ground for it, 
 in any fair ConftruCtion. When a Man 
 makes a Feoff)nent in Fee to the JJfe 
 1 /if 1*1 2. o^ ^^^^^ Pcrfons, and of fuch Eftate as 
 Hob. 312. he iliall appoint by his Laft Will, the 
 6 Co. 18. Feoffor is in the mean time feized of a 
 lAnd. qualified Fee, and lias a double Power 
 245. over the Land;, either as Owner of it 
 I to
 
 Mtts ano %miis. 21 1 
 
 to difpofc of it by Will, without ta- 
 king any Notice of his Power referved 
 upon the Feoff mtfit^ or by limiting TJfes 
 and EJiates y according to that par- 
 ticular Power. If therefore he devifes 
 his Lands by the Will, generally, it 
 takes Effed as if he were Owner of 
 the Land i for having Liberty to chufe 
 whether he will make any Ufe of the 
 Power referved to him upon the Feoff- 
 ment, and yet having Power, as Owner of 
 the Land to difpofe of it, when he de- 
 vifes it generally without any Relation 
 to his Power, it feems his plain Intent 
 was to waive the Execution of the 
 particular Power he had upon the Feoff- 
 meiity and to make Ufe of the gene- 
 ral Power he had as Owner of the 
 Land ^ and now fince the Lands are o£ 
 Socage Tenure, devifable by Will, in 
 every fuch T)evije by Will, the T)e-vifee 
 would be in by the Will, tho' fomc- 
 times, in Cafe of Knight-Service, Lands 
 were othcrwife ,- as if after fuch Feoff- 
 mejity or by fuch Veoffment of three cro. Ei 
 Acres, he had difpofed of it to A.'^i^-- 
 and afterwards by Will generally had 
 devifed the third, the ^eoifee had 
 been in by the Feoffment ^ and not by 
 the Will^ bccattfe as Owner of the 
 Land he was reftrained fronj making 
 any Y)q\i^q at all j and therefore that 
 V % * the
 
 21 z Mtte am %m(ts. 
 
 the Will might be of forac EfiFed:^ 
 (which was moft certainly the 2)^- 
 "vifofs Intent) it was expounded, and 
 that moft reafonably to be a purfuing 
 of his Authority according to the Power 
 refcrved to him upon the 'Feoffment -y 
 but if he had made no Difpofition of 
 the Lands, but only as general Owner 
 of them had devifed them, there, be- 
 caufe the Will was of Effed to pafs 
 two Acres, the *De'vife was void for 
 the third. 
 
 J, fuffers a Recovery to the Ufe of 
 his Laft Will, if he declares Ufes by 
 Deed in the mean Time ^ yet they 
 are revocable, being founded on a 
 Recovery fuffered to Ufes that were 
 alterable at the Will of J, therefore 
 in fuch a Cafe he may either declare 
 new Ufes, or if he makes a Leafe for 
 Years, that fliall bind the Pcrfons no- 
 minated by the Declaration of the Ufes 
 to the Will. Hob. 349. Bro. 337. h. 
 19 H.S,i2. T>yer 166, 324. 
 T €0,175. In an A(5tion on the Cafe for flan- 
 anfe. dcring his Title, the Defendant pleads^ 
 that one Sir Hez/rj Sharh/gtou was 
 feized of the Lands whereof, dc. and 
 had IlTue three Daughters, and cove- 
 vanted with others, in Coniideration of 
 a Jointure to be made to his Wife, 
 the Advancement of his Iffue Male, if 
 
 he
 
 Mies mt^ Xxntts. 213 
 
 he fliould have any^ the Preferment of 
 his Daughters, and the Continuance of 
 the Land in his Blood ; and for divers 
 other good Confiderations, to ftand 
 feized of the Lands E. G- of fix hun- 
 dred Arcres, to the Ufes, Intents and 
 ^Furpofes^ and under the 'Pro'vifo cnfu- 
 ing, {'viz.) to the Ufe of himfelf for 
 Life, and after of Three hundred A- 
 cres in certain, to the JJfe of his Wife 
 for Life, for a Jointure, and of the 
 other 300 Acres after his Death j 
 and of the other Three hundred limi- 
 ted for his Wife's Jointure, after both 
 their Deaths, to the Ufe of the Heirs 
 Male of his Body engendered ; and for 
 Default of fuch Iflbe, then of the 
 Three hundred Acres not limited for 
 his Wife's Jointure to tiie Ufe of his 
 three Daughters fevcrally, and the 
 Heirs of their Bodies ; and for Default 
 of fuch Ilfue to the Ufe of the right 
 Heirs of Sir Hemy j and then there 
 was the like Limitation of the other 
 Three hundred Acres ; and if any of 
 the faid three Daughters die without 
 IlTue, then her Portion to the Survi- 
 vors by Moieties, Remainder to the 
 Right Heirs of Sir Heur}\ and then 
 comes this Provifo : 'Provided akvays, 
 and it is covenanted and agreed he- 
 tmeeu aU the faid Tarties^ that it JJoall 
 P 3 ^^
 
 ti4 MMmti%m&s. 
 
 he lawful for the faid Sir Henry, hj 
 his Will J m Writing y to liviit ajiy 
 ^art of the [aid 'Lands to any Tcr- 
 jhn or Terfons^ for T'erm of Life^ 
 Zji'i'es or Tears, for Tajment of his 
 UDehtSj perforniiiig of his Legacies y 
 ^referme7it of his Children^ or any 
 pther reafonahle Coiifideration^ as to 
 hijnfclf JloaU he thought good j a7id all 
 ^erfons thereof feized to fiajid feized 
 to the life of ftich Terfons^ and for 
 fuch hiterefts as fljall he fo limited 
 after hj his Will- Afterwards Urfula^ 
 the eldeft Daughter died without liluc i 
 Afterwards the faid Sir He7irji by his 
 Will in Writing, for the Advancement 
 of his J)aughter Oliffe^ and her Huf- 
 band, and the Heirs of the Body of 
 the faid Oliffe^ limited a great Part 
 limited to Qrace^ to the faid OZ/jft*, 
 for 1000 Years, without referving any 
 Rent ; and afterwards the faid Sir 
 Jieiiry died without Iffue Male, and 
 fo the Defendant juftifies his faying, 
 that Oliffe and her Husband had Right 
 to the Lands j and upon this Tlea the 
 Plaintiff ^evmrs^ and this Limitation 
 for I GOO Years was adjudged to be 
 void, and confcquently the Defendant 
 had llandered the Tlai7itiffs L'itle ; and 
 fo Judgment was given for the Plain- 
 tiff^ and that by the Opinion of all 
 
 the
 
 Mks aiiD %vntts. ^i$ 
 
 the Juftices in E/zg/a^zd ; and that up- 
 on thcfc Grounds and Rcafons. Tiio' * c°'^7<'' 
 upon a Feoffment, Jj/es may be limit- 
 ed without Confidcration, yet they 
 cannot by Coce//d7it or Bnrgaizi and 
 Sale i and the Rcafon feems to be this, 
 when a Man made a Feoff?iie7it in Fee^ 
 without Confidcration, and without cx- 
 prciling any Ujes^ wh.creby the Feoffee 
 came iato the Land for notliing, it 
 was thought very reafonable and equi- 
 table that the Feqffee coming to a c<m- 
 .(iderablc Eftate, without giving any 
 thing in exchange for it, fliould ftand 
 feized to the Ufe of the Feoffor-, for 
 that fecmed to be the Intent of the 
 Parties^ it not being to be imagined 
 that any Man would give away an E- 
 ilate without any Manner of Reafon 
 or Consideration for it ; but when 
 upon the Feoffment Ufes were cxpref- 
 fed, then thefe exprcfs JJfes were fup- 
 ported, tho' the FeoffmeTit^ Flne^ (jc. 
 were without Coniideration, becaufe 
 that fcemed to be the plain Intent and 
 deliberate Dcfign of the Parties, that the 
 Eftate iliould be fettled according to 
 thofe Limitations,- and there would be 
 no Equity in overthrowing fuch a De- 
 iign ; but in a Cozw7iant or Bargain 
 and Sale^ no Ufe can be raifed without 
 a good Coniideration j iho' there be 
 P 4 Ujcr
 
 ZT/'fc'J expreflfed i for in a Ikoff7/imt it 
 is Equity that gives a L//^, tho' there 
 be none expreffcd ; and the fame Equi- 
 ty will not fupport any Ufe by Co've- 
 ncmt or Sale^ tho' expreffed, if there 
 be no Reafon for it, as there is not in 
 a 'Bargaifi and Sale^ without Confide- 
 ration. But it may be asked, fmce 
 Ufes on a Feoffment^ if expreflcd, may 
 be fupported without any Conlidera- 
 tion, why may not Ufes upon a Cove- 
 nant, C?^. if expreded, tho' without 
 any Confideration, be fupported too ? 
 To which it may be anfwercd that 
 if a 'Feqffmein be made in Fee, with- 
 out Condderation, the Feoffee hath a 
 jcgal Eftate and Right to take the 
 Profits of that, and that the Feoffor 
 ibould take the Profits, is only an E- 
 quitable Conftrudion in his Favour, 
 which if he will pafs away by limit- 
 ing it to others, or in this or thai 
 Manner, he may ^ but when a Man, 
 that has a legal Eftate and an equita- 
 ble Right too to take the Profits, will 
 covenant to ftand feized to an Ufe \ 
 he that will take the Benefit of the 
 JJfe of the Land, muft fhew fome 
 good reafonable Caufe to take the Pho- 
 fits in Equity, fince he hath none in 
 Lawi which no Man could do but he 
 that comes to the Vfe for a good Con- 
 
 fidera-
 
 lidcration. When a Ftoffynent is made 
 to an Ufe-i a Truft is repofed in the 
 Feoffee^ which may be very well done, 
 without any Conlideration j nay, it bet- 
 ter anfvvers the End of a ^Tmft^ if it 
 be done without any Con(ideration ; 
 and when a Fhift is repofed in any 
 Body, he muft perform it, or he is 
 Guilty of a Breach of Fh/ft ; but when 
 he covena?ns to ftand feizcd to a Ufe-, 
 the Ceftny que Ufe ought to fliew fome 
 good Reafon to intitle himfelf to the 
 Profits of Lands in Equity. And a 
 bargain and Scile^ ex m F^cr/z/imj^ohy h , 
 implies a Confidcration : and that there ?* ^"-^^ "^ 
 
 n 1 1 1 r^ • 1 A 1 Jones -v. 
 
 mould be J^^id pro q//o. And as an More. 
 ZJfe cannot be raifed upon a Covenant 
 in a Bargain and Sale without Conli- 
 deration i fo if a Man for good and va- 
 luable Coniiderations Bargains and Sells 
 Lands, or covenants to ftand feizcd to 
 an Ufe-i no Ufe is thereby raifed ; for 
 the Words are too general to iliew the 
 Nature of the Confideration i and it 
 appears not by them, whether any Con- 
 fideration was given or not ; and what 
 is a good one to raife a Ufe ought to 
 appear to the Court to be fo j for they 
 are to judge whether the Conflderati- 
 ons given were fufficient, or not, to raife 
 a Ufe i but yet, becaufe, if in Truth, 
 ^ Confideration was paid, (j'c it is 
 
 reafon-
 
 2iS MUs mt) Xmfls. 
 
 icafonablc the Party fhould have the 
 Benefit of it, tho' prima facie^ becaufe 
 there is none mentioned in the Deed, 
 therefore there fecms to be none ; yet 
 ,thc Party may aver, that there was a 
 Confideration paid, and fet it out, which 
 if It is an Ufe iliall be raifcd to him ; 
 Dyct and this Averment is always ttYi'verfe- 
 ^46. able ; and tho' there be a Conlidera- 
 .3iCo!^24. ^io" which is always a good one, 
 mention 'd in the Deed, asfuppofe Mo- 
 ney ; yet may the Party aver another, 
 belides that, if it ftands with the Deed, 
 £i.s all Coniidcrations mufl: that are aver- 
 red to be of any Force or Effed: j as if 
 there be a Confideration'of Blood averr d, 
 the Party miift be of the Blood of the 
 ^^<i'i:^'Coz'e7inntor. If J. co'veimiits with B. 
 for good Coniidcrations to ftand feized 
 to his IJfe^ no Ufe is raifed to 'B, but 
 if in Truth B. be of his Blood, and in 
 Truth the Covenant was made for Ad- 
 vancement of his Blood, he may afuer 
 it, and fo have the JJfe, When the Con- 
 fideration is a Covenant to ftand feized 
 to JJfe^ or in a Bargain and Sale, is 
 good, and the Pcrfon certain, there that 
 See Tit. perfon may take an Averment that the 
 ff^wl/' Confideration was paid, and according to 
 L7«, 54. the Truth of the Cafe j but where the 
 iCo. 176. p^j.^-^^^ is uncertain, and the Confide- 
 ration general, there no Jt'erment can 
 
 be
 
 be taken by any Pcrfon. In the firft 
 Cafe the Averment by the particukir 
 Perfon is but Reducing the general 
 Coniideration to fome Certainty, and 
 making out that in particular, in Fa- 
 vour of the Perfon who was before 
 included in the general Words,- which 
 is very reafonabie, in C^ife a good Con- 
 lideration were hojin fide paid by him ; 
 but in the latter Cafe the Intent of the 
 Coi'ejiaiitor vv^as void ah i7iitio \ for it 
 appearing that he defigned no Body in 
 particular, for the Benefit of the Ufe 
 he would raife, no Perfon in certain 
 could aver any particular Confidera- 
 tion why he fliould have the Ufe ; be- 
 caufe it plainly appears by the Deed, 
 he did not dchgn him for the Uje any 
 more than any other Pcrfon ,• and the 
 Law will not give a Ufe to any Body 
 contrary to the Intent of the Partv 
 mentioned in the Settlement j therefore 
 if^. for divers good Confiderations, cove- 
 nants to ftand feized to the JJfe of him 
 that B. fhall name, and nominates one, 
 no JJfe is railed to him ,• for there is 
 no particular Confideration expreffed, 
 and the Nominee of B» cannot aver 
 any, becaufe it appears that ^. knew 
 not who the Nominee would be, and 
 therefore could have no Refpcd for 
 any particular Perfon to maJ^e hira 
 
 raife
 
 20 MUs atiD %tn&s. 
 
 raifc a l/fe. If S, had paid Money, 
 j^i(sre whether he might not have a- 
 verred it, and fo made good the Ufe 
 to the No7mjie€ ; but if J, in Conii- 
 deration of the Advancement of his 
 Blood, had covenanted with B* to 
 {land feized to the Ufe of fuch a one 
 of his Kindred as JB. fliould appoint, 
 and then B. had nominated one, the 
 Nomi?iee had a good Ufe j for J, had 
 a Delign, for very good Reafons, to ad- 
 vance fome of his Family, and he on- 
 ly left it to B's Judgment who fhould 
 be the Perfon. When Ufes are raifed to 
 Sons in Confideration of Natural Love 
 and Aflfedion, and afterwards there is a 
 Provifo that the Covenaiztor^ for divers 
 good Confiderations, might make Leafes 
 for any Number of Years or Lives, to 
 any Perfon he would, he cannot by 
 Foree of this Trooifo^ make any Leafe 
 to any of his Sons, or any other Per- 
 fon i for the Confideration is too ge- 
 neral to raife a Ufe i and no particu- 
 lar Averment can be made by any Per- 
 fon in certain, and the Confideration 
 that is requifite in a Covencmt or Bar- 
 gain and Sale to raife a Ufe^ will be 
 fo in a Provifo to raife Ufes in that 
 Covenant or Bargain ; for the T^rovifo 
 is but an under Sort of Agreement, and 
 v^hat is requifite in the Covenant., which 
 
 is
 
 is the fundamental Agreement ; for the 
 Settlement oi the Ufes will be rcquifite 
 in the Trocifo of that Agreement j for it 
 is an Agreement of the fame Sort or 
 Nature with the other ,• and the JJfes 
 raifed by it are only raifed by Cove- 
 nant and Agreement, and not upon 
 Feoffme72t^ where JJfes may be raifed 
 without any Coniideration originally ,• 
 and by the fame Reafon as it fcems 
 by Provifo. In the Cafe of Milclmqy\ ' °'^' ' 
 the JJfe intended to be raifed was de- 
 iigned to come under that Claufe in the 
 Agreement, for divers other good Con- 
 liderations j and therefore for the Rea- 
 fons aforefaid, it was void ; but if the 
 Leafe to Oliffe had been for any other 
 Coniideration mentioned in the Tro- 
 'vifoy it feems it would have been good 
 upon thefe Words, other Confiderations 
 mentioned in the Provifo. It was re- 
 folved that the Confiderations, upon 
 which a new \Jfe mufl: have been rai- 
 fed according to the Power of the Pro- 
 fo, muft not have been any of thofe 
 Confiderations mentioned before in the 
 Deed ,• for the Word other implies 
 fo much i and therefore for that Rea- 
 fon alfo, the TJfe raifed by the Power 
 of the Provifo was void, being done 
 for the Advancement of his Daughter, 
 >vhich was mentioned before, and was 
 
 the
 
 2 22 Wes ano %mfis. 
 
 the ^onlidcration for raiiing the Ufi iri 
 the I7ide72ture, If the Provifo had been 
 that upon the Confideration of Blood 
 he might have- made Leafes to any of 
 his Kindred, it feems the Intent had 
 been good; for the Leafe might rife up- 
 on the Confideration, which was as good 
 in that Cafe as in any Cafe of Blood ; 
 and the Perfons to whom it was to be 
 made were to be thofe expreffed in the; 
 Confideration ; but if it had been that 
 for Confideration of Blood he might 
 have made Leafes, it had been void, 
 though the Leafe iji faUo were made 
 to one of his Blood ,• for the Power 
 was too general at hrft, and fo void. 
 2 Roll 260. Cro. Jac, 180. like Cafe 
 
 Where ^'^^^^ ^'^^^ ^^^'^' ^^^' ^ ^"^^ ^ 77* ^^^^^ 
 there is a ^ 7 ^ * 
 
 Recovery If a Teoffiiient be made, or a Tine' 
 to the In- be levied, or Recovery be fuffer'd, with- 
 
 tent to /^ - J ■ 1 - 
 
 viakefuch out Conlideration, and no Ujes are ex- 
 £>f./, /;eprcifcd, it is to the Ufe of the Feoffor 
 uhh'own ^"^ ^^^^ Heirs. But if any Ufes be ex- 
 Vfe in the prcifed, it lliall be to thofe Ufes^ tho' 
 ^*^^ no Confideration be had; and herein is 
 Moor the Difference between raifing Ufes by 
 ^03- Fme^ Feqffmeiit^ or other Conveyance 
 Moor operating hy \[rci72fmutatio7i of ToJJef- 
 509- of fejjioji and IJfcs raifed by Co'venaiit ,• for 
 ing^n '^' UP^" ^^ fi'^^? if "o TJfes were expref- 
 Qranu fed, it is^ Equity that affigns the Feoffor 
 
 to
 
 a^ 
 
 to have the Vfe i for by the Law, ^ ^^"ff- 
 the Feoffor has parted with ail his In- co"jidT 
 tereft ,• but where he exprefics UfeSy ration, t- 
 there can be no Equity in giving him^^i^'"^ 
 the Vfe againft his own Will j and there f^V l?;/"^, 
 can be no Prcfumption that the Con- ^^'^y /''^'^ 
 veyance was to the Ufe of the Feoffor f^J'U,^^,^'^ 
 againft his own Declaration^ but in Dyer 169. 
 Cafe of a Coveimnt. it is Equity that ^'^- ^'''^' 
 muft give a UJe ; tor the Perlon can gued at 
 have no Right by Law ; therefore in ^^'"''• 
 fuch Cafe there can be no Ufe with- c",^, ^35. 
 out a Confideration ; for there is no 
 JEquity there fhould. 
 
 Husband and Wife levy a Fiue of the show. 
 Wife's Land to the Uje of the Heirs of J;^'*'-^^' 
 the Husband, begotten on his Wife, Re- aSaik. 
 mainder to the Heirs of the Husband, ^7 5' 
 this is a void Limitation j for the Huf-'J,.,^ ' 
 band had no Uje i7i pr^feutij and fo 
 the other Ufes cannot be fupported, 
 
 A F'rnft is limited thus, If fuch a^arLCa. 
 Marriage takes Effed, after Ji.'s Age ^'^' 
 of 16, being the Daughter of H. and (he 
 fliall have llTuc Male of the Body of S. 
 then to both far Life, he marries her at 
 1 2 Years of Age, flie lives 'till near 17, 
 and dies without liTue, he fhail have 
 no Truft for Life j becaufe flie having 
 no Iffue Male, there was a Failure of 
 the precedent (Qualification to enable 
 him^ it fecms flic living 'till after Sijc- 
 
 tCCil
 
 ?24 tUts auB %mBs. 
 
 tccn fulfills the firfl: Words well enough, 
 drc. if the Marriage fhould take Effe4 
 Ibid. 87. after her Age of 16, after the Dctnh of 
 ' S. and M. the Daughter of //. without 
 IlTue. The Truft was limited over tq 
 others i but ^ccvccd that 'till the Daugh- 
 ter of <S'.'s Death, he in Remainder could 
 not take, but that the Heir fliould have 
 the Truft till tha|: happcn'd j for fo much 
 of a Truft as is not difpos'd of, muft bo 
 to the Heir. A Woman iliall not have 
 the Thirds of a T'mft of a T'erm to 
 w^ait upon an Inheritance againft the 
 Purchafer, by her Title of T>owery but 
 ^bid. 7> againft an Heir perhaps flie may. 
 i Vcnu If Ctfii^y que Uje enters upon the 
 ^',cT Feoffee, he is Tenant at Will. See hour 
 '■^n. Ufes are executed by the Statute, i 
 ^'^'■'' Leo7/. 298. ail Pernancy of Profits is 
 P' '^t* frono by the 27 H. 8. fo as now no Body 
 can be Tcm'.nt to the Tr(ccipe^ in Re- 
 fpedt of that. 
 
 Tenant in Tail, Remainder in Fee, 
 
 a Co. 15. he in Remainder, in Confideration that 
 
 l^loor ^\^Q Land lliouid continue in his Bloodj 
 
 !?-* and for divers other good Confider^- 
 
 tions, Qovefiants to ftand feifed to the 
 
 JJfe of himfelf in Tail Male, then to the 
 
 Jj[e of his Brother in Tail Male, then 
 
 to the Ufe of the King in Fee, no Ufe 
 
 is hereby raifcd to the King, unlefs 
 
 ibmc valuable Confideration be averr'd 
 
 ' " - ' ■ ■ 'to
 
 Witts ano %x\xil8. 22 j 
 
 to be given by the King j and if this 
 Ufe in the King fliould preferve the E- 
 ftate from being barred, yet that could 
 be no Rcafon to give the King an equi- 
 table Right to take the Profits,- for 
 that is no Advintage to him. If the 
 Ufe had been limited to the King, in^^<^'*5. 
 Confideration that he was the Head of 
 the Commonwealth, and had the Care 
 and Government of his Subjedts, yet 
 had no Ufe been raifed to him, for 
 that is no particular Confideration to 
 entitle him to the Profits of thofe 
 Lands ; neither has he any more Rea- 
 fon to have them now than before ^ for 
 JE^: officio he takes Care of the Com- 
 monwealth, and to that End he has a 
 fulBcient Revenue. 
 
 Where the Lord ^aget feiz'd of Lands 
 in Fee, covencmts with T*. F, and o- 
 thers, in Confideration of the Char- 
 ges of his Funeral Expences, Payment 
 of Debts and Legacies, out of the Pro- 
 fits of his Land, and for the Advance- iCo. 154- 
 ment of his Son, Brother, and others of '^Ycoh 
 his Blood, that he and his Heirs would ,65. 
 (land feized of the faid Manors to the Moor 
 Ufe of the faid J, R for the Life oP-^^- 
 the Lord Tdg;ety and after his Death 
 to the Ufe of C. 73. for the Term of 
 Twenty-four Years, and then to the Ufe 
 Q. of
 
 2 26 Mits am xtttfts^ 
 
 of W' "P- liis Son in Jnil^ with divers 
 Remainders overi it was adjudged in 
 this Cafe, that my Lord Tnget had an 
 ECtate for his own Life j and the Rea- 
 fon given is, bccaulb all the Remain- 
 ders were to commence after his Deaths 
 and fo the Eftate remained in him, 
 during his own Life j but it feems that 
 this muft be underftood, that all thofc 
 Eftates that were good, and upon a va- 
 luable Confideraiion, w^ere to com- 
 mence after his Death ; for all Eftates 
 were limited to the Co'ue72anteeSy du- 
 ring the Life of my Lord Taget -, but 
 it doth not appear to be on a valuable 
 Confidcration ^ it was alfo refolved 
 that C T* took not the Eftate for 
 Twenty-four Years, becaufe there was 
 no Confideration to raife it to him j for 
 they had nothing to do to pay his Debts 
 and Legacies, neither were they thereto 
 chargeable; but if they had been his 
 Executors, it had been good ; for that 
 had been their proper Work and Em- 
 Moor ployment: It was alfo refolved that 
 594. j^. 'P. fhould take before the Twenty- 
 four Years expired, becaufe the Words 
 were after the End or Expiration of 
 the faid Term of Twenty-four Years, 
 which fignilics the legal Intereft, and 
 not the Time ; and the faid Term be- 
 ing voidj the I\cmaindcr Man's Intereft; 
 
 com- 
 
 pudte.
 
 mtts ano %mfls. 227 
 
 commenced prefcntly ,• for it was the 
 Defign of the Party, that he fhould 
 take after that Intercft determined ; and 
 if there be no Intercft, he ought to take 
 it prefently, or elfe the Deed would be 
 conftrued moft in the Gra7ito/s Favour j 
 but if the Words had been, a7id after 
 the twenty-four Tears expired, theu to 
 the Ufe of W. P. in Tail, there, tho' 
 the Term had been void, yet no TJfe 
 had been raifed to him, 'till after the 
 Years expired i for by exprefs Limita- 
 tions, the Ufe was then to commence. 
 In this Cafe, there was this Diverfity 
 taken by Majzwood Chief Baron. If a 
 Man covenajits to ftand feized to the 
 Ufe of one for Life, then to the Ufe 
 of another in Fee, and the Tenant for 
 Life refufcs, the Remainder Man's In- 
 tereft {hall not commence prefently ; 
 for it rauft be Equity that gives any 
 Body a Right to take the Profits, du- 
 ring that Eftate for Life, and the Re- 
 mainder Man's Intercft is not to com- 
 mence *till after his Death ; fo that in 
 the mean Time no Body being able to 
 claim any Intercft upon any good Con- 
 lideration, the Ufe muft remain in the 
 Covenantor ; but if a feoffment in Fee 
 be made to the Ufe of one for Life, 
 then to the Ufe of another in Tec, and 
 the particular Tenant refufes, the Re- 
 Q 2 maindei:
 
 228 Mtts ano Xtntts* 
 
 niainder Man's Intcrcft fhall commence 
 prefcntlyi for the Feoffor had difpofed 
 of the whole Land ,• and it is Equity 
 that gives him a Ufe when the Feqff- 
 ment is made without Confideration ; 
 but againft his exprefs Limitation, there 
 can be no Equity in giving him a Ufe^^ 
 and the Feoffee paying no Confidera- 
 tion, there is no Reafon that he fhould 
 have any ; and there being a Ufe limit- 
 ed to commence after the Eftate for 
 Life, which now is not, it is Reafon, 
 that it iliould commence. Qj^tare of 
 this Divcrfity, and whether. If the 
 Feoffment was made in Fee^ upon 6b//- 
 fideration^ the Feoffee iliould not have 
 had the Ufe during the particular E- 
 ^^f^^f ftate. My Lord Hale (liid that ^ Truft 
 ^£ve being a Thing created by the Contrad 
 S^'tr/" °^ ^^ Party, is wholly diredcd by the 
 Jn^'he Party,- confequently thofe that come 
 hour.A hy in the Toft^ are not liable to a Truft, 
 r^^^'poT becaufc they are not within the Di- 
 can he rccfllou of the Party, unlefs they are 
 hound. named, and then he fcems to think 
 they are bound, as thus : If an Eftate 
 is given to a Man and his Heirs, in 
 Truft, thofe that do not come under 
 5 Co. s. h. that Limitation are not charged with 
 
 516^ Sec' A Man makes a Feoffment in Fee 
 1 Co. 85, to the Ufe of fuch Perfon or Perfons, 
 ^^' and
 
 Mtts atiD %m(ts. 229 
 
 and of fuch Eftate and Eftates, as h6 
 has or ihall appoint by his Lafl: Will 
 and Teftament, which was made be- 
 fore, and pubhilied again after the . 
 Feoffment, ^l/xre whether the Eftates 
 be prefently executed according to the 
 Limitation of thofe Deeds, or hebefeiz'd 
 of a qualified Fee. The Stat. 27 H* 8. 
 fo executes the PofTeflion to the Ufe, 
 in the fame Manner, Plight and Qua- 
 lity as the Ufe, ^c, but that muft be 
 underftood where the Eftate to the Ufe is 
 large enough \ for if Lands be given 
 to A* and IB, during their Lives, to the Dyer 
 Ufe of C if ^. and B. dies, Ch Eftate ^ss. j^^ 
 is determined ; for the Seifin to Ufe, .[^' .^j* 
 that A» and B. had, was only for their Hob. 840 
 Lives, and the Execution of it in C ^3^; ^""^^ 
 cannot make the Eftate larger. 
 
 "Where Perfons fliali be Jointenants 
 for the Limitation of a Ufe to them, 
 fee Inft* 188. ^. 
 
 If the Father and Son purchafe Lands 
 jointly, the Law will not fuppofe that 
 the Son purchafed only inTruft for the 
 Father, and confequently fhali furvive 
 to the Son. The Stat. 27 H- 8. executes 
 the Pofldfion prefently, as to the Eftate i 
 fo if a Man Bargains and Sells for 
 Years, the Lelfee is in Poffeflion pre- 
 fently, and the Lelfor has a Rever/ion, 
 
 Q.3 ■ ^^
 
 230 Mits atto %mR6. 
 
 fo as there are two divided Interefts 
 before any Entry by the Lcffce, yet 
 the Leffee cannot have Trefpafs be- 
 fore actual Entry j but by a Common 
 Law Leafe the Eftate is not divided 
 before the Entry of the Leffee ; fo 
 fays Cookcy upon a Bargain and Sale 
 the Freehold paiTes prefently ^ but the 
 adual Freehold is not in him till an 
 Entry ; for it is impolfible an A«5t of Par- 
 liament fhould give any more than a 
 Civil Seifinj it cannot give a natural 
 one i but a Releafe may be made to 
 one that has nothing but a Freehold 
 in Law,- fo it feems upon a Bargain 
 1 inft. and Sale for Years, the Party being in 
 266. b. poffeiTion of the Eftate of the Lands 
 for that Time, a Releafe to him will 
 be good to increafe his Eftate ^ but in 
 Cafe of a Common Law Leafe, it 
 feems a Releafe will not be good be- 
 fore the Entry of the Leffee ,• for the 
 Eftates are not devifed till then, and 
 fo there can be no Privity of Eftate, 
 and theLelTor can have no Demand upon 
 the Leffee, which a Releafe fuppofes ; 
 but in Cafe of a Bargain and Sale there 
 is a Privity, and the Demand of the 
 Rent fliall incur before a(^ual Entry. 
 
 J, feized in Fee of three Acres of 
 
 Land, makes a Leafe to J. of one 
 
 4 Acre
 
 Mks ano Xv^^f^s. 231 
 
 Acre for Life, to B, of another Acre 
 for Life^ and a Gift in Tail to C. of 
 the other Acre, and cove7iants after all 
 the Eftates ended to ftmid feized to 
 the JJfe of his Brother in Fee, S. diQSy 
 his Brother lliall have that Acre m 
 Fee prefently, and {hall not ftay 'till 
 the other Eftates are ended ^ for if he 
 fhould, perhaps that would never be ,• 
 but if the laft had been a Leafe for 
 Life, it had been all one, as it feems; 
 for this Cove7iaiit fliould be expound- 
 ed, Redde7ulo Singula Singulis* Where 
 the Lord releafes to a Copyholder in 
 Fee, to have and to hold to him and , j^^n 
 his Heirs^ to the JJfi of another, thatAbr. 7SSi 
 is a good Ufe ; for the Rekafe enures 
 by \Vay of Enlargement of his Eftate, 
 and by this Rekafe the Copyhold E- 
 ftate is extin(5t and gone, as it feems, to 
 the Execution of a Uje into Poffcirion j 
 by the Stat, it is requilite that there 
 muft be a compleat PoffeiTion ; for the 
 Feoffee muft make an a(5tual Entry,- 
 for the Intent of the Stat, was not to 5C0. na, 
 help out a Polfeflion already good; fo^' ^^' 
 it feems, if a Re'verfin7i be granted to 
 one to the Ufe of another, that this is 
 not executed before Attor7iment^ for 
 the Pvcverfion paftes not 'till then ; but a 10(1.510, 
 if a Man hath a R^^f/yF^// granted to ^^«"'* 
 him by Fiiie^ and before Attornme7it^^^ 
 
 Q>4 ^'"^
 
 232 Mtts atiD %x\itts. 
 
 he Bargains and Sells it to another, 
 the Re'verfion is executed by the Stat, 
 in the Sargaiuee ; for as in the firft 
 Cafe the Grautee had no Reverfion for 
 want o£ Attorm/ient ; and itconfequently 
 could not be executed^ fo in the laft Cafe, 
 Cro, El. the Cojmfee had a Re'verfion before At- 
 '^^' torn?i2ent^ which he palfcd the Ufe of to 
 another, and then the Stat, executes 
 the Poffeflfion to the Ufe^ but in the fame 
 Plight as the Uje was, and confequently 
 ftill 'till Attoiiiinent ^ there wants a 
 Privity of Diftraining, ^c. A* makes 
 sinftsop. a Leafe for Years to S. and then 
 fi. grants the 'R.e'verfion by F'uie or Bar- 
 
 gaiu and Sale to 2). to the Ufe of C 
 this is executed by the Stat, in C 
 without Attcriiment j becaufe a Re- 
 verfion was granted and prefently exe- 
 cuted by the Stat, eodem inftafiti i 
 fo that there could be no Time for the 
 Tenant to Attorn to the Grantee j 
 and if an Attor7ime7it was necelfary, 
 no Grant could be made by F'uie to 
 the Ufe^ <jc, ,bccaufe no Attormnefit 
 could polTibly be had ,• but if the Grant 
 were by Deed, then no Re'verfio7i could 
 pafs before the Attornmefit \ and fo 
 not be executed by the Statute. Te- 
 op- 7.8, ^^^^ £"qj. j_^j|'^ makes a Feoifment to 
 
 J» S* he in Remainder releafes to 
 Rim, the Ufis are for ever gone j for 
 
 the
 
 the Feoffee comes in of another E- 
 ftate than what was fubjed to Ufes j 
 and the Releafe only removes the 
 Right of the Remainder Man", but 
 leaves the Feoffee in, of the fame E- 
 ftate he had before. 
 
 J, covenants with B^ that if ^. en- 
 feoffs him of three Acres of Land in 
 2). that then he the faid J. and his 
 Heirs, and all others feized of fuch 
 Lands, fhall Jiaud thereof feized to 
 the Ufe of S. and his Heirs. J, en- 
 feoffs another of the Land in *D* now 
 the Ufe fhall rife to S. and his Heirs ; 
 for the Feoffment did not deftroy the 
 Contingency i for the Ufe was not to 
 rife 'till after B,'s Feoffment, which it 
 well may. There is this more in G?ciy^'sSct- 
 tlement before-mention'di had he made 
 a Feoffment before he had granted theRe- 
 verfion, the contifigent Ufes had been 
 deftroyed -y for the Feoffee had not come 
 in in Privity of Eftate, which was 
 fubje(ft to Ufes ^ but of a new Eilate 
 this muft be intended of a Feoffment 
 made before the Contingency happens , 
 for elfe the Eftate had vefted, and 
 then it could not be deftroyed i but 
 the Grant of the Reverfion being made 
 firft, and without any Coniideration, 
 the Grantee of the Keverfion ftood 
 feized to Ufes i and then when the 
 
 Feoff
 
 234 ^ft^ ^tlD %tnfiS. 
 
 Feoffment was made, and the Eftatc 
 difcontinued ; yet when the Tenant 
 for Life in Remainder entered, he 
 thereby recontinued all the Eftatcs, 
 and confequently the Reverfion in the 
 old Plight i fo that when the Contin- 
 gency happened, the JJfe was execu* 
 ted out of the JEftate of thofe in Re- 
 verfion ; and herein lay the Difference 
 between conveying by Feoffment^ and 
 a Co^^enant to ftand feized ^ for if he 
 had made a Feoffment to thofe Ufes, 
 then the contingent JJfe muft have a- 
 rifen out of their Eftate ^ and that Ad 
 which the Tenant for Life could do, 
 « would amount to no more than to 
 diflettle tlic Eftates, and then when 
 the particular Tenant had recontinu'd 
 the Eftates, the Feoffees had flood 
 feized to the contingent U[e^ which 
 would have been executed when it 
 happened ,• but the Conveyance being 
 by Covenant^ and fo the Ufe to arife 
 out of the Eftate of the Cooenaiitor^ 
 any Conveyance that hindered the Pur- 
 chafer from ftanding feized to a Uje^ 
 as where the Perfon comes not in 
 Privity of Eftate, deftroyed the Re- 
 mainders. J*, S» feized of Copyhold 
 Land held of Sir T*. S. by Indenture, 
 j^^^ dated 22 \[Jec. between him on the 
 one Part, and the faid 5* ^^ ^^^ G» S. 
 his Son, on the other Part^^ did Bargain 
 
 and
 
 and Sell , Enfeoff and Confirm unto the 
 faid J. S. the faid Lands, to have a?id 
 to hold to the faid J. S. and G. S. 
 their Heirs and Affigus^ to the only life 
 and Behoof of the faid J. S. af^d G. S. 
 their Heirs and Affigns for e'oer^ and 
 Livery of Seifin was made according 
 to the true Intent of the Indenture. In 
 this Cafe, thcfe Points were remarkable. 
 Firft, That G. ^S*. being not named, but in 
 ^^Habendmn^ could not take by the Ha- 
 hendum \ fortheLivery did not help him, 
 being made according to the Intent of 
 the Indenture^ which Inde?2tnre was void 
 to him, and now could have no In- 
 tendment in Law to give him any le- 
 gal Eftate, and confequently the Li- 
 ivery would not give him any thing, 
 being only purfuant to the hidentttre ; 
 but tho' the legal Eftate limited to 
 him were void, yet the JJfe limited to 
 him was good j for that is conftrued 
 according to the Intent of the Parties, 
 and may as well come after the Ha- 
 hendu7n as before. And then it was 
 further refolved that they were Jointe- 
 nants, becaufe the Ufe was jointly li- 
 mited to both ', and the Statute exe- 
 cutes the PofTeflion according to the 
 Ufe-, and y, S. was not in here by the 
 Feqfffnejzt^ as he fliould have been, had 
 the Uje been limited to him alone, be- 
 caufe it appears to be the Intent of 
 
 tho
 
 36 Mks auD Xrufts* 
 
 the Feoffor^, that they fhould have one 
 Joint l/Je i and fo the Limitation of 
 the Ufe to him removes the Eftate he 
 had before fettled in him ; as if one 
 makes a Feoffment in Fee to the JJfe 
 of the Feoffee^ and the Heirs of his 
 Body, this diverts the ConimoTi Law 
 Fftate^ according to the Intent of the 
 Parties exprefled by the Limitation of 
 the Ujes i and tho' this muft be own'd 
 to be out of the Words of the 27/^.8. 
 yet it is within the Meaning of the A6t, 
 and fliall be executed by it. The 
 Words of the ACt are whe7i any ^erfo7i^ 
 &c. ftcuid or he feized to the Ufe of any 
 other 'Perfo7i^ &c. and here the 'Perfon is 
 feized to the JJfe of himfeif ; and fo 
 of the like Cafes, a Ufe fliali not be 
 fufpended or extind by a joint or fole 
 Seifin of the Land ,• as if A» had at 
 Common Law been enfeoffed to the 
 Ufe of himfelf and ^. the Ufe had 
 been a Joint Ufe to him and to S. 
 tho' J. were fole feized of the Land, 
 for no Part of the Ufe had been fuf- 
 pended and extindt i and therefore it 
 feems the Ufe iliall furvive in fuch 
 Cafe. The like Law muft be of a 
 ^ritft now. So if J. and S. be en- 
 feoffed to the Ufe of J, and his Heirs, 
 and A, dies, the whole Ufe fhall de- 
 fcend to his Heir, but B» ihall remain 
 
 the
 
 Mtts ano %n\tts. 237 
 
 the fole Tenant of the Land, for this 
 feemcd the Intent of the Parties by the 
 Limitation of the Ufi. 
 
 J, with feven others was feized to ^ ^c^n, 
 the ZJfe of himfclf and his Heirs,- thc^^'* 
 Ufe was held fufpcndcd for an Eighth 
 Part, J. co'veiiaiits with ^B. that when 
 J, fhall be cnfcoflfed by B. of three 
 Acres of Land, that then A, and his 
 Heirs will ftand feized of the Land in 
 S. to the Ufe of S. and his Heirs, and^^'^'*^* 
 afterwards A* cnfeofts a Stranger of 
 his Lands in S» and B. enfeoffs J, of 
 the three Acres ,• it is faid to be refoi- 
 ved in this Cafe, that the Vfe will 
 arife to B* of the Lands in S^ the' 
 the Stranger had not Notice of the 
 Ufe i but it fcems this muft be under- 
 ftood that the Feoffment was made 
 "without Confideration \ and f^idve then, 
 for if it were made with Confideration, 
 then there is no more Reafon the Land 
 fliould be charged with the Ufe^ into 
 whofc Hands foever it came, by Rea-''^^;^?' 
 Ion of the Covejiaiit^ than there is by 4 Co. 21. 
 Reafon of an Z7/^ adually raifed^ for a''* 
 Covenant^ cannot extend beyond thcAbr. 7S0. 
 thing itfelf.— U/^J" were governed at 2 i»ft« 23- 
 Common Law by the fame Rules ^s^' ^.^ ^^ 
 the legal Eftate itfelf was ^ fo if it Dyer 179. 
 were entailed, it was dcfcendablc in ^ 
 like Manner as a legal Eftate intailed ;^^°' '^ 
 
 fo '
 
 238 M(ts ano %mfls. 
 
 fo there was pojjilfio fratris of a Ufe ; 
 and if the Lands were Qavelkind 
 Lands the Ufe dvfccnded to all the 
 Sons alike ; fo if by Cuftom the 
 Land was dcfccndable only to the eld- 
 eft Daughter^ the Ufe would defcend 
 fo too. 
 
 So if a Man feized of Lands of the 
 Moor P^^^ of ^^"^^ Mother, makes a Feoff- 
 S54. ment in Fee without Confideration, 
 J^^^-^^7.'the Ufe fhall be to him and the Heirs 
 Dyer 1 69. of the Part cf the Mother -, and in 
 Bro.837. this all agree ; but if he referves a Ufe 
 ^\\eM '^o hi"^ ^"^ h^^ Heirs, then Hohart fays, 
 fo even the Ufe fhall go to the H irs of the 
 fince the p^^.^ of the Father i but the better 
 I inil. 9. Opinion leems to the contrary.- — An 
 ^' Eftate raifed by Ufe may be waived 
 
 519?^^ ?'// pais^ as upon a Feoffment to the Ufe 
 Dyer of Cefttiy que Ufe it may be waived in 
 Cro ^-Ei^'p^^^^ ^^ ^^^ CoiumoJi Law. Before 27 
 478! ' H, 8. if a Man had Bargained and Sold 
 6 Co. 34. Land for valuable Confidcration, a Ufe 
 
 ufetvcl'id ^^ ^^^ ^'^^^ palTed without the Word 
 ceafe ivith- Heirs i for Equity having the fole 
 ^^'^^^'"' Management and Difpofal of thcfe Af- 
 77:on Laiv, f^irs, they had not regard to the ftri(^ 
 hut notfo Rules of Law, but to the Intent of 
 *6^'q. u ^^^^ Parties ,• but now the Stat, tranf- 
 a. ferring Ufes into PoffHlion, whereby 
 
 I Co. 12 3. they become Co?mno7i Lazv Eftates; as 
 4 Co. 16. there is the fame Rcafon for requiring 
 
 Words
 
 Words of Limitation in fuch Cafes, as 
 where Lands pafs by Commo7i Law Con- 
 veyance, fo in Fad it is, and confequent- 
 ly the Intent of the Parties muft be le- 
 gally expreffed, or elfe no Eftate will 
 pafs. 
 
 A Woman was not T)owahle of an 
 Eftate in an Ufe ,• neither could a Man 
 be Tenant by the Curtefy of a Ufe ; 
 and fo moft Eftates being in L//^, it 
 was ufual for the Friends of the Wo- 
 man^ either before or after Marriage 
 to get fome legal Eftate fettled upon 
 her for her Jointure, which was the 
 firft Occafion and Original of Jointures. 
 By the Commoii Law^ Ufe was alienable 
 by Ceft'uy que Ufe-, or he might have a 
 Bill in Chancery to compel ,• the Ceftfiy 
 que Ufe could not enter upon tlie 
 Lands and make a 'Feoffment of them ; 
 but if he did he was l^ijfeifor ^ but if 
 the Feoffees had re-entered upon the 
 Feoffee of Cejiuy que Ufe^ they fhould 
 ftand fcized to his Ufe^ it feems by the 
 Stat, of R. 3. no Body can make a pio^^ 
 Feoffment of the Land in PoffeiTion, 35o> 35^ 
 but he that has the prefent Ufe in Pof- J co.i-s 
 felfion ; fo if there be Feoffees to the t. 
 Ufe of A* for Life, then to the Ufe of ^ro. 339^ 
 j^. in Fee; tho' by the Stat. A. niay pyerj-o. 
 make a Feoffment in Fee of the Land, 
 becaufc during his Life the whole E- 
 
 ftate
 
 240 Mits ann Xxutts. 
 
 ftate is to his Uje, and after the Death 
 of J. the Feoffees may enter and re- 
 vive the Ufe to !B. yet B. cannot, du- 
 ring the Life of J. make a Feofffuent 
 of the Lands, becaufe the whole Eftate 
 is to the Ufe of A and B^ has no 
 Kight to a PoffefTion, and the Feoffees 
 cannot enter to gain a particular Eftate ; 
 for that would be without any T)o7ior. 
 But if there be Tenant for Life to the 
 Ufe of J. and then the Reverfion is gran- 
 ted for Life to the Ufe of S. and then 
 the Reverfion in Fee to the Ufe of C 
 here being feveral Eftates, '£. may 
 grant the Re'verfiofi that is to his Ufe^ 
 and fo may C for none of the Incon- 
 vcnicncies follow from hence that there 
 do in other Cafes where the Eftate is 
 but one ^ but if there be one Eftate to 
 the ufe of A. for Life and to the Ufe of 
 S. in Fee, tho' i?. can make a Feoffment^ 
 and thereby pafs the PolfclTion, yet it 
 feems he may make a Leafe or Grant 
 of a Rent to commence after the Death 
 of J, He that has a Ufe in EJfe^ has 
 Power by i jR. 3. to make a Feoff nie7it^ 
 but not he that has a Ufe in Right 
 only 5 but fuch Perfon may do an 
 A(5t that extinguiflics his Right, as by 
 releafing, (Jr. The Intent of the Stat, 
 was to give Remedy to transfer an 
 Eftate, net rcvcft it ^ fo that if one 
 I be
 
 M(ts ana %tntts. 241 
 
 i)e fcized of Lands in Fee, to the Ufe 
 of J. in Tail, Remainder to S. in Fee, 
 J, by Force of the Statute makes a Feoff- 
 ment in Fee, and cjies without iffue, 
 S. has no Power to gain this Ufe i but 
 by the Entry of the Feoffees^ and 'till 
 then he has no Power by i J^. 3. to do 
 any thing with the Land^ but if the 
 Feoffee to an UJe be dilfeized, and 
 Ceftuj que Ufe releafes to the Dilleizor, 
 this extinguiflics the Ufe^ and by the 
 Statute bars the Entry of the T)ijfeifee. 
 Where Feoffees to an Ufe are dillcilod, 
 and afterwards the T)lJfeifor enfcofls 
 Ceftuy que Ufe^ who enfeoffs a Stranger, 
 by this the Ufe and PofTeflion both paf);, 
 and the Feoffees cannot enter to revive 
 the Ufe-, it fcems, tho' a Ufe were de- u^q. ^^^^ 
 vifable at Common Juaw^ yet no Power h. s. 
 is given by i R. 3. for the Ccfliiy qite^f^^'^' • 
 TJfe to devife the Land ; for the Intent 
 of the Statute was not to make Land 
 devifable, but only to give Power to 
 the Cefluy que Ufe to alien, during his 
 Life, iDy an Ad executed. If the Lord ^ycr 
 of a Seigmorjy or the Grantee of a ]^^^l^{'\^ 
 Rent-Charge^ be alfo Ceft/yj que Ufe a.'i 
 of the Land J and by Virtue of i R.3. 
 makes a Feoff meiit in Fee^ by tliis the 
 Seigniory and Rent are both dcftroy'd; 
 but if they both had made the Feoff- 
 ment as Attornies, the Rent remained. 
 
 l^ if
 
 242 tUeS aiiD %tnfis* 
 
 I In a. If Ccft^jy que life made a Feoffment in- 
 
 icz. ^. -p^,^ upon Condition, and entered for 
 
 the Condition broken, he ilaalt be fei-- 
 
 Bro.-*--. ^^'^^ ^^' ^^^ ^^'S^^^ Eftate of the Land. 
 2. ^^'* If Ct////>' qneUfe in Tail makes a Feoff- 
 i^H. 8. mcnt in Fee, this only is during the 
 *^' Life of Cejluy que life -, for he had ao 
 
 longer Power over it ; but if he aliens 
 by WiJiCj that it fccms is good to bind 
 the IfTue, if the Alienation were fince 
 Bro. 337. the Stat, of //. 7. but it feems a ^^- 
 ?• covery had againft him, does not bind 
 
 the Iflue, becaufe he is not Tenant to 
 the Precipe, and there can be no Re- 
 covery in Value by him, to rccompcnce 
 the llTue. 
 
 If a Man recovers by erroneous Judg- 
 ment, and makes a Feoffmeiit to his 
 iT'Jo *own Ufe, and upon Error, the Tudfir- 
 
 5' 539* . ' r 1 .1 r^ . JO 
 
 16. ment is reverled, the Party may enter 
 
 Br^.^339. -^rithout a SciYe fac'ias againft the 
 Tlrr/'^jS, Feoffees -, for it is plainly within the 
 »5 Letter of the Statute j if Cejit^ qne 
 
 Ufe makes a Leafe for Years by Deed 
 indented, referving Rent, he may have 
 an Adion of Debt upon the Contrad, 
 for the Lejjee is eftopped ; but he can- 
 not avow Taking the Diftrcfs, becaufe 
 he has not the Reverhon. If the Re- 
 fcrvation of the Rent be not by Deed: 
 indented, it is not good, becaufe he has 
 not the Reverfto?!^ 
 
 4 S^^icre^
 
 Mtts mil %xti(tSi H3- 
 
 ^lare^ Whether Ceftuy que TJfe may 
 make a feoffinent by Letter of Attor- 
 ney. If Ceftuy que Ufe makes a Leale, ch. Rep. 
 the Reverfioner fliall punllli the Wafte 49> ^8. 
 done, and enter for the Forfeiture j if 
 he recovers the Rent it ihall go to his 
 Heirs : If a Co/idition be added to the 
 Non-payment of Rcnt^ he muft enter ; 
 but ^(idre whether he fhall retain it 
 again ft the Feoffees. Ceftuy que Ufe 
 could not diftrain the Bcafts Damage- 
 feafant, before the Statute but fincc ho 
 may : A Truft may be entailed, as it 
 fcems, and then the Fine of Ceftuy qne 
 Ufe will bar it j and there fecms the 
 faille Reafon for a Co7nmo7i Recovery. 
 
 A l^ruft in Fee is not forfeitable for riiuJ, 
 Felony y for no Statute made Ufes for- 495^ 
 feitable in fach Cafe^ but it feenis by 
 my Lord Hale, that it is by Force of 
 26H.%, 20. the iaft of which menti- 
 oned Vfcs. which Statute being modo f-» 
 ter 27 //. 8. muft mean Trufts, as now 
 Uf<is are made liable to be executed by 
 the Stat, of //. 7. yet 29 Cai\ 23. was 
 made to make Irufts liable to pay 
 Debts; for according to Hale^ before 
 that Statute they were not Aftcts to pay 
 Debts. A Truft in an Alien is forfeited 
 to the King, in the Cafe of the King's 
 Debtor, Trufts were liable per Cuffum 
 Scaccariu If Ceftuy que Ufe willed 
 R'2 thiit
 
 244 ^ff^ ^^^ %m(ts, 
 
 that his Feoffees fhould make an Eftate 
 Tail to y, S, and died, the Ufe was 
 changed before the Execution of the 
 
 mi)o map tieclare Qfej?* 
 
 Moor If Hnsha7id and Wife be feizcd of 
 
 '^Co. y. Lands in Right of the Jfife^ and they 
 
 r And. ' make [a Feoifment , and declare the 
 
 1^4- UfeSj that (hall not bind the Feme ,- 
 
 for the Feoffment docs not bind her. 
 
 It is but an kCt iupnis^ and fhe being 
 
 (}ih pot eft ate ^jiri ^ it may be made 
 
 Owen 6, Contrary to her Will ; but if they levy 
 
 // the Fine a Fine of the Wife's Land, and de- 
 
 be of the ^\^^Q the Ufes, that ihall bind the Fe7ne j 
 
 La»f,"fo ^ for the Wife may levy a Fine, becaufe 
 
 Qvbich the {he is privately examined before a 
 
 Title ^of J^^^s^ > ^"^ ^^ ^^ "^^y ^^^y ^ -^^"^ 
 
 Dow^^ fcf^ with her Husband, fhe may declare 
 Difaffeyit ^hc Ufes i for that is but purfuant to 
 Ilv/i Be- the End and Intent of the Fine ; and 
 iiaraticii if thc Htisha?id alone declares the Ufes 
 ''^.„^-^'^' of fuch a Fine, that is 2;ood, and it 
 it feems, {\va\i bind the Feme^ if her Difaflent 
 Finder the (Jqcs not appear j for the Will of the 
 
 Operatm, j.^^^^^ ^^-^^ .^ ^^^ Difpoflll of hcr Ihf 
 
 DedArjh hand-, he being reputed as the Head, 
 flnd they two being confidered in Law 
 but as one Perfon, the Declaration made 
 by him is confidercd as the Declaration 
 ■ 3 . ^^ 
 
 i«K.
 
 of both, when nothing appears to the 
 contrary, and confequently, though the 
 Eftate of the Land moves from the 
 Wife, yet if fhe alone declares the Ufes 
 of a Fine levied of her own Land, 
 fuch Declaration is null and void i for 
 it is made by one that has by Law no 
 difpofing Power, even of her own E- 
 ftate, but has her Will fubjcdcd to the 
 Husband^ s Will, and fo is not jui Ju- 
 ris -^ but yet on the other hand, if the 
 Hushafid make one Declaration of Ufcs, 
 and the Wife another, both Declarations 
 are void ,• the Wifes is fo upon the Rea- 
 fon before mentioned; and tlic Hitf- 
 hafids is fo becaufe the Eftate being the 
 Wife's, and fo not in the Difpofal of the 
 Hushafid, without the Concurrence of 
 the Wife ; after the Fine levied, he 
 might make what Declarations he 
 pleafed of the Ufes ^ he might difpofe 
 of the Eftate as he pleafed, in Spite of 
 his Wife ; and fo all the Care the 
 Law takes for the fecret Examination 
 of Feme Coverts, in the levying a Fine,, 
 would be vain and fruitlefs, and the 
 Declaration of the Ufes is but purfuant 
 to the Dcfign of levying the Fine j and 
 fo fhc ought to confent to that as well 
 as the other"; and fo though an In- 
 fimt can do no Ad to oblige himfelf, 
 yet if he levies a Fine, he is enabled 
 R 3 by
 
 246 ^tts end %tti&s* 
 
 by Law to declare the Ufes ; and if he 
 rcverleth not the Fine, during his Nou- 
 age^ the Declaration of Ufes will ftand 
 5 Leo. good for ever j for tho' that be a Mat- 
 ^55- ter i7i pais^ and all fuch Acts an In- 
 fant may avoid at any Time after his 
 full Age, if he do not confent ; yet 
 being made in Purfuance of the levying 
 a Fine, which Fine muft ftand good for 
 ever, fo will the Declaration of Ufes 
 too. 
 izCo. So if one No?i co7npos levies a Fine, 
 *\'" , it is unavoidable ; but yet he may, by 
 
 a Ana. , , i i -rrr^ r i t-«- 
 
 14). Deed, dccHire the Ufes ot that Fine, 
 which Declaration of Ufes will alfo 
 ftand good for ever. 
 
 If the Jinsbajzd and Wife agree in 
 
 tlic Declaration of Ufes of Part of the 
 
 Lands, and dilagree for the Refidue, 
 
 the Declaration of Ufes for that Part 
 
 they agree in ftiall {\.'^t^\\ good, and be 
 
 void for the reft ; for as to that Part in 
 
 which they both agree, all the Re- 
 
 (juifites arc found neceilary to make a 
 
 Declaration, and the Defotfl of the 
 
 €)tker Part can have no Influence on 
 
 that which is good ; but if they agree 
 
 in the Limitation of Ufes for Part of 
 
 the Eftate m the Lr^nd, and difagree in 
 
 the other Efta.tes, there all is void ; for 
 
 cifo there will be another Moulding of 
 
 the Eftatcs than the Feme deftgns, and 
 
 her
 
 Mft& AttO Xrttft6* 247 
 
 lier Confent is requifite to every Efttitc 
 that fliall be created by the Limitation 
 of Ufes ; and it is to be ordered by 
 her Diredion. Thus if the Husband de- 
 clares the Ufes to himfclf and Wife for 
 Life, the Remainder to the Heirs of the 
 Wife^ and the Wife declares the Ufes 
 to herfelf for Life, and then to her 
 own Right Heirs, both Declarations are 
 void, and it Ihall not ftand good for 
 the Remainder in Fee, aqd be void 
 for the refti for the Eftate moving 
 from the IVifej whatever Ufes do take 
 Effcd muft be by her Diredion and 
 Confent, and in the fame Manner as 
 ihe pleafeS ; tho* the Huiha7id has 
 Power over the Eftate of the Wife^ 
 duiing Coverture, yet if (lie declares 
 the life one Way, and he another, his 
 Declaration is abfolutely void, and it 
 ili^U not ftand good, during the Cover- 
 ture. The Reafon of the Difterence 
 feems, that in other Cafes the Huf- 
 ha7id having Power over the Wife's 
 Eftate, he may grant an Intereft as 
 from himfelf, during the Coverture, 
 for fo long as he has Power over her 
 EftatCi byt when they levy a Vine in 
 Fee, the Eftate paftes folely and en- 
 tirely as one Eftate in Fee-fimplc from 
 the Wife i and the Ufes that are de- 
 clared thereupon muft be all with the 
 R 4 Confent
 
 248 tafesi anu %tn(ts, 
 
 Confent of the Jf^ife for the whole E- 
 ftate, becaufe the whole Eftate and In- 
 tereft paffes from the Wife ; but if a 
 Jointenant levies a Fine, and one declares 
 the UJe one Way, and another another 
 Way, here both the Declarations fhall 
 ftand, W2. the Declaration of each lliall 
 ftand for his Moiety in Refped of their 
 feveral Interefts. If Baro?i and Feme 
 levy a Fi7ie^ and an Indenture in both 
 their Names, is brought to the Wife to 
 feal, declaring the Ufes of the Fine^ 
 and the Wife refufos to feal, this De- 
 claration fliall not bind her, becaufe, 
 tho* a Declaration of the Husband be 
 fufficient, yet here her Refuiing to feal 
 was a fufiicient Declaration of her Dif- 
 ^J^°^' aflent. When "Baron and Feme fell the 
 
 »' him, this fliall bind the Feme j yet here 
 
 aR.798- js iio Declaration of Ufes j but it is 
 prefumed to be to the XJfe of the Co- 
 nufee, and his Heirs, and confcquently 
 is binding. If a Fine^ levied by Baron 
 and Feme, be reverfed by Reafon of 
 the Nonage of the Wife^ the whole E- 
 Itate ihall be reverted prefcntly in the 
 Feme \ and there fliall not be any Dif- 
 foo '^T. poiition during the Coverture. 
 NotcT^e Baron and Feme feizcd of Lands, 
 ^^'A.^<'^''''and Baron covenants by Indenture, in 
 '"cers&c, Conlidcration of 2 c/. to fuffer a Re- 
 covery
 
 Mtt^ ano Xttttts. 249 
 
 covery of Lands to the Ufe of the Rc- 
 coverors, till they have made a good 
 and indefeafable Leafe for forty Years, 
 and then to the Ufe of the Husha?id 
 and Wife^^ and the Heirs of the Huf- 
 band -, it was held that this Declaration 
 fhould bind the Wife, the Husband alone 
 making it. 
 
 Where 'Baro7i and Fe7/ie levy a Fine 
 of the Wife's Land, and both by In- 
 denture, in Confideration of a Sum of 
 Money, limit the \J{q to the Conufee, 
 with a Condition and Claufc of Re- 
 -entry, upon Payment of fuch Sum 
 which was allowing lo^^rCtv/f. which, 
 with the taking the Profits together, 
 made it an Ufurious Contradt ; but 
 before the Fine engrdifed, there was z Kloll 
 another Deed, wherein it was cove- Abr. 79S. 
 nanted that the Conufor fhould take 
 the Profits till Default of Payment ; at 
 the Day appointed, the Fe?f2e difagrees 
 to the Deed j yet it was held fhe was 
 bound y for the lirft Deed was Decla- 
 ratory to the Ufcs to which ilie agreed, 
 and the laft Deed was but Explanatory 
 of the firft ^ the laft Contract was about 
 the Money which the Fe?ne had no- 
 thing to do with, but was tke H///- 
 hajid's. 
 
 If A. be Tenant for Life, Remain- ihid. 
 der to B. in Fee, and they levy a Fine, * ^^°' 5^' 
 
 this
 
 2SO Mtts mtt %tu(ts. 
 
 this (liall be to the Ufe of J, for Life, 
 and then to the Ufe of 2?. in Fee ; fo 
 if the Owner of the Land, and a Stran- 
 ger levy a Fine, it fiiall be to the Ufe 
 of the Owner only. 
 
 If an Infufit Bargains and Sells Lands, 
 
 and then levies a Fine to the Bargainee, 
 
 though the Bargain and Sale be made, 
 
 yet it i>iall amount to and ftand as a 
 
 Declaration of Ufes upon the Fine ; fo 
 
 Moor if \yy Cuftoni an hifant of the Age of 
 
 ^**' Fifteen may make a Feoffment^ and 
 
 he accordingly makes one to the Ufe 
 
 of his Laft Will, tho' he cannot by Law 
 
 make a Will, vet he may declare the 
 
 V[es upon the Feoffmeiit, 
 
 s And. Husband makes a Feoffment of the 
 
 "^^ Wife"^ Land to A. and he and his Wife 
 
 lew a Fine to A, this iliall be to the 
 
 Ufeoi A 
 
 Ulijat Canfinctnticiitd arc ftiffident u 
 taiTe a (LICc* 
 
 7 Co. 4. Brotherly Love and Aflfedion is a 
 
 ^s^°'^ good Confidcration to raife a Ufe^ ac- 
 
 piow. cording to the Cafe of 'Bedd ; and the 
 
 3°7- Continuance of the Land in the Name, 
 
 (^c. is a good one j fo that all the Con- 
 
 fiderations in this Cafe are good to raife 
 
 a Ufe^ tho' taken iingly and apart. If 
 
 a Man covenants, in Confideration of 
 
 Natural
 
 Natural Love and Afte(aioa to his Bro- 
 ther, to (knd feizcd to the Ufe of him 
 and his Wife ; it feems that is good 
 to raife a Ufe to his Wife, they being 
 both but one Perfon j fo that the Love 
 and Favour he bears to his Brother may 
 be very well faid to extend to his Bro- 
 ther's Wife i and accordingly in the 
 Cafe of Boiild and Ipynfton^ it is ad- 
 judged that where the Father cove- 
 nants, in Confidcration of Natural Love 
 and Affedion to his eldcft Son, to ftand 
 feized to the Ufe of him for Life, and ^J"- J^*^- 
 then to the Ufe of fuch a Feme as he [ rqh 
 fhould marry for Life, that was a good 78, 4. 
 Confideration to raife d. Ufe to the^o"]*'* 
 Wife, as well as if a Man covenants,^ 
 in Confideration of the Marriage of his 
 Son with fuch a Fcme^ to ftand feized 
 to the Ufe of the Son, and the Son's 
 Wife^ this is a good Confideration to 
 raife a Ufe to them both -, tho' a Confi- \^^'^^^' 
 deration be abfolutely requifite to the ,85. 
 raifing a Ufe upon a Covenant, yet no 
 Confideration needs be mentioned in 
 the Deed s but if the Perfon be fuch 
 an one as has an obvious Confideration 
 of his Side, a Ufe fhall prefently rife 
 to him ,• as if a Man covenants to ftand 
 feized to the Ufe of his Wife or Brother^ 
 or any of his Kindred, this is fufficicnt 
 to raife a life to them, without any 
 
 Mention
 
 2 5^2 MUsmt)%mi&s^ - 
 
 T 1 Co. 24. ]vf entioii of a particular exprefs Confl- 
 
 105. "* deration; for the Love and Affe(5tion be- 
 
 Cro.Car. twecn them is obvious i which being a 
 
 Moor Conlideration in it felf lufficient to raife 
 
 495, 554. a Ufe, it fliall be prefumed that it was 
 
 to the Intent the Ufe was limited ,• nay, 
 
 if there be a Confideration to fome 
 
 certain Perfon, and afterwards a Ufe is 
 
 iimited to another Perfon, that does 
 
 not come under the Confideration ex- 
 
 prefTed ; yet if he be a Perfon on whofe 
 
 Side there is a manifeft Prefumption of 
 
 If a m ^I'^other Confideration, he fhali have 
 
 he itnihed the Ufe limited to him by that Confi- 
 
 to a i^Vo- deration, tho' he could not take by Vir- 
 
 "jXyJlge] tue of the firft. Thus if a Man co- 
 
 rjuithout venunts, in Confideration of Natural 
 
 ^bn'^'T ^^^^ '"^"^ Afteaion that he bears to his 
 <ivul »:t eldcft Son, to ftand feizcd to the Ufe of 
 vaifi an \{ixw^ and thcu to the Ufe of any other 
 ii'le"pJr- ^^ his Kindred^ as Brother, Coufin, (jc. 
 ituiariy thjs fliall givc a Ufe to them, tho' they 
 averred ^q j-j^^ comc withjn thc Confideration 
 CcnjiTra- ^hut is cxprcfTcd to the eldeft Son ,• for 
 t''o» ; for there is an obvious and apparent Con- 
 ^A''% fidcration to raife a Ufe to them : and 
 there n m it fecnis by the fame Reaign, if any 
 Pre/ump^ othcr Gottfidcration were had for raifing 
 sTde°" ''' the firft Ufe-i it were the fime thing ; 
 i>ycr but if a Confideration be cxprelTed for 
 Moor ^'^^ raifing a Ufe to a Perfon, that would 
 50J-. take by the implied Confideration, with- 
 out
 
 out any exprefs orxCj-yetif that exprefs 
 one fails, no Ufe fliall be ralfed by Force 
 of the implied one, for exprejftmi facit 
 cejfare taciturn* Thus if a Father^ in 
 Confideration of loo/. covenants to^°* ^^^ 
 (land feized to the Ufe of his Son, this 
 muft be enrolled, or elfe no Ufe palTes i 
 yet if no Money was paid, a Ufe would 
 rife to the Son by the implied Confi- 
 deration, without any Enrolment. So 
 if a Man, in Confideration of the Na- 
 tural Love and Affet^ion he bears to 
 his Children, covenants to ftand feized 
 to the Ufe of himfelf for Life, then to 
 the Ufe of his Wife for Life, (Jr. this 
 will raife a Ufe to the Wifej for tho* 
 ilie does not come within the Confi- 
 deration, yet there is a manifcft Confi- 
 deration of her Side J and con fequently Flow, 
 fhall a Ufe very well arife to her. 5o5« 
 
 The Confideration of ancient Ac- a RoU 
 quaintancc, or being Chamber- Fellows 7^^' 
 together, or entire Friends, will not raife 
 a Ufe. 
 
 If J, in Confideration of Bh being 
 bound in a Recognizance for him. Bar- 
 gains and Sells the. Land to him, no 
 27j^ Will arife to him, becaufe it is not 
 a Bargain and Sale ,• there is not quid pro 
 quo ; but yet it is agreed that fuch a Con- Cro. EL 
 fideration is fufficicnt to raife ixUfe upon 594 
 
 ^ , , -^, , ■' ^ 2 Roll 
 
 a Covenant j but the Words ware not ,^3. 
 
 apt
 
 2^4 ^ff^ ^^^ Xm&s. 
 
 apt to make a Covenant to ftand fciz'd, 
 and fo the Deed had not any Opera- 
 tion. 
 Quxre, If a Man, in Confideration of Love 
 ^^'l^^^r and Affcdion to his Wife and Children, 
 Mo"ey be and to the Intent to fettle his Lands in 
 a good 1^15 Name and Blood, covenants with 
 Co.jidera- j^-^ g^othcr and Strangers, to ftand fciz'd 
 raife a to the Ufi of himfcif for Life, then to 
 u/e, or^ ^i^Q uc^. of j^js \Yife for Life, and then 
 BVgah to the Ufe of the Covenantees, and 
 and Sale, ^hcir Hcirs j it was held that no Ufe 
 78^^790. ^ro^^ ^o Strangers, becaufe they could 
 not come within the Confide ration ; 
 Cro.Car. yet it did arife to the Brother, both 
 5-9- from the Confideration expreffcd of fet- 
 78^°79i. ^^'"S ^^^^ Land in the Name and Blood 
 ^' of, &c. and alfo becaufe he was his 
 Brother, yet there was a Truft limited 
 after the tffe to him. 
 -8^.° If ^ ^^^^ ^" Confideration of Money 
 
 i inft. given by J. covenants to ftand feiz'd 
 piow-o.^^ the Ufe of A and B, and C or 
 owjoy. ^^ ^. for Life, Remainder to S. for 
 Life, Remainder to C in Fee, this is 
 good, and fhall raife Ufes to them all ; 
 for tW the Money be given but by one, 
 yet it is a CbnfideFation for all the E- 
 ftafes, and ihall be prefumcd to be gi- 
 ven for all ; but Natural Love, (jc. is 
 A pcrfonal Confideration, appHcable to 
 no Striiflger \ and £b no Ufe can arife 
 
 by
 
 by Force of the Conlideration to any 
 Body but to thofe that come under it. 
 There is a Cafe in Rolfs that goes fo 
 far as to fay, that if a Confideration of ^^^ 
 Money be given by J. and confcquent- J ^;//'^^ 
 ly the Owner of the Land covenants Son. 
 by Deed with B. and C to ftand feiz d 
 to their L//^, 'viz. to the Ufe of B. and 
 C that by this a good Ufe is raifed to J'J°^' 
 them, and the Money is look'd upon Moor 
 as paid for them. If a Man, in Confi- 505- 
 deration of the Marriage of his Son ^•^//f'^ 
 with fuch a Woman, covenants to ftand J. s. will 
 feizcd to an Ufe, the Remainder to C "'''^' '^Z 
 this IS void to C became he is a ^t'-an- have a 
 gcr ', but yet it is faid by Counfel, m pavticuUy 
 Tbwd. that if the Eftatc to C. be ii-^;IJ^j^ 
 mited firft, and afterwards there is an Whether is 
 Eftate limited to the Son and his Wife, ^^ h^°^- 
 that in fuch Cafe the Ufe to C is good,,^ ,^ y-J^ 
 bccaufe the Ufe limited afterwards \sprt ary 
 good, and that is not to commence 'till ^^^^'^lY^''' 
 after the Eftate of C ended ,• and fo the 784, 
 Ufe to C fhall be held good to fupport 
 the Ufes to the others that follow j but 
 f^UiSi'e well of that, for if the Limita- 
 tion be void, it fcems the other Ufes 
 may as well be fupportcd without Lt^. 
 and Roll that has took almoft every 
 Thing that is remarkable aut of that 
 Cafe, yet has left this, out.
 
 2 5^6 Wiits anuxtttfts^ 
 
 a Roll If a Man, in Confideration of Na-» 
 785, 754.tyj.al Love, drc. to J, S. taken and re- 
 puted as his Son, covenants to ftand fciz'd 
 to his Ufe, by this no Ufe is raifed to a 
 Baftard Son. 
 
 If a Man for divers good Caufes and 
 Confiderations, covenants, (jc» no Ufe 
 arifes, the Confideration is too general, 
 and the Certainty ought to appear, for 
 the Court to judge whether the Confi- 
 deration be fufficient or not. 
 
 But if a Man Bargains and Sells Lands 
 for a certain Sum of Money, that is 
 fufficient to raife a Ufe^ without men- 
 tioning any Sum of Money in certain ; 
 Ibid. 785. for whatever the Sum be, it is fufficient 
 to raife a Ufe i and fo there needs no 
 Averment of any Sum in certain, for 
 the Court to determine. 
 
 A Man covenants, in Confideration of 
 Money, to (land feized of the Lands 
 to the Ufe of J. and his Heirs, and be- 
 ing feized of other Lands, covenants 
 that if he fhould afterwards fell them, 
 J, fhould have the Refufal ; and if 
 he went about to fell them to any Body, 
 without making him the Offer, that 
 from thenceforth he would be feized 
 to t4ie Ufe of him and his Heirs, he 
 afterwards goes about to make a Sale 
 a Roll of them, without offering him the Lands, 
 ' ^' it was held that the Ufe arofe to him j 
 '%" for
 
 mfte ano %t\xfts. 2$ 7 
 
 for the Money paid for the other 
 Lands was alfo a Confideration for the 
 Covenant. It feems at Common Law, 
 the Party had two Remedies to come 
 to the Effect of his Covenant, either 
 to fuc in Chancery, and have a fpeci- 
 fick Performance of the Covenant, or 
 elfe to have an Adion, 
 
 If a Man covenants now to ftand Plow, 
 feized to a Ufe, and there is no Con- 5^^- 
 lideration, lo that there can be no {jje r>ou 
 raifed by Law. Qj^idre whether or no Dyer 9^. 
 the Party may have an A<5tion of Co- ^" 
 venant, and recover Damages. Where 
 the Party lliall convey by Way of Ufe^ 
 and not by Common Law Convey- 
 ance. 
 
 A Man covenants, that in Confide- Dyer 96. 
 ration A. had conveyed divers Lands'** 
 to him, after the Death of A^ to levy 
 a Fine of his Lands to the life of him- 
 felf for Life, and then to A* in Tail^ 
 the Fine is not levied, ho JJfe iliall rife 
 by Force of that Covenant ,• for the In- 
 tent was not that it flioiild rife pre- 
 fently. 
 
 Co tDfiat Clfe0 a Contjepaiice Ojan %t 
 fain to be fjati* 
 
 A Fine is levied to feveral Conn- M^f^r 
 fees, with a Render to one for thirty 4/^' 
 Years, and feveral void Remainders, the 
 
 S Fine
 
 258 Witts ano Xmtts. 
 
 Fine fliall be to the Ufe of the Conu- 
 feesi for otherwife the Render can- 
 not be good i for if it be to the Ufe of 
 the Conufor, the whole Eftate will be 
 in him, as before, and the Render 
 naught i but if the Render had been 
 void in all, then the Ufe lliould be 
 according to the Intent of the Render. 
 Qudve^ Why it may not as well be 
 to that Ufe^ where but Part of the Ren- 
 der is void. 
 
 CottfiUetatiott. 
 
 - Roll ^^ ^ yi2cci covenants, in Confideration 
 Abr. 790. of Natural Affection to his Son , to 
 ftand feized to his Ufe^ tho' there be no 
 other Confideration mentioned, nor no 
 general Words, as for divers other good 
 Caufes and Confiderations, it may be 
 averred that it was in Confideration 
 of Payment of Debts of the Father by 
 the Grand-father ^ and alfo of Lands 
 fettled by the Grand-father upon the 
 Father ; for thefe Confiderations are not 
 contrary to the Deed, but may well 
 concur. 
 
 If a Man covenants in Confideration 
 of a Marriage to be had between him 
 and B. to ftand feized to the Ufe of 
 himfelf and B» for Life, no Ufe rifes 
 till the Marriage j and if they fhould 
 
 marry
 
 marry, and be divorced C^tifa pracon- 
 trah\ it feems the Ufe to S- would 
 ceafe. 
 
 A Man covenantSj in Confidcration of 
 the Marriage of his Nephew, and of 
 two hundred Marks paid by the Father 
 of the Woman he is to marry, to ftand 
 feized, C^c. the Marriage takes no Ef- 
 fcdt j it was held by the Judges that a 
 27Je would not rife upon the Money. 
 A Man covenants that two Perfons Moor 
 fkall quietly enjoy his Land ; no JJ/e \°^{^^ ^j, 
 arifes. 
 
 ILimitatioii of afess upoit Con5je?= 
 
 Tho' the Appointment and Limita- 5 Co. 16' 
 tion of UfeSj by an Indenture in Wri- 
 ting, precedent to a Fine or Recovery, 
 do not bind the Eftate of the Land, 
 yet being made in fb folemn a Man- j^^jj 
 ner, it is not to be controuled, but by 291, 
 Matter of as high a Nature ^ and fo if 
 the Ufeso^a Fine or Kecot'ery to be had, 
 be declared by a Deed precedent, no 
 Averment by Parol will alter the De- 
 claration in Writing, according to the 
 Maxim, nniiviqiiodqne diffohitur eo li- $/°'^» 
 
 7- <r> % r A Jones, a. 
 
 gamine quo Ugatum ejt-i became an A- Morley, 
 greement by Deed, for the Dircdion 
 of XJjes is hot obligatory as to the Eftate 
 S 2 of
 
 260 Mtts anti %m&s. 
 
 oF the Land, but only a bare Contrad 
 between the Parties, and confequcntly 
 by Deed it may be difannulled ^ as all 
 Contrafts, by Confent of the Parties, 
 may lofe their obligatory Power j fo 
 if the Party declares other U/es by Deed, 
 before the levying the Fine, the laft 
 Declaration fhall (land, as the laft De- 
 claration of the Mind of the Party. If 
 there be any Variance between the A- 
 greements Declaratory of the Ufes of 
 the Fine, and the Fine itfelf, as in 
 the Number of Acres, Time, Perfons, or 
 the like, there a Declaration of Ufes by 
 2 Co. 75. Parol, (hall ftand good, tho' pofterior 
 *' to a former Declaration by Deed ; for 
 
 when there is a Variance between the 
 Agreement and the Fine levied^ then 
 it cannot be prefumed to be the Fine 
 intended by the Agreement, becaufe 
 different from it, and then it fhall be 
 guided by the parol Declaration, which 
 may well dired the Ufes of it, be- 
 caufe being different from the Deed of 
 Agreement, there is no need to guide 
 the Ufes of the Fine ; but if there be 
 no parol Declaration of Ufes, the Fine 
 fliould be guided by the Declaration 
 Ib(d,T6.a.o£ Ufes Contained in the Deed, not- 
 withftanding fome Variance there may 
 be between the Deed and the Fine ^ for 
 when no other Fine is levied, or no 
 
 other
 
 other Declaration of Ufes made, there 
 the Fine fliall be that prefumed to be 
 mentioned in the Agreement. Where 
 there are two fcverai Dccharations of 
 Ufes, by Deed precedent to the Fine, 
 'there the lafl: fliall (land i/i toto^ for it 
 is wholly a Revocation of the former j 
 and fo the Fine fhall not be to the 
 JJfes of both Deeds compounded and 
 thrown into one another. 
 
 It came to be a Qudsre in T)ow?nms 9 Co. 9. 
 Cafe, Whether a fubfequent Declara- 
 tion of the Ufes of the Recovery were 
 good to raife Ufes upon the precedent 
 Recovery ; for the Intent of the UfeSy 
 as was agreed, muft either be precedent 
 or prefent with the Recovery i but it 
 was adjudged to be good ,♦ for when 
 there is no other Declaration of Ufes^ 
 then the fubfequent one is fuppofed to 
 be the Intent of the Party at the Time 
 of the Recovery fuffered ,• for fo the 
 Parties thcmfelves have declared it to ]^''^^^^^„ 
 be J but where the Declaration of Ufes for and Us 
 by Indenture precedent and fubfequent H«>f, hm 
 differ, that againft precedent Dcciara- l]l]' ^,,. 
 rations no parol Averment is to be ad- cedent and 
 mitted ; but againft a fubfequent De- J"/"^ *»-» 
 claration by Deed, there may be a pa-y^^ ^^y 
 rol Averment ; for if before, or at the aver. 
 Time of the Recovery fuffercd, there ^^I'J'l 
 was fuch a particular Declaration oflMoiicy. 
 
 S 5 Ujes
 
 z62 Witts mn %mtts. 
 
 Ufes by Parol, then the Eftate was pre- 
 fently executed to thofe Ufes j and then 
 any Manner of Declaration by Deed 
 comes too late i if in the mean Time 
 between the Recovery and the Deed 
 ilibfequent Declaratory of the Ufes^ * 
 there be any Leafe, (Jr. made of the 
 Lands, then the fubfequent Declaration 
 is not fufficient of itfelf to fliew that 
 the Intent of the Parties was that the 
 Recovery fliould be fuffer'd to thofe very 
 Ufes declared by the Deed fubfequent, 
 and thereby to avoid all mean Eftates 
 and Charges ; but there muft be fome 
 other very good Proof that fuch was 
 the Intent at the Time of the Recove- 
 ry had. Where a Recovery is fuffered 
 without Confideration, it is to the Ufe 
 of the Recoveree, who confequently 
 may declare the Ufes of it by Deed 
 fubfequent, when it is fuffered with 
 Confideration -, and fo the Eftates fliall 
 be executed. J^u^re, Whether the Reco- 
 veree can declare the Ufes by any fub- 
 fequent Deed J tho' he feems to ftand 
 in the fame Place with the Recoveror, 
 where it is without Confideration. If 
 any Claufe, Privilege or Confideration 
 be added to a Ufe declared by Parol, 
 yet the Declaration of the JJfe fhall 
 ftand good, though the Claufe, dyc» 
 be void. An Indenture for Years, after 
 
 the
 
 Mtts mn %tu(t8. 263 
 
 the Recovery was held fufficient to de- ^y^^ 
 clare the Ufes of that Recovery, I^koM 
 
 782. 
 
 pieantitD: of ^(tn. 
 
 The Form of pleading Ufes Is to fay 9 Co. n. 
 that a Recovery was had to fuch and 
 fuch Ufes j and in an Allize, by the Lord 
 Cro?nweU againft Jndrezvs^ of Lands and 
 Tenements in Jkxto//^ Indentures were 
 giving in Evidence,- whereupon the Jury a Co. dp. 
 find a fpeciaj Vcvdia.'viz. that J.B, was ^^^; '°^» 
 feized of the Manor of J, in Fee, and z And, 
 of the Advowfon of the Church of A ^9- 
 thereto belonging,- and by Deed Bar- 
 gained and Sold the Manor, with the 
 Appurtenances, to J, J, to ha've and 
 to hold to him and his Heirs, to the 
 TJfe of him and his Heirs, in the fame 
 Manner and Form as is aforefaid in 
 the Indentures mentioned ^ and by the 
 fame ' Indenture, J, ^. covenanted to 
 fuffer IV* R» or R. J. to recover the 
 faid Manor, with the Appurtenances, 
 by a Common Recovery to the Ufes 
 following, to the Uf of J. J. and his 
 Heirs, rendering forty-two Pounds to 
 J6. and his Heirs, at two Feafts, 
 with a Claufe of Diftrefs, and Noiuine 
 p(E7Zi£ L and it was further covenanted 
 that Bhmty before E after next, iliould 
 levy a Fine of the faid Manor to J, 
 
 84^. and
 
 2 64 ^fts fttiD %tniis. 
 
 J. and his Heirs ; and by the fame 
 Fine J, J, iliould render forty-two 
 Pounds per Ann* to the faid J. B* and 
 his Heirs, ^romded always that the 
 faid A* A. fliall by his Deed fuflicient 
 in the Law, give the Advowfon and 
 Parfonage of the faid Church to the 
 iaid jf. S. during his Life \ and if it 
 happens not to be vacant in his Life, 
 then one Turn to his Executors ^ and it 
 was further agreed, that all Manner 
 of Eftates, Aflurances and Conveyan- 
 ces hereafter to be made, fhould be to 
 the ^fes and Intents comprized in the 
 Indenture, and to no other Intent or 
 Zffe^ and accordingly a Recovery was 
 had againft J*B, and then 7* -^- ^"'^ 
 J, A» levied a Fine to R. i?. and his 
 Heirs, who granted and rendered the 
 Kent of forty-two Pounds to J, B. 
 and the Heirs of his Body, the Re- 
 mainder to my Lord Moimt]oy^ in Fee, 
 and the Land he rendered to J, B* 
 and his Heirs, and the Jury find that 
 this Fine was levied to the XJfe in the 
 Indenture mentioned, A» A- died be- 
 fore he made any Grant of the Ad- 
 vowfon, according to the Provifo. J, B. 
 having never requefted it, the Church 
 became vacant in the Life of 5* ^' 
 E. A' enters upon the Manor as Heir 
 to A» A> and J, B» enters for the 
 
 Coodition
 
 tUfes atto %mtts. 26 f 
 
 Condition broken, and Bargains and Sells 
 the Manner to the Lord Cro7nweU^ ori 
 whom J, A, enters ,• Lord Cromwell 
 dies, and his Heirs enter, upon whom 
 JE. J. and the reft, by his Command, 
 re-enter, and whether it was a Diffeifin, 
 was referred to the Court ; and firfi^ it 
 was refolvcd, that though the firft Deed 
 of Bargain and Sale palfed no Eftatc, 
 not being enrolled, but ferved only as 
 a Declaration of JJfes^ yet the Word 
 ^rovifo mado a Conditim \ and fo all 
 the U(es afterwards vaifed and execu- 
 ted by the Recovery were Conditio- 
 nal ; for as there may be a Deed pre- 
 cedent to raife the TJfes of the Reco- 
 very; fo there may be a Confideratioa 
 added to tbofe Ufes which will make 
 the Eftate Conditional, when it is after- 
 wards exfcuted; and the Condition need 
 hot bo made at the fame Time the 
 Eftate is made t, for making a Condi- 
 tio7ial Uje makes afterwards a Condi- 
 tional Eliate^ the Statute 27 H' 8. 10. 
 executing the Poflefiion in the fame 
 Manner and Plight that the Ufes are 
 in. Seco7idly^ It was refolved, that up- 
 on the Recovery the Rent in Fee was 
 executed accordingly in j^. S. by Force 
 of 27 ^, 8. T^hirdly^ It was refolved, 
 that the Eftate being executed Condi- 
 tionally upon the Recovery, the Fine 
 
 after-
 
 266 Mtts ant) xmtts. 
 
 afterwards by J. S* who had the Con- 
 dition, and by J, J, who had the 
 Eftate, to 2). did not extinguifh the 
 Condition ,• for tho', generally fak- 
 ing a Fine will extinguiih all Manner 
 of Right and Title that a Man hath to 
 Lands ; yet if there be an antecedent 
 Agreement to qualify and reftrain its 
 Operation, it fKall have its "E^e^t accor- 
 ding to the Agreement ,• as here it was 
 covenanted that all Manner of AfTuran- 
 ces afterwards to be had, ihould be to 
 the Ufes in that Indenture mentioned, 
 which controlled the general Ufe of 
 the Fine, and preferved the Condition, 
 according to the Intent of the Parties i 
 for when Men agree and levy a Fine, 
 generally, there all the Conufee's Right 
 ihall be extinguifhed ; and when they 
 both agree in reftrainmg and abridging 
 the Ufe of the Fine, there is no Rea- 
 fon to extend the Operation of that 
 Fine beyond the Intent of the Party, 
 A Lord may releafe his Right, refer- 
 ving a Rent, and one may enter into 
 Warranty, with a Saho to his Rent ; 
 and the like Cafe, as to the Point of 
 Extinguifliment, was referved in the 
 $yer Cafe of Tut7zam and T>unco?nh^ where 
 *57- it feems alfo to be agreed, that if fuch 
 Indenture between two, if the Fine 
 be afterwards levied to one accordingly, 
 
 no
 
 Mfts ano %mV^6* 267 
 
 he is concluded from faying the Fh^e feoffment 
 was to any other Ufe ^ or if he rcfufe ^^y-^^^' 
 to take the Fine to thofe JJfes^ then 3 J. Rent, 
 the Fine is only to the Ufe of the Co- 5*^f"'•^'* 
 nufor, and his Heirs i and there is a Fi„e jg^ 
 Cafe where a Fine was levied by Qif»rther 
 Hushand and Wife to one who grants ;^f;;^^^'» 
 and renders a Rent to them two, and 3I. Rent^ 
 then they agree that a Recovery fhall be '^^ "''' 
 futfcred, wherein the Hushand and ?^^ Jahs!^' 
 fliall be vouched to thofe £7/^j, that and he 
 the ^/Tfo^ and Feine fhould have the ^^^^^ 7^"^*^ 
 Rent and the Conufee the Land, and Veed. 
 in the Recovery they are vouched, and ^^^"^ 
 enter generally into the Warranty ; yet ^ ^' *'^* 
 it was held the Rent was faved by Vir- 
 tue of the Agreement ,• fo that the Rent 
 may be faved either by a Collateral 
 Agreement or a Special Entry j whereas 
 it was infifted in CromwelW Cafe, that 
 in fuch Cafe the Salvo ought to ap- 
 pear upon the Record and Fine itfelf, 
 and not by Matter T>ehors, But it Dyer 
 was other wife refoived ^ and according- 1 ^o. 74^ 
 ly it was held in the Cafe of Crom- 
 ivelly when it came in Queftion before, 
 a precedent Feoffment will guide a 
 fubfequent Fine j as if there be a Feoff- 
 ment to two, and their Heirs, to the 
 J/fe of them and their Heirs, and a 
 Fine is levied to them and the Heirs 
 of one ^ this will not prejudice their 
 
 Eftatei
 
 z6$ WLttS atlD %VUtt8. 
 
 Eftate- for they lliall both have the 
 Fee ftill, for in the Fine there is a 
 Neceifity that the Fee fliould be li- 
 mited to one. A Fine Si/r Grafit and 
 Render^ cannot be averred by Parol to 
 be to any other Ufes than what are 
 mentioned in the Fine ,• fo that if an 
 Eftate in Fee be granted and rendered 
 back to one in Tail, he fhall have it 
 to his own Ufe ,• and fo if the Conufee 
 keep the Fee, he fhall have it to his 
 own Ufe i but by Deed the Ufe of a 
 Fine fur Grant and Render may be 
 directed ; and if there be a Deed to lead 
 the Ufes of fuch a Fine, tho' there be 
 &C0.75. fome Variance between the Deed and 
 the Fincj yet it fhall be faid to be to 
 the Ufes of the Deed, if there be no 
 other Ufes^ and that that was the Intent. 
 iCo.75. If A has ten Acres and S. has ten 
 *• Acres, and J, levies a Fine to S. of 
 
 Twenty, who renders Twenty, it is 
 good ; but for Ten, unlefs there be a 
 Special Agreement ; for he cannot ren- 
 der more then he receives : It was ob- 
 jeded, that (ince there can be no Decla- 
 ration of Ufes upon a Fine fur Grant 
 fo Render J but by Deed, and this 
 Limitation by Deed was not good to 
 bind Terkins^ who had the Eftate of 
 the Land, but was a Stranger to the 
 Decd^ and confequently no Deed by 
 
 them
 
 Mfts ano XtttftS; 269 
 
 them would be of any Effect to bind 
 him i and there being no Ufe but what 
 was implied upon the Fifie^ there was 
 no Conditional EftatOj but it was an- 
 anfwered that T* was but an In- 
 ftrument to convey the Land in the 
 fame Manner as J, B, and Ji 'J. 
 had agreed, and fo had nothing to do 
 to limit the Ufes ; for if he would not 
 make the Render as they w^ould have 
 him, he had not been employed ,• and 
 if after the Fine levied he had refufed 
 to render, yet the former Agreement 
 would declare the Ufe of his Eftate, 
 tho' a Stranger, according to the In- 
 tent and Purport. So if A Bargains 
 and Sells Lands to S. and covenants 
 to levy a Fine to him, and that C 
 fhall bring a Writ of Entry, C^r. and 
 fo a Common Revovery iliall be had, 
 which fhall be to the Ufi of B* and 
 his Heirs, in this Cafe, tho' C be but 
 a Stranger, yet being but an Inftrument, 
 the Declaration of Ufes by the othec 
 two fliall be good i the Render of C 
 cannot extinguifh the Condition ; for 
 his Seifin is but inftantaneous, and 
 only to the Purpofe to render back the 
 Eftate. 
 
 There was an. Eftate in Fee in the 
 Rent, upon the Recovery ; but tha£ 
 Rent, and the new one created upon 
 
 the
 
 270 Mtts and %mfi8* 
 
 the Fine, but that was nothing to the 
 ZJfe of the Land, and could not alter 
 that neither one Way nor other ,• for tho' 
 there be a new Rent in Being, yet there is 
 no new Ufe in J. and fo his Eftate re- 
 mains Conditional upon a Fine that 
 enures by Way of Releafe or Extin- 
 guifhment. 
 a Co. 78. No Ufe can be limited unlefs there 
 *• be fome other Conveyance, as it feems, 
 
 J95! b. which pafles the Eftate 5 for there it 
 13 Co. 5 5. feems they are taken as one Convey- 
 ance ; neither can the Surrender of a 
 particular Eftate be to a Ufe, 
 
 If the Diffeifee limits the Ufe to one, 
 and the Diffeifor to another, and the 
 Conufee to a third, the Ufe of the Dif- 
 feifee fhall ftand j fo if the Recoveror 
 • limit the Ufe to one, the Vouchee to 
 another, and the Owner to a third, the 
 Declaration of the Owner fhall ftand ; 
 tho* a Condition concurring with that 
 in the Deed may be averred by Parol, 
 yet no Ufe can be averred by faroly 
 when there are Ufes contained in the 
 a Co. 76. Deed exprefly. A Man cannot cove- 
 iinft. "^"^ ^^^^ ^^^ Wife to ftand feized to 
 112.^. her Ufe; it feems at Common Law a 
 *88°^^ t/j^ might have been raifed by Word^ 
 upon a Conveyance that paffed the Pof- 
 feffion by fome folemn Ad, as a Feoff* 
 ment j but wh«re there was no fuch A^^ 
 I th#r©
 
 mtts atiti Xtntts. 271 
 
 there it feems a Deed Declaratory of 
 the Ufes was neceffary j for as a Feoff- 
 ment which pafled the Eftate, might 
 be made at Coinmon Law^ by 'Parol; 
 fo by the fame Reafon might the Ufes 
 of the Eftate be declared by Tarol ; 
 but where a Deed was requifite to the 
 pafling of the Eftate itfelf, it feems it 
 was requifite for the Declaration of 
 the UfeSy as upon a Grant of a Rcnt^ 
 or the like. So it feems, a Man could 
 not covenant to ftand feized to a Ufe, Pop. 49. 
 without a Deed, there being no folemn Moor 
 Aa i but yet a Bargain and Sale by Pa-fj^j^^^^, 
 rol has raifed a UJe without, and it Hole, 
 has been held to do fo fince the Sta- Jj*^^** *• 
 tute. In Cities exempted out of thepye/^* 
 Statute, it has been held, that if a Fine 229* a- 
 be levied of a Rent, no Ufe can be li-^ ^t/*^' 
 mited of it without Deed ^ but now by may devife 
 29 Car, 2. c. 3. all Declarations of'''^^^' 
 Truft, other than fuch as arife by Im- 
 plication of Law, are to be in Writing, 
 and figned by the Party, who is by Law 
 enabled to declare fuch Trnfl^ or clfc 
 it muft be by his Laft Will in Writing. 
 A Man fuffers a Common Recovery 
 OU, Mich, and the 14th of Kovem- 
 her next, by Indenture, he declares that 
 the Ufes of all Recoveries hereafter 
 to be fuffered, ftiall be fo and fo, and 
 lb this Indenture does not declare the 
 
 Vfes
 
 2 72 Mtts atio Xtnfts. 
 
 a Roll uj}j of the Recovery precedent, tho' 
 jfy^er the Term be reckoned but as one Day 
 136. 4. in Law ; but yet it feems, if there be 
 an Averment, that it was the Intent of 
 the Party in that Indenture, to guide the 
 Ufes of the precedent Recovery, it will 
 be goodi but Qfi^re fince the Statute 29 
 Car. 2, whether that will do ; for as the 
 Statute of Wills requires that a Will 
 ihould be in Writing, and if that be 
 not fufiicient that is writj no Averment 
 will help out the Defe(fl ^ fo the Sta- 
 tute 29 Car. 2, requiring a Declaration 
 of Ufes to be in Writing, it feems by 
 the fame Reafon, no Parol Averment 
 can help it, 
 
 A Man covenants to levy a Fine to 
 four, to fuch Ufes^ and after two die, 
 and it is levied to the Survivors, the 
 TJfes iliall be direded by the firft In- 
 denture, 
 Cro. Jac. A Man grants a Rent of 10 L per 
 510,512. jj2fi, and covenants to levy a Fine to 
 thefe JJfes^ mz, that if it lliall happen 
 the faid yearly Rent to be in Arrear, 
 and not a fufficient Diftrefs found, or any 
 Rcfcous or Replevin be made, then 
 that the Grantee fliall enter, (jc, in 
 this Cafe the Rent was in Arrear, and 
 then the Fine levied, and then a Di- 
 ftrefs taken, and a Replevin fued* 
 Two Judges held that the Uje being 
 I raifed
 
 Mies atiD Xtiitts. 273 
 
 raifcd by the Fine, it could not extend 
 to thofe Averments that were before 
 the Fine; but the other two held it 
 ftiould, the whole being reckoned but 
 as one Conveyance. 
 
 J. covenants to levy a Flf^e of one 
 hundred Acres, within the Year, and 
 after the Year, a Fhie is levied but 
 of eighty ; it fliall be guided by the Co- 
 venant before. 
 
 Husband and Wife feized of Lands 
 to them, and to the Heirs of the H/if- Moor 
 hafid^ Bargain and Sell the Land to one 680. 
 T' upon Condition that if they or any 
 of them, their Heirs, Executors, Ad- 
 miniftrators and Alligns of the Huf- 
 band, ihouki at fuch a Day pay 500/. 
 to the faid ^. that then it fliould be 
 lawful for the Husband and Wift\ ^nd 
 the Heirs of the Husband to enter, and 
 fo hold it as in their former Eftate, aud 
 that after the Payment, this Indenture, 
 and all Fines and other Affurances 
 fhould be to the Ufe of the Hush and ^ 
 and his Heirs, this being Contradii5tory to 
 what went before, is void, or elfe fhall 
 ferve only to dircCt the XJfcs of the 
 Fee-fmiple, after the Death of the 
 W'lf"' ^Vhen Vfes are declared by a 
 Deed precedent, no Writing will con- 
 trol that, tho* under Hand and Seal, 
 unlefs it be a Deed ; us was the Cafe 
 1^ df
 
 2 74 ^^^^ ^^^ %mfis. 
 
 of Jones and Morky^ where a Ty^cdi 
 declared the Ufes of a Fine^ to be le- 
 vied next HilLTermy to one and his Heirs, 
 before the Fine levied, Husba/id and ^j^fe^ 
 by Writing under Hand and Seal, de- 
 clare it iliall be to the Ufe of her and 
 her Heirs jr it was held that if the Fine 
 had been purfuant, this would not have 
 controlled the former Deed ,• but be- 
 caufe the Agreement was in Hill' Term? 
 to levy it next HilL Term, and the 
 Fi/ie was levied the fame Term, there 
 was a Variance j and fo the former I>eed 
 was controlled. If Lands be granted 
 to J. Hahe7idim to J. and B. and 
 I'i, Co. their Heirs, to the Ufe of them and 
 55^- their Heirs, tho' ^, can take no E° 
 
 (late, becaufe named tafter the Habeii- 
 dum^ yet the Limitation of the Ufe is 
 good, and by that they fball both be 
 Jointenants. If a Man covenants to 
 ftand fcized of all the Lands he has, 
 or which he fhall afterwards purchalc 
 to the Vfe of A* this will only bind 
 the Lands he then had ; for if he af- 
 terwards purchafe other Lands, no TJfe 
 lliall arife upon it ^ for a Covenant to 
 ftand feizcd, is a Covenant that affe^fts 
 X Roll an Alteration of the Land itfelf, which 
 JJ®Qj. no Man has Power over but the Owner,- 
 342. and it is not now ia the Nature of a 
 
 Contra & 
 3
 
 Mtts anu Xmfts. 27 ^ 
 
 Contra(5t to do any thing but that which 
 reaches the Lands thcmfelves. 
 
 So if oxiQ~^oi72te7ia7it covenants to 
 ftand feized of the Moiety of his Com- 
 panion, after his Companion's Death, 
 to fuch TJfeSj no Ufe will thereby arifc, 
 tho' he does furvive his Companion ,• 
 for he could not then Charge the Moiety. 
 But if a Man covenants to purchafe 
 Lands before Michaelmas ^ and to levy 
 a Fine of them to "B. which iliall be 
 to the Ufe of J. and his Heirs, and this 
 is done accordingly, it is good ; for 
 this Agreement was not defigned to 
 raife the Ufes of its own Force, but 
 only that it fliould be an Agreement 
 precedent to direct the Ufes of the Fine 
 to be levied. ^,! 
 
 If a Man levies a Fine of his Lands, ^ ^°^^ 
 and covenants, in Confidcration of Na- ^^*^' ^^ " 
 tural Love, and the Marriage of his 
 Baftard Daughter, that the Conufee 
 fliall ftand feized to her UJe^ this is a 
 fufficient Declaration of the t/fe to her, 
 tho' it be not fufficient upon the Co- 
 venant to raife a Ufe, See about CoJi- 
 tingejit Ufes before, and Title Co?iti?i- 
 gent Remai/zders, 
 
 A Man may have an Affize upon a Qwcn S6, 
 Feoffment to his own Ufe^ without an?^°'^''* 
 adual Entry, and without Laying an 
 Agreement i for the Statute executes it 
 T 2 in
 
 2 76 Witts ann %vnfts. 
 
 in him ; but an Adion of Trefpafs he 
 cannot have, before nn a^al Entry. 
 A Man may plead that fuch a one was 
 feizcd to his c//^, without fhewing the 
 Commencement of the Ufe, A Man 
 brings a Writ of Wafte^ the Writ fets 
 forth a Feoffment to fuch Perfons, to 
 feverai Ufes^ but does not fay the Feoff- 
 ment was to them and their Heirs ,« and 
 if it were not a Feoffment in Fee, the 
 Vfs could not rife J but it was held 
 Hob. 84. well enough, becaufe all the Forms of 
 the Writs had been (b; and yet the 
 Plaintiff might have had a general 
 Writ, and declared Specially. 
 
 J» feized of twenty-five Acres at Jf^, 
 covenants to levy a Fine of them all^ 
 and that twenty-four of them fliall be 
 to the Uje of C in Tail ; and for the 
 other it fliall be to the Ufe of him in 
 Fee 5 afterwards a Fine is levied of 
 twenty-four j Qj/dre whether the Ufes 
 of them twenty-four, are not directed 
 by the precedent Conveyance. 
 a Roll A Man makes a Feoffment in Fee, 
 791- and afterwards declares by Indenture, 
 that this Feoffment was to the TJfe of 
 himfelf, and after Marriage with J. to 
 her for Life, and then to the Ufe of his 
 own Right Heirs, this is a good Limita- 
 tion o£Ufes; and after Marriage J. fliall 
 have a JJfe^ and in the mean Time he 
 ^ is
 
 Witts ano %mtts. 277 
 
 is feized to the Vfi of himfelf and his 
 Heirs. 
 
 A Man covenants, in Confidcration 
 of Marriage to be had between him 
 and J?, to convey certain Lands to 
 their Ufis for Life, and afterwards he 
 levies a Fine to thofe Ufes^ there is an 
 Eftate vefted in them, tho' the Mar- 
 riage iliould take no Effed; for it was 
 a Declaration of Ufis upon the Fine, 
 which is good, tho' there be no Confi- 
 dcration i but if there had been nothing 
 but a Covenant to ftand feized to Z/feSy 
 no Ufis had then rifen without a Mar- 
 riage. 
 
 And if a Man covenants, in Confi- 2 Roll 
 deration of the Marriage of his Son '^^^' 
 with S, to ftand feized to the Ufi of 
 his Son and B. and they are married 
 i/ifra annos nuhiks, and afterwards 
 they difagree, the Ufi to B* iliall 
 ceafe \ and it feems there is the fame 
 Reafon the Ufi to his Son fliould ceafe, 
 fince the Consideration ceafed, the Mar- 
 riage being the only thing the Ufe was 
 founded upon. 
 
 A Man covenants to ftand feized to. 
 the Ufi of B, and his Heirs, if fuch 
 an A(^ be not done, JB. dies, the Adl 
 is not done, a Ufe ftiall arife to the 
 Heir of 'B, who iliall be in by Di- 
 fccnt. 
 
 T 3 A Man
 
 278 tElfes atiD Xtttfts* 
 
 2 Roll A Man covenants, in Confideration of 
 ^^^' Natural Love, (jc. to (land feized to 
 the Ufe of himfclf for Life, then to 
 his Son for Life, then to 7). his Ba- 
 ftard for Lifc^ with fcveral Limitations 
 over, and covenants to make a Feoff- 
 ment for further AfTurance to the fame 
 Ufes ; and accordingly a Feoffment is 
 made, yet ©• fliall take nothing, be- 
 z Roll caufe the Feoffment was made but for 
 Mo! "85. f^i^thcr Alfurances, according to the 
 Covenant, by which he could take no- 
 thing, if it were only faid to the fame 
 Ufe J J and not for further AfTurance. 
 ^zi^re^ Whether fD. would not take. 
 Cro. Jac. A Man covenants to convey his Land 
 ''^°' to fuch and fuch Ujes before Eafler 
 next, and covenants to ftand feized of 
 fo much as fliall not then be conveyed 
 to the Ufe of the fame Perfons, none 
 is conveyed before Eafiej\ the Ufes of 
 the whole fhall riffj. 
 ven. 168, Tenant for Life, with Power of Re- 
 vocation, levies a Fuie^ and by Deed, 
 ten Days after, declares the Ufes of 
 that Fine, which Deed had ail the 
 Circumflances required in the Deed of 
 Kevocation, and whether the Power of 
 Revocation was extincfl by the P///^, or 
 that the Deed of the Declaration of 
 Ufes was to be reckoned together, with 
 the Fine, as one Conveyance 5 and fo 
 
 his 
 
 5,71.
 
 MM anti 5Ctttft«f. 279 
 
 Ills Power executed was the ^xre ^ 
 and it was liejd that the Power was 
 cxtind by the Fifie^ and the Deed af- 
 terwards came too late, for the Fine 
 pafled it away, and the Deed after- 
 wards ihall not deveft any thing Jaw- 
 fully vefted by that Fine ; yet if the 
 Intent at the Time of the Fine levied 
 \vas to make fuch a Deckration by i ven. 
 'DQQdk^ ^(cre whether the Fine will 291, 195* 
 extinguifh it, but a bare Declaration ^"fj^^"j. 
 afterwards, without full Proof of the very are 
 Intent, at the Time of the Fine levied, ^^* '^' 
 will not control the natural Opera- ^^"J^^'jr,^* 
 tion of that Fine. A Man has Power they have 
 to revoke by Deed fealed and figncd ^;^^;; ^/' 
 in the Prefence of two Witneffes, and 2 vtn. 
 covenants by Deed, having tbofe Cir- 5 '• 
 cumftances to levy a Fine to other Rep.* 150 
 Ufes^ which he does^ and it was rc-Cro. Cat 
 folved to be but as one Conveyance, f;^^* 
 and It mould amount to a Revoca- Cafe. 
 tion. The Deed of itfclf amounting ^ Co. 
 to a Revocation, bccaufe it looked as 
 fomething to be done, and the Fine of 
 itfelf could not, becaufe it had not 
 thofe Circumftances. 
 
 A Feoffment is made to Hushand ^ Vcq 
 and Wife^ for their Lives, Remainder ^5'<=- 
 feniori puero^ Remainder to 7c. in 
 Fee, Bushafid and irife levy a Fine, 
 and by Indenture declare the Ufes to 
 T 4 Hushafjd
 
 2 8o Mtts attn %mtts. 
 
 Moor Husha7id and Wife for Life, and then 
 '''*• to the eldcft Child, then to K. in Fee i 
 it was refolvcd the Fine did not deftroy 
 the Eftate in Remainder, but it was 
 in Abeyance i and that the Indenture 
 leading the Ufes of the Fine put it out 
 of all Difputc that the Remainder 
 iliould go to the eldeft Child, whether 
 ISIale or Female i and yet it does not 
 appear, there was any Defign before- 
 hand, or Agreement to levy this Fine ; 
 it was held likewife that the Daughter 
 may aver that feniori piiero was intend- 
 ed the eldefl: Child, Male or Female. 
 I Vefit, 19), Where two Deeds or Ads 
 done at feveral Times, iliall be look'd 
 upon in Law but as one and the fame, 
 Moor fee Cro. Jac, 643. Tenant in Tail le- 
 1'^- vies a Fine, without Confideration, or 
 ^!"°; *^" cxprellmg any Ufe^ he fliall be feized in 
 Vaugh '\Fail^ as before j for it is by Coveyance 
 ^^' of Law that he hath any Eftate, and 
 
 whatfocvcr Eftate he rakes by Law, 
 muft be rightful, and according to 
 the Rules of Law : and to give him an 
 Palm. abfolute Eftate in Foe, would be to 
 359' the Prejudice of him in Reverfion. 
 (hure if it be not the fame of a Re- 
 covery. 
 
 dlfint
 
 Witts ano %mfis. 281 
 
 tOl&at map ht giaiiteti to an Clfc* 
 
 All Lands and Inheritances real may 
 be granted to an Ufe^ but no Inheri-jones 
 tance perfonal can be granted to an n?. 
 JJfe as Annuities, and the like^ for 
 their having the Inheritance confifts in 
 taking the Rents; fo he cannot have 
 the Freehold upon the Truft and Con- 
 fidence to permit another to take the 
 Profits i fo Things which are mere 
 Rights cannot be conveyed by Way of 
 Ufey as Commons, cJ'c. Ways in Grofs ; Paim. 
 for a Man cannot walk over Another^s 349- 
 Ground to the Ufe of a third Pcrfon. 
 The Lords decreed that the Office of 
 High Chamberlain could not be grant- 
 ed by Way of Ufe ; nothing that paf- 
 fes by Way of Extinguifhment can be 
 granted to an Ufe. 
 
 A- Man feizcd of the Manor of ^S*. in 
 O. and of divers other Lands in O. 
 fuffered a Recovery of all, and limits 
 the ufe of all his Lands and Tene- 
 ments in 0' to his Wife for Life, and 
 of the Manor of S. to his younger Son 
 in Tail ; it was held the Wife had no- 
 thing of the Manor of S, 
 
 A Devifc may be made to a Ufe ; 
 but j^ure if tlie Limitation of the 
 Ufe be void^ whether the Devifec fliall 
 be feizcd to the Ufe of the Devifor 
 and his Heirs j tho' if an Eftatc pafles 
 
 by
 
 282 Wiks ano %mtts. 
 
 palm, by Way of Extinguilliment, no Ufe can 
 ^^^* be limited upon it,- yet if Tenant for 
 Life furrenders his Eftate to him in 
 Remainder, to the Intent to fuffer a 
 Recovery, which is accordingly done, 
 if no other Ufe be limited, it fliall be 
 to the Ufe of him for Life^ if they both 
 join in a Feoffment to the Ufe of y. So 
 and his Heirs, who fuffcrs a Recovery, 
 and doth vouch, this it feems fhall be 
 to the former UfeSy becaufe the Ufe was 
 to j^e S' and his Heirs j yet that was 
 only to keep the Eftate in him, to the 
 intent that he might be a Tenant to 
 the fa id Tftecipe. 
 Cro. Car. If a Man covenants to levy a Fine 
 i'^^* to Ujes, the Fine mull: be drawn ac- 
 40^*! cording to the Covenant, or elfe he is 
 not obliged to levy the Fine. J, en- 
 feoffs B. and covenants to make fur- 
 ther Afl'u ranees, ^. leafes to J. who 
 then levies a Fine to B. this bears and 
 conveys the Eftate for Years, without 
 a precedent Agreement, odierwife it 
 goes in Corroboration of it. 
 Hob. 275, A Man conveys Lands to one, ana 
 -74, i/S- covenants to do Ads for farther Aftu- 
 ranee, and then levies a Fine to him, 
 this will be to the Ufe of the Bargainee; 
 for the Covenant is a Declaration of 
 the Ufe to him, but that Covenant is 
 to be confidered by the Eft^cs Hiat 
 
 pafs
 
 Mtts atiD %m(t6. 283 
 
 pafs by the firft Conveyance; and it is 
 to be looked upon as a Declaration oF 
 no more ; as if a Man pafTes the third 
 Part of his Lands to J, S.^ and cove- 
 nants to make further AfTurances of 
 his Eftate to him, and levies a Fine 
 of all to him, this Covenant iliall de- 
 clare the Ufe of the Fine to the Ven- 
 dee, for the third Part; but the other 
 fhall have the Ufe of the two other 
 Parts. A Recovery is fuflfcred to the 2 Leo. 
 Intent the Recoverors fhould make fach n- 
 Eftates, the Ufes are not in the mean ^s^[°* 
 Time to the Recoveree ; for that would 
 prevent the Execution of the Eftates. 
 
 A Man fuffers a Recovery to the Ufe 
 of himfelf for Life, Remainder fe/uorl 
 puero in Tail, in contingent Remain- 
 der to himfelf in Tail, he levies a Fine ^ Leo, 
 and declares the Ufes by another Inden- ^'^' 
 turc to him for Life, Remainder to 
 his eldeft Child in Tail, Remainder 
 to himfelf in Tail ; it was refolvcd the 
 Fine did not deftroy the Remainder 
 feniori pmro i for it goes in Corrobo- 
 ration of the Eftate, and that the la ft 
 Indenture declared the Intent of the 
 firft to mean by fjiiori puero, either 
 Boy or Girl, according as they fhould 
 be born firft. 
 
 A Fine is levied to four, to the In- 
 lent they lliould make an Eftate of the 
 
 faid
 
 -84 Mit& attD %m{ts. 
 
 {■did Land to fuch a Perfon as the Co- 
 nufor fhould name, and that they 
 jfliOLild not be feized to any other Ufe 
 but to that Specially j it was held that 
 before the Nomination they were feiz'd 
 to their own Ufe ; and if the Conufor 
 died before Nomination, to the i^ of 
 his Heir 5 and one Jufigo held the Co- 
 nufor might name which of the Co- 
 nufees he pleafed, but the other two 
 held not ; but he ought to be fuch a 
 one as would take the Eflate ,• and one 
 Jointenant cannot give from his Com- 
 panion. Qj^^re^ If a Man grants two 
 Acres in 2). and covenants to levy a 
 t iioH Fine for further Affurancc, and levies 
 Rep. 103. ^ piiic of all in 2). and he has four 
 Acres there for the Surpiufage, whether 
 the Ufe fliali be to the Conufor. 
 
 £)f
 
 28^ 
 
 0f l&atrsaing atiu ^aies. 
 
 NO Perfon that cannot be fcized to 
 a JJfe can pafs Lands by Way of44El. 
 !Bcirgai?i and Sak^ for it only paffes an c. B. rot. 
 Ufe at Common Law ,• and tho' the ^^^' 
 Poffeffion and Ufes pafs both together, 
 tanqtiafn tmo fiatu^ yet there muft be^g°°^ 
 a Seifin to a TJfe in every Bargain and Atkins v. 
 Saky elfe there could be no Execution by ^°"g 
 Force of the Statute ; yet every Body 
 that comes in by a Bargain and Sale^ 
 comes in by the Statute ; therefore the 
 King, nor any Corporation, cannot Bar- 
 gain and Se/l ; and there feems the flime Landi let 
 Reafon for an Aliens but if there be /<"' « ^^f^*'-* 
 a proper^JZ^onfidcration, it feems a 'Bar- p{!l'^^!^ " 
 gaiji and Sale may be made to any comy if 
 Body ; but then the Confideration muil: ^^'"'^^»'^< 
 be Money, for nothing elfe will make jg^^.^^ •» 
 it a Bargain and Sale ; and it may ^^d Saie. 
 amount to a Covenant to ftand fcized, jo^co^za 
 or an Exchange, but not a Bargain ^i^. 
 and Saky without the Confideration of * ^'^^^ 
 Money. Money given by the Cover- ' 
 nors of an Hofpital is a good Confide- 
 ration to raife a Ufe to them in their 
 publick Capacity ; and tho' a Body Po- 
 litick cannot be feizcd to a Ufc^ yet 
 upon a Bargains and Sale to them, a 
 
 l^ruft
 
 286 £)f Batgai'tiiS atiD ^aies;. 
 
 Truft may be limited that they fliall 
 difpofe of the Rents and Profits of the 
 fiimc amongft the Poor of the faid Cor- 
 poration. It feems any thing that a 
 i inft. jyj^j^ jj^j ^ Freehold or Inheritance in, 
 '*' may be Bargained and Sold by Force 
 of the Statute ; for fo are the Words 
 of the Statute ; but a Man pofleffed 
 of a Term for Years, cannot ^argai7i 
 and Sell it by Force of the Statute 
 27 H* 8. c, 10. to have it executed, bc- 
 caufe it is not within the Statute. At 
 Common Law upon a [Bargain and 
 ^ ^"^- Sale^ a Vfe would rife, tho* the Bar- 
 Vyct gain and Sale were by Parol ; but now, 
 *i^ as to Eftates of Freehold and Inheri- 
 tance, they are reftrained by the 27 H, 
 8. c. 16, for now they muft be made 
 by Deed indented and enrolled i but 
 a Bargain and Sale for Years was out 
 of the Statute; and therefore might, 
 as it feems, be made by Parol j and 
 Houfes and Lands in Cities, where the 
 Mayor, Crc. had Power to enrol Evi- 
 dences, being excepted, it has been iincc 
 rclblvcd that a Bargain and Sale is good 
 by Parol there, for the Statute was 
 Defe(aive ; for it executed fuch Lands, 
 (jc, out of the Statute of Enrolments, 
 but does not enad that the Sale of 
 fuch Eftates iliouid be enrolled in thofe 
 Cities. It feems by the Statute for 
 
 execu*
 
 £)f I5atsains am ^aits. 287 
 
 executing Ufes into PolTelTion, a Rent 
 new created may be bargained, c^f. 
 but now it cannot be, becaufe there f^^'^^^ 
 muft be a Seifin to an Ufe^ or elfe ^. ' ^ * 
 there can be no Execution by the Sta- Pop. 49> 
 tute, before the Intent of the Party was ^°" 
 regarded and fupported by Chancery j 
 and this feems to be, my Lord Hales 
 wary putting of the Cafe of Jackfo?:^ 
 which fee. The Words ^argai?i and 
 Sell are not neceffary to make it a Bar- » Inft.<j72, 
 gaifz and Sale within the Statute ; but ? Lcva'^^ 
 any Words at Common Law, that cro. El, 
 upon a valuable Confideration would ^^^* 
 have raifed a iJTf^-, will be fuffieient to 
 create a Enrgain and <SV7/^, within the 
 Statute ; but there it feems that the 
 valuable Confideration muft be Mo- 
 ney i fo that if a Man for Money co- 
 vma7its to fta?id feizedy or aliens^ or 
 demifes^ grajits ajid to Farm lets-, thefe 
 Words, if the Deed be indented and 
 enrolled, amount to make it a ^argaifi- 
 and Sale j and if the Money be paid 
 but by one, it is fufficient, and ihali, 
 make the Eftate to pafs to all, if no 
 Confideration be exprclTed ; yet if it be 
 averred that there was one paid, it 
 is fufficient; but if a Confideration be 
 exprefled in the Deed, and be acknow- 
 ledged to be received, tho' in Truth 
 none was paid, yet the Party and his 
 
 Heirs
 
 288 €)f I5atflains atiti dales* 
 
 1 inft. Heirs, are cftoppcd, from faying there 
 ^^^^ was none paid. The Intent of 27 H, 
 169. 8. c» 10. was to dcftroy thefe Incon- 
 Moor veniencies that had crept into the Law 
 ^^^' by UfeS:, and reftore the former Laws 
 for paffing of Lands by Matter that is 
 notorious into Pradice and life again ; 
 and therefore, left ftill they fhould 
 convey by Way of [7/^, and the Incon- 
 veniences remain, was that Statute of 
 27 H' 8. c. 16. made, which requires 
 Q^jjprg the Deed to be enrolled, and fo made 
 cjuhethef notorious in whom the Eftate fhould 
 TmoTb ^^» ^^ ^'""^^ by Force of the Statute, 
 ^luiu mile no Eftatc can pafs by Force of a ^ar- 
 a Bargain gain and Sak i but where the Deed is 
 7il\\' enrolled, fo that 'till that Circumftance 
 78z, 790. be had, the Deed is ineffe(5iual. Before 
 ji'^^- this Statute the Ufe and ToJielfw?i 
 Hot. 156. palTed prcfently, both together tan- 
 Cro. Car. quam 71710 Jlatti^ upon the Delivery of 
 ^\^ the Deed , but this Statute requiring 
 nS. h. another Circumftance, 'till that be had, 
 T. Jonas the Deed is of no Efte(5t i and when it 
 Hob. 289. ^^ ^^'^^5 ^'""'^ Statute is fatisfied ; and the 
 Cro. Car. JJfe and TofftJJhn are faid to pais both 
 ^''''°- together by Relation, from the Deli- 
 very of the Deed, by Virtue of the 
 former Law ; this laft not aboliftiing it, 
 but cnly adding another Circumftance 
 to it, and then leaves the former Law to 
 Operation; fo that when the Deed is 
 J after-
 
 €)f adatgams am ^aies, 289 
 
 afterwards enrolled, it hath Relation, ^^oo^ 
 for the Advantage of the Barga'uiee^ J Cro. 
 to protect him from all Incumbrances "ih S- 
 made in the mean Time by the Bar- 
 ^abior-, and for him to take Advantage 
 of the A(^s done for the corroborating 
 his EftatCj and the making good any^^^V'^^3' 
 Difpolition that he will make in the In- » 
 terim of the Land. But as for Houfes 
 and Lands that arc in Cities and Bo- 
 roughs, where they have the Power of 
 enrolling Evidences, by being excepted 
 out of the Statute, they pafs prefently 
 upon the Delivery of the ^<^^6.. 
 
 If a Man Bargains and Sells Lands i And. 5. 
 by Deed indented ; but before Enrol- ^ ^i^-i' 
 ment he levies a Fine of the Lands, 10 Co.'pd. 
 to the Party himfelf, he iliall be in ^^°°^' s°' 
 by the Fine, tho' the Deed be after- ^^J °\j^' 
 tervvards enrolled; for 'till t\\Q 'Enrol- they Ue in 
 ment, the Bargainor has the Eftate,'* ^''^* 
 all thofe Circumftances not being had 
 which arc requilite to make it a good 
 Bargain and Sale \ and before Enrol- 
 ment the Eftate paHes by the Fine ,- 
 the fame Law of all Conveyances paf- 
 iing the Poilcifion. IF in the mean 
 Time the Bargainee dies before En-Yelv.115, 
 rolment, his Heirs fhall take and be in ^l^^ 
 by Difcent ; for the Enrolment, as be- 
 tween Bargainor and i>^r^^///^^, -makes 
 the Eftate pafs ah initio^ by Force of 
 U the
 
 Hob. 156. the 27 H. 8. c. ic. which pafTes the 
 
 408*, jr ^/^-^ ^"^ ToffegjoTi both together iii- 
 
 ftantly. 
 Hard.4ro. Whcrc Tenant for Life, with Power 
 to make Lcafes to commence after his 
 Death, Bargains and Sells the Land in 
 Fee, the Power does not pafs. A Bar- 
 gain and Sale will not pafs a contin- 
 i^i^' 41 • ggj^t l/fe in the Bargai?wr^ but a Feofl- 
 ment will. If one Jointenant Bargains 
 and ^y^/// all the Lands, and before 
 Enrolment the other dies, his Part 
 fhall furvive • for the Freehold not be- 
 ing out of him, the Jointure remains i 
 iinft.136. but yet when afterwards the Deed is 
 cro. Tac. enrolled, only a Moiety ihall pafs i for 
 53. the Enrolment by Relation cannot 
 
 Bro.328. J^^^^Q ^he Grant of any better Effed 
 ^' than it would have been if it had took 
 Effed immediately ^ but tho' that En- 
 rolment be made, he that Bargains and 
 Sells the whole ihall have the other's 
 Part by Survivorlliip, tho' the Deed be af- 
 terwards enrolled, and fhall relate to 
 the Delivery j becaufe tho' the Rela- 
 tion will work for the Benefit and Ad- 
 vantage of the Bargai?iee^ yet it fhall 
 not prejudice the Bargainor \ yet in fucii 
 Cafe, if the Bargainor dies, his Part 
 fhall not furvive j for the Relation the 
 Deed afterwards by Enrolment has, 
 4 fupports
 
 £)f ^atgainiS atia Mies. 291 
 
 fupports the Iiitcreft of the %argai7ie€^ 
 as pafling ah initio* 
 
 If the jBargai7icey before Enrolmont, a inft^ 
 bargains and ^^'/Zr to another, and then ^^^' 
 both Deeds are enrolled, according to 
 Cooke^ it is good, which feems rea- 
 fonable that the Relation fhould as 
 well confirm his own Ads againft him- 
 felf, as protcd him from the Ads of 
 the ^Bargainor 5 but as the Cafe is re- 
 ported by Cro. the Judges were divided ; ci-o. jac. 
 and it fecnis by him in another Place, as 5h 4oS. 
 if it were adjudged not to be good ,• and ^,7^^^* 
 fo it is reported by Bob, A Man Sar- Hob. ;<;. 
 gains and Sells the Seventh, and ac- ^^°' ^^^' 
 knowledges the Statute the Eighth , owcn 
 and afterwards the Deed is enrolled, 150- 
 and upon an Iflue whether the bargainor f°J 
 was fcized the Eighth, it was held that 
 he was not in Rcfpcd of the Relation ; 
 but in another Cafe afterwards the 2 inii„ 
 Judges were divided, and fecmed to ^'4 ^ 
 be againft it, tho' Coke be exprefs, and ^ ^Vd^ 
 fays that as to palTing Eftates, the En- 161. 
 rolmcnt makes the Deed relate even as Cro. car, 
 to Strangers as well as Parties. ^^'• 
 
 A Man feized of a Copyhold in Fee, Ow. 70. 
 by the Cuftom of which Manor, the 
 Wife of every Copyholder that died 
 feized of any Eftate, iliall be endow- 
 ed, becomes a Bankrupt, the Commif- 
 floners Bargain and Sell the Land i the 
 U 2 Bank-
 
 292 £)f jsarsaitijS attfi ^m&. 
 
 Cro. Car. bankrupt dics, the Deed is enrolled. 
 ^^^' It was held that the Wife fhould not 
 be endowed ; for now by Relation he 
 did not die Tenant j and this confirms 
 what my Lord Cooke fays, that the E- 
 ftate fliall pafs by Relation^ even as to 
 Strangers. So if one does Bargain and 
 Sell Land, and takes a Wife, and dies, 
 and then the Deed is enrolled, the Wife 
 of the bargainor fliall not have T>oiV' 
 er i for by the Relation the Eftate paf- 
 fed before flie was his Wife ; and by 
 the fame Reafon, if the Eftate fliall 
 be faid to pafs as to Strangers, ah witio, 
 for their Disadvantage, it fliall pafs for 
 their Advantage. And therefore if a 
 Bargain and Sale be made to a Man, 
 and he dies, and then the Deed is en- 
 rolled, it feems his Wife ought to be 
 endowed, 
 cro. Car. ^^ ^ ^^^ ^cirgatjis snd Sells Lands 
 517. by Deed indented to one, and thcnS/zr- 
 owcn gains and Sells them to another, and 
 Jwr 'the firft Deed is enrolled within the fix 
 218. h Months, the laft bargain and Sale is 
 Bro. 128. ;^ ^^^ ^^ -^ 1^ if a Man do after the 
 
 faid Bargain and Sale levy a Fine of 
 the Lands to another, and then the 
 Deed is enrolled, the Fine is of no 
 Manner of Ufe^ and fo it is, if the laft 
 Bargai7i and Sale be firft enrolled. 
 But if the firft Bargaui and Sale be 
 4 never
 
 rot. 
 
 £)f J0arff ains a n a ^aie5» 293 
 
 never enrolled,- fo as it never takes Ef- ^*^b. 
 £c6ty then it feems the Second, (jc. iliall c!b/',.o 
 (land good, like the Cafe of two Sur- 1507. 
 renders of Copyhold Lands, a Relcafe ^ ^"^' 
 to the Bargai?iee^ before Enrolment, is ow! 70. 
 good, and a Reco'very fuffered againft 
 him is good ; for he is T'ejiant to the 
 'Frdcipe^ by the Enrolment afterwards, 
 which farther proves what my Lord 
 Cooke fays, that even as to Strangers, • 
 the Relation works ^ as to palTing the 
 Eftate it is not material when the DQcd 
 is acknowledged, provided it be enrol- 
 led within the fix Months. 
 
 It feems the ^argalmej before En- Cro. Car, 
 rolment, may grant a Rent out of the ^ V _, 
 Lands, this Relation is not properly a 
 Fiiftion in the Law j but here are fe- 
 veral divided A(frs that have aReal^jj/d*, 
 which when they happen, are reckon'd 
 at Law but as one Ad ,• whereas a i And. 
 Fidtion in Law, is what the Law fup- ^^^[ 
 pofes to be in effe-^ and it is really not fo j 
 if Tenant for Life be impleaded, the 
 Bargnh/ee of the Reverfion iliall be 
 received after Enrolment ; but yet if 
 one purchafes a Reverfion, hanging the 
 Writ, he fhall not be received. If a 
 Man Bargaijis and Sells Land, and 
 then a Stranger enters, and the Deed 
 is enrolled, the 'Bargainee may, as it 
 U 3 feems
 
 ^94- ^ ^atgaittS aito ^aieg. 
 
 feems, maintain an AfiTize j for now by 
 Relation, it is a Difleifm to him. 
 Hob. ztz. If a Man ^argah/s a-nd Sells Lands, 
 ^Co. 71. and then grants a Rent-charge, and 
 then Jevies a Fine ol: the Land to the 
 ^ar^aifiee^ it feems the Bargaijiee ftiall 
 hold it charged, becaufe he comes in 
 Lat. 157. t»y the Fine. A Man makes a Leafc 
 I Sid. 5 10. for Years, rendering Rent, and then 
 cro. Car. _gj;,.^^/;;j and Sells the Reverfion, and 
 *''* then a Rent-Day incurs, it feems the 
 Rent docs belong to the Sargai/iee ; 
 and fo if a Bnrgaiji and Sale be fuade 
 of an Advowfon, and before Enrol- 
 ment the Church becomes vacant, it 
 feems it belongs to the Bargnmee to 
 prefent -, for the Enrolment hath Rela- 
 tion to make the Deed pafs, as to 
 iBrafc.«. Strarigersy /?^ initio^ as appears from the 
 '"'"*' Cafes ', a jnulto fortiori it has betweea 
 the Parties themfelves j but yet it was 
 Qw« 3s«- held by the Juftices, in Sir Vieiiry T>i?n' 
 cock's Cafe, that Payment to the Bar- 
 gainor^ by the LefTee, was good, apd 
 the Bargainee has no Remedy ; which 
 Cafe feems to agree that the Right be- 
 longs to the Bargainee^ but allows 
 Payment to the Bargainor^ becaufe 
 Godbolr ^^c Bargainee^ before Enrolment, has 
 490. not the Reverfion compleatly in him^ 
 ^^{^' atid therefore if the Bargainee dernands 
 the Pvcntj and there is a Claufe of Re- 
 entry,
 
 entry, and then the Deed is enrolled, 
 the 'JBargamce cannot enter, becaufe 
 not compleat Grantee before Enrol- ow. 6% 
 ment'i if the Bargaiuor continues Pof- Noy 
 feifion after Enrolment, he is a Diffci- '°^' 
 for. If a Releafe be made to the Bar- 
 gai/jofy it feems it is good, and fliall 
 enure to the Bargainee. 
 
 W^zn tje (l^itrolment mtiff be, ants 
 of U)!)at. 
 
 The Enrolment muft be within fix 
 Lunar Months after the Date, excluding 
 the Day of the Date y and if the Deed z inft. 
 bears Date one Day, and be delivered ^74- 
 the next, or fome long Time after, yet 
 the Enrolment muft be within fix 
 Months after the Date. If the Enrol- 
 ment be on 'the Day it bears Date, it 
 feems it is well enough j for tbo* when i Leon. 
 an Intercft is given to commence from ^§4' 
 the Day of the Date, that Day is ex- 
 cluded J for the Grantee ought not to 
 take before the Intereft was defigned 
 him ; for that would be to the Preju- 
 dice of the Qra7itor ; yet where a Time 
 is given for a Thing to be done, if it Kob. 140. 
 be done before the Time, or before 
 that Space it was allow'd to commence 
 from, it is within the Reafon of the Al- 
 lowance of any Time, and fo feems to 
 \] a ' bo
 
 2 96 €>f Bargains ana ^aies. 
 
 a Roll l^e good ; and yet it would be good 
 Moor if i^ wci'G done the laft Day of that 
 jp. Time, as the laft Day of the fix Months, 
 
 ^y^^ excluding the Day of the Date, bccaufe 
 6.^ ' it is within the Time exprefly allow'd. 
 
 All Eftates of Freehold and Inheri- 
 671! ' • tance that pafs by Way oi ^argaiji and 
 7 Co- 40. ^ah\ muft be enrolled ; but Eltates for 
 Years need not ^ bat if a Ufe be dc- 
 iigned to be raifed to one upon valu- 
 able Confideration of Money, the Deed 
 Mich. muft be enrolled, tho' that Perfon was 
 Jj^^^' fuch a one that a Ufe would have rofe . 
 Watts c. to him, without the Confideration of 
 Dicks. ]y[oney j but if there be both a Cove- 
 Ji^Co?^ nant to ftand feized, and a Grant for 
 a4> 25 Money, if the Deed be not enrolled, it 
 will rife upon the Covenant. Lands, 
 (jc. in Cities and Boroughs that hav^ 
 the Privilege of Enrolment, are not 
 within the A<5t of Bargains and Sales^ 
 and need not be enrolled at all , for 
 the Intent feems to be that they fhould 
 be enrolled in the Cities and Boroughs^ 
 Dyer Y^t thefc are only Words to except 
 229. them out of the Statute, but none to 
 \ ^"^; , enforce the Enrolment in any other 
 ^/^' ^ Place. If the Courts of Weftmmfter are 
 adjourned to another Place, yet the En- 
 rolment muft be where the Courts are, 
 for it is confined to the Courts, and 
 not to Jfefimi7{fter itfelf. If a Man 
 
 has
 
 iDf Ji^atgaitts^ atiD ^aits. 297 
 
 has Power to revoke UJes, and he 5^r- ^ ^^<^"f' 
 gaws and i5'^//j- the Lands in Fee, it^^^' 
 feems this need not be enrolled. 
 
 €8e Cffea of a 'Batnaiit anti ^a(c> 
 
 A Bargaiu and ^y^/^ works no T>if- 9^0,100. 
 tout 17111 an ce j for at Common Law no- ^'^ ^^ ^ 
 thing but a t//^ paffed^ in which Cafe^. 
 it was Equity that no more (hould ^ Saund. 
 pafs than what lawfully might, and i j^nft. 
 the Statute executes the PoScfTion in 5^7,^3=1 
 the fame Manner as the tffe; therefore ^J^-^^"^; 
 if Tenant in Tail 'Bargains and Selh^^ 
 in Fee, nothing but an Eftatc defcend- 
 ablc, during the Life of Tenant in Tl 
 palfes i for by the Common Law there 
 is no Difcontinuance without folemn 
 Ad or Livery. If Tenant for Life 
 Bargains and Sells his Land to one and 
 his Heirs, the Bargainee has but an E- 
 ftate for the Life of the Bargainor, and he 
 is liable to forfeit or to be punifhed for 
 Waftc, and the like i but when Te- 
 nant in Tail bargains in Fee, the Bar- 
 gainee has an Eftate to hi7n "^ and his 
 
 * The Bargainee of a Tenant in Tail, has a hafe Fee 
 not determinedy nor determinable 'till the Entry of the If- 
 ffe. Salk. 619. I Sand. 260. Took /i»i Glafcock 
 was there denied; as alfo Lit. feft, 5 12. if literally 
 taken. 
 
 Heirs.
 
 098 £>f jsatgatns atto s^ms^. 
 
 10 Co. JJeirSy during the Life of Tenant in 
 
 ^^' Tail ,- but he is difpunifhable of Wafte, 
 
 and his Wife fhall be endowed j and 
 
 the Reafon of the Difference is bccaufe 
 
 1 Sand, that the Perfon that fhould take Ad- 
 -^^* vantage of thefe Things, has palfed 
 
 away all his Right ; a Bargai/iee can- 
 not vouch by Force of a Warranty. 
 annexed to his Eftate, becaufe he comes 
 
 2 Co. 125. ^"^ ^^^^ Toft y but he may rebut upon a 
 'J. Bargaiu and Sale of Lands, a Rent 
 l^f^ may be referved, becaufe the 'Pojeffiou 
 i intt. and Ufe palTes both together, tariquajn 
 ^75* eodem mfiaiul. The Bargainee of a Re- 
 cro^ >c. verfion cannot take Advantage of the 
 14^. Non-payment of Rent, upon a De- 
 8 Co. 92. mand, without giving Notice of the 
 
 bargain and Sale ; but it feems he 
 may have an Adion of Wafte and 
 Debt for Rent, without any Notice. 
 When a Man is. in PolTeirion, there the 
 Inheritance may be conveyed to him 
 I inft ^y ^^y ^^ Rcleafe ; and if a Man 
 ^^l.'a. makes a Leafe for Years, or for Life, 
 and then grants the Reverfion to C 
 for YearSj and the Tenant attorns, he 
 may releafe to the Gra72tee of the Re- 
 vcrlion, to enlarge his Eftate, So if a 
 cro. jac. -jyj^^ Bargains and Sells to one for 
 Years, he may releafe to the Bargainee 
 before Entry ; for he has PoflclTion by 
 Force of the Statute i fo if he Bar- 
 
 gaim.
 
 gai72S and 4S't//j' the Reverfion for a 
 Year, he may releafe to the ^Bargainee^ 
 for he has the PolTeflion in him by Force 
 of the Statute, without any Attorn- 
 ment i and this is the modern Way of 
 Conveying Lands. 
 
 A' defigning to convey Lands to B, 
 Grants^ T>emifes^ Bargains and Sells 
 them to C and before any Entry, re- 
 leafes them to C and his Heirs, to 
 the Ufe of B^ and his Heirs, the Lands 
 iliali pafs by Way of BargaiJi and Sale^ 
 iit res inagis oaleat^ (jc. And if C 
 afterwards chufes to take by Way of 
 Demife at Common Law ; yet that r Roll 
 {hall not deveft the Eftate of B. C. 7^?^ 
 being but an Inftrument to convey : 
 Every Bargain and Sale fliall be ex- 
 pounded indifferently between the Parties, ^ 
 and not like a Grant at Common Law, a. 
 moft againft thcGrantor i becaufe it was ^ ^^^^ 
 Equity that always made the Conftruc- 7^?;^ 
 tion of Bargains and Sales. A Freehold Loafcs 
 in Law paffes before Entry. -^ 
 
 pieatitno: of OBatpftt^E? anti %^W. 
 
 A Bargain and Sale by Deed inden- . jj,.^, 
 ted and enrolled, is but a Deed record- 235- *• 
 ed, and therefore in pleading, the Tro- l^^^^,J^' 
 f * muft be made of the Deed itfelf, 67?, 
 n- 1 not of the Tenor of it enrolled j 
 
 fo
 
 300 £>f Barsai'njs ann ^nus. 
 
 fo that if an Infant Bar^ams and Sells 
 Lands by Deed indented and enrolled, 
 yet notwithftanding that he may plead 
 his NoTiage; for it takes Effedl as a 
 Deed, notwithftanding the Enrolment j 
 but if an hifaiit binds himfelf in a 
 Bond, and afterwards enrolls it, he can- 
 not plead Nonage to it j for it is now a 
 Kecordj and it is turned into a Thing 
 of a higher Nature, the Effed of both 
 being the fame- but when a Deed is 
 had of Lands, in fuch Cafe Lands pafs 
 by the Deed, and therefore cannot af- 
 terwards pafs by Acknowledgment and 
 Enrolment* 
 inft. A Deed by the Common Law ought 
 
 '5-^ to be enrolled iov the Husband only, 
 ^ro. p. '\ ^^^ j^Q^ |-^j, ^l^g IVife; but if flie do 
 
 acknowledge it, it fhall not bind her. 
 If a Man acknowledges and enrolls a 
 Deed, Qii^re whether he may af- 
 terwards plead IJwefs ; for the ac- 
 •" inft. knowledging it afterwards is voluntary. 
 673. If a Man pleads a Deed enrolled, he 
 Cro. El. j^-j^^^ fhew in what Court it was en- 
 Bro. 52s, rolled i and becaufc it was not done, 
 8-fc. it was held ill, even after a Verdi(5t, 
 46?°L. t>ecaufc by the Statute the Enrol- 
 Yclv.zt5 ment is to be in fome certain Court,' 
 and therefore he ought to fliew it was 
 Cro. Tac. "Ccording to the Statute ; and the fay- 
 291. ing it was fecundin/i . formam Stat- is 
 
 not 
 
 Bro
 
 M iBatswins an5 ^aiCiS* 301 
 
 not fufficicnt j the E7irol7J2C7it is Matter ^ Co. 7. 
 of Record, and fliall be tried by the^'^^,-^, .,. 
 Record y but the Time of the Enrol- 2 Roll 
 ment is Matter iji paiSj and fliali be^'^P'"^' 
 tried by the Country,- but this, as it 
 feems, muft be underftood where the 
 Time of the Enrolment was not en- 
 tered upon the Record ; fcr where it is, 
 there it is proved of Record ^ for {ince 
 16 Eliz. the Pracftife has been to enter 
 the Time of the Enrolment ; and there- 
 fore it was refolved that where a Man ow. 15S. 
 made a Leafe for Years on the loth of ^^^o"* 
 Mciy, and 'Bargai72ed and Sold by Deed, \>^l'^ 
 dated loth of Jpril, and enrolled alfo 504. 
 as of that Time, that in fuch Cafe no 
 Averment could be taken, but that the 
 Deed was of that Time. 
 
 If a Man pleads a Bargain and Sale, 
 Qt^ure whether he need aver Payment 
 of the Money. 
 
 loor 
 
 Cf
 
 B 
 
 3D 2 
 
 M itmhnltnt Coni^ep^ 
 
 \Y the Coviino7i Law^ if a Man had 
 a Right and Title to a Thing, or 
 5 Co. 83. a juft Debt owing to him, he might 
 ^38- avoid any fraudulent Conveyance made 
 to deceive him of that Right or Debt^ 
 as if a Man had a Right to Goods, 
 and he that had them fold them by 
 Dyer Covin in Market Overt, to alter the 
 294, 1^0. Property of it ^ or if any paffes away 
 Goods to deceive a Creditor ; thefc 
 Ads might have been fet afide j but if 
 the Gift were precedent to the Right 
 or Debt, there was no Way, in fudi 
 Cafe to fet afide the Conveyance ; but 
 the 13 EL and 27 El. have remedied 
 thi.s Inconvenience ^ by Virtue of which 
 Laws all Conveyances made to deceivp 
 Creditors or Purchafers are void, as 
 again ft them ; and if Conveyances arc 
 made for good Confideration i yet if they 
 are made with a Dcfign to deceive 
 Creditors, they are void by thofe Sta- 
 tutes j and if made hojia fide^ if with- 
 out Confideration, they are alfo void, 
 as againft them j but it feems this muft 
 be undei flood with feveral Reftridions. 
 Ihus, a Man made a fraitdiilent Tiecd 
 of all his Goods to one of his Credi- 
 tors j and it was held within the Sta- 
 tute,
 
 tute, and void againft another Creditor. 
 Thus if one be indebted to feveral, 
 and then makes a Gift of all his Goods Cro- Car, 
 to his Son, in Confidcration of Natu- ^^^'^jj 
 ral Affc(aion, tho' this Gift be made Rep. 306. 
 hona fide^ yet it iliall be void againft ^ ^'^• 
 Creditors i but if it fliall be made be- j vcnr. 
 fore the Debts contracted and ho7ia fide^ 194- 
 it feems it would not be fet afide ^ ^^^^ Rep.' 119. 
 the Intent of the Ad was not to fet 
 afidc all voluntary Settlements; but if 
 a Gift be made upon any Triifly either 
 exprelfed or implied, between T)ouor 
 and Do/iee, tho' made bo7^a fide^ yet 
 it fhall be within the Statute ; for all 
 Statutes made for the fupprefllng of 
 Fraud are liberally expounded ; and 
 therefore the Word Forfeiture :i tho' 
 mentioned among Penalties, and the 
 like, fhall be expounded to extend to all 
 Forfeitures to the King and Subject. 50JS, 
 3. relieves Creditors, when their Debtors 
 fly to Privileged Places, having given 
 their Tenements and Chattels to their 
 Friends in Truft, and fo docs 2 R» 2, 
 Stat^ 2. r. 3. and by 3 //• 7. all Deeds 
 of Gift of Goods in Truft, for the 
 Perfons that made the Gift fhall be 
 of no Force. By the 27 Eliz. it is €71- 
 a^edy That If a Man fettles Lands to 
 Z/feSy with a Power of Revocation, and 
 afterwards fells the Lands for valuable 
 
 Confide-
 
 304 ifrattDttlettt €onUv^ntts. 
 
 Confideration, that the former Ufes 
 iliall . be revoked to him ; but the A6t 
 only mentions 'Pzir chafers ,- and there- 
 fore as to Creditors, if it were not 
 made with an Intent to deceive them, 
 it feems it fliall not be avoided by 
 them I for they are not mentioned in 
 the Ciaufe ^ and if a Man, having a 
 future Power of Revocation, Bargaijis 
 and Sells the Land before his Power 
 commences, yet it is within the Acft j 
 Moor ^^ ^^ ^^^^ Power of Re-twcatio7i be re- 
 605. fervcd, with the Confent of J, and he. 
 conveys his Land, not having revoked, 
 the Conveyance {hall be good. So if 
 one having a Power of Revocation, ex- 
 tinguiflics by Feoftment, and then fells, 
 the S^i/e fhall be good ,• for the Feoffment 
 comes within the Law of all fra?idu' 
 lent Con-jcyaiices. 
 
 If a Man makes a fraudulent Leaje^ 
 and then another ho72a fde^, without 
 Rent or Fine, the fecond Lelfee fliall 
 not avoid the fir ft Leafe j for no Pur- 
 chafer fhall avoid a former frandulent 
 CoU'VeyaiKe \ hut a Purchaicr for va- 
 luable Confideration, which excludes 
 all Confideration of Bloody and the 
 like ; and he that will, by Virtue of 
 tlicfe Ad>, avoid a former fraiu\iile7n 
 CoJi'-jtyance^ inuft be fuch a Purchaser, 
 and muft alfo come in without any 
 
 Travd 
 
 3 And. 
 ^\cor
 
 Fraud or Guile -y if a Gift be made to ^oor 
 deceive one Creditor, it is void againft ^ co. do, 
 all Creditors that are within the Sta-Gooche'i 
 tute j it is not neceffary that he that ^''■^^• 
 contraded the Debt fhould make the 
 fraudulent Convey a?ice i for if a Mafi 
 binds himfelf and his Heirs in a Bond, 
 and Lands defcend to his Heir, who 
 makes a fraudulent Co?weja7ice of thofc 
 Lands, the Creditor fhall avoid !t» 
 
 If a fratidulent Conveyance be made 5 Co. do. 
 to deceive ^urchafers, and one having ^* 
 Notice thereof purchafes the Land, he 
 fhall avoid the former fraudulent Con- 
 C'^j'JWf, notwithftanding his Notice ^ for 
 it is by the Statute made abfolutcly 
 void. The Father makes a Leafe to <5 Co. 72 "• 
 the 45*0^/, who makes a fraudule-at Jif- 
 fignment of that Leafe, the Father dies 
 the Son fells the Inheritance, the /^(?7^/^^^ 
 fhall avoid the Term j and if the Son loCo. ^7, 
 had only fold the Terra, the Vendee 
 Hiould have avoided that fraudulent 
 JffignmenL A Man makes a Jointure 
 to his Wife, with an Intent to deceive 
 Purchafers, they fliall avoid it, A 10 Co, f?. 
 Feoffment was made to deceive Cre- '^^ 
 d iters j and tho' by Event, the King was 
 cheated of his Ward, yet being only 
 to that Intent and Purpofe, it was not _^ 
 to be extended further. So a H.edemife to o|j. ^v 
 X A^ to
 
 306 iftauottient €on\>tviintts. 
 
 J, to the. Intent the Wife of the Te- 
 nant lliould not be endowed^ during the 
 Life of J, it is not to be extended to 
 any other Intent or Purpofe. 
 
 If Lands are given to the King, with 
 an Intent to deceive Turchajers^ the Pur- 
 chafer fliail avoid fuch Gift ; fo if a Re- 
 verfion be granted to the King, on Pur- 
 II Qo!^' pofe to hinder Docking the Reverfion, 
 74'* and the Tenant fuffers a Recovery, and 
 fells, and dies without Iflfue, the Tur- 
 chafer fliall hold againfl the King. 
 
 picaning^ teratinry to fraatiiilent €m 
 tiepancejs^ 
 
 5 Co. 6o. ^ fratidnhnt Co7i'veya?ice may be gi- 
 ven in Evidence upon the general If- 
 fue, and need not be pleaded. Covin 
 muft be pleaded exprefly by Averment,, 
 and cannot be prefumed ^ and therefore 
 in a Special VerdiB^ if the Jury find 
 fuch Circumftances in the Cafe, as 
 might very well have induced them to 
 joCo. 57 find Frauds yet if they dio not exprefiy 
 Yeiv.196- find it, it ihall never be prefumed. 
 Cro.jac. 't\iQ fraudulent Gift is good againft 
 Cro.El. every Body but Creditors, (jc» it ftands 
 «i9- between the Parties themfelves ,• for it 
 ^n^, feems by the Cafe of Hawes and Load- 
 A?8. ^r, that the Executors cannot main- 
 3 tain
 
 tain the PoflfelTion of the Goods againft 
 theT)o;ieej even tofatisfy Creditors ; but 
 q/wad the Creditors, they are all liable 
 in his Hands. One held of divers Lords 
 by Heriot Cuftom^y and to the Intent to 
 deceive one, made a Gift of all his P^"^ 
 Beajis Hcriotahk^ the Lord aggrieved i Leon, 
 brought his Adion for the Value of all s, 9' 
 the Beafts ; and held by two Judges 
 that it was well, and another co7it, and 
 by one that they ought to have joined. 
 
 A Man having a Leafe for Years, C0'.L't.5» 
 
 forges another for Ninety, and fells the 
 
 forged Leafe, and all Right and Title 
 
 to the fame, and his - Intercft in the 
 
 Land ; and altho' by the general Words, 
 
 his true Intereft in the Land palTed, yet 
 
 it was refohed he was not a Ttircha- 
 
 far for a valuable Confideration, within 
 
 the Statute j for the Purchafe and Con- 
 
 tradt was for the forged T^erm i tho' in 
 
 a Gift of Goods, if one continues the 
 
 PolfcfTion, it is a great Sign of Fraud ; i Rep. 5. 
 
 yet in Mortgages it is none at all. If 
 
 a Man fettles Lands in Truft upon 
 
 himfelf for Life, and then to his Child, 
 
 not fraudulent, and then for valuable 
 
 Confideration fells the Land to another, J^^ ep^o^, 
 
 ^lidre whether the former Conveyance 
 
 fhall be avoided during his Life ^ and if a 
 
 Man enfcofts others with Power of He-' 
 
 X 2 voca-
 
 3o8 ftmhvdtnt €on\)tv^ntt&; 
 
 mcatiofi^ and then covenants to ftand fei- 
 fed to another's Ufe^ who fells the Land, 
 the firft Fecffmeiit is not hereby avoided, 
 the Covenant to ftand feized^ being 
 only upon Confideration of Bloody which 
 is not a Confideration that will avoid 
 a precedent Eftate. A Woman Covert 
 purchafes Land with the Money llie 
 had in another's Name in T^rufi for he^ 
 the Truftee jacejis in extrefnis^ at her 
 Requeft makes a Leafe for two hun- 
 dred Years in ^nifi for her, upon Con- 
 ^deration, that if he fliould furvive 
 the Firft of Jtme^ and pay Twelve- 
 pence, the Leafe ihould be void j he 
 does furvive, but does not pay, ^nd 
 then for loo/. makes a Leafe to an- 
 other, without any Diredion from the 
 Fejne ; and whether the fecond Lejfee 
 lliould avoid the firft Leafe^ or no, was 
 
 ^51. the Queftion, but 7iot refohed, 
 
 A Man binds himfelf in a Bond to- 
 
 ^f^-J^^- pay Money, and then in a Statute ta 
 ^ ' ^"' make fuch a Conveyance, (^c. a frau-- 
 d7ik7it Co7rjeyance is made contrary 
 to the Dcfeafance of the Statute, tho' 
 the Conveyance be void againft the 
 firft Debtor, yet it is a Breach of the 
 Confidcration of the Statute, and he 
 fliall be fatisficd before the Debt upon 
 Bond, 
 
 •IF
 
 ftmmitnt €on\)tvmcts. 309 
 
 If one makes a Leafe for Years, 
 with a jPro'vi/h to be void upon 
 Payment of loj. this Leafc will be 
 void againft Turchafers ; but if it be 
 a Mortgage for a conliderable Sum 
 of Money, tho* it be in the Power of 
 the Mortgagor, yet it is not void. 
 
 So if one promifes a Wo?/m7i, before cro. jac. 
 Marriage to make her a Jointure of455' 
 1000/. a Year, and after Marriage 
 makes a Leafe to commence afcer his 
 Death, for i oo /. a Year, with a ^Prooifo 
 that on making the Settlement the 
 t-eafe fhould be void \ yet it was held 
 a good Leafe againft the ^Pur chafers. 
 And a <voluntary Settlement was held 
 void againft Tnrchafers, though there 
 appeared no Circumftances gf Fraud 
 in it. 
 
 A Leafe in Truft for his Daughter 
 and Heir to take the Profits to raifc 
 her a Portion, if ilie married with the 
 Confent of the Father, then in Truft 
 for her after Marriage, it was held to 
 be well enough, and not void \ for the 
 Marriage made it a good Confideration, ^ ^'^• 
 and the Man might have Refped to '^^* 
 that in marrying her. 
 
 So, tho' a Deed h^ fraudulent in its iSid.154. 
 Creation, yet by Matter ex poii faHo:, 5^^ ^' 
 jt may be good ; as it one makes a 25. 
 X 3 Feoff- 1 Co- 
 
 12X0
 
 3 1 o if rauDttlent €onUvmtts. 
 
 Feoffment for a valuable Confideration, 
 and then the firft Feoffee enters, and 
 he makes a Feoffment for valuable Con- 
 fideration, yet the Feoffee of the firft 
 Feoffee, fhall retain the Land. The 
 ro. 455- Concealing of a Conveyance will not 
 make it fraud/Jtyit j when upon re- 
 vealing it it appears to be good. 
 Hard. If ^ Settlement be made in Confi- 
 
 S9^' deration of the Marriage, the Confide- 
 
 I L.QO. 
 
 j^Q^ ration will fo far extend to all the E= 
 as 7, 8. ftatcs raifed, tho* not within the Sta- 
 tute, as to caufe that they fliall neither 
 be con(\:rucd fra?idi'jle/;t or vohmtary. If 
 Lands are fettled in Confideration of Mar- 
 riage, and a Portion, with a Power to 
 charge them with 2000/. which is done 
 by l^eafe and Keleafe^ the former Con- 
 veyance fhall never be prefumcd to be 
 frandi.ik7it^ and void by the laft, tho' 
 the Power be not flriCtly purfued as it 
 ought to be. 
 2 -Roll A Man makes a /r^r/J/z/d'///' Cofrjey- 
 Abr. 34. ance to prevent the Efcheat, and then 
 commits Iklo7iy\ the Land fiiall go to 
 the Lord ^ fo if one commits 'Jreafou 
 nine Days after the Conveyance up- 
 on his Son^ the Conveyance fliall 
 be prefumed Fraudide?n j otherwife, if 
 T. Jcncs it were made in Purfuance of an Agree^ 
 ^^' ment made before. A MdTi and his 
 
 JViJ'e fcized m Fee of Lands, in Kight 
 
 of
 
 iTratiOttlettt Contjevances* 3 1 1 
 
 of the Woman, in Confideration of the 
 Marriage of their Son, and 500/. paid 
 for a Portion, levy a Fme to the 
 Ufe of the Father and his Wife for 
 their Lives, then to their Son, and his 
 Heirs ^ Trovifo that it fhould be lawful 
 for the Father to revoke, with Con- 
 fent of four Perfons, the Relations of 
 the Sons Wife ^ the Father dies ,• the 
 Mother, without Confent, fells the 
 Lands for valuable Confideration to 
 other Perfons, it was held that the 
 Vendee fhould not avoid the Settle- 
 ment, the Power of Revocation being 
 very much out of the Power of them 
 to effe(5t; the Confent of fuch being ne- 
 cclfary over whom the Father and Mo- 
 ther could not be prefumed to have 
 any Power. Otherwife, if the Confent 
 were lodg'd with thofe Perfons, that may 
 be fuppofcd to be at the Difpofal of 
 the Perfons to whom the Power is re- 
 ferved. -r- Fines levied by Fraud fliall not 5 Co. 7 7, 
 bindi fee here feveral Cafes of Covin.- — 2 And. 
 A Sale in Market overt will not bind the J^'J^ 3,^, 
 Property of Goods. — Tenant for Life, 
 with Remainder to another in Tail, with 
 Power of Revocation, becomes indebt- 
 ed to the King, the whole Eftate is fub- 
 je<5t to the Debt, though there be no 
 Revocation 5 nor Averment of Fraud 
 X 4 made.
 
 P 1 2 funmitnt Contjepattces; 
 
 made.— 'He that makes a fraudulent 
 Gift within the Statute^ muft be the 
 fame Perfon that afterwards makes a 
 ^'^f^ Sale of the Lands. — A verbal Agree- 
 1 Vent, ment before Marriage, will be of Effe(5i 
 194' to prevent its being laid to hcfraudu- 
 ^'°' J""' km 
 
 454a (^'^f- 
 
 ^DDITI-
 
 ( 3»3 ) 
 
 ADPITIONAL 
 
 / 
 
 CASES 
 
 Inferted by the 
 
 EDITOR, which have been 
 adjudg'd fubfequent, in Time, 
 to thefe in the foregoing Trea- 
 tife y and a few others omitted 
 by the AUTHOR. 
 
 SIR ^ohn I're'vor^ late Mafter of 
 the Rolls-, being feizcd of the E- 
 flate in Queftion, which was the 
 ancient Eftate of the Family, and of 
 the Value of 239/. per Aniz, or there- 
 abouts, on his Marriage with Jane sw hi:. 
 TnlefiotZy Widow, enters into Articles '^''Jj^'"^.^ 
 on the Twenty-third of OEioher^ 1669. intended 
 with the faid Jane^ and with William ^^« ^"^ 
 Salisbury and Sir Richard Lloyd, as '^''*fi'"'> 
 her Truftees, whereby, in Confideration 
 pf the intended Marriage, and of the 
 
 Love
 
 3 1 4 Mtts mt) %m{ts. 
 
 in Confide- Love and Affediion he had and bore to 
 ""anZeL ti^e faid Jane, and the Heirs Male of 
 cd Mar- thclr two Bodics, he doth for himfelf^ 
 rw?''. his HeirSj Executors and AfTigns, co- 
 to^'^thl^ venantj promifc and grant, with the 
 Trnfieei, faid Truftces, their Heirs and AfTignSjthat 
 *fo^^Ig, he would, at his own Cofts and Char- 
 ges, before the End of two Years next 
 after the Date thereof, at the Requeft 
 of the faid Truftecs, their Heirs and 
 Affigns, fettle, convey and affure to the 
 faid Truftees, and their Heirs, as they 
 or their Heirs, or their Counfel fhould 
 dircd and appoint the Lands in Quef- 
 tion, to the fevcral Limitations and 
 Ufcs in thefe Prefents mentioned and 
 exprefled ; and alfo in the faid Settle- 
 iTicnt and Conveyance, as fhould be 
 agreed on by the lixid Sir Johji T're'vo>\ 
 William Salisbury and Sir Richard 
 Lloyd, and to no other Ufe or Ufes 
 r-5 ^''v tr<; whatfoever, 'viz. to the Ufe of Sir 
 of Sir IT. JqJj;^ ^recor for Life, without Impeach- 
 {r^r J X '^-^ent of Wafte, and after his Deceafe, 
 Ufe of Kii to the Ufe of the fiid Jane Ttdeflorz^ 
 
 intended f j^^^. ^jp ^j ^^.^^ '^^^ DcCCafe tO 
 
 Life, Re- the Ufe of the Heirs Males of the Body 
 P!ab7de^ to of the f lid Sir Joh/i Trezw, upon the Body 
 fhe Tin of the faid Jane Ttdeflofi to be begot- 
 MaUi of ten, and the Heirs Males of fuch Heirs 
 !f%fr% ^^^^^ iH'uingi and for Default of fuch 
 1ntbeBo'lii\^i to the Ufe of fhe Right Heirs of 
 
 Sir
 
 Sir John I'revor for ever, with a Qo-^y°fthe 
 ycnant from Sir Johji T^re'vor, with the ^kJ for ' 
 Truftees, and their Heirs, that the faid £><?/««/* of 
 Preminfcs fhould remain to the Md Jaiie {^f^'"^'/" 
 ^tilefton^ during her Natural Life, af- nehi^f 
 ter the Death of the faid ^\rJohiiT^re'vo]\ *^^ ^^'^'^' 
 free from all Incumbrances, and a Co- "'^''J/r 
 venant in the Words following: Andj.T. /«).. 
 the faid Sir ^ohn Jrevor doth'^further. *^'"' ^"'"'r, 
 
 r \ • 1 I ■ T T • 1 vants with 
 
 tor him and his Heirs, grant and agree the Tm- 
 to and with the faid Will, Salisbury and /^^^' '^^-^^ 
 Sir Richard Uqyd^ their Heirs and AC- J"^ ^y(^ 
 figns, that in Cafe the Ufes and Li mi- before are 
 tations in thefc Prcfents are not here- ^"y^'-!/ 
 ^fter well and truly raifed, according \hat \he 
 to the true Intent and Meaning of thefe /^'^ J- f- 
 Prefents, that then the faid ^ Sir Job/^ j^'^'/Zfi 
 l^re'vor^ and his Heirs, ilia II ftand and a further 
 be fcifed of all and fingular the faid Pre- f^i'"'^f « 
 
 • rr ^"1 r 1 rr-i- » r » "^ made to 
 
 millcs, until lucn Time that a rurtncr the fame 
 Aflurance of the faid PremiiTes be made, ^V^i- 
 to fuch Ufe and Ufes, Intents and Pur- ^J;'^ ^7 
 pofes, as herein before-mentioned, ex- 'r^vuhout 
 prcffed and declared ; and foon after the ^^'^'" **' 
 Marriage took Effed, and Sxxjohji had ^^J^^ 
 llfue by the faid Ja^^e^ the Piaintift", ^^'^'^wewf. 
 his eldeft Son, the Defendants, three f"'. ^' ^' 
 
 ' ' levies a 
 
 younger Sons, and two Daughters ; Vwe, ar.i 
 thefe Articles were laid by for feveral ''' """i'', '• 
 .Years, and nothing further done upon vithhZn^ 
 them j but in 1692. Sir 'John T^re'Vor decUtrei 
 levies a Fine of thefe Lands ; and the ''■''' ^^"* 
 
 two
 
 ■^ 
 
 16 Mits mt}%mtts. 
 
 two Truftees being dead, without ha^ 
 ving ever requefted a Settlement, the 
 Plaintiff, feme Time after this Fine, 
 marries again ft his Father's Confent, 
 and b)^ fevcral other A6ts of Weaknefs 
 £ind Difobedience, became fo obnoxious 
 to his Father, that 29 Septe?/ih, 1699 » 
 Sir '^ohn I'reivr makes a Deed, where- 
 in he recites thcfe Articles, that he had 
 thereby agreed to fettle and convey 
 thcfe Lands to the Ufe of himfelf for 
 Life, Remainder to the faid T>aine 
 y,a7ie his Wife, for Life, Remainder 
 to the Heirs Males of his Body, on the 
 Body of the faid Dame Jane to be be- 
 gotten i and reciting that his Son Ed- 
 ivard (the Plaintiii) was very weak and 
 difordeicd in his Underftanding, and 
 that all jMcthods to improve him had 
 been inefl'ecluai ; and alio reciting, that 
 he had married with a ftrange Wo- 
 man, and thereby brought Difgrace on 
 his Family, to the Ruin thereof ^ and 
 that he was of a furious Spirit towards 
 his Brothers and Sifters i therefore, and 
 for feveral other Caufes and Conlidera- 
 tions. Sir Johu declare^ that it was the 
 Intent and Meaning of the faid Parties, 
 at the Time of levying the faid Fine, 
 that the fame fhould be and enure to. 
 the Ufe of himfelf for Life, without 
 Impeachment of Wafte, then to the 
 
 Ufe
 
 Ufe of the faid Dame ^ane for Life, 
 Remainder to the Delendant, yohi 
 Tre'vor, his fecond Son, and the Heirs 
 Males of his Body, with like Remain- 
 ders to Jrthur and Tudor T'revor^ his 
 two youngeft Sons, with Remainder to 
 his own Right Heirs ,- and a Tromfoy 
 that if any of his three younger Sons 
 ihould marry without his Confent, that 
 then he fliould have Power to demife 
 or leafe the faid Premiflcs for the Term 
 of 500 Years, referving Rent, or no 
 Rent, as he thought fit, to any Per- 
 fon or Perfons he fhould think fit ,- and 
 on the 1 6th of O^oher next follow- 
 ing, he makes the like Settlement of 
 other Lands, of the Value of 630/. pei' 
 Jnn. and upwards, and the Twentieth 
 of Maj-i ^1^1* dies inteftate, leaving a 
 Perfonal Eftate to the Value of about 
 40000 /. and alfo a Real Eltate in Ire- 
 land^ of the yearly Value of 750/. or 
 thereabouts, being let out on Leafes for 
 Lives, and worth to be fold, about 
 24000/. and alfo fome new purchafed 
 Lands in England^ of the Value of 
 300/. per Ann, or thereabouts, and by 
 his Death the new purchafed Lands, 
 and the Eftate in Ireland^ defcended to 
 the Plaintiff, his eldcft Son, who alfo 
 became entitled to his Share of the Per- 
 fonal Eftate, which amounted to up- 
 wards
 
 3 1 8 tsifes atio %mtts, 
 
 wards of poco/. After his Death John 
 'Tre'vor entered on the Lands fettled on 
 him, as aforefaid, for which he being 
 provided for beyond his Share of the 
 Perfonal Eftate, could have no Part 
 thereof, by Reafon of the Statute of 
 Diftributionsi and this confiderably aug- 
 mented the Shares of Edward the eld- 
 eft Son, and the other Brothers and 
 7^eP/^;»- Sifters ; notwithftanding virhich, the 
 fdljitn. Plaintiff, the eldeft Son, brought his 
 hroueht bis'2ii\\ to havc the Truft performed, and 
 BiU^ to ^ fpecifick Execution of thefe Articles, 
 fpecifck and that the Lands coniprifcd in the 
 Execution Articles may be conveyed to him, and 
 Arhcfes, ^^^ Heirs Males of his Body, according 
 to the Purport of the faid Articles, and 
 to have a Difcovery of the Deeds and 
 Writings, and an Account of the Rents 
 and Profits from the Time of his Fa- 
 ther's Death. It appeared that thefe 
 Articles had been thrown by for feve- 
 ral Years as ufelefs, and were, after 
 Sir Joh/i T^re'vors Death, found at the 
 Bottom of an old Trunk ; but the 
 Plaintiff having gotten the fame intd 
 his Cuftody, brought this Bill for a 
 fpccifick Performance thereof 
 
 For the Defendants it was infifted, 
 that though by the firft Part of the Ar- 
 ticles they feemed to be only execu- 
 tory, yet by the laft Part, by the Co- 
 venant
 
 M(ts atio XxnRS^ 3 1 9 
 
 vcnant to ftand feifed, that they were ^"^ t^e 
 adually and immediately executed ;^tjf^f^ 
 that he thereby covenanted to i\.?ind Settlement 
 feifed to the before-mentioned Ufes, ^^Jj"^^^^ 
 till a Settlement was made thereof /&e u/-«'* 
 accordingly; that no fuch Settlement ""^'w'^^'' 
 having ever been made, the Ufes con- [°J^^^ 'l^ 
 tinued to be executed by Virtue of that virtue cf 
 Covenant i that by thefe Ufes he ^^^^^oveniit - 
 plainly Tenant in Tail, then by the^^/7j&«/ 
 Fine had bound his lifue^ and made*;' tH^ 
 himfelf Mafter of this Eftate, which he,^^';^f^^.^„ 
 might fettle and difpofe of as he thought ly Tenant 
 fit; that he was Tenant in Tail, ^p-'^'^/^f' 
 peared from this, that if a Settlement X Fine 
 had been made purfuant to the very had bound 
 ■U^rds of the Articles, he had an Eftatc- 't'. ^iZl 
 
 .,._p , ', , «w« made 
 
 tail m himfelr ; that wherever the An- him/eif 
 ceftor takes an Eftate for Life, and af- ^^''^'Ijf 
 terwards in the fame Deed, a Limita- ^;,;,/ "J/* 
 tion is made to the Heirs Males or Heirs ^{q^t fet- 
 Females of his Body to be begotten ; Jf'J^f 
 that in fuch Cafe the Heirs Males, or^/. 
 his Heirs Females take by Dcfcent, and 
 not by Purchafe ; that this is a known 
 and ftanding Rule of Law which has 
 never yet been fhaken ; that the Limi- 
 tation after to the Heirs Males of fuch 
 Heirs Males was Tautology, and of 
 no Ufe ; that it was faying no more 
 than what the Law would have fiid 
 without thofe Words ; and therefore.
 
 3 2d MttS ^ttO %mit8. 
 
 if there were two fuch Limitations one 
 after another, they would not impeach 
 or controul the nrft Limitation ; and 
 this appears clearly by She/leys Cafe, 
 *J/cafe, I Co. and in a Cafe of * Legat and 
 infra Le*t- Sewell in this Court, where the Judges 
 *caff'^ of C. B. by Certificate under their 
 refortld Hauds, gavc their Opinions according- 
 cone*, ly^ that the Settlement being adually 
 executed, the Law was open, and the 
 Plaintiff had no Occafion to come into 
 this Court for a fpecifick Execution of 
 what was already executed ; that this 
 was plain from the Covenant, that the 
 Wife fiiould enjoy during her Life, free 
 from Incumbrances j and this Covenant 
 does not go to the whole Eftate agreed 
 to be fettled, but only to the Eftate 
 for Life of the Wife ,• that if the Ilfue 
 were intended to take as Purchafers, this 
 Covenant would have been extended to 
 the whole Eftate, as the Iftue under this 
 Marriage Contradl were Purchafers of 
 it, as well as the Wife i but the Heirs 
 Males of the Body of Sir Johfi T're'VOfy 
 coming in only by Virtue ofthelntail, it 
 would have been vain and idle to have 
 carried that Covenant beyond the E- 
 ftate for Life of the Wife, beCaufe it 
 would only be a Covenant for himfelf, 
 that the Claufe without Impeachment 
 of Wafte did not neccffArily argue an 
 3 Eftate
 
 iEftate for Life in Sir Johu Tre'vor ; that 
 it was for the Sake of the intervening 
 Jointure to his Wife, which would 
 have obftru6ted that Power without ex- 
 prefs Words j and he might have been 
 enjoined for Wafte in this Court, for 
 the Prefcrvation of her Jointure, if he 
 had not referved to hinifelf an exprefs 
 Liberty of committing Wafte ; that this 
 Court was not bound in all Cafes to 
 carry Articles executory (^admitting this 
 were fo) into Execution ,• that if the 
 Nature and Circumftance of the Cafe 
 were fuch as to make it unequitable 
 and unconfcionable, this Court would 
 never decree a fpecifick Execution of 
 Articles,- that in this Cafe it was un- 
 reafonablc to ask AfTiftance of this 
 Court, when fo much greater Compen- 
 fation was to come to the Plaintiff ,• 
 that by the Defcent of fo a Real Eftate, 
 and the Acceflion of fo great a Share 
 of the Perfonal Eftate, the Plaintiff 
 was abundantly recompcnfed for the 
 Value of the Eftate in Queftion ,• that 
 it was in Sir Johu T^re'Vor^s Power 
 to have prevented them of either, and 
 his not doing it was equivalent to an 
 exprefs Devife thereof to him, and there-- 
 fore ought to be looked on as a Satif- 
 fadion^ that in the Cafe of Bkindy 
 Wigfuor^y ia this Courtj where the Hu(^ 
 Y band.
 
 322 Mits ann %xvi^8^ 
 
 band, before Marriage, gave a Bond to 
 leave his Wife worth 500/. if fl-iC fur- 
 vived him j and he afterwards died inr 
 tefbite ; and her diftributive Share came 
 to above 500/. this was adjudged a 
 Satisfaction of the Bond; that Sir Johu 
 'Jre'vor plainly took it, he had a Power 
 over this Eftatc^ that his Judgment 
 was fo well known, that he never 
 would have attempted it, if he had 
 not thought it clear ^ that the Dif- 
 obedicnce and Behaviour of his Son, 
 the Plaintiff, were fuch, as put him un- 
 der a NecelTity of confidering the Na- 
 ture and Extent of his Power over this 
 Eftate i and fince he, who was fo good 
 a Judge in Cafes of this Nature, had 
 difpofcd of the Eftate, this Court would 
 prefumc he had Power fo to do, and 
 that the Motives of his Proceeding here- 
 in were juft and warrantable. 
 But de- .4-But notwithftanding thefe Reafons, it 
 cyeed for^ ^^^5 agrccd for the Plaintiff i my Lord 
 Ilk ^^^ Chaficellor faid, this ought to be con- 
 fidered now as if this Bill had been 
 brought within two Years after the Ma- 
 king of the Articles ; that if a Bill had 
 been then brought, there could have 
 been no Doubt but that a Settlement 
 mufl have been decreed purfuant to the 
 Intention of the Articles ; that upon 
 Articles the Cafe was ftronger than on 
 I a Will
 
 a Willi that Articles were only Minutes ^"r the 
 or Heads of the Agreement of the Par- /^f ^^ 
 ties, and ought to be fo modelled when cies was 
 they come to be carried into Executi- ^J'ff ^"^ 
 on, as to make them effedual ; that la-u'e^bln'^ 
 the Intention of the Parties was only an Ejiate 
 to give Sir Johu T'remr an Eftate for ■^'"' ^'^^' 
 Life,- that if it were otherwifc, it would 
 have been vain and inef]fed:ual j and it 
 would have been in his Power, as foon 
 as the Articles were made, to have de- 
 ftroyed them ; that then the Confide- 
 ration of Love and Affedion which he 
 had to Jane^ and the Heirs Males of 
 their two Bodies, would have run thus i 
 that he did, in Confideration thereof, 
 fettle an Eftate on himfelf, which he 
 might give away from his Heirs Males 
 whenever he thought fit ^ that this was 
 much ftronger, by Reafon of the Li- 
 mitation, and to the Heirs Males of 
 fuch Heirs Males iifuingj that the Con- 
 ftrudion contended for by the Defen- 
 dant, would make thefe Words per- 
 fedly ufelefs and idle ; that he did in- 
 deed admit it to be fo reported in Shel- 
 lejs Cafe, i Co. but he faid, \fi^ That 
 was not material to the Principal Point 
 in Qiieftion there, idl)'^ That in Jn- 
 derjhis Report of that Cafe, nothing 
 like it was taken Notice of, and he 
 faid, that few or none of the Points 
 Y 2 reported
 
 324 Mtts ano %mtt8. 
 
 reported by Lord Cook:, were the Re- 
 folutions of the Court. 3 J/y, That the 
 Reafon of the Cafe was, for that if 
 it had veftcd in the el deft Son by Pur- 
 chafe, and that Heirs Males of the Bo- 
 dy fhould have been a Defcription of 
 a Perfon i that then, if he had died 
 without llTue, there had been (as was 
 then held) an Eftate-tail, and none of 
 the younger Sons could have fucceeded 
 itj but this has been held otherwife 
 (ince that Time, and a Judgment in 
 Point, in Carters Reports^ (as he re- 
 membered) that the Eftate-tail fhould 
 go to all the Sons fucceifively, notwith- 
 ftanding its vefting in the eldeft Son by 
 Afjd a Purchafe ; that he did not know how 
 plain In. ^|^^ q^^q q£ Lc^cit and Sewcll was i but 
 
 tent of the .„ . -^ i i i i . -I 
 
 Articles to ii it wcrc as citcd, he thought it not 
 maize the L^iw j that tlic Intention of the Arti- 
 ^lati^ar- ^^^^ '"''^^^ plain, to make the IlTue of that 
 riage p«*- Marriage Purchafers ; that they were 
 chafer, whollv relative to a fubfequcnt Settle- 
 
 That the •' , i i . i ^ a 
 
 other Vfes mcut to bc made, that the Agreement 
 nvithin to fettle to the Ufes therein, and alfo 
 Zlted^t'o in the faid Settlement to be agreed up- 
 beraifed on, could ouly bo intended to fuch 
 by theAr- other UJes as were necclTary to make 
 mt"to he' the Settlement effc(5lual ,• and that it 
 repugnant could ncvcr be intended other Ufes 
 7o 7heA?- iiiconfiftent with, and repugnant to thofe 
 tides. Articles j that if that had been their 
 
 Intent^
 
 MttS atlD %XVittS. 32^ 
 
 Intent, it had been in Eflfed but Agrees 
 ment with the Truftces to fettle thofe 
 Lands as he thought fit ; that the other 
 UJes to be agreed upon, mud: not be 
 fuch as would overthrow the prefent 
 Ufes^ but fuch as would eftablifh and 
 fupport them,- that this could only be 
 by a Limitation to Truftees to fupport ...<.., 
 the contingent Remainders; that this contingent 
 Limitation to the Heirs Male of his W" there 
 Body was in Effect but a Limitation to ZiTb"el * 
 his firft and other Sons; and if the Ar- tiepoyed by 
 tides had been fo penned, would not ^^ ^"^»^ 
 this Court have decreed a Limitation to of chan- 
 Truftees to preferve them ? or if by ^^7 -^"^^ 
 Fine, or otherwife, they had been de-^^j^^-'^' 
 ftroyed before they took Place, would agaitt. 
 not this Court have fet them up again ? 
 that the Limitation to the Heirs Males 
 of his Body, upon thefe Articles, was 
 but a contingent Remainder, and yet 
 fuch as within the Intent of the Par- 
 ties ought to be preferved ; that the 
 Covenant to ftand feifed was until fuch 
 Time as the Ufes therein were well 
 and truly raifed, according to the 
 true Intent and Meaning of the Arti- 
 cles ; that if a Settlement had been 
 made Defedive in any Particular, that 
 would not have been final or conclu- 
 five ; that a fecond Settlement muft 
 have been made till the Ufes therein 
 Y 3 were
 
 326 Mtts atitj %mfts. 
 
 were well and truly raifed, according 
 to the true Intent and Meaning of the 
 Articles i that if a Settlement had been 
 made Defective in any Particular, that 
 would not have been final or eonciu- 
 iive^ that a fecond Settlement muft 
 have been made till the Ujes therein 
 were well and truly raifed ; that this 
 Covenant for ever fubfifted till fuch 
 Settlement were made ; that he did not 
 believe it was Sir Johfi Ire'vor's Opi- 
 nion, that he was abfolute Maftcr of 
 this Eftate, and might difpofe of it as 
 he thought fit ; that if that had been 
 his Opinion, he would have thought it 
 fufficient to have levied a Fine thereof, 
 without tranfmitting down his Son to 
 Pofterity with fuch a Blemilh ^ that the 
 Reafon of that could only be to dif- 
 courage his Son from attempting to 
 break in to the Settlements he had 
 made of this Eftate ^ that if it were 
 otherwife, he thought it no Imputati- 
 on on Sir Johu Ire'vors Judgment ; 
 that the Provocations he might be un- 
 der from his Son's Difobedience and Mif- 
 bchaviour, might fo far biafs his Judg- 
 ment, as to incline him to think he 
 had Power over this Eftate, that 
 he would not look on tliefe Settle* 
 ments in 1 699. as made by Sir Joh/^' 
 'Trevor^ Mafter of the Rolls^ but as 
 
 made
 
 mus atiD %tttft8. 327 
 
 made by a Father, provoked by the 
 undutiful Behaviour of an eldcft Son ; 
 that he hoped never to fee the Time 
 when this Court ihould fo fir have 
 Power as to judge what Behaviour of a 
 Son fhould amount to a Forfeiture of 
 his Eftate ,• and therefore thought, if 
 the Settlement had been made, no Mif- 
 behaviour of the Son could amount to 
 a Forfeiture of it j that as to the Eftate 
 defcended on the eldeft Son, this came 
 to him by Accident, it was not given 
 to him by his Father in Satisfadion of 
 the Articles ; and there may happen a 
 Cafe where no Eftate at all may dc- 
 fcend to an elded Son ,• and if a Father, 
 upon fuch Articles iliould have Power 
 to defeat an eldcft Son, and leave him 
 no other Provifion, it would be of dan- 
 gerous Confequencc to eftablilli a Pre- 
 cedent of fuch a Power ; that tho' the 
 eldeft Son in this Cafe happened to be 
 well provided for, fo were the younger 
 Sons too i and ^s they were fufficiently 
 provided for, there was the lefs Reafon 
 to take away this from the Eldeft j that 
 this Eftate being fpecificaily agreed to 
 be fettled, it was a Truft for the eldell . 
 Son, which he came here to have an 
 Execution of, and not to have a Re- 
 compence or Sdtisfa<5tion for it ,• that 
 this Traft paifed with the Lands into 
 Y 4 whofe
 
 32S M(ts atiD %tnft6. 
 
 'And there- wliofc Htinds focver they came, and 
 tyam?"' could not bc defeated by any Ad of 
 Zas de- the Father, or the Truftees i and there- 
 creed to he ^^^^ dccrccd a Convcyance to the Plain- 
 'tuThin' tiff, and the Heirs Males of his Body, 
 i'^^ '^"^ and an Account of the Profits from the 
 the Heirs p^.j^^j.^^ Death, and the Deeds and Wri- 
 
 his Body; _ tings to be dehvered up. Trtn, iji9* 
 and an bctwccn T're'vor and Tre'vor, This Dc- 
 ff'ThTpro- cree was affirm'd in the Houfe of Lords. 
 
 fts from 
 
 fbe Father i Veath, and the Veeds^ &c. to be delivered up. 
 
 Hill 1 1 Geo. in Chancery. 
 
 Modern 'T^^HE Father of the Tlai7mf^ and 
 Cafes ill J^ the T>efenda7it^ in Confideration 
 EqTuty, of his Marriage with their Mother, 
 sd Parfj and of a Portion in Money, did in the 
 1^^' Year 1673. article to fettle his Eftate 
 to the Ufe of himfelf for Life^ then to 
 /:'// inte?2ded Wife for Life, then upon 
 'Tr^ifteeSs to preferve continge7it Kejnain' 
 de^'j^ then to the fiji Sofi of that Mar- 
 riage, and to all and every the Sons, 
 drc. in Tail Male^ with feveral Kemaiii- 
 ders over, with Power to make a Join- 
 . ture to any Wife of loooL per jinn, and 
 a 'Prot'ifo that it fhould be law^ful for 
 him, by and with the Confent of the 
 Truftees, to fell tke Eftate, and with 
 
 the
 
 Witts auD Xtn^s. 329 
 
 the Money ariiing by fuch Sale, to pur- 
 chafe other Lands, and to fettle the fame 
 to the like Ufes^, as in the faid Deed, 
 dated Jum 1673. 
 
 Afterwards the Father fold the Lands, 
 and with the Money purchafed other 
 Lands, now in Queftion ,• and in the 
 Year 1692. he fettled the new purcha- 
 fed Lands, by and with the Confent 
 of the Truftees, in the firft Settlement, 
 to the life of himfelf for Life, Re- 
 mainder to the Defendant for Life, 
 {who hy the firft Settkme/it had an JB- 
 ftate-taily Remainder to Truftees, to 
 preferve contingent Remainders, then 
 to his firft and every other Son in Tail 
 Male, with feveral Remainders over, 
 with a Power to make a Jointure to 
 any Woman he fhould marry, of the 
 yearly Value of 600I, and foon after 
 the Father died. 
 
 Then the Defendant, who was his 
 eldeft Son, in Confideration of his Mar- 
 riage, and of a Marriage-Portion by 
 Deed, dated 1698. conveyed the new 
 purchafed Lands to Truftees to the 
 XJfe of himfelf for Life, then to his 
 intended Wife for Life, then to Truftees 
 to preferve contingent Remainders, then 
 to his firft and every other Son in Tail 
 Male, with feveral Remainders O'ver, 
 
 The
 
 330 Wites atin Xtutts. 
 
 The Defendant, T'homas Ree'veSy ha- 
 ving only a Daughter, and no IlTue 
 Male by his faid Marriage, would now 
 fell thcfe Lands, alledging that the 
 Remainders limited to the IlTue Male, 
 were oohmtary^ not being within the 
 Conlideration of the Settlement made 
 by him in the Year i6p8. 
 
 Therefore this Bill was exhibited by 
 the next in Remainder to obftrud the 
 Sale, and to oblige the Trufl.es to en- 
 ter to preferve the contingent Remain- 
 ders, and that the Deeds and Evidences 
 may be brought into Court to know 
 how the Title ftands, he fuggefting that 
 by the Marriage Jrticks of their Fa- 
 ther, dated J?mo 1673. he covenanted 
 to fettle his Eftate, as aforefaid, but 
 with a Provifo to fell the fame, by 
 and with the Confent of the Truftees, 
 and to purchafe other Lands, and to 
 fettle them upon the fame Ufes^ as in 
 the firft Settlement, cJt. 
 
 And it was argu d for the Defendant, 
 that the Settlement in 1673. made up- 
 on the Marriage of the Father, both 
 of the Plaintiff and Defendant, though 
 mentioned to be by Articles only, was 
 and is a good Settlement, by Way of 
 Co'vefiant to ftand feifed^ and that the 
 Defendant is by the exprefs Words of 
 that Settlement, made Tenant in l^ail 
 pf the Lands fold, and the Provifo be- 
 ing
 
 M(t& atiD %mtts, 331 
 
 ing to fettle the new purchafed Lands 
 to the fame UfeSy as in the firft Settle- 
 ment, it was not in the Power of his 
 Father to make him Tena7it for Life^ 
 by any other Settlement wh?tfoever ; 
 fo that he muft (till remain 'Te7icmt i7t 
 T^ail of the fiew purchafed Lands^ and 
 that Settlement made by his Father 
 in the Year 1692, when he purchafed 
 thofe Lands as far as it crofTes the Li- 
 mitations in the firft Settlement is en- 
 tirely void, being 'voluntary ; fo that 
 the Settlement made by the Defendant 
 in the Year 1698. upon his Marriage, 
 is good, and fuch of the Lands which 
 are not contained in that Settlement, 
 the Defendant may fell, and the Plain- 
 tiff hath no Right to conteft the Sale, 
 even of thofe Lands, he being no Ways 
 within the Conlideration of that Set- 
 tlement. 
 
 On the other Side it was infifted for 
 the Plaintiff, that this Settlement made 
 by the Father, in the Year 1692. of 
 the new purchafed Lafzds^ appears on 
 the very Face of it, to be made in 
 Confideration of the Settlement made 
 by him in the Year 1673. which tho' 
 mentioned to be by Articles j yet ftrid- 
 ly fpeaking, thofe Articles amounted 
 to a Co'vena72t to fta7id feifed^ and the 
 Settlement made in 1692, being in 
 
 Execu"
 
 332 MftS atlD %t\ltt8. 
 
 Execution of that Covenant, and ac- 
 quiefccd under ever fince it was made, 
 niuft be now taken as a full and entire 
 Execution of that Covenant ; and tho' 
 the Father could not be compelled by 
 a Court of Equity to make the Defen- 
 dant T^e/iaut for Life^ who by the 
 firft Settlement was ^eiiajit i?i T*ail^ 
 yet the Father having of his own Ac- 
 cord, and with the Confent of the 
 Truftees, made this Settlement, and 
 no Objcdlion made to it, during his 
 ' Life, the Defendant fhall not be ad- 
 mitted to fay it is not good, it not cor- 
 refponding with the Provifo in the firft 
 Ssttlemcnt. 
 
 This is not the like Cafe of Jfakely 
 againft Wcikelj^ where the Father on 
 his Intermarriage, (^c» articled to con- 
 vey his Eftate to the Ufe of himfelf 
 and his Wife, for Life, Rewamder to 
 the Heirs of their two Bodies i and af- 
 terwards he had Iflfue a Son, who com- 
 ing of Age, the Father, by his Laft 
 Will, which he mentioned to be in 
 Execution of the Articles, devifed the 
 Eftate to his Son for Life^ Remainder 
 to his firft and every other Son, cJr. in 
 Tail Male, with feveral Remainders 
 over, and afterwards the Son brought 
 his Bill in this Court, to be relieved 
 againft this Devifc, it not correfponding 
 
 with
 
 with the Articles,- and the Court de- 
 clared that tho', by the Equity of the 
 Jrticles^ the Son ihould be T'e7iant in 
 T'ail i and if he had fued in this Court, 
 to compel the Father to an Execution 
 of the faid Articles, the Court would 
 have decreed an Eftate-tail to him j yet 
 if the Father, by the Confcnt and Ap- 
 probation of the Truftees, had made 
 fuch a Settlement, this Court would 
 never fet it afide. 
 
 , But in that Cafe the Father had done 
 it by his Laft Will, without the Con- 
 fent of the Truftees, and without the 
 Confent of the Son, who was then of 
 Age, and by that Means the Son, ha- 
 ving no Power to make a Jointure, or 
 any Charge on the Lands, to make 
 Provifion for the younger Children, that 
 Devife was fet afide. 
 
 But in the Principal Cafe, the Set- 
 tlement in 1692. was made by the Con- 
 fent of the T!ruftees in the firft Settle- 
 ment, which is therefore good, and a 
 full Execution of the Covenant in that 
 Settlement. 
 
 And fo is Mathews s Cafe^ who by 
 his Father's Marriage Articles, was 
 made '[feiiant 171 T'ail ; but fome Time 
 afterwards the Father made a Settle- . 
 ment, by which Mathews . was made 
 tenant for Lifs^ vvith a Power to fet- 
 tle
 
 334 ^f^sf ^ttO %m&s. 
 
 tie a Jointure of 600/. a Year, on any Wo- 
 man he fhould marry; and being about to 
 marry, it was the Opinion of feveral emi- 
 nent Lawyers, he could make no greater 
 Jointure j for tho' he was T!enant in Tail^ 
 hy the Jrticles ,• and if it refted there, he 
 might have made what Jointure he 
 thou gilt fit, yet hei7ig Tenant for Ijife^ by a 
 fubfequent Settlement varying from the 
 Articles, he could not make the Join- 
 ture beyond 600/. i^er Annum^ and 
 thereupon he applied to the Parliament, 
 and obtained an Ad to make up the 
 Jointure 1000/. per Anntnn^ but that 
 his Eftate in PolTeflion, and all the Re- 
 mainders over, fhould continue as be- 
 fore. 
 
 Next, the Counfel for the Plaintiff 
 cited the Cafe of Bmto7i againfl Hafi- 
 ingSy in this Court, which was thus, 
 {fviz») By the Marriage Articles the 
 Wife's Eftate was to be fettled on the 
 Husband and Wife, and on the Heirs 
 of their two Bodies to be begotten, and 
 afterwards it was fettled to the Ufe of 
 the Husband and Wife, during their 
 Lives, Remainder to the firft and eve- 
 ry other Son of the Husband in Tail 
 Male, Remainder to the Heirs of the 
 Body of the Wife j they had no Son, 
 and but one Daughter, the Husband 
 died, aod the Widow married again, 
 
 and
 
 mtts anti icmfts. 335 
 
 and then the Husband and Wife joined 
 in a Fine, and fettled the Eftate to 
 other UfeSy thereupon the Daughter 
 exhibited her Bill, and prayed Relief 
 on the Articles j becaufe by the Equity 
 thereof, the Husband and Wife ought to 
 be but T'enants for Life^ and the fub- 
 fequent Settlement could not enlarge 
 the Eftate of the Wife to an Eftate- 
 tail general, {mZ') to her and the Heirs 
 of her Sody ; but Ihe had no Relief; 
 the Lord Chancellor Cowper declaring 
 he could not relieve againft the Settle- 
 ment, tho' if it refted on the Articles, 
 without any Settlement made, he would 
 have decreed that the Articles Ihould 
 be carried into Execution. 
 
 It was further infifted for the Plaintiff, 
 that be was proper in this Application, 
 and had Reafon to pray the Aid of this 
 Court ; and for that Purpofe a Cafe 
 was cited between Sir Richard Mead 
 and the Lord Kerry^ which was thus, 
 {'Viz.) The lute Lord Kerry, in Confi- 
 deration of a Marriage and a Marriage 
 Portion, fettled his Eftate to the Ufe of 
 himfelf for Life, then to Truftees to 
 preferve contingent Remainders, then 
 to his firft and every other Son, in Tail 
 Male, (^c. and before he had any IlTue, 
 he borrowed Money of the Plaintiff; 
 and for fecuring the Repayment thereof, 
 
 with
 
 336 mtS atlD XVttttS. 
 
 with Intereft) he levied a Fif^e, &c* 
 and upon a fpecial Verdid found in the 
 Caufc, the Queftion was if the Charge 
 was good againft the prefent Lord i 
 for that on his Father's levying the 
 Fine, the Truftees did not enter to pre- 
 ferve the contingent Remainders ; fo 
 that it is very proper that the Plaintiff 
 in the PrincipalCafelhou id come into this 
 Court to compel the Truftees to enter, 
 in order to preferve the contingent Re- 
 mainders, efpecially (ince the Plaintiff 
 is a Purchaler under the Settlement 
 made 1692. for that his Father, who 
 made that Settlement ^ had thereby 
 abridged his Power of Charging the 
 Eftate with 1000/. per J?mu?f2^ which 
 by the Settlement made J7i720 1673. 
 he had Power to do. 
 Curia. Every Remainder Man hath a Right 
 to come into this Court, and pray the 
 Aid thereof, to compel Perfons to bring 
 in the Deeds and Evidences relating to 
 the Eftate i but this is a Bill of the 
 firft Impreflfion, as to the Prayer ; for 
 the T'ntftees to enter to preferve co?2ti?i- 
 ge7it Remai/idersi for their Title is 
 meerly at Law, neither doth it appear 
 in Cauie that the Truftees refufed to 
 enter. 
 
 Now, if this Cafe is confidered upon 
 
 the Deed made Jnno 1^73. the Dc- 
 
 I fendant
 
 fendant is I'enant in Tail of the Lands 
 thereby fettled ; but the Deed made 
 1691. of the new pur chafed Lands^ 
 was intended to be a Family Settle- 
 ment^ and a full Execution of the Co- 
 venant in the Deed, made 1573. by 
 which Deed the Defendant being made 
 tenant for Life^ he fliall not be at 
 Liberty to incumber any Part of the 
 Lands thereby fettled by his Father 3* 
 therefore the Decree was for the Plain- 
 tiff. 
 
 And in pronouncing this Decree, the 
 J^ord Chancellor faid, that where a Set- 
 tlement is made by the Father, or 
 other lineal Anceftor, in Confidera- 
 tion of the Marriage of his Son, in 
 fuch Cafe all the Remainders limited 
 to his Children and their Pofterity, are 
 within the Confideration of that Set- 
 tle?nent ,• but when it is made by a Bro- 
 ther, or any other collateral Anceftor, 
 on his Marriage^ after the Lijnitations 
 to his own iflue, all the Remainders 
 limited to his Collateral Kindred are 
 voluntary, and not within the Confide- 
 tion of the Marriage Settlements 
 
 % ^mt
 
 338 tsifes atiii %tuRs^ 
 
 MiiXlt againft his Father, Lord 
 
 J5arnato* 
 
 Tr/«. 7 Annae, in Chancery ; 
 Chancel/or Cowper. 
 
 THE Lord Barnard-^ for the Ad- 
 vancement of the Plaintiff, a 
 younger Son, in Marriage, Sir' ^ 
 Jolliff's Daughter enters into Articles 
 
 with Sir %lliff^ to this Effed : 
 
 Joliiff covenants and agYQCsJnter aliay 
 to fettle Lands free from Incumbrances, 
 according to the ufual Limitations in 
 Marriage-Settlements,- and in Confide- 
 ration thereof j the Lord B. covenants 
 and agrees to fettle Lands, by the Name 
 of the Value of 2000/. per A^imim^ 
 (but with a Life or two upon them) 
 upon Truftees, to like Ufes \ but with 
 thefe Words, T^hat in fuch Settlement 
 there jhall he Coveiiants that he is fei- 
 fed in Fee^ has good Right to coiwey^ 
 and that the Tn^ftees Jhall enjoy-, free 
 from Incumbrances, It happen 'd that 
 thefe Lands were charged by Lord B-s 
 ov^m Marriage-Settlement, with 6500/, 
 to be paid to fuch Daughter or Daugh- 
 ters, as fhould be living at my Lord's 
 Death, and not provided for, 
 
 a The
 
 MM atio %mfts> 33^ 
 
 The Bill was to have a fpecifick Per- 
 formance of the Articles^ by my Lord's 
 paying off, or otherwife giving collate- 
 ral Security againft this contingent Por- 
 tion of 6500/. he having then one 
 Daughter about Sixteen Years old. It 
 was urged for the Plaintiff, that it was 
 ufual for this Court to decree a fpeci- 
 fick Performance of Articles and Co- 
 venants, and not to depcad only upon 
 the uncertain Reparation of Damages 
 which the petfonal Eftate m^y per- 
 haps not be able to fatisfy ; and this 
 was not controverted where it was pof- 
 fible to be done. But the Lord Chan- 
 cellor held, that here was not any 
 Covenant that the Lands were free 
 from Incumbrances, but only a Cove- 
 nant that he would, in the Settlement 
 (which was after to be executed) co- 
 venant for that Purpofe ; fo that the 
 Parties feem'd to be fatisfied wi*h a 
 bare Covenant only i and the Marriage- 
 Articles were only a Covenant to co- 
 venant ; fo that inferting that Cove- 
 nant in the future Settlements, was a 
 fpecifick Performance of thofe Ai ticks ^ 
 and was all that my Lord agreed to 
 do, or that the Plaintiif, by his BilJ, 
 dclir'd to have. 
 
 My Lord Chancellor faid, Notice or 
 
 ho Notice of this Incumbrance was 
 
 7, 2 7cry
 
 340 ilfeiS auD Xttttts. 
 
 very material in this Cafe ; for a Co- 
 venant is in this Manner : If any Incum- 
 brance is difcover'd between the Exe- 
 cuting the Articles and Sealing the 
 Deed of Settlement, whereof the Par- 
 ty had no Notice, that Incumbrance 
 fhail be difcharg'd, even before Sealing 
 the Deed of Settlement, both upon Ac- 
 count of the Fraud, in concealing fuch 
 Incumbrance ; and becaufe it would 
 be needlefs to enter into a Covenant| 
 which before entering into it is already 
 known to be broke. But againft all 
 other Incumbrances difcovercd after- 
 wards, there is the Parties Covenant 
 only. Now where you have Notice of 
 an Incumbrance, before executing the 
 Articles, it is a ftronger Cafe than the 
 laft i for you covenant with your Eyes 
 open, to accept the Parties Covenant 
 againft an Incumbrance you were aware 
 of i and when you have chofcn your 
 Method of Security your felf, this 
 Court will give you no other, nor make 
 the Party do a farther Ad than by the 
 Articles he has agreed to do j and the 
 rather in this Cafe, for that the Portion 
 it not a certain Incumbrance, but a 
 contingent one ,• and therefore it is rea- 
 fonable to fuppofe, that my Lord Bar- 
 nard would not be compell'd to charge 
 his remaining Eftate, at ^all Hazards, 
 -i 3 to
 
 Mtts an& %t\t&s. 241 
 
 to fecure againft an Incumbrance that 
 was but contingent, to the Prejudice of 
 his eldeft Son, cfpecially when he had 
 provided for the younger Son fo plenti- 
 fully. And decreed that my Lord S. 
 fhould execute a Deed of Settlement, 
 with Covenants exa(5lly purfuant to the 
 Articles only. But becaufe the Eftate 
 was fubjed to a prefent Charge, 'uiz. 
 to the Payment of a yearly Sum for 
 the Daughter's Maintenance, from her 
 Birth ; that the Lord S. fhould pay 
 and difcharge all Arrears of that and 
 the growing Annuity, as it iliall arife, 
 taking Acquittances from his Daughter, 
 and leaving them with the Plaintiff for 
 his Security, 
 
 It was ftrongly urged by Mr. Ver- 
 non^ That fuppofing thefe Articles were 
 but a Covenant to covenant, yet as foon 
 as the Articles were performed, by fcal- 
 ing the Deed of Settlement, then they 
 might come the next Day and exhibit 
 their Bill to enforce an Execution, fpe- 
 cifically of the Covenant in fuch Deed 
 of Settlement,- and why may not the 
 Court decree that to be done now, as 
 well as that which after the Performance 
 of this Decree, they will immediately 
 decree upon a new Bill. 
 
 Lord Chancellor faid, in this Cafe, 
 
 they could not^ for the Incumbrance 
 
 Z :; was
 
 342 tllfes attD SCtttfts. 
 
 was not noceflary, but contingent ^ and 
 if you brought an Adion at Law upon 
 fuch a Covenant, you fhould not recover 
 1 wo-pence Damages, 'till a Breach, 
 which polTibly may never happen. Be- 
 {idvs the Covenant in the Deed of Set- 
 tlement, is not to be that the Eftate 
 is free from Incumbrances, but that the 
 Truflces (hall enjoy free from Incum- 
 brancesi which fo long as they do,the Co- 
 venant is not broke , and it feems the Por- 
 tion being contingent, and notcertain,was 
 the Rcafon of this Part of the Decree, 
 becaufe it is plain, by the latter Part of 
 the Decree, where the Incumbrance 
 was certain {d-z. the Payment of a cer- 
 tain Sum) the Lord 2^. was decreed 
 immediately to difcharge it^ tho* by 
 the Articles he did but Covenant to 
 Covenant, as is aforef^id ; and there is 
 no other Difference between thofe two 
 Matters, in controverting the Point of 
 Notice in this Cafe. It appeared that 
 Sir Edward Northey was employ 'd as 
 Counfcl by the Plaintiff^ and Jolliff 
 had Notice, as he owned, but after- 
 wards, he not being able to difpatch it 
 fall: enough, the Matter was taken out 
 
 of his Hands, and one Sir^ was 
 
 employed, who drew the Writing, and 
 finifli'd the Matter, and no Proof was 
 made, that he had any Notice of this 
 
 Incum-
 
 Incumbrance ; whereupon the Queftion 
 was. Whether Notice to a Counfel, ot 
 Agent, that is once employ 'd, and goes 
 not through with the Bufinefs, fhall be 
 Notice to the Party himfelf ? for it was 
 allowed on all Hands, that if he goes 
 through Notice to Counfel, Attorney, 
 Scrivener, or any other Agent, it is 
 fufficient Notice to the Party himfelf. 
 
 The Chancellor was in Doubt, but 
 another Proof of Notice being accident- 
 ally difcover'd, this Matter was not de- 
 termined i for it appears that in thefe 
 Articles, Notice was taken of my Lady 
 jS.'s Jointure in thefe very Lands, which 
 neceifarily leads to the Deed, whereby 
 that Jointure is made ; and in that 
 Deed there was this Portion charged 
 upon the Lands, and whatever is con- 
 tained in a Deed to which any 
 other neceffarily leads you, you are 
 prefumed to know, which was allowed, 
 without a Word more. 
 
 Note the Difference between a pre- 
 fent Covenant, that Lands are free from 
 Incumbrance, and that a Man fhall 
 execute a Deed, with a Covenant that 
 the Lands are free. 
 
 And between a Covenant that Lands 
 are free, and that the Truftees fhall en- 
 joy the Lands free. 
 
 Z 4 If
 
 44 ^tts atto %mtts. 
 
 If a Man deyifes 1500/. to A and 
 S. for fuch Ufes as the Teftator had 
 declared to them, and by them not to 
 be difclpfed, and he difclofes the Truft 
 tp J, who by Letter difclofes it to S. 
 this Ihall be a Truft, and the Letter is 
 a good Declaration thereof, tho' ei- 
 ther or both the Truftees be dead. 
 ^rw. i62>9o between Crooke and Srook- 
 ing* 2 J^er^i, io6» 
 
 But if a Man devifes Forty Pounds to 
 be paid to his Coufin J, S- and by him 
 to be difpofed of in fuch Manner as the 
 Teftator fhould by a private Note ac- 
 quaint him with, and dies without ha- 
 ving made any fuch Appointment, this 
 fhall be a good Requeft to j^. S» and 
 fhall not go to the Executors, from 
 whom it was intended to have been 
 given away» i Cha;i, Cafes 198. 
 
 If an Impropriator devifes to one 
 that fcrved the Cure, and to ail that 
 fhould ferve the Cure after him, all the 
 Tithes and other Profits, (jc» tho' the 
 Curate is incapable of Taking by this 
 pevife, in fuch Manner, for want of 
 feeing Incoipcrate, and having Succef- 
 fion, yet the Heir of the Devifee fhall 
 be fcifed in Truft for the Curate for the 
 U"" ime being. 2 p^eut, 349. decreed by 
 ^''i/jch Lord Chancellor, 
 
 J. lent
 
 ji. lent S. loo/. and in the Note 
 which was given. Mention was made 
 that it fliould be xlifpofed of as J. 
 Ihould direift, on a Bill exhibited for 
 it i the Court declared it was a 7)epO' 
 fiuiin^ or Truft, and decreed Payment 
 of it, tho' it was barred by the Statute 
 of Limitations. 2 J^en, 345. 
 
 If J. in Confideration of Eighty 
 Pounds, conveys an Eftate abfolutely 
 to S. and afterwards J, brings a Bill 
 to redeem, and B, by Anfwer, in lifts 
 that the Conveyance was abfolutcj but 
 confelTcs that after the Eighty Pounds 
 paid, with Intereft, it was to be in 
 Truft for the Wife and Children of J. 
 and J, replies to the Anfwcr, though 
 there be no other Proof of the Truft, 
 yet it will be decreed for the Wife and 
 Children, ^afch, 1693. between Hamp- 
 t07i and Spencer, 2 Vern, 288, 289. 
 
 So if J, S. makes his Will, and his 
 Wife Executrix, and the Son afterwards 
 prevails on his Mother, by telling her, 
 drc. to get y. S. to make a new" Will, 
 and name him Executor therein, he pro- 
 mifing to be a Truftee for the Mother, 
 which is done accordingly ; and in that 
 Will there is but a fmall Legacy given 
 the Wife, this will be decreed a Truft 
 for the Wife, on the Point of Fraud, 
 notwithftanding the Statute of Frauds 
 
 and
 
 34^ ^ft5 ano Xttxtts. 
 
 and Terjtiries, Hill 1684. between 
 ihy?i and T/^//. i ^^f;^. 296. 
 
 If a Man purchafes Lands in another's 
 Name, and pays the Money, it will be 
 a Truft for him that paid the Money, 
 tho' there be no Deed made, declaring 
 the Truft thereof j for the Statute of 
 'Frauds and '^Perjuries extends not to 
 Trufts raifed by Operation of Law. 
 2 Vent, 361. I Vern, ^66, S* T* ad- 
 mitted i but there faid that the Proof 
 muft be very clear that he paid the Pur- 
 chafe-Money. 
 
 If there are three Leflees of a Church, 
 ^nd one of them furrenders the old 
 Leafe, and takes a new Leafe in his 
 own Name, it iliall be a Truft for all. 
 Mich. 1684. between Palmer and Xotmg. 
 .1 Ver7io 276. per Cnriaiiu 
 
 J. and S. agreed together to take a 
 Leafc of a Colliery for lefs than three 
 Years, for which they contracted at a 
 certain Rent ; but by the Agreement, the 
 Leafe was taken in A*^ Name only, 
 tho' at the Time of the executing there- 
 of, the Leftbr infiftcd that B. iliould 
 be a Joint Leftee with A. and fhould 
 receive a Moiety of the Profits, and be 
 anfvverable for a Moiety of the Rent, 
 and refufed to let it on any other 
 Terms, and accordingly demanded and 
 received a Moiety of the Rent from 
 
 ^. on
 
 £, on a Bill brought by S. A plead- 
 ed the Statute of Frauds and Terju- 
 rieSy and that there was no Declaration 
 of a Truft in Writing, S. infifted that 
 it was good, being a Leafe for Icfs than 
 three Years -, or if his Title was not 
 good on that Account, yet it was good, 
 as a refulting Truft ^ as to the firft, the 
 Court held, that tho' a Leafe for three 
 Years may be good by Parol, yet when 
 fuch a Leafe is made in Writing, the 
 Truft of that Leafe cannot be dcclar'd 
 by Parol j and as to the fecond, order- 
 ed the Plea to ftand for an Anfwer ^ 
 the Judge who fate in my Lord Chan- 
 cellor's Abfence, being in Doubt about 
 it, tho' he inclin'd to over-rule the Plea. 
 Mich, 1682. between Riddle and Rvier- 
 foji. I Ver72, 108. 
 
 J's Father had executed a Grant of 
 the next Avoidance of a Church, to 
 S. the Defendant's Father, who was a 
 Clergyman, and a Perfon much intru- 
 fted and employed by him, and the 
 Grantee knew nothing of the making 
 of this Grant; and being cxamin'd in 
 a Caufe, had dcpofed that he did not 
 purchafe it ; and it was held that this 
 was a refulting Truft to the Grantor, 
 there being no other Truft declared. 
 Hill. 169^, between the Duke of Nor- 
 folk and Broivn. 
 
 But
 
 3^8 Wiits anu Xmfts* 
 
 But if the Mortgagee aiTigns over 
 his Mortgage to J. S. and declares a 
 Truft thereof by Parol, for J, and S. 
 only, it iliall prevent a refulting Truft 
 to the AfTignor ; for the Statute of 
 Frauds^ which faves refulting Trufts, 
 ej^tends only to fuch as were refulting 
 Trufts before the Statute, and a bare 
 Declaration by Parol, before the Ad 
 would prevent any refulting Truft. 
 ^riTj, 169^. between Lady Bellajfis and 
 Compton. 2 V'er7i. 294. but no Decree. 
 
 If a Father purchafe Lands in the 
 Name of his eldeft Son, this fhall be 
 fin Advancement for the Son, and not 
 a Truft for the Father, though the Fa- 
 ther has been in PoffelTion of it, and has 
 rcceivM the Rents and Profits thereof. 
 /////. 28 Car, 2. between Lord Gray 
 nnd Lady Gra)\ i Chaji, Cafes 296. 
 I Cha?i, Cafes 27. S. T. 2 Chajh Ca- 
 fes 231. S/P» and there^ faid to be the 
 conftant Rule. 
 
 So where the Lord of a Weft-Coun- 
 try Manor, his Tenants refufing to 
 renew, made a Leafe to his Daughter, 
 for Ninety-nine Years, and afterwards 
 fold the Eftate to J. S. who had No- 
 tice of the Leafe, and took a collateral 
 Security that the Daughter fliould re- 
 leafe within Four Years after flie at- 
 tained her Age of Twenty-one Years ; 
 
 and
 
 mtts ana %x\xfts^ 349 
 
 and though it was infifted that this was 
 a Truft for the Father ; and that it was 
 the ufual Method that Lords of Weft- 
 Country Manors took, when the Te- 
 nant in Poifeflion refufed to renew ; yet 
 my Lord Chancellor held it no Truft 
 for the Father, but an Advancement 
 for his Child ; and that the Purchafer 
 having purchased with Notice of it, and ta- 
 king a Collateral Security, he muft make 
 the beft of his Security. 7r///. i^Sy, 
 between Jemmigs and Selkch i Ver72» 
 467. decreed. 
 
 So if a Father purchafes a Copyhold 
 Tenement, in the Name of his eldeft 
 Son, an Infant of about Eleven Years 
 old, and lays out 400/. in Improve- 
 ments, pays the Purchafe-Money, and 
 all the Fines, and enjoys it, during his 
 Life, but having furrendered it to the 
 life of his Will, devifes it to his Wife 
 for Life, and after to his younger Chil- 
 dren, who were othcrv^iie unprovided 
 for, and the eldeft Son recovers in E- 
 jedment, the Wife and Children can- 
 not be relieved againft it j for the Pur- 
 chafe fhall be confider'd as an Advance- 
 ment for the Son, and not a Truft for 
 the Father, tho' he enjoyed it during 
 his Life; for the Son was but an In- 
 fant at the Time of the Purchafe. 
 Tafch. 1687. Mumma and Mjimma, 
 
 2 Verji,
 
 3jro Witts ano Xvtxtts. 
 
 2 Veru. 19. 2 Vern. 28. S, T. de- 
 creed. 
 
 A Man bought Copyhold Lands of 
 the Nature of Borough Efiglijh^ in the 
 Name of his eldeft Son, but there was 
 no Declaration of Truft in Writings 
 but the Plaintiff would have had it 
 a Truft; for the Father, who as well 
 as the Eldeft, were both dead i it was 
 agreed the Father paid the Purchafe- 
 Money, and many Witnefles were ex- 
 amin'd on both Sides. And Ads of 
 Ownerfliip, as Receipts of Rents, 
 Repairs, (^c. prov'd in both Father and 
 Son I fo that the Proofs, as to the Mat- 
 ter, feem'd to be pretty equal -, but 
 there being no Declaration in Writing 
 that it was a Truft for the Father, the 
 Court decreed it an Advancement for 
 the Son, which was affirmed in the 
 Houfe of Lords. Tri72, 1701. between 
 Shales and Shales. 
 
 So if a Father purchafes in his eld- 
 eft Son's Name, and the Son is put in- 
 to Pofteflfion, who afterwards falls (rcks 
 and in his Sicknefs the Father gets him 
 to feal a Deed, declaring his Name was 
 made ufe of only in Truft for him, 
 and the Son recovers and continues in 
 Polfeflion, and marries, after his De- 
 ceafe his Wife fliall be endow'd, not- 
 withftauding this Declaration of Truft ; 
 
 and
 
 and though the Father had got a Con- 
 veyance of the legal Eftate from the 
 younger Son ,• for this is a Secret and 
 fraudulent Deed of Truft, to deceive 
 Creditors and Purchafers. Tafch. 1702. 
 between Bateinan and ^atemath 2 
 T^ern. 4^6. 
 
 If the Grandfather takes Bondsj in 
 the Name of his Grandchildren, the Fa- 
 ther being dead, this fhall be an Ad- 
 vancement for the Grand Children, and 
 not a Truft for the Grandfather ; for 
 the Father being dead, the Children 
 are under the immediate Care of the 
 Grandfather, ^afch, 32 Car. 2. be- 
 tween Ehrand and T>ancer* 2 Chmi^ 
 Cctfes 26, 
 
 If Lands are devifed to Truftees and 
 their Heirs, in Truft for a Feme Co-- 
 vert, and that the Truftees iliaii from 
 Time to Time pay and difpofc of the 
 Rents and Profits to the faid Feme Co- 
 vert, or to fuch Perfons as fhe, whc- 
 ther Sole or Covert fhall appoint j and 
 that her Husband fliall have no Benefit 
 thereof j and as to the Inheritance in 
 Truft to fuch Perfons as flic by Will, 
 or other Writing, under her Hand (liould 
 appoint; and for Want of fuch A|> 
 pointment to her aud her Heiis, this 
 ihall be a Truft, and not an Ufe execu- 
 ted by the Statute. Mich- 1686. be- 
 tween
 
 3^2 Mits attn xttitts. 
 
 tween Neml and Samiders. i ^rf?; 
 
 415- 
 
 But where a Man devifed the Rents 
 
 and Profits of certain Lands to Tl S. 
 the Wife of W. S. duritig her Natural 
 Life, to be paid by his Executors, into 
 her own Hands, without the Intermed- 
 ling of her Husband i and after her Dc- 
 ceafe he devifed them to others,- and 
 it was held by Rokehy and Eyre, Ju- 
 ftices, that the Lands themfelves be- 
 long d to the Wifcj againft Holt Chief 
 Juftice, who held ftrongly that the Exe» 
 cutors were only Truftees for the Wife^ 
 Between South and Allen. 1 Salh 
 2283 
 
 A Short
 
 (3^3 ) 
 
 A Short and Accurate 
 
 TR FATTSF 
 
 O F 
 
 ACTIONS relating to Eftates 
 for Life, concern either Eftates 
 in T)ozvery or other Eftates for 
 Life. 
 
 Fir fly relating to Eftates in Slower; 
 and they are either Droitural or Polfef- 
 fory* 
 
 1, Droitural, as the Writ of Right 
 of UJozver, concerning theQjia- 
 rentine. 
 
 2. Poffeffory, as 
 
 4 a I, The
 
 3^4 ^^ SOotbtt* 
 
 1. The Writ of T>owei\iiJide nihil 
 hahet, 
 
 2. The Writ of Advieafurevteiit of 
 ^otver. 
 
 \ 3. The Writ T)e dote affignanda. 
 
 Seco7idIy^ Anions relating to Eftates 
 for Life, as a Writ of ^oi ei de- 
 forciat, 
 
 Firft, ©f tlje mtii Of Eigljt of Doluer. 
 
 The *Dower is the Provifion which 
 i^r^rf* the Law makes for the Wife-i after the 
 Vowef Is. Deceafe of the Husha7id i and in {a) 
 Socage T'emire^ it was originally Half 
 during the Widowhood, becaufe what- 
 foever was got during the Coverture, 
 was fuppofed to be by the joint Induftry 
 of them both j but Half only during 
 the Widowhood, becaufe it was not to 
 be carried away from that Family into 
 
 (<i) Socage Tenure is the Condition upon which Te- 
 nants held their Lands, to plow the Land of their 
 Lords, with their own Ploughs, and do other infc- 
 riour Services of Husbandry, at their own Charge. 
 This flavifli Tenure hath, by the Agreement of 
 Lords and Tenants, been turned into the Payment 
 of a yearly Sum, which is called Free Socage^ in Con- 
 tradiftinftion to the other Tenure, which was called 
 Villanum Sccagwm, Braft. lib. 2« c, 35. Co. Lit. 
 117. 
 
 another:
 
 another: So in (a) Kmght-Serjice it was 
 a Third,- one Third being allow'd for the 
 Performance of the Service, and the other 
 two Thirds were to be divided between 
 the Wife and the Heir^ and here the 
 Wife was to hold during her Life ; for 
 they confider'd it here, not as an Ac- 
 quifition that was to go back into the 
 former Husband's Family, if fhc mar- 
 ried another ; but as a Tenure that was 
 to continue, according to the Form of 
 the Infeudation, which was during 
 Life i and therefore look'd on the Mar- 
 riage Contrad for an Infeudation after 
 the Death of the Husband ; not only 
 in every Manner which he fhould have 
 during the Time of the Coverture ; 
 but iince the Marriage was only a 
 Contract for fuch (/;) Infendatio?ij it 
 
 (/») Knight- Service y or Servltlum milit.irey %vas a Te- 
 nure, whereby feveral Lands in this Xingdom were 
 held to the King, which drew after it Homage and 
 Service in War, Efcuage, Ward, Marriage and Re- 
 lief; but it is now taken away by the Statute of 12. 
 Car. c. 24. 
 
 {b) This Word Infeudation , is a Term borrowed 
 from the Civil Law, which fignifles (according to 
 the Civilians) the Granting Lands, Honours or Fees, 
 either to a Man, during the Will of his Lord or 
 Sovereign, or for the Feudary's own Life, or to him 
 and his Heirs for ever, upon this Condition, that he 
 and his Heirs acknowledge the Donor, and his Heirs 
 tobctheir Lord and Sovereign, and bear Faith to him 
 and his Heirs, for the faid Tenure, and do fuch Ser- 
 vices as was covenanted between them, and proper 
 Co a. Feud. 
 
 A a 2 was
 
 3$6 0f SDotbet; 
 
 was not adually^made until the Heir had 
 alTigncd which was the Compktion of 
 the Infeudation. Hence it was that 
 the AiTignment was by the Heir, where 
 all other Infeudations were made co- 
 ram parihis CtirU -, therefore the Heir 
 made the AiTignment, as Lord of the 
 Manor, who was to create the Tenure \ 
 but if there w^as any Difputc, touch- 
 ing the Quantity, it was determinable 
 by the (^ ) Tares, If they did not 
 like the Determination , the Wife 
 might remove it to the County- 
 Court, and fo to the King's Court ; and 
 the Heir immediately to the King's 
 Courts to avoid Delay to the Wife, 
 it was fct out by Way of Metes and 
 'Bounds^ becaufe it was a Tenancy of 
 the Heir, and therefore like all other 
 Lands in Tenure, was to be feparated 
 from the Dcmefnes of the Manor ,• the 
 Lifeudation defeated the Defcent ^ be- 
 caufe by the Marriage Contraft, the 
 Tenure w^as to take Place on the 
 Death of the Husband ; fo only two 
 Thirds can be fuppofed to defcend in 
 
 {a) This word Vara fignifics Men of the like Con- 
 dition in Life, and under the fame Law, who were 
 called to the King's Court, the CountyXourt, or 
 Court-Baron, to Judge of Matters in Dilpute, be- 
 tween their Fellow Countrymen, that were under 
 the fame Jurifdiftion. Spelmavs Glojf^ 448' 
 
 Demefne
 
 £)f ^OVOtt. 35:7 
 
 Demefne to the Heir ; iince in the other 
 Third a Tenure is created in the Wife 
 to hold of the Heir immediately from 
 the Death of the Anceftor ; and the 
 Reafon why the Law created this as a 
 Tenure was, that the Heir might be 
 obliged to do the Service for it, during 
 the Time of its Continuance, as he was 
 obliged to do for all Lands which he 
 had given out in Tenure, as well as 
 thofe he held in Demefne ^ and had there 
 been no Tenure it had been cut off 
 from the Mci?ioi\ during the Life of 
 the Wife, when the Heir was a Tenant 
 and no Lord of the Manor; the Aflign- 
 ment of ^ozuer was in the Nature of 
 Subinfeudation ,• and this Tenure con- 
 tinues after the Statute of {a) ^ma 
 Emptores terrarum-, fince the Heir does 
 not part with the Fee. 
 
 The Writ of Right of T)ower is Pa- That it is 
 tent, and Ihiil b? dire^ d unto the ^^^^'^^^ 
 Heir, to fue in the Court of the Heir, 
 
 («) The Statute of Qttia Emptorei Terrarum, is a 
 Statute made »n the i8ih of E. i. whereby none 
 might gratit Lands or Tenements in Fee-fimple, to 
 hold of himfelf, and is fo called, becaufe the Sta- 
 tute begins with thefe Words, ^m Emptores "Terra- 
 vum &» Teriementorum de feodls fnaqnatiwt d^ alioyum 
 Doniimrum In prejudecium eorunaem, Qpc. Terras QP Te- 
 nementa fua vendiderunt tenendum in feodum fibi ; fo that 
 chefe Words, and what followed, flicw the Caufe of 
 ung that Statute. 2 /«/?. 500. i Injl- 98. b. 
 
 A a 3 as
 
 3f8 
 
 Th.it the 
 Wife may 
 femcve the 
 Tlai»t. 
 That the 
 Tenant 
 cam:ci, 
 ivitkcHt 
 Jheivifig 
 
 £)f 2Dott)er. 
 
 as it appeareth by ^rittoji ; and where 
 the Writ is directed to the Heir of the 
 Husband, and the fame Heir is feifed 
 of the Land whereof the Wife demand- 
 ed ^ozver ', then if he will not aflign 
 2)cwer unto the Fe^ue^, the Feme^ who 
 is Demandant, may remove the fame 
 by a {a) T'olt ^ into the County- 
 Court i and alfo may remove the fame 
 out of the County-Court into the 
 Common Pleas, by a (Jb) To72e^ without 
 fhewing any Caufe in the Writ, as the 
 Demandant fhail do in a W^rit of Right 
 Patent; but the T^eizaiit in a Writ of 
 Right Patent, fhall not remove the 
 Plea out of the County-Court into the 
 Common Pleas, without iliewing Caufe 
 in the "^ojie ^ and the T'enant in a Writ 
 of Right Tatent^ or in a Writ of 'Dozv- 
 et':, may remove the Plea into the Com- 
 
 (a) A ToU is a Writ whereby a Caufe depending 
 in a Court-Baron, is remov'd into the County-Court, 
 and is fo called, becaufe thereby Lis tollitur e Curia 
 Baronis & ad Curiam 'uicecomitis defertur. 
 
 (fc) This Wric is called a Fo7iey only from the Man- 
 datory Part of the Writ, which is, if the Party makes 
 the Sheriff fecure that he will profecute his Claim 
 againft the Defendant, the Sheriff is commanded to 
 compel the Defendant to give Security to anfwerthe 
 the Plaintiff's Complaint by the Words tunc pone pet 
 vadios & falvos plegios (the Defendant) : And it is for 
 the Demandant in Boiver to remove the Caufe into 
 the CouiS of Common Pleas, Sqq New Nat. Brev. 
 i6. 
 
 mon
 
 mon Picas, by a (a) Recordare out of ^^^^'•* if 
 the Court of the Lord, upon Caufe "tCccov' 
 fhevvcd in the Writ,- and what Caufes dare, 
 are fuflicient, and good to remove the 
 Lord's Plea out of the Court, or out of the 
 Country, and what not, does appear in 
 theRegifter,- and therefore fee the Cafes 
 there i but the Demandant could not ^glg L ^ 
 remove the Plea out of the Court of Pone, but 
 the Heir, by a To/ie^ becaufe he ought ^^'''^°^^'' 
 firft to remove it by a Tolt into the 
 County-Court, and from the County- 
 Court he may remove it into the Com- 
 mon Pleas, by a Tofie^ without fliew- 
 ing the Caufe in the Writ, as before is 
 faid. 
 
 Since the T)o:vrefs holds of the Heir, To whom 
 as the Heir holds over of the Lord ; the fV^tJ' 
 W rit or Right of \Dozver is dired:cd to ted. 
 the Heir, who, upon that Writ, may 
 afTign T)owef\ without any further Con- 
 teft i and if the Heir be Lord of the 
 Manor of which the Wife is to be en- 
 dowed, then the AlTignment is to be by 
 
 {a) Recordare is a VVrlr dircSed to the Sheriff to 
 remove a Caufe depending in an inferior Court, 
 to the King's Bench or Common Pleas ; and is fo 
 called by theie Words of the Writ, The Judge of 
 the inferior Court, is commanded to make a Record of the 
 fro eedings in the County- Courts and tranfmit the Caufe 
 into the Kings fnperior Court cf Reeord, New Nat. 
 Brev. S. A. 16. E, 
 
 A a 4 the
 
 360 ^f Dotbet, 
 
 the Hoir, with the Approbation of tbe 
 fPares Ctiria ; but if the Heir be only 
 Tenant; and not Lord of a Manor, then 
 the Alfignment cannot be in the Court- 
 ^aroTi of which the Tenant holds, be- 
 caufe the Writ is not direded to that 
 Lord, to give him Authority to pro- 
 ceed ," for the Writ of Right was only 
 where the great Controverfy happened 
 between the immediate Feudaries of 
 the Manor ; and the T)owrefs is Tenant 
 to the Heir, and not to the Lord; 
 therefore the Writ cannot come into the 
 Conrt-Baron^ unlefs where fiie is to be 
 endowed of the Manor itfelf, or where 
 the Lord is Guardian in Chihahy to 
 the Infant, then the Writ lliall be di- 
 re(5ted to the Lord to endow her j and 
 this is an kOi done by the Lord, as 
 Guardian to the Infant, and as annexed 
 unto the Eftate, which falls into the 
 Lord*s Hands, during the Minority of 
 the Infant ,* but in that Cafe, if the In- 
 fant had an Eftate in Socage-Tenure, 
 whereof the Wife might endow herfelf, 
 that was ai^ Endowment (a) T)e la 
 phis !Beale. 
 
 If 
 
 {a) Doiver de la ptuis Beale, is that Kind of Dcjuer^ 
 wbicrt is neither of the other Kinds of Voiver^ •viz.' 
 Vo<yi;p ac the Common Law, Vower by the Cuftom, 
 
 Dower
 
 If the Heir, or Lord of the Manor, ^^^'^^ ^^^ 
 would not endow the Feme, flic niay^'^^'j'* 
 have a T'oh into the Sheriffs Court, Toh. 
 without any Caufe flicwn, bccaufe it^^''''J/(^ 
 was in her own Delay, and where the j,. 
 Heir had no Court, uniefs flie acquief- 
 ced in the Endowment made by him, 
 her only Remedy was to remove it by 
 ^olt imm'^'diately • and where the Lord 
 was Guardiau in Chwahy^ and rcfufcd 
 to endow, becaufe fhe might have 
 ^ozver de la phis 'Beak into whatever 
 Court the Caufe was removed, he 
 might plead fuch Title to I'Jo'uier ia 
 the Wife, in Bar of his Alfignment, 
 becaufe the Lord was not obliged to 
 divide his own Feud, the Wife having 
 otherwife a fufficient Tiower to fuftaiu 
 her. 
 
 And in a Writ of Right Vate?it^ tlie v/here th-. 
 Plea may be removed at the 1enant\^^''^^'\^^ 
 
 J Yemoved by 
 
 « Recor- 
 
 diirc. 
 Dowct* ad oflium Ecclejt^t or Ex ajfenfu patris, but is 
 therefore en radiftinguiflnd from them by this Ap- 
 pellation, D^ la pints Beak, fo called, becaufe where 
 th'ire arc Lan<l,s held by K^'i^hi-Servue, and lome by 
 Socage Tenure, of which the Husband died feired, th " 
 Guardian in Chivalry may pray that the Wife may 
 be end' wod De la p!tiis Beale^ i.e. of the moll Fiir 
 of rhe Lmds ncid by ''he Socage Tenure, accordin,? 
 to rh'' Value of the Third Part, which Hic claims of 
 th fc Lands held by Knleht Service ; and the Reafov: 
 is, bccaufe this Knight Service is for r)efcncc of xn^i 
 Realm, and ihorcfore it is pfo bono publico , that fuc)!! 
 Sf^iviro do remain intirc, and ought to be favoured 
 Co. h'lt. 39, i. 
 
 Suit,
 
 362 ^f SDotbet* 
 
 Suit, by a Hecordare out of the Lord's 
 Court into the j2x)mmon Pleas, before 
 the Juftices th6re ,- and by the fame 
 Ilcafon, it fecmeth, it may be re- 
 moved at the Suit of the Tenant, in a 
 Writ of Right of T)ozver^ out of the 
 Heir's Court into the Common Pleas, 
 before the Juftices there, by a Recor- 
 dare, for good Caufe j fed ^uare, 
 j^Afl'. And if the Husband do cnfeoif a 
 PI. so- Stranger of all his Lands, and dies, and 
 Where the j^jg^^/^.j- \^^yQ nothing bv Defcent ,• now 
 
 TVrit to be ,^ , . r > i -iir • r 
 
 .{irecHed to> ii thc Fe^/jc DC to luc torth a Writ or 
 
 tieFeope. j^^gjof of T/ozver, it feemeth that flie 
 fliall fue her Writ of Right of T)o'voer\ 
 dirc(5tcd to thc Feoffee i for after the 
 Endowment, the Feoffee fhall be her 
 Lord, and flie fliall hold the T)ower 
 of him, by Fealty ; but before the 
 Statute of 2.1^1 a Emptor es\ (jc if the 
 HiJshajid enfeoff a Stranger of Parcel 
 of his Lands, to hold of him ; then 
 if the Fe7/ie be to fue a Writ of Right 
 of T)Gzver again ft the Feoffee, the Writ 
 il-jall be fued in the H' ir's Court, and 
 
 Where to dirctlcd to the Heir, for the Seigniory 
 
 the Heir. ^\^^^ icmaincth in him. 
 
 And fo if thc Ifmband^ at this Day, 
 giveth Parcel of his Manor in Tail, to 
 hold of him, and dieth, the Fane iliall 
 fue her Writ of Right of 'Dozver^ in 
 the Court of the Heir of her Husband, 
 
 and
 
 and againft the T>072ee in Tail, and the ^^^^ ^'^'-'' 
 Writ fhall be direded to the Heir. 
 
 But if the Husband makes a Gift in 
 Tail, of all the Lands that he hath, and 
 dies, and the Feme is to fue a Writ of 
 Fiight of T>otver of that Land, then ^f/'^f/^ 
 her Husband's Heir cannot have any a^lL/tiH 
 Court, bccaufe he hath but a SeigJiiory i^or>ee, dt- 
 171 grofs i and therefore it ftands with '^;f ^"^/l 
 Reafon, that flie fliould have her W^rit ri^. 
 of 'Dower againft the T>072ee in Tail, 
 dirci^ed to the Sheriff, returnable in the 
 Common Pleas i and ihe iliall have this 
 Claufe in the Writ, j^ia B. capitalis 
 *Dominus feodi illitis noUs inde remifit 
 Curiam fuam* 
 
 'Dower is the Confequence of the ■^^^'j* 
 Marriage Contract, which was under- thTclvfe- 
 ftood, that the Wife fhouid have the c^uene cf 
 Third Part of the Eftate, the Hmha7id*^^^Yr' 
 was feifed of, during the Coverture, to''' 
 fuftain herfelf and younger Children, 
 during her Life, becaufe flic was fup- 
 pofed to be equally concerned in the 
 Acquilition. In lOiight-Sermce^ llic had For ivhat 
 a Third, becaufe one Third was al- ^;2S 
 lowed for the extraordinary Burthen of 
 the T'e7za7it^ and one Third for fultain- 
 ing the Heir \ fo ilie always equally di- 
 vided with him ^ but the Heir was al- 
 w^ays to fct it out ^ and fiie was not 
 to carve for herfelf, becaufe the \^i{Q. 
 
 held
 
 364 £)f Dolbet. 
 
 held of the Husband's Reprefentatlve, 
 
 fls inferior to the Husband, and confe- 
 
 quently as (ubjod: in Tenure to the 
 
 To ivhom Heiry who reprefented him ,• but if the 
 
 to apply Jl^ij, ^jjj j^Qj. fcf Quf according to E- 
 
 Dfiw^, quality in his Court, fhe might apply 
 to the County-Court -i and to the KiJigs 
 Courts and where the Heir had no 
 Court, fhe may enter a T^omijiiis re- 
 niiftt Curiam jnam ; and hereby the 
 Writ of R-ght of 7)ozver was return- 
 i\ble into he Kin^^s Court j but if the 
 Heir had a Feudal Couit, fhe might 
 have had it there fet out ^ and then it 
 was either aifign^d, and fet out by the 
 Heir himfclf, or by h'x'^ spares ; for this 
 was an Acl: that he himf-^f might do, as 
 well as his Tares in that Court -, be- 
 Hoc-jj It caufe it was prefumed that he would 
 "^lood before rather be more Beneficent to his Mo- 
 ihe Sta- (.|^^p^ ti^^j^ .^^ according to the ftrid 
 
 Empt^m Dividon required by Law ; and this 
 Terra- Power continued to the Heir, as long 
 ''^'^'' as the Tenure continued; fo that he 
 had a Power over the Lands, as a Feu- 
 dal Lord, before the Statute J^^/ia Emp- 
 toreSy &c. 
 
 And if the Husha/zd aliened the 
 Lands to hold of himfeif, fince the Feof- 
 fee continued Feudatory to the Huf- 
 band, the Heir was to alfign Dower in 
 bis Court; but fince the Statute, the 
 
 FcQftep
 
 Feoffee holds oF the fuperior Lord ; ^\^l\*]l 
 therefore the Htir remits his Court j ^^ ^^^^^^j^^, 
 and the Writ of Rio^ht of T>oa:er is to 
 be brought in the King's Court by the 
 *Do7mfij{s reviijlt Oniani iuaiii ; but the 
 Tenant in Tail or for Life, &c^ did 
 after the Statute hold of the Lord ,- 
 and therefore the Heir's Alfignment of 
 ^ower continues. 
 
 And fo if the Hushand makes ^^^^l^tt 
 Leafe of all his Lands unto a Stranger i^ower *cj 
 for Life, and dieth, and the FcVie is to ^^-^^ '*« 
 bring a Writ of T>ower againft the ^^^^''^^^^ 
 Leffec, for Life, then it feems reafon- L#e fof 
 able, that the Fejne have her W^rit of^'^' 
 Right of T)ozver againft the Leffee for 
 Life in the Common Pleas i becaufe 
 that he in the Reverfion hath not any 
 Court. 
 
 And altho' that this Claufc, (^/na^'^'^'e^e n^e 
 B. capitalis iSnus, &c. be put into the ^^J;;;;^^ 
 Writ, the Lord has not any Court tohitUCom- 
 hold, becaufe it is a Seigniory in Grofs, JJ^V^^^'''^ 
 and not any Deraefnc Land to hold a J/^^y^ 
 Court, C^^. and then altho' the Lord Quia Ca- 
 did never remit his Court, and that g^^j'^^^^ 
 there is not any Matter apparent vc- he not in 
 maining in the Chancery, to prove <^« f^^''^- 
 the Lord's Will, or Allignment, to re- 
 mit his Court ,■ yet the Writ returned 
 into the Common Pleas, before the Ju- 
 ftices there, is goods and they iliall 
 
 proceed
 
 366 £)f 2>otbet; 
 
 proceed thereupon ; if the Lord hath 
 not any Court to hold Pleas of this 
 Matter. 
 jvdthe And it feems, that the Lord fhall 
 kZt Z "^^ ^'^^'^ ^^^ Adion againft the T)e- 
 ABionfor maudaiit^ for fuing the Writ in the 
 ^"'^%u • Common Pleas, if he hath got no 
 %Z''* Court to hold Plea thereupon, and to do 
 
 Right unto the Party. 
 
 Wheve he But if the Lovd hath a Court to 
 
 r p,tS- ^old Plea, then he may have a Prohi- 
 
 im. bition to the Juftices of the Common 
 
 Pleas, that they do not proceed upon 
 
 the Pka, othervvife not. ^are de 
 
 hoc* 
 Where a Whcn the Hushafidj being Lord, aliens 
 Dominus jj^^^^^ ^q \^q\^ ^f the fuprcam Lord, of 
 
 Curiam Conlcqucnce they are no more Atten- 
 fuam, u (Jant to his Court ,» and therefore 
 zrr^Ued. ^\^q^q j^ inipUcd a T)o7mmis rejnifit Oi- 
 riam [nam j fo that no A(^ion lies 
 for the Heir^ for bringing the Writ in- 
 to the Kings Court, fince the An- 
 ceftor remitted his Court, by fuch Alie- 
 nation ; and no Adion lies by the 
 Mefji-e Ijord-y bccaufe the Title of the 
 Wife begins before the Tenure arofe to 
 him i for the Wifes Title arifes from 
 the Seifin of the H7isha7id^ which was 
 preceding the Alienation, whereby the 
 Alienee is attendant upon the next 
 Lord, and by Confequence, the Court 
 4 is
 
 IS remitted to the Crown by Aliena- 
 tion. 
 
 And this Writ of Right of T)ozvei\ mere a 
 licth where a Fe7/2e is endowed of Par- ^'f^ " 
 eel of her T>ozver, and ilie would de-'/'Zf.f 
 niand the Rcfidue againft the famt lerVoru/er, 
 Tenant^ and in the fame Town ; then ^^'^J'^f^ 
 fhe ought to fue this Writ of T)ozver i wm of 
 for the Words of the other, mz. nndt ^'i^^* "f 
 7iihil hahetj will notferve, becaufe that^"*^**^* 
 ilie hath received Part of her 1)ozver ; 
 and therefore, of NccelTity, it behoves 
 her to fue this Wrt of Right ofl^ozxer^ 
 to recover the Refidue,- and the Writ 
 fhall be directed to the Heir, or to his 
 Guardian, if he be in Ward, as a Writ 
 of Right Tate7it fhall be, (jjc. 
 
 The Reafon of this is, becaufe the^'?'^ <^'« 
 Polfeffory Writ, as the Writ Unde 72il^ffj2 
 hahet is, muft demand the who\oT>ozver 
 of the whole Eftate of the Husband ; 
 and that Polfefibry Writ fhe can have 
 but oncci therefore if fhe omits out of 
 the Writ of Uude nil hahet any of 
 the Lands which the Husbfind was fei- 
 fed of, during the Coverture, flie is put 
 to her Writ of Right of "Dozver qjwad W^^ere a 
 the Lands. IZhh- 
 
 And if a Fejne lofes her Land which ilfaJt, 
 ilie holds in T)ozver by Default in a^^ ^"^y 
 T recipe quod reddat ; yet, according ^-^J^^J 
 to the Opinion of fomc Men, flie fhari Right cf 
 
 have^°^''^^'
 
 368 £)f 2Dolbet> 
 
 have a Writ of Right of 'Dower-, but 
 it fcems by the Equity of the Statute 
 of Wt:ft. 2. c. 4. That if a Fetne lofe, 
 by Defoult, the Land whereof fhe hath 
 had T>ower^ that by that Statute fhe 
 may have a Qjwd ei *Deforciatj to re- 
 cover that Land ; and before the Sta- 
 tute, fhe had no Remedy to recover 
 the Land, but only in an A<5tion of 
 Ijifceit^ if fhe were not fummoned. 
 Tetjant At Co?/imo?i Law^ if T^enajit for Life 
 ^blryldin ^^^s barred in the PefTelTory Aaion, he 
 a Pojfejfory novcY could have the Acflion T)roirurali 
 ARton, {^^^ j£ ^Q y^^^^ barred of his Seifin, as 
 
 hnve a he vvas in the PoiTefTory Action, he was 
 
 Droitural barrcd of his Right for ever j and the 
 
 ccTnion Rcafon is, becaufe no Body could have 
 
 La'o;. a final Judgment to Perpetuity, to put 
 
 the Lands in Peace, by the 'very 'Te* 
 
 najit^ or Tieiiant in Tee-fimpk of thofe 
 
 Lands, and that bound the Right for 
 
 ever againft all Pcifons, even againft 
 
 all Strangers that did not Claim within 
 
 the ' Year and Day j but Tenant for 
 
 iJfe of Lands, claims the Seifin only, 
 
 therefore whatever barred the Seifin, 
 
 was a Bar to their Right, fince they 
 
 had not a mccr Right, diftin(5t from the 
 
 Seifin j and therefore, if even the Tf- 
 
 7ia72t in jD^ertT vvas barred by Default, 
 
 in a Writ of Dower, Unde nihil habety 
 
 flic was perfectly barred thereby, be- 
 
 4 caufe
 
 caufe the Bar to her Seifin was a Bar 
 to her Right ; but if the Lands were 
 omitted in the Writ of ^ozver U7ide 
 7iihilhabet:> the Judgment in the Writ 
 could be no Bar quoad the Tiower in 
 thofe Lands, becaufe the Judgment 
 was not concerning the fame ,• but as 
 to the Lands mentioned in the Writ, 
 Judgment by Default was a Bar, 'till 
 helped by the Statute of Wefi, 2. c. 
 4. which gives the Qiiod ei T>eforcicit, 
 
 And if the Fe?/ie hath Tioz^cr^ and ^^^^ 
 lofe the fame by Affize^ or Adion hfivg Ut 
 tried, it feems ihc hath no Remedy but ^^'J ^/^^ 
 by Attamt ; for it feems fhe fliali have ^Remedy h 
 no Remedy to recover by a Writ of ^"'^''^f* 
 Kight of ^ower^ becaufe llie had the 
 Land once aifigned to her in T>ower j 
 and ilie was in PofTefTion of the fame ,• 
 fo that the Title was executed, and fo 
 llie ought to fue an Adrion of her own 
 PoffefTion, if flie be afterwards de* 
 forced* 
 
 For the Statute extends only to IB.-TheRnt- 
 ftates for Life, or in Dozve}\ where the Z^"- 
 Tenants lofe by Default, and not 
 where they are barred by Judgment^ 
 upon the Merits of tlieir Caufe. 
 
 And after the Plea removed into the The Pro- 
 Common Picas, the Procefs is then a '^^f^ ''f*^" 
 Grand Cape, and a "P em Cape ; and in ^'""'"'^' 
 the Heir's CourtJtheManl■ie^is to make a 
 B b Procefs
 
 370 ^f 2[>oMjer* 
 
 Pfocefs in the Nature of a Su7mn07is^ and 
 of a Grand and ^etit Cape; and the 
 Writ to the Heir is thus, 
 
 REX A. falttte?i2. Tracip. tihi qttod 
 ThcForm r^^^ dilatio7ie plenum reUum te?ieas B. 
 
 ot the ' >, . -^ , . ^ J 
 
 Writ. qn£ juit nxoT C de tertia parte decern 
 acr. terr^ cimt pertment* in W. quavi 
 clcimat tenere de te in dote per liherinn 
 fermtium terfu partis tmiiis denarii per 
 A7inmn^ pro 07mii fer'vitio qmd ei de- 
 forciat^ &c. 
 
 a Moiety, of Right of T>ower of the Moiety, ac- 
 cording to the Ufage of Qa'Delki7idy 
 where flie hath received Part, and is 
 deforced of Part. 
 
 Where di- Alid alfo it appcarcth in the Regi- 
 
 IIThX fi^^-> ^^^^^ ^^^ -^^^^^^ ^^^^^ ^^^^ ^ ^^"^ 
 
 of Right of ^ozver directed unto the 
 
 Heir himfclf, where he himfelf de- 
 
 forceth her of the Profits of an Office, 
 
 and the Writ is thus, 
 
 The Form REX h, fahte7f2, Trtccip. tihi qjiod 
 
 \vrif 'of P^^^^^^^f^ reUiwi te7ieas B. de tertia parte 
 
 Dower, exitimiu prove7iie7itiu7nde CtiflodiaQaola 
 
 to rhc Jhhati(£ Weft 7/1. & de tertia parte triinn 
 
 the^th°rd Rodarim terr<e imius Roda prati, dy 
 
 Parr. redditus tot per A7i7imn CT lagefianmi 
 
 cervifia 'vel tot ferculorum per T>ie77i 'vel 
 
 per fepti7na7ia7n c^"/ per A7mu7n cim 
 
 perti7ie7itiis i7i 'villa Wefiin, qiias da- 
 
 7uat perti7iere ad liheriwi te7ie7Jientmii 
 
 fun77i
 
 fmwi quod de te ttjiet in dote dr 
 tenere clamat de te ifi libtrum fer- 
 mtium in^DtfiienduM tibi tertiam par^ 
 tew Cuftod. pro Cujiodia GaoU pr^^ 
 diB. & porta ejufd, Abbaties pro oimii 
 fewitio quod ipfa deforciat^ (jc. Vide 
 15 Ed. 3, Dower bi. 
 
 TDozver demanded of the Profits com- '^i'^Pre- 
 ing from a Fair de N* 11 El. 3. l^ow,paiu '^ 
 85. C. Lit, ^2. Dower is demand ible 
 of the Moiety of Stallage^ coming from 
 the Fair of 2). and good^ without 
 faying the Moiety of the Profits of 
 Stallage^ for Stallage is a Profit. Ra.E77t, of Stat- 
 234. TJe tertta parte exit, (j proficJ^g^' 
 de qnodaj/i juercato qnoUbet aiino iji 
 fefio, S. Mich, i 2 Ed. 3. T)ozver may be 
 well demanded of theThi'd Part of the 
 Profits of a Bailiff's Office, Parker, ^^f;;' 
 (^c. without demanding the Third Part 
 of the Office, becaufe entire,- dz-zbita- 
 ttir in the Office of F. v. 45 Ed» 3. 
 Dower 50. where the Fe7/ie is endow'd 
 of the Third Part of the Profits of aOfaMHh 
 Mil/, and had the Freehold of the J'^'^^^.^j^ 
 Third Part of the Mill in her. 21 Ed.^. Dower,^ ° 
 51. Dozver, of the Third Part of thePi-s^.^ 
 Office of the Marj7jaljea. ^oiver of 
 
 And by the Writ it appcareth, that ^5,'^^^''^, 
 the Fe7/ie lliall have a Writ of 'Dozver '^pp''^ '^^"^ 
 of what is appendant, or ^PP-^^tenanc f^J^^J^^^^^^ 
 B b a to
 
 372 £)f SDoitoet. 
 
 to the Land which ilie holdeth in 
 Dozvtry if fhe be deforced thereof. 
 
 ^f n UXtit De Quarentina Habenda. 
 
 The Writ "^"^^^ ^^^^^ ^^ 2l^are7iti7ia Hahenda^ 
 
 DcQua- lieth where a Man dieth fcifed of a 
 
 H^b^'^d- ^I^^^'^^S^ ^'^''^'^ Lands, and immediately 
 
 ^hen it ' after the Death of the Htishafid^ the 
 
 iies. Hev,\ or he who ought to have the 
 
 Lands after his Death, wall put the 
 
 Wife cut of the MefTuage, ^c, then 
 
 the Wife wall have this Writ ^ for by the 
 
 Statute of Mag7ia Charta^ cap. 7. the 
 
 Wife fhall remain in the Capital Mef- 
 
 fuage Tifter the Death of the Husband, 
 
 forty Days, if it be not a Ccifile^ and 
 
 T,:cii h Is ^^^'^^^ ^^^"^^ ^^ Vicoti72ti€l^ and fhall be di- 
 
 a Wyit reded to the Sheriff, and he fhall hold 
 
 vicoun- p|g. thereof. 
 
 By'rcvhat This Writ was given by the Statute 
 Statiits of Magnet Charta^ c, 7. find therefore 
 ^'^'"' the Statute is recited in the W^rit; and 
 it v;as for the Time which the Wife 
 w^as to continue in the Hiisha72d\ Houfe, 
 and until fhe had got an Alfignment of 
 her Dower ,• and that the unnatural 
 Heirs fhould not turn her out imme- 
 djately \ therefore the V/rit is Vicowi^ 
 tiel^ that the Sherif! might reftore her i 
 in Cafe flic was put out before the for- 
 ty Days were ended. 
 
 And
 
 And the Writ is in this Form, 
 
 HEX oicecomlti falutem^ or, baUivis T^^^orm 
 fnis jaUit, Ex querela B. q/M ftilt uxor vvnc, 
 D. acdephmts q?iod ami in Mngna 
 Charta de lihertatilms Anzjlit co?iti~ 
 7ietm\ quod 'vidt/cc mcmea7it iJi capitali 
 Mejfiiagio mar itoY itm fiiorum fer dies 40, 
 nifi Mejjuag, lUud cnjlr, fit^ ijifra 
 quod temp us dotes fii£ ajjig-nentur eif- 
 dem^ (j'qtiod interim habeant rationabi- 
 lia efio'veria de bonis eorundem^ J. de C. 
 ipfa^n B. ftatim poft mortem pr^di'cl^ ■ 
 mri fill J de capitali Mejfjiag, quod fuit 
 tyisdem D. in H. licet nee c aft rum fit^ 
 7zec dos ei aftignat afuerit .^oiolefiter ejecit^ 
 (J ipfa efto'jeria fna de bo?iis ej//fd. 
 D. percipcre non pcrmittit^ ad ipjius 
 B. damnum non modicum CT graca- 
 7/ien^ & contra tenore?// chart^e pricdicid:^ 
 (y quia pr^fat. B. i72j?iriari nolnmns 
 171 hac parte mbis prdeclpimus^ quod- 
 mcatis coram I'obis partibus priedi'ci. (j' 
 afiditis hinc & i7ide earnm ratiombus 
 eidem V).plena7;i& celere7n jnjiitia^n inde 
 fieri faciatis j/jxta tenor em chart cs prcc- 
 iiUiC^ 710 pro defeZin juftiticc querela 
 ad 7Z0S 'jenerit^ i^efte^ (jc. 
 
 And upon that Writ, t'le Sheriff ilia] I 
 
 award PiOcefs againft tic Paly, to 
 
 B b q cojiiG
 
 374 ^f SDoiajet. 
 
 Ho-a; <_&e come and aufwer t.he fame, and fliali 
 dem'^n '" ^^^ ^^Y ""^11 tlic County-Court be 
 hinifeif Iioldcn i for this Writ is a Commiffion 
 ihereen. ^^ j^jj^^ ^^^ upon the fame he fhall 
 
 immediately make Proccfs to anfwer, 
 CjC' within two or three Days, accor- 
 ding to his Dircdion ; and thereupon to 
 proceed as Juftices fhould do in a Com- 
 milTion of Oyer and T^erm'mer^ (^c* 
 
 SDotuet unde nihil Habet. 
 
 A Writ of A Writ of Dower m/de fiihil hahety 
 
 Dower \[q^Yi in q.^{q where a Woman taketh 
 
 m Haber ^ Husharid who is fole feifed of Lands 
 
 nvhere it ov Tenements, to him and his Heirs, in 
 
 hes, Fee-fimplc, or to him and the Heirs of 
 
 his Bodyi or if the Husha72d^ during 
 
 his Marriage, be folcly feifed in Fee- 
 
 fmiple, or Fee-tail of fuch Eftate, that 
 
 the lifue begot between him and his 
 
 Wife, may inherit the fame; then if 
 
 the Htishand doth alien the fame, or 
 
 dieth feifed thereof, or be diffeifed and 
 
 dieth, his Wife fhall have a Writ of 
 
 Dower unde nihil hahety againft him 
 
 who is Tenant of the Freehold of the 
 
 Land, or againft him who is Guardian 
 
 by Kni^t' Service of the Land, 
 
 And
 
 And the Form of the Writ is thus, 
 
 REJC ^iC' fal'ejn. Mandamus vohis The Form 
 qtiod ]ufie & fine dilatmie redd, B. qii<£ ^^^^^^ 
 juit uxor C. rationaUkm dot em ftiam^harm. 
 qim ei contingit de tenemento quod f nit 
 pradi5i. C. qaofidam n)iri fid in N. 
 unde nil hahet^ nt dicit^ (^ tmde que- 
 ritnr quod A. ei deforciat^ (^ nifi^ 
 
 Note ; Altho' the Writ be conditio- ?*'^*^»- 
 
 1 ' r* r ' r dani not 
 
 nal, 7iijt jecerit^ tunc jummofieas , yet i^und to 
 ,. the ^ema7idant is not bound to ac- accept sha 
 I ■ cept the Tender in pais -, for then llie J^^^'^ 
 ihould lofe her Damages for the Time 
 paft j nor is the Tenant bound to tender 
 it there , and yet he may plead in the 
 Common Pleas, touts temps pri ft. i iH,4, 
 62. II H. 4, 405 41. 
 
 It is plain the Wife cannot have Da« From iviat 
 mascs but from the Time of her De- Z?'"^ *^^ 
 mand, becaufe the Tenant of the Land dam to 
 cannot fet out the Uower^ 'till the^^''-"^^^ 
 Feme be there to accept it ^ and there- ^'^^^^' 
 fore when the Writ of T>ower comes 
 to him, he is not bound to fet out the 
 ^oiver 5 becaufe the ^owrefs is not 
 with the Sheriff to aecept it : Indeed, 
 if fhe comes with the Sheriff, it will 
 make a Demand in paisy from thence 
 B b 4 . to
 
 37^ £)f 2r>o«3et, 
 
 T^rr ^° recover her Damages in the fame 
 be^-was Z- Manner as if {he had made her Re- 
 ivays rsa- qucft bcfore the Writ brought ; but if 
 ''^* flie has not made fuch Demand i;2 pais, 
 
 the Defendant may plead touts te?//ps 
 prifi^ fince, as it is faid, he is intitled to 
 the Profits, 'till Default ; but he can- 
 not plead touts temps prift^ againft her 
 after an Efloin caft ^ becaufe by that, 
 his Delay appears on Record. 
 
 And againft the Guardian the Writ 
 is thus, 
 
 The Form Trdclpe A. cuftod. tervd J. qticd red- 
 
 gainft the 9 H. 5. 4. Note 13 Ed. 3. Brev. 242. 
 Guar. if he be Guardian of the Land and 
 ^^"' Body, he ought to be named fo in the 
 
 Writ ; othenvife itiliall abate. 18 Ed. 2, 
 
 Sre^\ 832. 
 That he is Bccaufo if the TDozvrefs do not name 
 medGuar- ^^^^"^ Giiardiafi of both in the Writ, ilie 
 (iia». does not intitle herfelf to the Action 
 
 againft him ^ for he is not to fet out 
 
 ^ozver for her, but as Gtiardiau of the 
 
 Infant. 
 Ought to And note ; She ought to make him 
 ■■rZ l^ls ^^ W the Writ to him that was laft 
 Heir to feifcd. II Ed. 2,' Sr^'c. 471. becaufe if 
 Umiaji ^u^ ^y.jt )qq brought againft the Heir 
 
 je.JeC, ^
 
 of the Arfignec oF the Hiish.vid^ unlefs 
 fhe fhews that the Tenant is Heir to 
 the Pcrfon that was laft fcifed, die does 
 not intitlc herfclf to an AlTignment 
 from him, 
 
 Othcrwife where fhe is endowed ad 
 oftium Ecckfu^ it is thus, 
 
 ^ri£cipe A. q?wd redd. B. qr/^e fu'it p^<e.v> o^ 
 uxor C. ce7tt. aa\ terr^c^ ami ptrti?/.^^^^'^'"^ 
 in N. de qidhus pr^diil. C. qiioiidaiii Ecclcfiac, 
 mr ipfius B. ea?n dotavit ad ofliim Ec- 
 ckfiiC^ qua?ido earn defpojijazit^ luide nil 
 habeti (jc 
 
 And if (lie be endowed T>e affl/jfu 
 patris-i then thus, 
 
 Tr^ccipe A. qmd reddat B. q7fcC f7jit'^^ ^^'^.^ 
 fjxor C. ce/n. acr, terr^c, (jc. de qnihiis ^i^^""° 
 prddiU. & fill us (J k^res ipjius A. 
 quo7idavi 'viri ip/i?h B. de ajfe//)// (j co- 
 luJttate ipfiiis A. patris fui^ earn dota- 
 ■vit ad ojh Ecckficc^ imde^ (jc. 
 
 And the Writ of Dower fmde 7iihii ^"'^^'' . 
 hahet^ may be fued in the County bc-U^huber, 
 fore the Sherilf, by a Jufticies^ ?^\\di. a nm^ he 
 Wife iliall be endowed of an Advow-^^^'^^^^'; 
 fon, Villains, Commons, (jc. and oti'shenShj 
 other Profits and Liberties of which '^..I"'^^" 
 her Husband had any Ellatc of Inheri- '^'^"'" 
 
 tancCj
 
 37 S £)f ^OMU 
 
 tance, which Eftate the lilue, betwixt 
 them, by PoiTibility, may inherit, (jc. 
 
 And the Tf^ife may fue a Writ of 
 Lands or Tenements in Londo7i ; and 
 the Writ fhail be direded to the Mayor 
 and Sheriffs of Loudon^ and it fliali 
 be fach : 
 
 Frascipe KEX f/iajori & mc Lond. fah Tr<e- 
 
 Sheri'ls ^^/^* "^^^^^ ^^^^ j^;t^/??V/^/'^J A. qiiod jufte 
 of Lsii- & fine dilatioiie & fecund, co'/ifzief cw. 
 ^- noftr£ Lond, redd. B. qu<s fttit uxor 
 C. ratio?iahikm doteiu fuam qitte ei con- 
 tjgit (jc. in Lond. ^ Jiifliciatis D. 
 qtiod'pifle^ (jc. (j fectmdum^ (j'c. reddat 
 eidem B. rationahilem ^c. in eadem ci- 
 mtate tmde nihil hahet^ (jc. nt dicit^ 
 &c» & tmde queritur qnod pr^edi^, A. fy 
 2). ei deforciants ne ainpUtis^ (^c, ^efte^ 
 
 S)e-iL'er /* And by that it appears, that a Wo- 
 London y^^^^ ^^^^jj^ j^^^y^ ,^ y^fnt of 'Dower in 
 
 7eZ}T^' London again ft feverai Tenants by a 
 ^inti. feverai ifnfiicies in the Writ, as weli 
 as fhe fhall have the Writ of 1)ower 
 again ft feverai Tenants by feverai !Pf^- 
 cipe'Sy and ail in one Writ, and the 
 Procefs is SnnmionSy Grand and Tetit 
 Cctpe^ in the Common Pieas. 
 
 A' brought
 
 J. hvou2\it T)ozuer a^ainft S. de li-^"^ '^^"^ 
 hero teneme7ito ui C CT U. 13. appear- ,^^^ ^-^^ 
 ed i and before Plaint made, fhc brought of Dower 
 another Writ in the Hime Vilh this ;;f,^^;;;;^ 
 Writ iliall abate, though no Plaint ^^ ^we ^«^* 
 was made before i for by Shard, one ^ifj""'^ 
 iliall not have two Writs of Dower ^/^'"/^'^^^f 
 2/;/Je? /nbil hahet^ againft the f,\me Te- paiubate. 
 nant, in the fame Vili, if it be not 
 upon Special Matter ,• as if the Tenant 
 purchafe other Lands, after the firft 
 Writ, whereof llie is dowable. 1 1 ii. 3. 
 Bre'v, 476. Other wife it is of an Alfize. 
 39 H. 6. 1 2. 
 
 The Writ of Tiozver being returnable Wheve 
 before Jiifiicimils refide?^, the hrfl f '•%''^''^)' , 
 
 -.TT • -1 1- ^ m- C L he a jecor.4 
 
 Writ IS depending at tne 1 imo or the ^^,7. 
 fecond Writ purchafed , and therefore 
 it may be pleaded in Bar thereof, if 
 they both relate to the fame Lands ; 
 but in the Cafe of the JJJize-, if the 
 iirft: never be returnable before the 
 ^uft. it'uierant, the CommifTion is at an 
 Endi and a fecond Writ may be brought 
 at the next Jfjizes^ fince the firfl can^ 
 not be faid to be pending. 
 
 £Df ^timeafiirenieitt of 'Da^tx. 
 
 The Writ of Admeafarement of IDot^- WrTcf 
 er lieth where the Heir, when he is Admca- 
 within Age, endoweth the Wife of more J^^ d'J,''^'^ 
 
 than uetb.
 
 myo may than ilic ouglit to havc IDower of, or 
 
 ^»o«i/. .£■ ^1^^ Qmrdiafi endoweth the Wife of 
 
 more than of a Third Part of the Land 
 
 of which fhe ought to have T>ower^ 
 
 then the Heir at full Age may fue this 
 
 Writ againft the Wife; and thereby flie 
 
 fliali be admeafurcd, and the Surplu- 
 
 {•ciga fhc had in ^ower, fhall be re- 
 
 ftorcd to the Heir; but in fuch Cafe, 
 
 there Hiail not be affigned a-new any 
 
 Lands to hold in *Dozver^ but to take 
 
 from her fo much of the Lands as fur- 
 
 p:;tiTcth the Third Part whereof (he 
 
 ought to be endowed J and he need not 
 
 fct forth of whofe AlTignment fhe holds. 
 
 17 Ed.}. 66^ a View is not grantable on 
 
 this Writ ijEd.} 6'j.cont,adjndgd^']%Bj> 
 
 ^^ . 3* -o- ^nd itfeems that the Heir within 
 
 t^mn"" ^g^> ^'^'^^^ hii^e an Admeafureniejit of 
 
 ^g^' 1)o'uer of his own Alignment, -j E. }» 
 
 Jdmeafiuremeiit B. but if the Heir, at 
 
 Srif fuli Age, affigns "Boiler, he lliall not 
 
 jttit A!^s have this Writ again ft his own AlTign- 
 
 laaiittou y|-jg,^t. 6 H.}. Admeafiive7iie7it \%. 
 
 Where ihe And if the Htir within Age, before 
 
 Gmrd\nn ^|^(^ Quardian enters into the Land, do 
 
 jcHtHhave aflfign to the Wite iiiore Land in UJozver 
 
 theWi'iu than ilie ought to have, then the Gncir- 
 
 dicm fliall-have the Writ of Advieaftire- 
 
 me?it againft the Wife^ by the Statute 
 
 of Wefi. 2. c. 7. and if the Qiiardiafi 
 
 brings the Writ, and does purfue it 
 
 iigai'nft the Wife, yet the Heir at his
 
 full Age, by the flimc Statute, fliail 
 have the Writ of Admeafurcment of 
 ODozver again ft the Vs^ife. 
 
 And the Writ is Vicotmtiel, and fliill 
 be fucd in the County before the She- 
 riff, and is thus : 
 
 REX zncecojuiti fahitejii* Qj.tejiiis efl The Form 
 mbis A. films & h<£res B. qmd C qjtiC ti»ercQf. 
 fuit uxor pTiediU* B. plus hahet in do- 
 tern de lihero tenemento qtiod fuit prs- 
 diU. B. quondam mi fiiiy in N. qiiam 
 Jo ere debet ^ (j ad ipfa?n pertinet h abend. 
 ideo tibi pracip, quod jrijie^ &c. admen- 
 fnrari facias dotem illam^ it a qnod prd- 
 diU. C. 7ion habeat plus in dotem de hd- 
 red. pr^diU: A. quam habere debet (!r 
 ad ipfa?;/ pertiiiet habendum fecnnduni 
 rationabilevi dotem fnam^ & pr^diUus 
 A. habet de dote ilia id quod h'ere de- 
 bet cJ' ad ipfa/n pertinet habendmn ne 
 ampliuSj (jc. Tefie^ &c* 
 
 The Writ of Ad?ueafure7nent lieth lYhereit 
 upon the AlTignment of T)ower by the a lieth 
 Heir, within Age, or his Guardian , ''jg^en 
 becaufe any A6t of fuch Heir cannot of Doiver, 
 intitle her to more than is due by the h t^^ 
 Lawi and by Confequence a Writ of ^j^'Jjr^^ 
 Admeafurement muft lie, and there 
 was no View in this Writj becaufe it 
 proceeded on a Suppofition, that it had 
 been viewed, and found to be more than 
 a Third Part j and therefore to have 
 
 allowed
 
 382 £>f SDotbet. 
 
 allowed a View afterwards, in order to 
 fee fucli an Error, was to fuppofe that 
 the Writ had originally no Foundation j 
 Where it is ^^'^^ it WHS Vico7/7itiel^ becaufe it was 
 Vjcoun- prcfumed the firft Aflignmcnt was in 
 ^'^el. the Court of the Heir j and if thero 
 was any Miftake there, it was to be rec- 
 tified in the Court of the Slieriff. Vide 
 13 ^.3. JdmeajnTeJuent 17. Yet 'Brauto?i 
 Whenith^^^s^ if fhe hath I,ands in T>ovoer in 
 ?°'''."^. divers Countries, there it ousht to be 
 riis. cora?/i jiijiictariis ; and note, there the 
 
 Tenant fhall have feveral Writs. 
 'All tie So note firft^ In every Writ of Jd- 
 'hemmed, ^^'^eafurevie^it ^ all the Land which he 
 hnth in the fame County, iliall be nam'd 
 and admeafur'd. 
 Winrc Secondhy If he hath Lands in feve- 
 
 tZ (eve- ral Counties, there fhall be feveral Writs 
 vai Writs, and feveral Extents of the whole Land, 
 whereof the Party died feifedj and it 
 feems he may have one Co7/7/t and one 
 JdjJieafiire?ne72t, Qjj^cre how it fhall be 
 made. 13 Hd. 4. Admenfuremefit 17. 
 yet note -j R. 2. ibid. 4. the Defendant 
 was put to anfwer^ notwithftanding this 
 Exception. 
 rhe Rea- '^^^^ Reafon why the Writs muft be 
 fon why coram Jnfliciariis^ where the Lands are 
 tioeWrt is j^ feveral Counties, is, becaufe the She- 
 ram ju- nlt'> of two Counties cannot fet out a 
 fticiariis. perfcd TJotven for they cannot meet 
 I "' out
 
 out of their Cities, in order to do it ; 
 and the T>ower might have been Right 
 in the whole, though it was out of Pro- 
 portion in one of the Counties ; there- 
 fore there is no corroding 'Dower fet 
 forth in two Counties, nor confidering ' 
 it whether juft or nor, but only by con- 
 fidering it cora?n Jujiidariis ; but the 
 Tenants muft have feveral Writs, be- 
 caufe an Inqueft muft be taken before 
 the JtLJiices in feveral Counties j but 
 tho' there be feveral Writs, yet the 
 Count muft be upon them all, becaufe 
 the Qiieftion before the Court, is touch- 
 ing the Aflignment of the "Dower, 
 which is one entire Thing ; and there- 
 fore the Judgment muft be of the Af- 
 fignment upon all the Writs, tho' the 
 Inqueji muft be feveral upon each of 
 them. It feems the hiquefts muft be 
 taken in every County, where the De- 
 fendant is dowable, of how much more 
 or lefs than a Third is alTigned in every 
 County ; and upon comparing all the 
 Inquefts returned, the Jttflices are to 
 give Judgment, that the Heir ftiould 
 recover thofe Acres that were over af- 
 figned, and by the Confequence of that 
 Judgment, the Defendant will hold the 
 reft as a reafonable Dower. jcj^^ ,j^ 
 
 And, it feems, that in the Coimt the condu- 
 Conclulion is, Et mde prodncit fi^^^^'/tl"cM 
 
 0" muft bet
 
 3^4 
 
 0f ^ovott. 
 
 6 pt'tit admtjifuratio7iem dxc. as in the 
 
 Count of Admcafurcment of Pafture | 
 
 and if the Dowrefs can plead nothing in 
 
 Bar of the Admeafurement, her Man- 
 
 Uonv the ner of pleading is, T^e^iit & T>efendit 
 
 f/F'^I^' '^'i^fi & ?/^;//r qimJido:, (^c. & co/icedit 
 
 admcj2\uYatio?ie7u pr<£d. fieri -^ (jc, idco 
 
 The a- pr^ct-piivi eft lic, (of the feveral Coun- 
 
 the Writ ^^^^^ ^^'^^ ciffiimptis fectwi I 2 lih, CD' 
 ' legal. ho7//imbi/Sy (jc. per qiiosj (jc qui 
 ncc^ (be- in propria perfoiia fiia acce- 
 dant ad pr^dictam terrain admenfu- 
 randam^ (j quod per eornm facrtim ad- 
 menjiirari fact ant terrain illa?/i, it a 
 quod pr^di^L IMfend, nil Weat in ilia 
 plus ifi dotem^ quavi ad ipfam perti7iet 
 hahe7idiwi^ fecundnm dotaUlem dot em 
 ftmn^ (b admenjtiratiojievi qnain^ (jc- 
 Scire facias hie tali die fiib figillo^ &c. 
 figillis, &c. 
 
 When the Writ is returned, it is en- 
 tered up in this Manner, 
 How TER quod pr^diBfis vie, adtuiic CJ 
 
 try is to i^idevi admenjjirari fecerit terr. illam^ 
 be, ^\yQii tain per di^cretionem jiiam^quam per fa- 
 thc Writ ^^.'^^;/^ 1 2 pYoh. (J legalii/m hominnm ad 
 cd. hoc jurat* qui dicmit juper [acramenttim 
 
 fuuiiij quod in mlla de H. x. acr^s terra 
 funt affignatiC prted' Uefend. plus quam 
 ilia habere debet^ (j plus quam ad ip- 
 fam pertinet habendum jecundum ratio- 
 nabilem dotein juam:, and then the Judg- 
 ment is^ ^^od (the Heir) recuperet x. 
 £icras tsrVi^ prc^diUas, And
 
 And where the Lands arc in fcveral f^^'jf^^ 
 tounties, there arc fcveral Inqucfts, and '"^"'^'' 
 one entire Judgment i for the Number 
 of the o'verphs Acres are contained in 
 all the tnqucfts. Kafialh E/itrlcSy Ad- 
 meaftirefnent de ^afi, fol. 2i» 
 
 And for the Guardian^ the Writ is 
 thus, 
 
 Q^teflta eft mhis A. Cufios t'err^ & h£- Wrir for 
 red, C. quod B. qt/a fnit uxor pradi'ci, ^Jl^^^J""- 
 C. plus hahet in dotein ipftus^ &c. ita 
 quod non haheat plus in dotein^ (^c, & 
 quod pradiB.^ Cuflos haheat-, &c» ne am- 
 plius^ &c. t'ejiey &c» 
 
 And when the Plea is iii the Coun- when the 
 ty, the Plaintiff may remove it with- Piahtiff 
 out any Caufe fet forth in the Writ ; ;j;j;;;; 
 and the Defendant may likcwife vc-Kvitbcut' 
 tnovc it without any Caufe in the Wrir.^'"''""^ 
 
 •. Ti 1 • ''forth /t 
 
 as m Replevin. Reaforj. 
 
 And if the Writ be removed into The Pro- 
 the Common Pleas, by a Tone, i^ndlfjj;^ 
 i?rocefs be awarded againft the Defbn- the Ad- 
 dants, according to the Statute, which ^'4»^'-^, 
 is Sujmnons^ Attachment and i)ijfrefs^ Z7dii " 
 (jc» then the Sheriff Cannot make the 
 Admeafurement, but toi extend all the 
 Landsj particularly, and to return the 
 fame into the Common Picas; and 
 Q e there*
 
 586 
 
 thereupon the Ad7Jieaj'urcme7it iliall be 
 made by the Jufticcs. 
 
 And if the Guardian affign for Dow- 
 er to the Wife, more than llic ought 
 X to have, and afterwards grants over 
 
 his Eftate, his AlHgnee fhall not have 
 a Writ of Admeajnrement, Note thefe 
 Points following are well refoived. 
 Where the Flrf},^ If the Quavdiau alTign T)ower^ 
 Gyantee to ^,, J arants ovcr the Ward, the Grantee 
 
 have the ~ , , , . , p ^ 
 
 Wvit. liiail not Jiave Admeajurement, 
 
 Where the Sccoudly^ If thc J?iceftor adlgns T)oz^- 
 
 Heir, and ef^ aud dlcs, thc Qnardian of his Heir 
 
 cLnSw ^^^^ never have Admeafuremeiit^ but 
 
 to have u. his Ht/f fliall have iti but this feems 
 
 to be in Cafe whicre thc Anceftor was 
 
 within Age at thc Time of the Alfign- 
 
 ment. 
 
 Where the 'j'blrdl}'^ Whoro the /OV/^ feifes a 
 
 |l7/til" //'j;W, to which he hath no Right, the 
 
 it. Guar diem lues an Oufter U maiii^ and 
 
 lias it, faha dote^ it feems, in this Cafe, 
 
 the Guardian fliall have Admeafure- 
 
 ment i otherwife it is of the Aflignec 
 
 Where the O^ GrautCC of thc King. J R. 2, Ad- 
 Heir jioaii meaftireiiieiit 4. Note there alfo, if the 
 ^AMe^'' ^J(/A^/yor endow the Wife cf more than 
 The Ilea- a Third Part, the Hdr fnall have an 
 
 *JayTtlil^ The Reafon is, bccaufe the Grajitee 
 it, and not comes iu Under the Gnardia?!, and thcre- 
 the^eir, ^ ■ ^^^^^^^ bv his Acts ; but if tlic Helv 
 
 at fus Ttiil J • -' 
 
 ^/e. be
 
 be of full Ag'j, and affigns TJozt'cr^ and 
 dies, his Heir fhall have no Writ of 
 Ad?/ieafm'e7/ie7it ^ tho he afTigned too 
 inucbj becaufe he is bound by the Ad . 
 
 of his Anceftor,- but if the Heir ^'^iftheHeir 
 within Age, and affigns Dower, and he wUhin 
 dies, his Heir being of full Age, hc^^^^^^- 
 ihall have a Writ of Admeafuiemcnt, 
 becaufe his Anceftor was not bound by 
 his Ad, during the Minority i but if 
 the Heir be within Age, when he af- 
 figns Dower, and dies, leaving an Heir 
 within Age, fuch Heir fliall have an 
 Admeafuremcnt when he comes of full 
 Age, when he may be thereby bound ; 
 and the Qiiardiajz lliall not have there- 
 by a new Admeafurement during the 
 Minority, becaufe he muft take the E- 
 ftate in the Condition the Anceftor left 
 it, tho' fuch Aifignment of the Anceftor 
 was to the Prejudice of the Guardian. 
 
 And if the "Diffeifor endows thcJVife^'^g 
 of more than a Third Part, the Heir jj^aii haze 
 fliall have an Affife, becaufe he had no^"4I^/«- 
 Right to alTign 'Doiuer:, and therefore 
 the Wife does not come in under a Per- 
 fon who had Power to make an AfHgn- 
 mcnt, quoad that Part \vhtch is more 
 than her Dower,- fo that in that, ilie 
 is looked upon as a Diifeifor i and by 
 Gonfequence the Heir may have an Jf- 
 
 Q c 2 And
 
 3 88 £)f 2Dotbcr; 
 
 Where the And fo if the Heir, within Age^ a^ 
 fjaTkive ^^gr's to the Wife more in TDotver than 
 a Writ of ihc ought to have, (jc. the Gt/ardiaji 
 Mmea. i^ Right may have a Writ of Jdmea- 
 Doaver, jiiremtrit i but ir he Grants over hisE- 
 but not his ftdtc, his AJfigiiee, who is Guardian in 
 ^^^gnec, p,^^^^ £^^jj ^^^^ j^.^^^ ^j^^ ^j.-^.^ becaufc 
 
 it was a Thing in Action given to him, 
 and the Heir fball have a Writ of Ad- 
 meafurement of Uozver for Dower af- 
 figned in the Tmie of his Anceftor, 
 hoc lideturi if the Anceftor was within 
 Age at the Time, (f;c. 
 Where the And if a Jfo7//au bc endowed in 
 
 utefhl" ^^^'^^^^^y by ^^^^ -^^"^4?, the Heir fliall 
 
 j^Jt)' have a Writ of Jdmeafnremerit again ft 
 
 and the her, if llic has more a{%ned unto her 
 
 Vo^ReLdy ^"^^ l^owcr than Hie ough't to have. If 
 
 hyAffife,^ upon Recovery of the Third Part in 
 
 *«'^^.^*^'- Dower, the Sheriff afllgns a Moiety, 
 
 the Tenant hath no Remedy againft 
 
 the Sheriif by JJfijt\ but he may have 
 
 a Scire facias to alfign Dower de iwjo. 
 
 23 R, 2. E:<iecuTio7iy 165. Vide 21 //, 
 
 7. 29. 
 
 25^,^^ T>ozver alTigned by the Infant, more 
 
 rot to be than was ncccifary, jliall not be avoid- 
 
 "^^Jf/'^^y cd by Entry. Vide 10 Ed. 3. 21. Tiozv- 
 
 "'^' er ftiall not be admeafured by a Writ 
 
 of Z)oavr. 19 Ed, 5. 2:^iiir€ Imped it y 
 
 The.
 
 The Reafon is., when the Feme re- ^^'^^re the 
 covers ^otuej'y and the Sheriff aifigns it ,Jn^,j 
 by Award of the Court, and by the In- wo m-ong- 
 queft of twelve Men, the Sheriff is no ^^H'u^f/ 
 Wrong-doer, tho' he afligns more than car} have 
 her Share, fo that the Heir can liave »» -^IPf'- 
 no Jffife ^gainft him, but he muft ap- 
 ply himfelf to the Court for a new 
 Inqueft ,• and therefore muft call in the j^^ y^, 
 'Tenant in "JDozvcr^ by Scire facias, vant to he 
 And when the Heir afli^ns, during his f'^'"^^, '" 
 Minority, more than is neceflary, he tlcias. 
 cannot, at his full Age, avoid it by 
 Entry, becaufe Part is well aifigncd, 
 fince flie was intitled to fome Dower, 
 and confequently he cannot avoid, but 
 quoad the Overplus, and fuch Overplus 
 cannot be diftinguifhed till it be afl- 
 meafured. 
 
 Secondly^ This Affignment was fup- Artjjpjrn- 
 pofed to be done with the Approba- ^'"[ "/ 
 tion of the ^ares of the Heir's Court, /^^^^/J^^^ 
 and fo could not be avoided without *« ^or^e 
 an Inqueft ; but if the Wife brings a j;;;',^'["' 
 Writ of T)owei\ and the T>ozver be fet avoided 
 out under the Diredion of the Court, *"' h 
 the Heir (hall not have Jdmcafure- ^"'^'"'■^' 
 ment when he comes of full Age, be- 
 caufe it is fuppofed the Court will take 
 Care of the Intereft of the Infant ,• 
 therefore its Adt cannot be impeached, 
 tho' the fnfe had thereby more than 
 C c 3 ihe
 
 390 
 
 M ^omt. 
 
 the lirir 
 
 ^"lySrir ^^'^ ought i but J^^m'e whether the 
 Tnlyhave Hcir w.ay Ho't havc a Scire facias, if 
 
 a Scire 
 facias, 
 
 ?JOt-lv:th~ 
 ftavdh-.g 
 
 menftire 
 
 mien 
 
 the Shcriijf has fet out in ore than he 
 jught i and if the Guardian do aiTign 
 7Joiver more than fhe ought to have, 
 in ir.qi^ej}. i\-^Q Hcir, during his Nonar*^, fhall not 
 havc a Writ of i\dineaiurement ; but if 
 he himfclf docs, (jc then it fcems rea- 
 fonable that he himfelf, during his Non- 
 age, .may have the Writ of Adnieafure- 
 nient of Dower. J^i/^ere tamui. 
 Improve' But if the Wife, after the AlTignmcnt 
 ihe Tenant ot Ijovjef, clo lOiprove the Land, ana 
 in Lower, ^yiol^Q jt bcttor tliau it was at the Time 
 TJhenfrcm of tho Alfignnicnt, an Admeafurement 
 her by Ad- docs not llo of that Improvement. 14 
 //. 3. Admeafi.ireme72t 10. 13 £. i.ihid, 
 37. but if the Improvement be by 
 Cafualty, as a Mine of Coals, or of 
 Lead, which are in the Land, (^c. 
 which have been occupied in the Huf- 
 band's Time, the Doubt is the more ; 
 but {he fhall not ^ig new Mines, for 
 that would be W^afte. 
 
 The T)ifti7iBio7i^ touching the Mine, 
 Veme^ta- fccms to bc this, That where a Mine 
 ie;i, as to j^ ^^^ opcn, {hc cannot work it at all, 
 Sc^u of becaufe it will be Wafte^ if it be open, 
 improve- j^d in W^ork, it fccms to be only a ca- 
 TcafolJual Profit i and a cafual Profit fliaii 
 tu not avoid an Aflignmcnt, or be fo ad- 
 
 mcafured as to vacate it, fince it is 
 
 not 
 
 Z)#'
 
 £)f SDoVbci:. 391 
 
 not certain to continue during the Life 
 of the T)ozv]'efs i and therefore not to 
 be com]3uted into the Vtiliie of that 
 Part which flie poiTelles, unlefs the Va- 
 lue was cocxtcnlive with the Eftate 
 which flic is to have in it. 
 
 And if the j7iceftor dieth fcifed, and^^'' 
 the Hushcmd die before he entereth in- [ndo.j!d\ 
 to the Land, yet the Wife fliall be en- '^'^' the 
 dowed, tho' her Hnsband had but a f f ;f ^ 
 PolTelTion in Law. Vcjfejpon. 
 
 But a Man fliall not be T^e7ia7it Aiicer of 
 by the Curtefy of Land, if the Wife ^ ^'^"""^ 
 had not a Poifeinon in Deed,, if it be A'/^ 
 not in Special Cafes, as of an Ad-vov:- 
 fo7i^ of ^e7it^ where flie dies before the 
 Day of Payment. 
 
 And in that Cafe, if the King's Te- 
 na7it die feifed, and the Tcr-tcnant dies 
 before he enters, then the Wife fliall 
 be endowed. 
 
 But if the Hdr enters and intrudes wheve the 
 upon the King's PoiTelHon, and after- ^/^ «ot 
 wards dies before he fueth his Livery^ dJjed"' 
 the Wife fliall not be endowed by the r^here the 
 Statute of Tvcerog. Reg, c. 1 2. which ^'^'j '"" 
 is, that if the Heir intrude upon thQtZiCi^o'" 
 King's Poffeilion, that 7iiillnni accrefcit Pof^JpoK. 
 ei lib. te7iemc7itnvi. Where a Womajz 
 takes a Lcafe for Years of Land, fiie 
 fliall not be endowed of the (iime 
 Land, during the Term i accordingly 
 C c 4 where
 
 392 £)f Dotbtt, 
 
 me'lo' ^^^^^'^^ ^^^^ ^^^^^^ ^^^^^ the Commitment 
 }>( embiv- o£ the Wardlliip from the Grant of the 
 ed, tbo' the Kingj without any Execution of IJoivery 
 
 fe'^naii ^^^ ^'^^^^ ^c ^^'^rc^ ^^ T^omr, during 
 iej^ ij the the Nonage of the Heir. 6 //.4.7. But 
 Beir he jf x\\c ^Baroii be attainted, and dies, 
 ^'^^" ' and the Wife takes a Leafe for Years 
 of the Land, from the Grant of the 
 King, the Heir of the Husband being 
 aifo in Ward of the King for other 
 Tenements that were intailed ; and af- 
 terwards by Aft of Parliament, or Repeal 
 pf Judgment, thcHdrls reftor'd, now Ihe 
 jliail have hci' T)otveri for that the Leafe 
 was made before the Title of T^otver 
 commenced. So if J. makes a Leafe 
 to a Feme for Years, and afterwards 
 they intermarry, J, dies within the 
 Tcrip, his jn/e (hall be endowed. 6 II, 
 4. 7. 8. Sir yoJm Cornwallis's Cafe, 
 ^yer q6. X^'nant at Will ihall l^c in 
 ^Oiver of the fame Lands. 
 The Rea- The Rcafou pf this Cafe is, bccaufe 
 /flfl itereof, when thc jr/fe takes a Term, or has a 
 Term in the Land, by her own A(ft, ilie 
 agrees to hpld it under the Kefervation 
 of the Rent ^ therefore jlic cannot af- 
 tcrvvards recover a Freehold in that E- 
 flatc, which would make a Merger of 
 the Term, qwnd that third Part i and 
 by Confcquence take away the Sccuri» 
 ty vyhich the Heir had for his Rent, 
 
 fmpj
 
 fmce he could not afterwards diftraln ^'^''f ^** 
 in that third Part for his Rent, c\nd ^^i^f^^/' 
 therefore fuch Term will be a Bar to of a Term 
 the Wife's recovering T^ozvtr in ^^^^^{^''p*^^ 
 Land, fince ilic has covenanted with Aiiter 
 the Ilcir to hold of him in another "/ '^^ ^'- 
 Manners but though the Wife were;'^^;„^ 
 Tenant at Will, ilie may bring T)ozuer, at wui. 
 bccaufe the bringing the Writ is a De- 
 termination of the Will. And where 
 the Eftate, which the Husband hath 
 during the Marriage, is ended, there 
 the Wife fliall lofe her T)ozver» 
 
 As i( Tenant in Tail do difcontinue ^^:^^^'^^;J 
 in Fee, and afterwards taketh a Wife, ic/e her 
 and diflcifeth the Dicontinucc, or the ^o^'j; h^ 
 Pifcontinuee doth enfeoff him, and af- ^;,J,'j!" ' 
 terwards the Tenant in Tail dieth fei- 1 inrt.;x. 
 fed, his Heir is remitted, and the Wife ^y*-'" ^^° 
 fhall lofe her ^ozver^ becaufe the Heir 
 is feifed of another Eftate of Inheri- 
 tance than the Hnsha?id had during 
 the Coverture. Vide infra. 
 
 And fo if a Man have a Title of Ac- vnere the 
 tjon to recover any Land, and ^f^^r- /^/^f^*** 
 wards he entereth and diifcifcth t\\Q vower.tbe 
 Tenant of the Land, and dieth feifed, ^^j**'^'* 
 and his Heir entereth, his Heir is re- {^"^cifor, 
 mitted unto the Title which His An- 
 ceftor had, and the Husband's Wife 
 fiiall lofe her Dower, for the ElUitc 
 which the Husband \ii\(l is determined ^ 
 
 for
 
 394 ^f 2Doti)er. 
 
 for that was an Eftate in. Fee by 
 Wrong, and the Heir hath the Eftate 
 in Fee, vviiich his Anceflor had by 
 Right. According; to this Diverfity. 
 Vide lo Eci' 3. 27, 
 v/i^ye the If a Man makes a Gift in Tail, re- 
 iVifeofthe^Qxy'iii^ a Rent to him and his Heirs, 
 f°zi7mt ^"- afterwards tlie JJo/wr hath a Wife, 
 ie endowed and diclh, and the T'ena7it in Tli// dieth 
 oj ^ ^^"*' without Iffue, the Wife of the Donor 
 ^ExtlrS^ lliall not be endow'd of the Rent5becaufe 
 the Rent is extinft ,- for it was referved 
 upon the Eftatc-tail, which is ended ^ but 
 altho' that the Tenant in Tail dieth 
 without Iffue, yet his Wife lliall be en- 
 dowed, becaufe the Land continueth, 
 and is not determined, as the Rent is. 
 Where the JV. ^. If a Rent be granted to J. S^ 
 ^/^^^'^fand his Heirs, upon Condition that if 
 er'^Mj a " thc Grantcc or his Heirs be within Age, 
 Ron, but the Rent fliall ccafc during their Non- 
 
 ccmio'"''' ^gc> ^^^ ^^'y'^ ^^^^ recover 7Jozver of 
 during the the Rt?it againft thc Ter-tcnant i but 
 Nonage ^^jp,f exec lit io during the Nonage. 12 
 nJr E* ^* Co?iditio7iyTerki72s foL6^, Tl'^-'ii' 
 Whevstie If the Grandfather dies feifed, and 
 f^/« "/ after the Father dies fcilcd, and the 
 tautr ^^^^ hath the Land, and then the Wife 
 'havejiiw- of the Grandfather is endowed of the 
 
 J!ttthevi the Wife of the Father fliail not have 
 
 third Pari. Dower of thc third Part. !^da dos de 
 
 dote peti 7io7i debet. The
 
 The Tiowrefs holds of the Heir ^ 
 but by the Inftitution of the Law, flic 
 is in of the Eftatc of her Husband ^ 
 fo that after the Heir's Afifign men t, fhe 
 holds by an Infeudation from the im- 
 mediate Death of the Husband : Hence 
 it is that Tiovoer defeats T>efcent^ be- ^^^'^^ ^^^ 
 caufe the Lands cannot be faid to ^^- jeaaDe- 
 fcend as Demefnc, which arc in Te-Af«^ 
 niirc, and the AfTignment of T)ower 
 being in Nature of I?ifetidatio7i^ and 
 taking Place immediately from the 
 Death of the Husband, there arc only 
 two Thirds which defcended as Dc- 
 mefne : Hence the Maxim arofe that 
 there could not be 2)ox ex dote \ for if ^'^*]^^, 
 there were Grandfather, Father and Son, not he ck 
 ^c. nt fupra^ the Mother was not in- dote, 
 titled to be endowed of a third Part of 
 that Third, bccaufe it was in Tenure 
 of the Grandmother, during the Life 
 of the Father, and he was never feifed 
 of it. 
 
 But if the Qva7idinother had died, m^ere/s* 
 during the Life of the Father, the f f ^.^^ 
 Mother mould be endowed j becaute endo'tiieL 
 the Tenure of the Dowrcfs's Grand- 
 mother was determined, and fo was 
 Demefnc in the Life of the Father. 
 
 So if the Qrandfather had enfeoffed 
 the Father, and died, and the Graiid- 
 mother had recovcr'd IJower of the 
 
 Father.
 
 396 £>f SDotber. 
 
 The lih Father, and then theFather died, thcM«- 
 Part-lbicb ther fiiould be endowed, not only of the 
 the Grand' Eftatc in PofTcflion, but of one Third 
 ZTl inRevcifion, ofthat Part (ciz.) which 
 Di'wer. the Grandmother held in ^Jozvtr^ bccaufe 
 the aclual Scifin of the Father, by the 
 Feoffment, was before the Tenure of 
 the Grandmother took Place upon the 
 Eftate, tho' the Title to fuch Tenure 
 was precedent ,- therefore the I'itle of 
 the Grandmother does not avoid the 
 Seifin of the Father^ which he attain'd 
 by the precedent Livery, but only bur- 
 thens it with an Eftate for Life ; fo 
 that the Seifin of the Father^ in this 
 Cafe, being not defeated by the Te- 
 nure of the Gnuidmother, as it was in the 
 former Cafe, fuch Seifm muft there^ 
 fore be eftcemM to have Continuance 
 during the Coverture ; and from this 
 Notion it is clear, that if Tenant in 
 Tail difcontinucs, and after takes a 
 
 mfl\t '^^^'^'^^^ ^"^ diljeiles the T>ifconti?mee^ 
 the 3ifei- and dies, his Wife fliall not be endow*d5 
 ^y/<fe« becaufe her Tenure muft arife out of 
 pleTpaii the Eftate gained by DUreifin, and by 
 reot he en- Confcquoncc, fucH TcHurc is defeated 
 dc'^ei. j^y ^1^^ Remitter ^ for flie cannot hold 
 of the Heir^ as by Infeudation of that 
 Eftate which he has not in him. 
 
 If the Husband be T^etiant in Co^n- 
 mon^ v^ith two others ia Fee, of cer- 
 tain
 
 tain Lands, and dies, his Wife ^q\\Ho^ the 
 be endowed of the third Part of the ^ 7^„^{^ 
 Land, by Metes and Bounds to hold in in common 
 Common, dr. it is to be holdcn by ^.^^'J"' 
 Metes and 'Bounds^ quoad the Heir, and 
 fhe muft ftock the Land in Proportion 
 to a Third of a Moiety \ and quoad the 
 other Moiety, flie muft ftili hold in 
 Common with the other Tenants. 
 
 ^ower muft always be in Severalty T>oiver ly 
 by Metes and Boimds^ quoad the Heir ^ j^^J^^^^^"'* 
 becaufe it is a Tenure of the Heir, and 
 therefore muft be divided from his Dc- 
 mefnes. 
 
 And if a Wife be endow'd of a Mill, How to y 
 or of an Olhce, flie ihall have the third '^-^'^^^f 'f 
 Part of the Profits thereof afTigncd to an 0^\e.^ 
 her, and fhe iliall have a Freehold in 
 the third Part of the Mill, (jc. ill. 4J. 
 E^l* A Woman at the Age of Nine 
 Years, or more, at the Death of her 
 Husband, fhall have jDozver of his Land; 
 but if fhe be of lefs Age, 6v,. then (he 
 fhall have no Doiver. 
 
 If a Wornaji be endowed, and after Tenant in 
 lofcth it by an Action tried, if ilie prays ^«"^."'. 
 in Aid of him in the Revcrfion, ^(^Xdcfhim 
 ihall be endowed of that which remain- '» R^^r- 
 eth. Vide 4 E. ^. ij, 36. 10 £. 3. 7- tl ,t" 
 yet there feems this Diverilty, if 2i dewed. 
 Wife be endowed by a l^iffeifbr^ fhe 
 ihall have the Warranty ^ but if the 
 
 Rever-
 
 398 £)f iDOllbet; 
 
 Reverfion of thofe Lands be only gran- 
 ted over by the Heir, fhe hath loft the 
 Warranty againft the Grajitee. 17 E. 
 3. 7. 21 E. 3. 48. 10 £. 3. ^lid jw 
 ris^ 41. 
 toiver cf If the H?isha7id exchangeth Lands, 
 LanHaeid^^^ and aftcrwards dieth, if the Wife 
 change., have IDozuef of the third Part of the 
 Land taken in exchange, flie fhall not 
 have TDozver of the other Lands, (jc, 
 which were given in Exchange. 
 Where a If a Woman be Gnardia/i in Socage^ 
 Sr^L^ and llie brings a Writ of Doa^er againft 
 pe holds a Stranger, he may plead that ilie hold- 
 Lavds in Q^h Lands in Socage^ of which {he may 
 ^^^^ ' endow herfelf de la pirns Seale^ and 
 then upon that the Wife may endow 
 herfelf of thofe Lands, unto the Value 
 of the third Part, which flie ought to 
 have of the other Lands which the 
 Guardian holdeth, (jc\ 
 Whether And whcthcr fhe may endow hef- 
 
 Jhe may f^lf dt' kl pluis Bedky UUtO thc Vd" 
 
 Jeipof^" lue of the third Part, which flie ought 
 Lands de to have of all her Husband's Lands or 
 Bcai^'' *no, (hme. For fome hold that Dower 
 dc la plnis Beak fliall endure but du- 
 ring the Minority of the Heir which is 
 in Ward. 
 Where the ^hc Sou would havc cndow'd ills 
 «»lw"cT Wife of a Reverfion of Land, which 
 afli-nru one held for Life, ex ajjhifn patrisi 
 P""s- 2 and
 
 and held not good, ]\L 4. E. 3 - bccaufe 
 it was not in Poflelfion, whereof a Right 
 of 1)ozver may be claimed. 
 
 And the Writ of Dower e^c ajfenfu ^'here 
 patris lies as well againft the Guardian *!'.''* ^'''"''^ 
 as againft the Tenant of the Free- 
 hold. 
 
 If the T'e7iaut fore-judge the Mefi/e, v/here the 
 yet the Mefne's Wife iliali be cndow'd. ^f'f' "f 
 If a Man recovers in Value againft the ^reLntio 
 Husband, by a Warrct72tj! ancejirel^ yet he endorjf^ 
 the Wife lliall be endowed, bccaufe ^^^• 
 the fame is by Force of the Warranty 
 made, and not by Reafon of a para- 
 mount Title to the Land. 
 
 Where the Hushcmd's Lands are ev'ic- ^^.^^g fj,g 
 ted by a Title Paramount, the jrife ^'f^ f<^»- 
 cannot be endow'd, becaufe the Jfy^'Zj^'"^ 
 cannot be intitled to an Infcudation_, Lands 
 where the Husband is not intitled to ^^'^t^^ h 
 the Land it(l:ilf j but if Land be re- p^ J_ * 
 cover'd by Way of Recompencc in Va- niounh 
 lue, either by Homage ajiceftrel^ or 
 otherwife, fuch Rccompcnce binds the 
 Land only from the Judgment of fuch 
 Land being preccdently bound. By the v/here pe 
 Wife's Title to her Dower, flie iliali >^^'^-'^"^ 
 
 1 I T-v p 1 T 1 Dcwer cut 
 
 have her Dower out ot the Lands re- of Layids 
 cover'd in Value ; and if the Wife be riccvered 
 evi(fted in any Part of thofc Lands af-"* 
 {igncd unto her for her Dower, ilie is 
 intitled to recover in Value againft the 
 
 Aliignor
 
 406 ^f k^oi^tt. 
 
 ^ Affignor of Dower, be he DifTeifor or 
 
 Heir ^ becaufe it was not an Infeuda- 
 
 tion of that Third to which ilie was 
 
 intitlcdj but ilie iliall not recover a- 
 
 Pst a- g^inft the Heir's Gra^itee o{ the Rcfidvie 
 
 fahij} the of the Lands, becaufe he did not make 
 
 GraJtee. ^^^^ Infeudatiop, and the I'enure is not 
 
 in him, but the Revcrfion ftill conti- 
 
 nucs in the Heir ; and albeit, the Heir 
 
 had granted the Revcrfion of the third 
 
 Part, yet ilic could not recover againft 
 
 tlie Grantee^ becaufe the Heir could 
 
 not grant over the Rcverfion, without 
 
 her Attornment ,• and ilie is not obliged 
 
 to attorn, unlefs fach Gra7itee of the 
 
 Revcrfion will enter into a Warranty 
 
 to defend her Eftate ; and it feems that 
 
 the Recompcnce which the Wife has, 
 
 is only againft the Perfon who made 
 
 the Aifignmcnt of Dower, and doth not 
 
 touch any Eftate not fubje(5t to fuch 
 
 Infeildation. The younger Son iliall 
 
 not aifign T)otuer to his Wife, ex ajjefi- 
 
 ju patris of the Father's Laiid, becaufe 
 
 no Heir apparent. 
 
 n'lat The Endowment ad ofiiujn Txclefi£^ 
 
 Vo'^tf Qj-^ ,,v. njfcrifii Tcitris^ are particular 
 
 Ecdcfix, Infcudations in the Life of the Huf- 
 
 ard ex band, though to take Place after his 
 
 facris! D^^ccafe, and therefore the Ulfe may 
 
 enter without any Aifignmcnt of the 
 
 //t7>'5 or any further Specification of 
 
 2 th^
 
 the Father, than what was contained 
 in his original Deed ,• becaufe the Te- 
 nure was erected in the Life of the 
 Husband ,• and none can endow in this 
 Manner, but the Heir apparent; becaufe 
 no Body elfe can be certainly intitled 
 to the Demefne, and therefore they 
 cannot make fuch Sort of Infendation 
 out of them, nor could the Heir do 
 it, without the Alfcnt of the Father; 
 becaufe the Demefnes are in him, nor 
 could the younger Son even in So- 
 rotigh JEngUfl) do it, becaufe there may Co. Lfr 
 be a younger ,• and thefe Sort of Dow- 55- *• 
 ers were fo conftituted as to take Place pZrp7fe'' 
 at all Events, either in the Life oicovptHted 
 the Father, by his AlTent, or after his 
 Death by the Infeudation of the Huf- 
 band. 
 
 if the Ht4sha7id enters into Religion, a Wife 
 the Wife fhall not have "Dower ^ ^x^^ixY^gnottohAve 
 his Life ; for the entering into Reli- J'^^lci- 
 gion is only a Separation, and no Dif- t^ii 'Death 
 folution of the Marriage ; and if he "^ *f^ . 
 were dermg7/ea, he may enter upon his and why, 
 Eftate again ; and it feems the Eccle- 
 fiaftical Law will give the JVife Ali- 
 mony, during his Life , but fhe can- 
 not have a fcparate Intereft, by Way of 
 Dou^er^ during the Marria^^e. 
 
 The Wife fliall have the Third Part 
 
 of an Advowfon for her Dower : If 
 
 D-d tha
 
 402 €>f lootbet* 
 
 May lofe ([iQ Wife do clopc fiom her Husband^ 
 I'yAdT''^^^ remain with tlie Adulterer, fhe 
 tery. lliall lofe her Dower. 
 But not ;/ J^ut if flie remain in Adultery, upon 
 ;ijtf h upon the Husband's Lands or Tenements, 
 the Land. ^^ jj^^^ \^^^q Tiowef ^ bccaufc the 
 
 fame is not an Elope7ne7it. 
 
 How the By the old Vetidal Lnzv^ the Vaf- 
 
 %tI^Znf^h if he committed Adultery wiih 
 
 Viiiemge his Lord's Wife, it was a Forfeit of 
 
 wrtj in i^is p^^/dj and confcqucntly if the Wife 
 
 of a Tenant committed Adultery, (he 
 
 forfeited the Infeudation of her i)ozv^ 
 
 er i but the fubfequcnt Laws put it 
 
 upon Elopement ; becaufe by that the 
 
 Adultery became flagrant, and they 
 
 would not allow fecret Adulteries to 
 
 be pretended after the Death of the 
 
 Husband, by which the Heir blemifli'd 
 
 the Reputation of his Anceftor. 
 
 i/ocy pe If the Husband be attainted of Fe- 
 
 lerDoifer ^^^^^^ t>y Outkizvjy^or: otherwife,flie fliall 
 
 before the lofc hcr ODozven J^ide the Common 
 
 Laivwai Law alter'd in this Cafe, i E,6. c. 
 
 altered. 
 
 1 E. 6. I 2. 
 
 c. 12,9. When the Hnshajid's Eftate efcheat- 
 
 Co. Lin ^^ ^^ ^he Lord for Felony, or to the 
 
 9t 55- 44- King for Trcafon. there was an End 
 
 of the Wife's Dower, becaufe the King 
 
 or Lord came in by Title Paramount, 
 
 and the Eftate of the Husband was at an 
 
 End, out of which the Infeudation was 
 
 4 to
 
 to be ; fo if the Husband had enfeoffed ^^'" i^'« 
 any Perfon, and had committed ^rea-^Z"'' 
 fou or Felofiy J flie could not haveDcwej-y 
 claimed her T>otoer from the Feoffee ^*^''^'°^''' 
 becaufe the Feoffee after the Death of 
 the Husband, held of the fuperior Lord,- 
 and the Eftate of the Husband^ which 
 he had during the Coverture, is for- 
 feited ; but if the Husband had not 
 committed the Treafon or Felony, 
 then ilie might have claim'd her T)ozver 
 of the Feoffee^ tho' fince the Statute of 
 ^ia Emptores, the Feoftee holds of ^^^ ff 
 the fuperior Lord, becaufe the Isl^x- fince the 
 riage is confidered as a Charge upon the statute 
 Eftate to any Perfon that comes in the Emp*torcs 
 ^er y as under the Conveyance of Terra- 
 the Husband, and therefore the Wife's ^""^* 
 Dower was confider'd as an Infeudatioa 
 charged on the Eftate of the Feoffor; 
 but if the Husband had committed a 
 Forfeiture after Feoffment, it would 
 have work'd as an Efcheat of the Mef- 
 nalty, and confcquently the Feoffee 
 would have held of the Lord Para- 
 mount J and the Wife could not there- 
 fore have had Dower j but where there 
 was no Forfeiture, the Mefnalty had a 
 Continuance, and then the Wife's Dow- 
 er was to charge the Feoffee^ as a prior 
 Infeudation ariiing out of the Marriage 
 Contrad. 
 
 D d 2 But
 
 404 €)f iDOtbet; 
 
 The like. But after the Statute of 2,^ia E7/ip- 
 tores ^ &C' this Diftindtion, which 
 arofe out of the Mefne Tenure, be- 
 came obfolete ; and therefore they 
 thought, fince the Husband could not 
 by his Alienation, defeat the Wife*s 
 Dower, fo neither ought he by his Ad 
 of Forfeiture ,^ therefore, agreeable to 
 this, the Statute of i E. 6. c» 12, was 
 made to preferve the Wife's Dower 
 where the Husband had forfeited. 
 jVife of a If one 'i}oi?ite7infit makes a Forfeiture 
 fointe- of bis Part, his Wife lliall not be en- 
 ^^"^' dow'd, becaufe the Husband was never 
 
 fole feifed. 
 The like. In that Cafe of Johitena^icy^ during 
 the Joint Seilin, the Wife's Contra<^ of 
 Dower can never attach upon the E- 
 ftate i becaufe the other Jointenant 
 comes in by the Feudal Contract, fu- 
 perior to the Marriage Contraift, fo to 
 the Wife's Infeudation j for though the 
 Marrirge Contra(^ had been prior to the 
 Jointenancy, yet it will not attach up- 
 on it, becaufe the Eftate in Jointenancy 
 is fo created, that it fiiould furvive, 
 Et cu'pis efi dare ejusdem dtfpojiere-, 
 therefore, though the Marriage were 
 precedent, yet it cannot take Place up- 
 on this Infeudation j but as foon as the 
 fole Seifin commences, the Wife of the 
 Feoffee fliall be endow'd, and the Wife 
 
 of
 
 £)f 2Do»)er; 40 J 
 
 of the former Companion of the A- 
 lienoi'5 who is now become l!enant in 
 Com?no7i with the Feoffee. 
 
 Endowment ex ajfe^ifu inatris is good, ^«': ex 
 but ex affe7ifii fratris^ is holden not^^t^jg 
 
 good. and fra- 
 
 And Dowment ex ajfe7zfu patris, af- ^^^^^-^.^ ^^ 
 ter Marriage, is good. Dowment ex myitis, 
 affenfu matris is good, becaufe the Son 
 is Heir apparent of her Lands ; but ex ^h mt 
 affenfu fratris is not fo, becaufe one f^^^^jf^"^^ 
 Brother cannot be faid to be Heir appa- 
 rent to another, feeing the Brother 
 may marry, and have Children, and 
 the Dowment ex affenjti,^ dye. is good, 
 at any Time during Marriage • becaufe 
 it is only afcertaining the Quantity of 
 Infeudation, nor is there any Obje^ioii 
 that this fliould over-reach a Purcha- 
 fer ; becaufe. when ever an Heir Ap- 
 parent is married, it is fufficient Notice 
 to enquire into the Settlement of the 
 Land of the Father. If a Man marry 
 a Woman in a Chamber, Dowment ad ^^^^^^^^^ 
 ojliwji Cavierts^ is not good. ■ 
 
 Dowment ad oftiit7n EcclefiiS of the ^^fj^ ^ 
 Moiety of the Land, is good. ^^°age t7^ 
 
 And a Woman married in a Cham- have 
 ber, iliall not have Dower by the Com- ^'''^"'* 
 mon Law. H, 16 H. i, Qj^^sre of 
 Marriages made in Chapels not confe- 
 ^rated, ^c* for many are by Licence 
 P d 3 from
 
 406 £)f SOotbet. 
 
 from the Bifhops married in Chapels, 
 (j'c, and it feemeth reafonable they in 
 fuch Cafes, ftiould have T>ozver. 
 Mow Formerly they held, if they were 
 
 formerly- ^^^ niarricd at the confccrated Church, 
 that the Wife fhould not be endow'd ; 
 becaufe the Contrad not being folemn- 
 ly made, was no fufficient Foundation 
 for an Infeudation j but afterwards, 
 when the Solemnization of Marriages 
 in confccrated Chapels were allow'd, 
 £ *"' ^y i-^icence from the BilliopSi and when 
 Tims- it came to be held that Marriages were 
 good, tho' done in Private, and in un- 
 confecrated Places, fince they held that 
 the Sacrament depended on the Prieft, 
 and not on the Place, they then deter- 
 mined (fince that the Heir's Title to the 
 Pemefnes depended on the fame Title 
 as the Wife's Claim to Dower) that 
 Dower was demandabie upon fuch pri- 
 vate Marriages. 
 jflg^i a And in fome Places the Wife fliall 
 Moiety, havc the Moiety in ^ower^ as in Get- 
 
 When tie And in fome Cities fhe fliall have all 
 <whoie. by the Cuftom, which is call'd Free- 
 
 tBe7icl\ 
 The Ori- The Free-Bench feems to have its 
 ^irtaX of Rife from the fame Cuftom -^sSoroiigh- 
 FnglijJo in yilleine T^ejitire^ the Lords 
 having the Cuftom to poffefs their Te- 
 nants 
 
 Vree' 
 Bench
 
 £)f SOolDer* 407 
 
 nants Wwes^ they contra(5ted that the 
 younger Son fliould inherit ^ but the 
 Wife obtained the Privilege over the 
 Avhole Eftate, and caiily compounded 
 for Crimes of that Kind, 
 
 And Glci?wille ftiyeth, tliat ad oftmm ^«^^'" ad 
 'EcckfidS a Man cannot aflfign more e^'"]^^,^ 
 than the third Part in Dower j and if he Uvi mud 
 do, the Wife fhall be admeafured, CJ^. '^ ^ Y^- 
 but \q{<> may be afligned by Law ; yet ''^^^^ ' 
 at this Day, it feemeth that the AlTign- 
 ment ad oftiutn Ecclefu^ of more than 
 the Third Part, is good ,• and ilie fliall 
 not be admeafured for it. 
 
 TheReafon why inG//3//2^///t?'s Time, TheRea- 
 Endowment ad ofi/i/m Ecckfi^e of more-^"" ."^ /^* 
 
 • 1 r\ ^ r ancient 
 
 than a Third Part was not good, fecms vfe»inthat 
 to be, becaufe it hurted the Fruit of the ^'*^- 
 Lord's Feudal Service, during theMino- 
 rity, but fince it fublifts on a Contra(5l 
 made on a Condition of Marriage, it 
 ought to prevail, though it exceeds a 
 Third ; and this is the Reafon of the 
 latter Refolution. 
 
 And the Wife iliall not be diftrain'd ^^«''^/* 
 in the Lands which flie holdeth in T)ow- f^ jjf'"' 
 er for the Debts of the Husband in his Deha dus 
 Life due to the King, nor in the Lands '^^J^^'^ 
 of Inheritance of the Wife, nor in the 
 Lands, which fhe hath by PurchafCj 
 made by the Husband, to him and his 
 Wil<?i and to their Heirs -y and if flie be 
 P d 4 difti'ain'd
 
 40 8 £)f 2>ott)et. 
 
 diftrain'd by the Sheriff, fhe may fue 
 forth this Vv^rit, 
 
 The Form REJCclc, d;c* fahte7/2. Cum fectiu- 
 t)f thac j;/;;2 l^gi^^ ^ confuettiSa 'Regni noflri 
 R^g!* ^//g//'^, Mulieres in terris & tejmnefitis 
 Prev. ' qua tenejit in dotein de do?w mroruvi 
 idz. b. j]iQfiiyi^ ci^cl qji£ de hicr edit ate fua 
 
 fmt n)el qtu fibi per qid fiver ant ^ pro 
 debit i^ 'virorum [nor urn Reddendo di- 
 jlringi 72on debeant^ Ac ^u B. qtia ftiit 
 ■uxor A. diffiringis in terris & te/ie- 
 me72tis has qtu tenet iii dotem de 
 T>ono pYicdi^, A. cJ' etiam-i &c. qiice 
 fiterunt de hicredit. ipfiiis B. ficidt ex 
 querela, fud accipimus^ T^ibi pracipimns 
 quod ipjam B. in terris (j tenemejitis 
 fiiis quiC te72e7itur in dotem c'f/ fint de 
 hisreditate fua propria ^vel ex perqui- 
 fito ipjtus B. pro debito ipfius A. quofi- 
 dam liri jni Reddend, ne difiringi 
 fecer co/itra legem ^ confuetiidi^zem 
 pYtsdi'ci. (J difiriliionem fi quavi^ &c» 
 ei redeliberar facias^, T^efte^ (jc» 
 
 'Another There is another Form of the Writ; 
 
 #w- jj^ ^\^Q Regiflcr for Tenant in T)owery 
 which is diredcd to the Sheriff, com- 
 manding him that he do not diftrain 
 the Wife in thofe Lands which fhe hold- 
 eth in U^ozver, or of her own Inheri- 
 tance for her Husband's Debt^ but that 
 
 Writ
 
 Writ hath thefe Words in the End 
 
 of it, T>tmi ta?ne?i h^eredes & Exectitores with this 
 tefiameiiti ipjius A. ad debit a ilia no- '^'fj'S"* 
 his Keddenda^ fiifficiefit^ tion T)ifiri72g ; ^^^[ '^^ 
 and by thefe Words in the Writ, it 
 feemeth, that if the Heir or Executor, 
 have not fufficient of Lands or Goods 
 to pay the Debt, that the Wife fhall 
 be charged, and the Debt diftrain'd for 
 her Purchafe in the Joint Lands made 
 by her Husband and her, but not in 
 her Lands of Inheritance, nor in the 
 Lands, wherein flie had Title of TJower^ 
 before the Husband became indebted to 
 the King ; and that the firft Writ is ac- 
 cording to Law in thefe Cafes. 
 
 But if the Htisha7id be indebted to^^^^^«^ 
 the King before ilie hath Title of T)ow- ^/^ *£i*^^ 
 er, it feemeth to be otherwife. Vide 
 4 -4ffife 36, 53. Jffife, 5 Tijer 224. 
 Sir Williaj/i St» Lewis's Calb accor- 
 dingly. 
 
 And there h another Writ in the Re- ^ ^''' 
 gifter for the Wife, directed to the J^^J ,>' 
 Sheriff, that he do not diftrain her in the Landi 
 Lands and Tenements which her Huf-j;;^;^^-^^ 
 band and (he purchafed jointly ; before Baron and 
 the Husband was indebted to the King, ^^"'°- 
 if they purchafe the Lands jointly to 
 them in Fee, the Lands, afrer the 
 Death of the Husband, in the Handi 
 pf the Wife^ and her Heir$, fhall
 
 41 o £)f SDOttjet^ 
 
 be difcharged of the Debt ^ and if flic 
 be diftrained, that he deliver them 
 again to the Wife. 
 Where the And by the fame Reafon, tho' the 
 M'ife Mds H/isha?id be before indebted to the 
 difcharged ^i^^g^ that if he and llie purchafe the 
 Kil% Land jointly in Fee to them, after the 
 T)ebt. Death of the Husband, the Wife, and 
 
 her Heirs, be difcharged of the Debt. 
 Where Te- And there is another Writ in the Re- 
 mnt in gifter, for Tenant in T>owerj direded 
 ^o7Idi- to the Sheriff, that he do not dif^rain 
 pvJmd the Wife for the Husband's Debts, be- 
 •(or the caufe that the Heir, who ought to pay 
 S/ the fame out of the Lands, is within 
 Age, and in Ward to the King ; or be- 
 caufe that other Tenants, who fhould 
 be charged with the Payment thereof, 
 are omitted. 
 The like. And fo, it fecmeth, the Land of the 
 Tenant in 'Dower fhall be difcharged, 
 if there were other Lands of the Huf- 
 band's to pay the Debts,- and, thofe 
 Writs appear in the Reglfter^foL 143. 
 Another And another Writ dirc(5ted to the She- 
 Writ in Yiff^ that he do not diftrain the Wife 
 Jtcr^X who holdeth Lands in "Boiver, for the 
 to difirain Debts of the Husband, which he owed 
 for the ^Q the liCing, before the Contrad of 
 S/ Marriage between him and the Wife 
 purchafed jointly in Fee, for the Huf- 
 band's DcbtSj which he bccaii.e Debtor 
 
 for
 
 jDf SDotbet^ 411 
 
 for before the Purcliafci and flie may 
 have fuch Writ out of Chancery, di- 
 rected unto the Treafurer, and Barons 
 of the Exchequer, commanding them 
 that they enquire thereof ^ and if they 
 find the fame, that they furceafe and 
 difcharge the Wife, with this Provifo 
 of the Writ, ^ro'vifoj quod dehita ilia 
 de Execut. (j" Hared. pr^diB. A. ac 
 tenentihus tenartimqits fuerunt fiite (j' 
 qu<e inde de Jure dehent oiierari ad 
 opes noftras le<van^ ut Jtijitim efi. T'efte, 
 
 The true Diftindlion of thefe Cafes T^^ D^ 
 is, that if the Debt to the Kwg be ^i]f^^^ 
 fubfequent to the Marriage^ then the cafa. 
 Wife's Dower, being a Contrad for In- 
 feudation, at the very Time of the 
 Marriage, and which binds the Lands, 
 the Affignment of T^ozuar over-reaches 
 the Charges, by Debt of the King j 
 for if the Hushajid could not aUen, 
 during the Coverture, fo as to defeat 
 the Wife's Infeudation, he could not 
 make any other Charges that would 
 impeach it^ and therefore the Wife 
 there may have a general Prohibition, 
 fince the King's Debt does not affed the 
 Lands,- but if the King's Debt was be- 
 fore the Marriage, then the Contra d 
 for Infeudation, was fubjed to the Bur- 
 then of the King's Debt j and there- 
 
 fprc
 
 412 £)f Dott)er. 
 
 fore there fhe can only have a Special 
 prohibition^ with an Ita quod, that 
 there arc Lands in the Hands of the 
 Heir, or Chattels in the Hands of the 
 Executor, to anfwer the King's Debts ; 
 for if there be not, then the King may 
 levy the whole Debt upon the Dow- 
 refs, and fiie muft come upon the Feof- 
 fees of the Husband, who are equally 
 liable to Contribution; for the Huf- 
 band, by fubfequent Alienation, can- 
 not put fuch a Difadvantage upon the 
 Crown, that has given him Cre- 
 dit, as to force the Crown to bring in 
 every Alieriee^m order to be paid by them -, 
 but the King has a Right to feife the 
 Lands in whofcfocver Hands he finds 
 them, if fuch Perfon comes in fubfe- 
 quent to fuch Charges. 
 Where a q^^g Writ T>e dote a[fii^7ia7ida lieth, 
 E M- where it is found by Office that the 
 iignanda King's Tenant was feifed of Tenements 
 Ueth. jj^ YqQj or Fee-tail, the Day he died, 
 C^r. and held of the King in Capite, 
 then the Wife may, and ought to come 
 into the Chancery, and there make 
 Oath, that ihe will not marry without 
 the King s Licence ,• and thereupon the 
 King may aifign her T>oiver in the 
 Chancery of thofe Manors and Lands. 
 MaftUgs There was to be no Marriage of the 
 d/ Dow" powrcfs, durin'g the Nonage of the 
 ''('■' Heir,
 
 Heir, that was in Ward cf the King, 
 without the King's Licence,^ bccaufe, 
 by the general Conftitution of the Feu- 
 dal Law, every Feudatory of the 
 Crown was to marry with Licence, 
 that there might be no Difparagcment 
 to the Family, whilft they were under 
 the Care of the Crown j and the Dow- 
 er being affigned by the Crown, was i^ccver 4- 
 ' in the Nature of a Royal Infcudation,-/|"J^^J{,^^^ 
 therefore under the fame NeceiTity to 
 take out a Licence, and thereupon ilie 
 fhall have a Writ unto the Efcheat- 
 of, where the Lands arc, which fliall 
 be thus, 
 
 REX efcheaior fi/o in Co?/!. B. fa- The wri 
 lut€?i2. Sclatis quod de T'erris (j ^^^-^^"^r'u^ . 
 me7itis qudfitertmt N. defunUi^ qin <^^tor. 
 nobis temiit in Cnpite^ (7 ^^/^ occajto- Reg. 
 726 mortis ejv,[dem N. capt. efi in via-^^^^''^'^ 
 72iim Jiofiram cijjign. J. qn^c fnit nxor 
 pr^sdiU. N. tertiam partem vianer* de 
 T. (^ C. in Com. T. cum pertinen- 
 tiis^ 72ec7ion tertiam parte?n purpart, 
 qu<e fnit ipfitis N. cmi libertate ho- 
 7/oris Winton (j cifi/s Franci plegii 171 
 di'clo Com. T. hahend. i7i dote?n ipfam 
 de 7na7ieriis & purparte prddiU. fe- 
 cimdtim legem & co7ifuetiidine?n Regni 
 7iofiri A7igU£ conti7ige7item^ 7iec7i07i de 
 affe7ifu E. pri7iQtpls Walli^ filli noftri 
 
 chariff^'
 
 414 ^f SDoibet; 
 
 chnriff. CnjiocL via7ier» de R. iji Com* 
 Bucks qua ad x. lihras extefid.per A7tn» 
 jictit per exte7itas inde de mandato 720- 
 Jir* faU. 171 Ca7icellaria?/i 7iojlram retor7i* 
 eft co?/ipert. ajjig7iavi7n. pr<£fat. J. diU. 
 7na7ter. de N. cu77i perti7ie7itiis fro dote 
 fua diotor. ma72er, <J^ K. N. hahe7id. 171- 
 fra pr^ediU' & ideo tihi pr^ecipijfius 
 qnod eidem J. diU* 7na7ier. de N. ciwi 
 perti7ie72tiis liheres habe7/d, i7i dotejn 
 ftia?u ficut pr^diU. eft, 7'efte, (^c* 
 
 Vide Ret. fi7iuiin i JB. i. Mein, 
 21. A Command to the Efcheator, to 
 feife all the Lands, l^e qtdhiis A. fi^ 
 (jc. dx etia7n qtiod Margeria qua fuit 
 . uxor prxdiB, A. 20 lihras de terr. & te- 
 7ie7ue7it. prad, ajjig7iari faciat do7iec 
 rationahilein dote7Ji ipfajji co7Jti7ig. fe- 
 cuJidiuii legem (j" co7ifnetiidi7iejii tih'i 
 fecerit afjig7iari. Vide Accord, Ciofc 
 Roli, 2E. I. Mem. 15. 
 
 ^''w ^"^^ ^^'^^" ^^ ^^^^ ^^^^ r^'Si.^^ 
 'Tmtlo her Oath in the Chancery, fhe may 
 the Ef- have a Writ de H^ote aj]ig7ia7ida^ di- 
 rected to the Efcheator, to alllgn her 
 Dower,- and the Writ fhall recite, that 
 flic hath made her Oath in the Chan- 
 cery, (5'c. but the Ufe is to make the 
 Adlgnment of Dower in the Chancery, 
 and to award a Writ unto the Efcheat- 
 
 or^ 
 
 cheator.
 
 £)f SDolbet:* 415: 
 
 ofj to deliver the Lands afligned unto 
 her,- and altho' the King doth commit 
 the Cuftody of the Land unto another, 
 yet the King may aflign Dower to the 
 Wife in Chancery i and fhc fliali have 
 a Writ to the Efcheator, to deliver un- 
 to her that Dower, as appeareth by the 
 Regijf. 298. a. Vide Keilzv* 133. it 
 feems that the Committee cannot afligii 
 Dower. Qricere taine??.^ if it iliall not 
 be good till the Heir fues Livery , and 
 the Writ fliail be fuch, 
 
 JR. £Jr Efcheator^ (^c.fal Cnm inter Another 
 deter, terr, & tejievient, J. qt/afiiit uxor ^^^'^ ^® 
 N. defmiUi^ qui de nobis temtit in ca- chcaior' 
 pte per nos de terr. & tenement, qtJ<c 
 fttenmt prddi^i* N. in dot em aj/ignat. 
 affignaminus eideju J. partem vm7ier. 
 de G. am pertinentiis 171 Corn, B. 7iec- 
 71071 tertiaiu partein propartis^ qui£ fzdt 
 ipfitis N. C7jm iihert. ho7ioris W. (j- 
 z'ifnm Franci plegii 171 eode7n Com, ha- 
 he7id, in dot em i7ifra prddiU- tihi pra- 
 cip. quod eidem J. aijus fa cram, quod 
 72071 7/7aritabit fine lice7itia 7iofira re- 
 cipimtis diclas tertias partes in Bali'va 
 tua^ i7i prdjhitia Cujiod. eoriuuL 7na' 
 7ier, & tertite partis^ per I'os inde pra- 
 77timiend, fi i7itrare n)oliierit^ t^el attor7z, 
 fti, in hac parte ajfig7iari^ (j liber ari^ 
 fac* habeud, i7i dotem^ (iait priediUiim
 
 Brev. 
 
 297. it 
 
 41^ £)f Dotbet. 
 
 e/i, & aim ajfignatioiiein^ (^c* Tefte^ 
 &c. 
 
 And if the Wife^ after the Death of 
 the Husband, doth eome into the Chan- 
 cery, and prayeth her T)ower^ there 
 the King may grant a Writ unto the 
 Efcheator, commanding him to take 
 Security of the Wife, that flie do not 
 marry without, (j-c. and to aflign 
 *Dower unto herj and the Writ is, 
 
 Reg. 11 EX Efcheat. fal. Tr^cipi7/ms tihi^ 
 
 quod capt. [acram, M. qtt(£ fuit tjxor 
 W. defimcii^ qui de mhis te72mt in ca- 
 pite^ quod fe iion 7uaritahit fuie licen- 
 tia noflra eidem M. rationdhihm doteiu 
 de mnnihns terr* (j teneinent. qjids prte- 
 di5t. W. qii07idam n)ir fuus te^iuit in 
 T)o7Hinico [no itt defeodo in Bali'va tiia^ 
 dis quo obiit, CJ q^^^ per mortem pradi^, 
 W. capt. filer nnt in man. nojiram (j in 
 man/i 7iofira fic exifie7it, feamdtiin 
 iege7U & co7/fnetnd, Reg7d 7ioftri J71- 
 glite co?itinge7it. per exte77t, inde faU. 
 "jel alia7n fi 7ieceff. fiierit iterato fa- 
 cie7id. 171 pri£Je7itia B. per te i7ide pr<c- 
 7;w7iiend. fi i72terejfe 'vohjerit ajfignari 
 facias & ctnn a[fig72atio7iem illamficfece- 
 ris, earn ft/h figillo ttto diftifjBe & ap- 
 pertnnittas^ nt ea7n i7iKottdis Qi7icellarid 
 4 7:efir(S
 
 £)f IDolbet* 417 
 
 jioftra protit moris eft IrroUth faciamus-, 
 itefte^ d^c. 
 
 And if a Man dieth feifed of Lands, ^^<?» *^« 
 \^hich are holden by Knight-Service of^^^„ JJ^ 
 any Manor, or other wife, of any Abby, Chamrj, 
 Biilioprick or Priory, or fuch as arc in 
 the King's Hands, by Reafon of the Va- 
 cancy of the Abbot or Biflioprick, ^c. 
 then, if the Wife will have bower ^ fhc 
 ought to fue in the Chancery, to have 
 fuch Writ direded unto the Efcheator, 
 to aflfign her 'Dower i but there the Wife 
 fhall not take Oath that fhc will not 
 marry without the King's Confcnt, as 
 appeareth by the Writ j for the Tr^sro- 
 gatwe does not obtain in that Cafe, for 
 the King afligns T)ower^ as Guardian of 
 the Temporalties, and not as fuperior 
 Lord ; and the Writ is, 
 
 A. at/^ fnit uxor B. defunUi. aid de ^^^ ^^' 
 Jhhatta de Btirgo S. Petri niiper zm- when the 
 cante ^ in mamis iioftras exlft. te7i?dt L^nds are 
 per fer^^itiiim militare rationahikm do- sbirimai 
 te7n fnavi de omnihiis terr. dy tenement. Lords, 
 ^c» qtia prddiU* B. mr fims tenint 
 de Ahhatia prddiU<> in !Bali'va tua die 
 quo ohiit^ & pofl 7/wrtem ipfius B. iu 
 fnan^ noflra\ exift. (jc* at fupra. 
 
 B t And
 
 41 8 M 2D0»)tt* 
 
 And the J ike Writ may be fued by 
 the Wife, for Lands which her Huf- 
 band held by Knight-Service of the Ma- 
 nor of him who is in Ward of the 
 King, by Reafon of his Nonage j but 
 there ilic fhall not make Oath that fhe 
 will not marry, (jc, no more than in 
 the precedent Cafe j em/a qaa^ dxc. 
 
 And the King may aflign Lands in 
 ^ower^ in the Chancery, rendering 
 Rent yearly, (jc. to the King, becaufe 
 the Lands do exceed the Value of the 
 Third Part of all the Tenements, 
 whereof ilie ought to have jDozver ;■ 
 and then upon that Aifignment made in 
 the Chancery, flie iiiail have fuch Writ 
 to the Efcheator. 
 
 Writ to KEX Efckeat, faL Sci^tisy qmd de 
 the Ef. terris dy te^em€7Jtis, q7td: fuerti?it E. de 
 where'^' ^'defmi^iyquide nobis temiit in capite^ 
 there is (^ qii^ occajione mortis ejt/sdem E. cap- 
 * ?*^" J f^ f^^^ i^^ ^fiMius noftras^ al]igna'vi?jws 
 ^^^^^^ ' y[, q^^ fait uxor pr^sditi* E.- maner^ 
 fnhfcripta^ mz* de B. C. cjc. cimi per- 
 tinejitiis in Com, T. qus ad loo //- 
 hras extend, per Ann* habend. in do- 
 tenh ipfcim de terr. & tenement, pre- 
 dict, jeciifidmii legem & cojijuetad, Reg- 
 ni nojtri JngliiC^ co^itinge^it, Reddend. 
 inde nobis per Atmumy ad Scaccarium 
 nojlnmi tatltum^ quod excedit dot^m fu- 
 
 pra-
 
 pneditiam. Ideo tibi prdcipimiis^ quod 
 eidefn M. diU. ma72er. cum pertbieii- 
 tits liheres : hahend in dotem [ttam^ iji 
 forma pradiUa^ T^^ft^^ &c» 
 
 And if the Wife be impotent, fo as 
 llie cannot come into the Chancery, to 
 make Oath, and to demand her UDozver ^VJ^ere 
 to be alfign'd by the King, if ftie will de- ^'^l^^ ^ 
 mand T^ozver^ (he may have a Spc- the dczv-^ 
 cial Writ, dire(5ted to certain Perfons''^/^'-'^-''''' 
 to take her Oath, and receive an At- 
 torney for her, to fue for her X)oajer 
 in the Chancery, de* the Writ ap* 
 peareth in the Regifici\ /. 298. 
 
 And if the King makes Livery unto 
 the Heir, at his full Age, Hiving unto 
 the Wife her T)ozve}\ to be aiilgn'd by Lively h 
 the King, then if the Wife will dc- the Heir; 
 mand i)ower^ fhe ought to fue for ^^'fvo'*/ 
 the fame in Chancery ,• and if ,Oie do dc- Do®r-^ 
 raand her "Dower there, then iliali iilue 
 a Special Writ unto the Efchcator, 
 that he may warn the Heir to bo 
 in Chancery at a certain Day, (jc. and 
 there the Wife iliall have the fume 
 Day to receive her Dotver^ (jc, and 
 the Writ which fhall iffue againd the 
 Heir is, 
 
 R EX Efcheat, faL Cum Ed. nuper 
 Rex J7igliie^ 'Pater 710ft er 1 1 die Jan. 'fhe Wrii 
 prox, prater* ceperit hoinaginii J. de B. ^hcar^or^'" 
 filii ^ hm'cdis J. de B, d'funUi^ de in tiisf * 
 E e 2 oumlhus ^^-^^
 
 420 £)f SDOlDet. 
 
 Re?" onmlhus terr, CD' tenement, qu^e idem 
 ^IV.'a. J' P^^^^^' f^i'^'^ tentdt de di'ct* patre 
 7ioflro die quo ohiit^ &c» & terras^ & 
 telle 11 lent a ilia reddiderit^ ea qua fM 
 viand, Uherari^ faho jure cujnflihet^ 
 (J- faha M. qii^e fmt uxor pr^diU* 
 J. rationahili dote fita ipfavi de terr, 
 (^ tenement, prddift, fecnndim le- 
 gem & C07ifiietijdi7ie7/i Keg7ii 7ioflri 
 J7iglia; co7iti7igeht, (j ei pront 7noris 
 efi njfignand, ficut per i7ifpe^io7ie7n Ro- 
 ttdornm Cancel, nobis co7iflat^ ac prd- 
 fat, M. 7iobis f/jpplica<verit nt ei dote7/i 
 jhajn de terr, & tene7ne7it,pr^di^, co7i' 
 tingc7it. feciindti7n lege7n^ Xjc, affig7ia- 
 ri faciamiis^ per quod die7n dedi7niis 
 prifat. M. quod fit in Cancellaria fio- 
 ftra in craft, a7iimaru7n^ (jc, tibictm- 
 qne^ &c, ad recipienda?n dot em fna7n 
 pr<cdiHa7U^ tibi ideo pracipiimis^ quod 
 Scire facias prafat, J. quod ad diejn 
 pi'ddi^, interfit a[[ig7ia7zd£ dot is pi'iC- 
 dl^' fi fibi oiderit expedire^ &, ha- 
 beas ibi 7i07nina^ (jc* & hoc h'cve^ 
 (JC, Tefte, O'c, 
 
 But if the King makcth Livery unto 
 tlic Heir, by his Writ, directed unto 
 the Efchcator, by which AVrit he com- 
 mandcth his Efchcator to deliver Seifin 
 unto him, of all his Lands, ^c. Saho 
 pre c?i]ullibet^ and he puttcth not in 
 the Writ thefc Words, Saha AL qifd: 
 
 ftiit
 
 £)f 2Dotber, 421 
 
 fuit mor, drc. ratioJiahiU dote ^'/'/^'•^ jYe^'words 
 de terr. & te7iement. ipfis amti- ^^^i^^ ^^tc 
 ^en. per ?ios a[fignand\ then, in that arc nor in 
 Cafe, the Wife ought to fuc her Writ ^'^'^ ^^'"^• 
 oi 'Obower againft the Heir, if flie will 
 demand T>ozuer of thofe Lands, be- 
 caufe the King made Livery generally 
 of thofe Lands by his Writ, without 
 any Refer vation of Dozv^r to be aflign'd 
 by him, dxc* 
 
 And if the King makes a Rcferva- 
 tion of T)ozver^ to be afllgncd by him, 
 by his Writ of Livery, which is direc- 
 ted to the Efcheator, if the Wife ne- 
 ver demanded Uotvef\ or if Hie have 
 T>ower affign'd to her by the King in ^'''' f^'' 
 Chancery ; yet after the AfiTignmentyJ'^^f^^^ 
 made by the King, the Reverlion there- of a Re- 
 of is in the Heir, and he fliall not fuc J'j/^'^^- 
 Livery of that Reverfion, after the Death of 
 Death of the Tenant in "Dozuer, be- Tem»t in 
 caufe the Writ of Livery doth not re- ^°^^''' 
 ferve any Thing to the King, but 
 Alignment of T)ozvcr to the Wife ; but 
 the Writ doth command the Efcheator 
 to deliver Seifin of all the Lands, and 
 that the Efcheator doth, and by that 
 the Livery of all the Land palfeth 
 from the King ; and therefore it fol- 
 lovveth, that when the Wife is alTign'd 
 her l^ozver by the King in Chancery, 
 yet the R.cvcrllGn doth remain in the 
 E c 3 Heir^
 
 42 2 i©f 2)otber; 
 
 Heir J (!;c. for which he iliall not fue a 
 new Livery of that Reverfion, after 
 the Death of the Tenant in Dower, &c» 
 tamcii ^i.(£re of that Cafe. 
 'Xhat the When the King's Feudatory dies, du- 
 ^erf^aihe ^"^"° ^^^^ Minority of the Heir, the King 
 llYeuda- is to perfed the Infeudation of ^Dower^ 
 iior. of and therefore to make the AfTignment ; 
 tT^lere. ^^'^^ ^ho' the King does not make the 
 Airignment, during the Minority, yet 
 lie may referve to himfelf the Power 
 of Aliignment after the Heir's full Age, 
 and that is a Prerogative for the Bene- 
 fit of the Dowrefs, fince it may be 
 better, and more compendioufly done 
 by a Petition in Chancery, and fctting 
 it out by the Efcheator, than by a Suit 
 -at Law, which is fubjedt to great De- 
 lay ; and therefore the King may, if he 
 pleafes, on the Livery to the Heir, 
 jnake an Exception of his Prerogative, 
 touching the AlTignment of ^Dower^ and 
 then the King fliall affign iJower 
 tit the full Age of the Heir ; but then 
 fuch AfTignment, being an Infeudation 
 of the Dowrefs, in delivering the 
 Dower out of the King's Hands j by 
 Confequencc, the Heir need not fue 
 IJvcry of the Reverfion ; but if the 
 Powrcfs does not Petition, then the 
 King often granted the Livery to the 
 Heir, v^athout any Exception, touching 
 
 his
 
 0f SDottec. 423 
 
 his Prerogative of alligning Dower , 
 and then the Dowrcfs was put to her 
 Suit at Common Law, againft the Heir, 
 if he did not alTign, becaufe Livery 
 giving the whole Demefnes out of the 
 King's Hands, into that of his Te- 
 nantSj without any Referve, the King 
 parts with his Power of making any 
 Infeudations of that Eftate j and that 
 muft be conftrued to be the Intent 
 of the Livery, where it is without any 
 Refcrvation, but the Onus of the Dow- 
 refs follows it, into the Hands of the 
 Heir, where (lie mud obtain it, as by 
 Law ilie may. 
 
 And if the Wife be afllgn'd T)ozcer ^here the 
 m the Chancery, and afterwards it '^s ^'J^f jj'^" 
 furmifed by the Heir, or by Another mit ta 
 for the King, that the Land atTign d to '^* ^f- 
 the Wife, is not extended to the very '/f^^^; ^ 
 Value, but that the Land afligned neiu Ex- 
 ilnto her, is much more in Value ''"^* 
 than it is extended at, and that the 
 Lands which remain in the King's 
 Hands are extended to the very Value, 
 ^r. then the King iliall fend a Writ to 
 the Efcheator, to make a new Extent i 
 and upon that Writ returned, if it be 
 found that the Land aiTign'd to the Wife, 
 is of greater Value, (^c. then upon re- 
 turn thereof, a Scire facias ihall be 
 awarded againft the Wife, to Hiew 
 E c 4 caufiJ
 
 424 ^f SDolber. 
 
 Caufe wherefore ihe iliall not be a^ 
 new endow'd, (j-c, and if (he be warn'd, 
 and make Default, it feemeth flie iliall 
 be a-new endow'd for the Default i or 
 if flie appear, and cannot fay any Thing 
 contrary to that new Extent, fhe fhall be 
 endow'd a-new, fo as Part of the Land 
 nlTignM to her, fliall be taken from her 
 at the King's Pleafure ; or the King 
 may make a new Aflignment of all 
 that fhe had in Dower, if he pleafeth, 
 and a new Writ fliall be to the Sheriff, 
 to deliver her Scifin thereof, fo newly 
 ailign'd to her. 
 Where the Oliver 6 thc Ufc of this Point. 
 liowrefs So if thc Dower of the Feme be 
 Kr eviaed upon elder Title, upon the Re- 
 facias to cord brought into Chancery, by which 
 re-feize the ^Q was cviftcd, flic fliall hawcaScire 
 facias to re-feize the Lands, and to be 
 endow'd de no'vo of the Rcfidue, tho' 
 after Livery made to the Heir, 43 Jjf, 
 32. it leems alfo, that if Dower be af- 
 lign'd to the Wife, within Age, in Chan- 
 cery, and after Livery is made to the 
 Heir, flie may have a Writ of Dower 
 of the Refiduc. 18 £. 3. 29. 
 When thi And if the Wife maketh Oath that 
 Kijpaii^Yic will not marry herfeif without thc 
 fVrit^to King's Licence, and is endow'd upon 
 the Ef- the fame, CJc\ -ind afteiwards flie marri- 
 're-}lZJ' eth without Licence, dr. then the King 
 
 the Lands, fliall
 
 fhall fend a Writ to the Efchcator, 
 that he re-fcize all the Lands which 
 {he holdcth in Tiower^ as appearcth by 
 the Re^Jfter^ and not all the other 
 Lands which flie or her Husband had 
 in their own Right ; and the Writ is, 
 
 REX Efchent\ &c. Onn A. ^//^ The Form 
 fuit uxor J. de B. defmcii^ qui de /^o-^rir.''' 
 his tenidt in capitt\ qud mipcr jhcra- 
 mentmn prctjiitit corpovak q?tod fe non 
 merit aoerit L>iceiitia noflra fup^r hoc 
 priiis 7ion ohtejitd^ nt accipiniJ^s tmnen 
 fe fine tali Licejitia jiuper ?//arifuJft\ 
 710S contempt um hinnfmodi nolcntes 
 tranfire iuipitnitmu^ tihi pr£t'cipim//'s^ 
 ijwd fi ita ei% tunc terras^ O' tene- 
 ment a om?iia qii^ pr^di^a A. tenet in 
 dote?n de Hdredit, ipjiiis J. in 'Bali'va 
 tna^ fme dilatione cnplas in vianus no- 
 fir as ^ ita qitod de exitihus inde proi'eni- 
 entihus nobis refpo?ideas^ ad Scaccariuvi 
 fwftrimi qimifqne 7iohis de forisfaciurd 
 ad nos ifide pro'vejiic^ite Jatisfa'cl. fnerit. 
 ■vel aliud inde dnxeriin, demand* Tefie^ 
 
 &c 
 
 m
 
 42 6 
 
 £>i a Witit De Quod ei De- 
 forciat. 
 'HE Writ of 2!,^od el deforciat:, 
 
 ■m^i^ it A \\K:t\\ where Tenant in Tail, or 
 ^^' Tenant in Dower, or by the Curtefy, 
 or for Term of Life, lofe their Lands 
 by Default, in a Tr^cife quod Reddat^ 
 brought again ft them, they have not 
 any other Remedy, if they were fum- 
 mon'd according to Law, (jc. but this 
 Writ, which is given by the Stat, of 
 IVcftm, 2. c, 4. and the Writ is men- 
 tioned in the Statute. 
 
 I'he Writ of Ojiod ei deforciat feems 
 p,,„ to have arifen from the Inconvcnioncy 
 Kvhff^c: it wTijch Wivcs fuftcr'd, by a Trick, to 
 '^^^- dii^ippoint them of Tiozver -, for the 
 Husband was wont to be impleaded 
 by his Alienees, and lofe by Default^ 
 and judgment being given for the Alie- 
 nee to recover, on fuch Default of the 
 Husband, his Seifin, he came in by 
 Title Paramount, and therefore de- 
 feated the Seifm of the Husband, and 
 confcqucntly the Title of the Wife to 
 Dower, and it was generally held that no 
 judgment by Default, could be defeated, 
 but' by tlie very Tenant ; and there- 
 fore fuch was Mifchievous, not only to 
 Tenant in Dower, but to Tenant for 
 Life, end Tenant in Tail, that hap- 
 pened
 
 De Quod ei Deforciat. 427 
 
 pcn'd to lofe by Default ; for they 
 could not have a Writ of Right, bc- 
 caufe they were not Tenants in Fee, 
 fo this Statute gave them a J^uod ei de- 
 forciat^ by which that Recovery could 
 not bar the Demandant's Right, but the 
 Defendant was oblig'd to fue an elder 
 Title i but the Iffue in Tail could not 
 have this Writ, 4)ecaufe he had his For- 
 medon in the Difcender, by the Sta- 
 tute T)e dofiisi yet the Writ or Count 
 do not fuppofe any Recovery. 18 //. 
 6. 25. is upon loling by Default in a 
 Ceffa'vit^ Reg, Br en), 171. and the fame 
 is fuch, 
 
 REX c;k\ &c. Tr^cipe A. ^//^^ rhcForm. 
 reddat B. qf/a ftdt uxor C. nfiuvi ?ne/- 
 fuagium cum perttJiejit, in N. qmd da- 
 mat effe rationahilem dotein jua?/iy (^ 
 quod idem A. ei ijijujie deforciat^ nt 
 dicit^ dj^c. 
 
 And if the Tenant in Frank-mar- 
 riage bring fuch Writ, it is, 
 
 j^od ju/ie, dxc* reddat^ (jc, quod 
 cla7/jat effejus & maritagit/m fmm^ & 
 qiwd idem J. ei injufie deforciat. 
 
 And if Tenant in Tail. Tr^cipe^ 
 dxc, quod cla?nat te/sere Jih\ & hared, 
 
 de
 
 4*2 8 De Quod ei Deforciat. 
 
 de corpore [no exeuntihus^ ^ quod pY<S'> 
 diui. A. ei iujujie deforciat, (jc* 
 
 It is good, without fliewing whofe 
 Gift it is in his Count. 29 E. 3. 47. 
 30 E. 3. 31. for the Writ is brought on- 
 ^ iy after a Recovery by Default of his 
 
 own Seifin j and therefore who made 
 the Gift, is not material, but Matter 
 of Evidence only ^ and confequently 
 need not be fet out in the Count. 
 
 And for Tenant for Life, the Writ is, 
 
 Q^/od clamat te?iere ad teriniiitiiit m- 
 t(£ fiu, (and if Tenant by the Curte- 
 fy) Qtwd cltvnat teiiere per legem J71- 
 gVu, 
 
 That the ^^^^^ ^^^ Regifter is, That this 
 Tnmvt iy\Slnt for Tenant by the Curtefy, is by 
 treOirte- ^^qyity of thc Statute, and in this Man- 
 ^t'Jdtothe ner, tho' not nam'd by the 24th Chap- 
 ^Vrit- tcr of this Statute,- but if the Tenant 
 in Tail, or fuch other Tenant, who 
 hath a particular Eftate, lofe by De- 
 fault, where he is not fummon'd, (^c. 
 then he may have a Writ of Difceit^ 
 or a Qfjod ei deforciat, as he pleafeth. 
 Lojinphy If a 'Man lofe by Default in an Ac- 
 DejMiit. tion of Wafte fucd forth againft him, 
 he fhall not have a ^I'od ei deforciat, 
 tor thc Verdiift which found the Wafte. 
 
 Accord
 
 De Quod ei Deforciat. 429 
 
 Accord, as to Wafte, 3 H» 6. 29. by 
 Rolf. 'Brooke^ Quod ei deforciat, 7. 
 T)uhitatur* 
 
 And if a Man lofe any Land by^^i^^?.^ 
 Default, in a Writ of Right, in a Court- a mit^of 
 Baron, he may remove that Record in- Right. 
 to the Common Pleas, and have a ^f/od 
 eii (jc. upon that Record. Be?/:, If he 
 do not remove it ,• but then, it feems, 
 that the £7/od ei^ &€. lliall be fued 
 in the Common Pleas, or in the Court- 
 Baron, were he lofeth the Land, as he 
 pleafeth ; tamen ^{£re. 
 
 Note '^ Upon a Recovery, by Dc- What n:> 
 fault, in a Court-Baron, ^7Jod ei, (jcM"'" 
 lies in the Court of the Kingi and 
 therefore it is no Iffue to fay, N^d tiel 
 Record -, but he ought to fay no 
 fuch Record or Recovery, by which it 
 appears that the Tenements were loft by 
 Default. 2 ^. 4. II- 10 ^. 7. p. 6 H, 
 
 In the 23^od ei^ &c, it was enough WLit 
 for the Plaintilf to ihew that he was'^'y^/" 
 Tenant for Life, by the Curtefy, or mfj'^if^f^ 
 Dower, ^f. and he was not oblig'd to 
 fet forth the Recovery in his Writ or 
 Count, but that came on the Defen- 
 dant's Side; and he might plead that 
 there was no fach Record or Recovery 
 in Abatement of the Writ -, for if there 
 was no Recovery bv Defriult, then the 
 
 Piaintifi
 
 430 De Quod ei Deforciat. 
 
 Plaintiflf has mifconceiv'd his Writ ; for 
 he might recover by Aflize or Writ of 
 Dower; and it would be impertinent 
 to clog the Plaintiff's Writ or Count, 
 with a Recovery by Default, becaufe 
 that is Part of the Defendant's Title ; 
 and therefore comes properly on his 
 Side to fliew , and if there be fuch Re- 
 covery, the Defendant muft fet it forth 
 in Bar; and alfo his Title, as if it 
 be by a Gift in Tail j and he had re- 
 cover'd by Default, in a Formedon, he 
 muft fet forth and fay, that he is Tara- 
 tus manutemre jus & tittikim per do- 
 num pradi5t» and the Defendant, by 
 Way of Replication, may traverfe the 
 Gift, or traverfe the Seifin of the Dower. 
 Kaft' Entries 537. but the Plaintiff can 
 never traverfe the Recovery, becaufe 
 that is the Foundation of his own 
 Writ i but if the Defendant traverfes it 
 in Abatement of the Plaintiff's Writ, if 
 the Record be in a Court-Baron, then 
 it may be remov'd by a Recordari into 
 the Common Pleas ; but if the Reco- 
 very, by Default, be in a Court of Re- 
 cord, it muft be remov'd by Certiorari 
 and Mittimus, 
 That it And the^oi, (jc. lies againft a Stran- 
 lies againfi g^f to the Rccovcry J as if a Man reco- 
 lefjZ vers by Default, and maketh a Fco^- 
 ibeReco- mcnt after, the ^AoijC^t:. fhall dq brought 
 *^7' 3 againft
 
 De Quod ei Deforciat. 431 
 
 againft the Fcoftee. 44 E. 3. 43- 
 accord. T>Mtatur, 11 E, 3. 30. 2ucd 
 
 And if a Woman lofe by Default, J^J^^«^ «# 
 and taketh Husband, he fliall have|^^/^^: 
 the ^n/ody &c* but if Tenant in Tail medom. 
 lofeth byDefault, (jc. his Heirs fhall not 
 have a Writ of ^wd^ (jc. but a For- 
 msdon^ for that is his Writ of Right. 
 
 Where a Woman hath Dower ^^'^^Sk 
 fign'd to her in Chanceiy, for the^^J^j^^ 
 Nonage of the Heir, who is m Ward^'>^'- 
 of the King ^ and afterwards the Heir, 
 at full Age fucth a Scire facias in the 
 Chancery, to avoid that Endowment, 
 and recovercth on that Scire facias^ in 
 Default of his Wife,- now the Wife 
 iliali have a ^lod^ (^c. in the Com- 
 mon Pleas, upon that Recovery. 
 
 And fo if aMan recovers in the King's Tn^ '"^ 
 Bench, any Land by Default, upon a 
 Scire facias fued out of a E^ecord, which 
 is there, the Tenant, who ioft by De« 
 fault, ihall have his ^.^od ci, (^c- and 
 fhall fue the fame in the Common 
 Pleas. 
 
 If two Coparceners, Tenants in Tail, ^^P^*-^ 
 lofe their Land by Default, they fiiaii ^'' 
 join in a ^.^wd eiy (jc. and yet the 
 Default of one is not the Default cf 
 the oth?r. M a6, E. 3> 
 
 And
 
 432 De Qiiod ei Defdrciiit. 
 
 Temntfor 7\nd in a 'Praecipe qmd reddat^ if the 
 
 Life, or In r-.^ . r i C ■ ri-t -i 
 
 Tail ma- 1 cnaiit tor Lire, or in lail, appears^ 
 hKg've- and after departs in Defpight of the 
 fault. Court, he fhaii lofc his Land, and yet 
 he iliali have a J^i/od ei^ (jc. for that 
 Recovery was by Default, bccaufe he 
 did not appear when he was demanded. 
 Departure And if Tenant in Tail, or Tenant 
 i"^£'s^*£or Life, after the Mife joined in a 
 CoHTtl Writ of Right, depart in defpight of 
 the Court;, he lofeth his Land, and 
 there he fhall not have a ^/W ei de- 
 forciat^ becaufe Judgment final iliall 
 be given agaiiift him in that Cafe. 
 TheRea- The Reafon of the Diftin(5tion in the 
 foncf the foregoing Cafes, feems to be, becaufe 
 Lifiimon, ^" ^ Trddpe quod reddat, in Entry, 
 the Plaintift only recovers Seifin ; and 
 thereupon, in this Cafe, the J^iod lies, 
 which was intended in this particular 
 Cafe, inftead of the Writ of Right for 
 thefeTenantSi but where the iV/(/^ is join- 
 ed upon the mere Right, and the Tenant 
 departed in Defpight, C^c. Judgment Fi- 
 nal was given againft him ; and there 
 could be no new Writ cf Right ; there- 
 fore in thefe Cafes, no new Writ of 
 Q//od ei deforciat was given in Lieii 
 thereof. 
 iBaron anci If the Husband and Wife be feifed of 
 ^""'- Lands, in Right of the Wife, for the 
 Life of the Wife, and they lofe the 
 3 ' Land
 
 JDe Qiiod ei Deforciatc 45^ 
 
 Land in Tr^cipe^ by Default, yet they 
 ihall have a ^cod ei, d'c. 
 
 And if Tenant for Life^ lofe his Tenani 
 Land in a Ceffamt brought againft him, {'L^'{^* 
 by Default, yet he fliall have a Sjiod TtTfauu, 
 eiy &c* by the Statute of Weftm. 2 H. '" * ^efe 
 J. C. i. and ilf. 6E. 3. bccaufe the^*""'^* 
 Lord, in this Cafe, as well as in all 
 other Cafes, by Default, makes Titld 
 by the Cefler, in Maintenance of the 
 Default. 
 
 And if the Tenant, by a Receipt fen^iHt 
 upon the Default of Tenant for Life ^If^ ^^^ 
 appearcth, and is receiv dj and plead- 
 eth, and afterwards lofeth by Adion 
 tried, yet the Tenant for Life {hall 
 have £1 £^^/od ei\ (jc, for the Judgment 
 is given againft hint by his Default* 
 33 ^* 3* 2^iod ei, &c. 17. 3 ff. 4. 150 
 33 £. 3. A'vowry 255. 
 
 And if the Tenant vouch, and the Whihef 
 Vouchee will not appear, for which the ^^^jflHf 
 Tenant lofeth by Default of the Vou- {leyVrii- 
 ched, it is to fee whether the Tenant 
 lliall have a J^/jod ei, (jc* for he lofetii 
 theiand by Default, tho* not his own,- 
 for the Statute is, Et ciifii temporihut 
 retroatlls awt aliquis armfijfet terra Jd 
 [nam per defaltam, lie haheat atiud re-^ 
 Ciiperclri qnam per Bre've de recio 5 and 
 there it doth not fay, 'Per defaltam 
 fmm^ but generally; but after in the 
 F £ Statute
 
 434 ^^ Quod ei Deforciat* 
 
 Statute, it fays^ Tromftnn fit quod de 
 catero no?i fit eortivi defalta eis it a pre-^ 
 judicialisy drc. and by that, it fecm- 
 eth that the Tenant ought to make 
 Default j and it feemeth, that the De- 
 fault of the Vouchee, is the Default of 
 the Tenantj and fo Default in botL 
 ^<£Te hoc. 
 Thsiih, But if the Tenant vouch, and the 
 Vouchee appeareth, and entercth iijto 
 the Warranty, and afterward lofeth by 
 Default} now if the Tenant lofe by 
 the Default of the Vouchee, he fhali 
 not have a J^^uod ei, (jc, becaufe he 
 fhali not have Judgment over in Va- 
 lue againfl the Vouchee, by Default of 
 the Vouchee, for that is not the Default 
 of the Tenant ; ergo Quare, 
 
 If the Vouchee do not appear, it is 
 the Default of the Tenant, in not 
 bringing in his Vouchee at the Day, in 
 order to defend his Title ; therefore 
 the Demandant recovers by Default; 
 and by Confequence the Writ lies for 
 the Tenant that lofes upon fuch De- 
 fault, who becomes Demandant in a 
 ^od ei deforciat^ to make the former 
 Demandant iKew his Title, on which. 
 he could maintain his former Writ, 
 Indeed if the Vouchee came in, and af- 
 ter made Default, no Writ of (^iod ei 
 deforciai lies^ but fueh a Kccovery 
 
 ina^
 
 De Quod ei Deforciac. 43! 
 
 rnay be pleaded as a Bar to the ^md 
 eiy &c. becaufc the Demandant in 
 the former Adtibn had Jiidgraent to re- 
 cover in Value j and therefore having 
 the Recompence by the former Judg- 
 ment, he could never maintain this 
 Writ, to recover the Thing itfelf ^ but 
 in the former Cafe, Vouchee not ap- 
 pearing at all, there could be no Judg- 
 ment for Recompence in Value j and 
 if the particular Tenant had hot this 
 Writ, he would be without Remedy i 
 and this is the Reafon, why in a Com-« 
 liion Recovery, Tenant in Tail can- 
 not implead the Recovcror in a ^od 
 ei deforcidt. 
 
 And if Husband and Wife \o{q^ hf Baron m 
 Default, the Land of the Wife^ which^^'^^'- 
 fhe holdeth for Life, if the Husband- 
 'dietb, fhe fliall not have a ^tiod ei de- 
 forciat^ but a Cui in mta j for it is 
 a Demife made by the Husband. 
 The Statute Wefim. 2. f. 3. exprclly 
 gives a Cui in ^Sita^ in this Cafc^ there- 
 fore not within the Statute that giVes 
 a Qiiod ei deforciat ^ aud when he 
 bringeth the Quod ei deforciat^ tie count- 
 cth that he was feifcd of the Land iri 
 Demefne, as of Freehold, or in his De- 
 mefnein Tail, without ilicwing of whofe 
 Leafe or Gift he was fcifcd ; and he 
 J? f i €>ugh€
 
 436 De Quod ei Deforciat. 
 
 ought to alledge Efplees, in himfelf> 
 
 Isgenemi Wc have already mention'd why he 
 need not fhew of whofe Leafe or Gift 
 he holds in the Count or Writ ^ but ou- 
 ly in general fay, that he himfelf was 
 Ohferva- feifed, nt jupra^ becaufe to alledge 
 ^^"'onthe'^^ generally, was fufficient to entitle 
 himfelf to the Writ, bccaufc he lays 
 the Efplees, which fhews the Seifin; 
 and if he fliews the Seifin, he need not 
 fay of whofe Gift, becaufe the Oufter 
 is of that Seihn, which he has laid 
 to be adually in him, and then the^ 
 Defendant ought to deny the Right of 
 the Demandant, (jc. and fliew how^ that 
 at another Time, he recovered the Land 
 againft the Demandant, by a FormedcTi, 
 or other A(5tion; and ilial! fay at the 
 End of his Plea, Chiod ipfe paratiis eft 
 ad 7namite7ic7idnm jiis^ & tit?/h/m fmun 
 pj'ddiEi. per do72inn fr£diU\ (jc» inde 
 petit jp.dicium^ &c. and then the De- 
 mandant in the Ouod ei deforcicU^ fliall 
 traverfe that Title, or fhew Matter to 
 bar that Title, (jc. but he fliall not 
 make a Defence, and then plead in Bar^ 
 as he fliall do in the For me don ^ &c. 
 
 The Meaj\ing of this is, tliat in the 
 Formedojij after the Defendant has en- 
 tered into the Defence, that is, Vemt & 
 defends jus [nuvi qj/cmdo^ Oc* & dicit 
 
 qwd
 
 De Quod ei Deforciat. 437 
 
 quod prad' the Plaintiff AUioiiein fnam 
 iverfus ettm habere ?i07i debet quia dicit 
 (^c. and fo fhews Matter to defend 
 himfelf from the Plaintiff's Adion. 
 
 But in the ^wd ei deforciat, the 
 Defendant, by Way of Bar, is to fet 
 up his former Recovery, by Default, 
 and prote<5t that Recovery by Ti- 
 tle, and fo to aver the Defence of that 
 Title, whereby he recover'd -, therefore 
 it would be very improper for him to 
 fay AUio7tem fnam 'verfns etim habere 
 non debet, bccaufe the Tenant has ex- 
 prefly given the Adion, where there 
 was a Recovery by Default ,• and to 
 begin his Defence in that Manner, 
 would be an Averment againft the Sta= 
 twte. 
 
 Ff3 A TA-
 
 Jl a 1j jl t 
 
 To the feveral 
 
 M A T T E R S contained in the 
 two foregoing Treatifes, di- 
 vided under the following 
 
 Heads. 
 
 KJf the Trpfts of ap Alien p^e 243 
 
 X. That a Ufe was not Affets, and why 37 
 ^, That a Term liinitted to attend a Fee, 
 
 Ihall be Aflets 37 
 
 ij. That fince the Statute of Frauds, they 
 
 feem to be A^Tets 38
 
 Tfaat a Man may have an Affife upon a 
 Feoffment, to his own Ufe, without an 
 »6tual Entry Page 275 
 
 1. What liiall arife by Way of Ufe, with- 
 out Attornment 90 
 
 8. That there can be no Eftate at Common 
 Law, by Attornment, after the Death 
 of the Grantor 90 
 
 %. That the Words Bargain and Sale, will 
 not pafs a Reverfion 'till Attornment, 
 nor the Words Give and Grants without 
 a Confideration. 88 
 
 4. A Reverfion granted to an Ufe, the Ufe 
 is not executed 'till Attornment, other- 
 V?ife if grafted by $ Fine ?3i> 232 
 
 i. Where the Autliority by a Devife, to fell 
 Lands furvives, and where not 68 
 
 3. How the Court of Chancery will inter- 
 pofe, that an Authority to fell, may be 
 executed 68 
 
 3. That Perfons authorifed to fell, are of 
 Neceflity excluded from buying. 69 
 
 F f 4 ^tttinucuti.
 
 '4 TJBLE. 
 
 i. What Confideration no.r to be averred, 
 Vide Confideration, where a Bargain and 
 Sale i§ void, unlefs Money be averred 
 
 Page 51 
 
 ^. No Averment or Evidence rs to be ad- 
 mitted againft a Confideration exprelTed 
 in the Deed ibid^ 
 
 5. That no Averment cgn be allowed by 
 the Heir, that the Confideration is falfe 
 againft the Deed and Conveyance of his 
 Anceftor. 52 
 
 4. Where Money is to be averred the Con° 
 fideration 51 
 
 5. That a Devife cannot be averred to any 
 other Ufe but to the Ufe of the Devifee 
 
 162 
 
 6. Otherv.ife, if a Ufe be exprefled, it is 
 executed ihid. 
 
 »/. A different Ufe cannot be averred upon 
 a Fine Stir Grant and Render 57 
 
 8. Where Parties are eftopped from aver- 
 ing other Ufes upon a Fine, and where a 
 Declaration of other Ufes may be aver-*- 
 red 61 5 64 
 
 9. That there piay be a parol Averment 
 againft a fubfequent Declaration of Ufes 
 
 261, 262 
 J p. Where the Confideration may be aver- 
 red 258 
 11. Where no Averment by Parol, ftiall 
 ^Iter the Declaration in Writings 259, 
 
 260 
 Vide Confideration 11
 
 A T A B LE. 
 
 1. What a Bargain and Sale is, and the fe- 
 veral Parts of its Definition PagcSz^ 297, 
 
 295) 299 
 
 2. The EiFe6l of a Bargain and Sale Sz 
 
 3. The Expofition thereof ibid. 105 
 
 4. Who may Bargain and Sell 83 
 
 5. That the King cannot Bargain and Sell 
 to a Ufe ibid. 
 
 6. To whom a Bargain and Sale may be 
 made 84 
 
 7. That a Man may Bargain and Sell to his 
 Son ibid. 
 
 8. That a Man may Bargain and Sell to a 
 Corporation ^ ibid. 
 
 9. What may be Bargained and Sold 85 
 ID. That a Man feifed of a Freehold for 
 
 Life, may Bargain and Sell it for Years 
 
 ibidf 
 
 XI. How a Rent might be fold before the 
 Statute, and how fmce ibid. 86 
 
 12. That a Sale of 20/. loj. worth of 
 Land, and Part of a Manor, is void, and 
 why ; and what other Bargains and Sales 
 are void ibid. 87 
 
 J 3. In what Manner Eflates may be Bar*, 
 gained and Sold, and of the Enrolment 
 
 ibid. 
 
 14. Py what Words Lands may be Bar^ 
 gained and ^a\d ibid. 
 
 15. Of the Effed of a Bargain and Sale, 
 and that it will work a Difcontinuance 
 
 100 
 
 16. That
 
 A TABLE. 
 
 1 6. That a Bargain and Sale works no Fof» 
 feiture Vage loi, 102 
 
 17. That a Man may Bargain and Sell, re- 
 ferving a Rent, and why 103 
 
 J 8. That before 27 W. 8. a Ufe in Fee, by 
 a Bargain and Sale, had pafled upon a 
 Confideration^ without the Word Hein 
 
 238 
 
 19, But now fince the Statute, there Is the 
 fame Reafon to require Words of Li- 
 mitation, in fuch Cafes, as in Common 
 Law Conveyances 239 
 
 20. Selling E% "oi 'Termini fuppofes a Man's 
 transferring a Right to fbmething, for 
 Money 50 
 
 a I. Of Pleadings relating to Bargains and 
 Sales 299, 300, 301 
 
 22. What a fufficient Confideration upon a 
 Bargain and Sale, tho* no Money certain 
 is mentioned 256 
 
 513. What neceflary to Bargains and Sales 
 to have them executed by Force of the 
 Statute 285 
 
 {24. Where a Bargain and Sale pafled no 
 Eftate, it not bei«g enrolled, but it 
 ferved only as a Declaration of Ufes 
 
 264, 265 
 
 25. Of the Enrolment, Confideration, and 
 other Requifites, neceflary to a Bargain 
 and Sale 286, 287, 288, 289, 29* 
 
 Vide Confideration 9j iJ 
 
 Vide Covenants to ftand feifed 4 
 
 Vide Enrolme^it
 
 A TABLE. 
 
 'Bdxmmi anil Ol5nrpinee* 
 
 ^. That a Bargainee in Fee of Tenant in 
 Tail, hath feveral Properties of a Te^ 
 nant in Fee, and the Reafon thereof 
 
 Page ICO 
 
 ^i Where a Bargainee in Fee is feifed of a 
 Fee-fimple, determinable on the Eftate^- 
 tail ibid. lor 
 
 3. That a Bargainee cannot vouch by Force 
 of a Warranty annexed to the Eftate of 
 the Land, and why 102 
 
 4« If a Man fells a Reverfion upon a Leafe 
 for Life or Years, the Bargainee (hail not 
 take Advantage upon a Demand of the 
 Rent, withoutNotice given of the Bargain 
 and Sale, and why 105 
 
 5. Where the Bargainor may be termed a 
 Tenant at Will, to the Bargainee, and 
 ^ Leafe for Years made by him, makes 
 nim no Difleifor 106 
 
 6. Where the Bargainee by a Fine Sur Grant 
 and Render, Ihall not be feifed of an 
 abfolute, bpt of a conditional Eftate on- 
 ly 59 
 
 ^, Where the Bargainee (hall be received, 
 tho' the Deed be enrolled after the Te- 
 nant for Life is impleaded. 
 
 8. That the Bargainee in Fee of Tenant 
 for Life, has but an Eftate for the Life 
 pf the Bargainor 297
 
 A T: A BLE. 
 'Baton anti iFcme* 
 
 t. Where an Eftate-tail is executed in the 
 Wife immediately Page 135 
 
 2. That by the Common Law a Deed ac- 
 knowledged by the Husband and Wife, 
 binds only the Husband, and how the 
 Cuftom of London varies the Common 
 Law 109 
 
 3. Where the Husband and Wife, levying 
 a Fine, are in of the old Reverfion 20, 
 
 21 
 
 4. That the Wife may wave her Jointure 
 by Matter if2 pais 153 
 
 $, What is an Eftate-tail vefted in the Huf- 
 band for Life 67 
 
 6. Where an Ufurious Contraft is made up- 
 on one Deed to declare Ufes, and there 
 ijS a fubfequent Deed to redtify the U- 
 fury, the VVife fhall be bound by the firft 
 Deed 42 
 
 7. What is not a good Ufe to the W^ife 
 made by the Husband of the Wife's 
 Alienation of her Jointure 54 
 
 5. That after an Alienation, the Party in- 
 terefted may enter, as if the Woman 
 was dead 157 
 
 9. Where the Alienation by the Wife, 
 works a Forfeiture, and he in Remain- 
 der may enter immediately 160 
 
 10. Where the Alienation by the Wife, 
 in Fee, gives an Entry to the Heir, in 
 the Life of the Wife 159 
 
 11. That the Husband cannot be Tenant, 
 by Curtefy, of an Ufe 2$ 
 
 12. Of
 
 A TABLE. 
 
 12, Of Declarations of Ufes by Husband 
 and Wife Page 244, 246, 247, 248, 249 
 
 1, Where a Ufe fhall not arife ta a Ba- 
 ftard, upon a Covenant to Hand feifed 
 
 278 
 
 2. That no Ufe will arife to a Baftard, 
 
 256 
 
 Celitii que dlie. 
 
 The Eflate of Ceflui que Vie, for the Life 
 of yf. is determined by the Death of ^. 
 
 66 
 
 Cefttii que Clfe* 
 
 1. Where a Leafe by Cefttd que Ufe is void, 
 and where good, and why 26 
 
 2. That at Common Law, the Entry of 
 Ceflui que Ufe made him a DilTeifor, 
 and why 26 
 
 3. That at Common Law Ceftui que Ufe 
 might alien the Ufe, and why ibid> 
 
 4. What Authority is given to Ceflui que 
 Ufe, by I il. 3. c. i. 27 
 
 5. That the Statute of i R. 3. gives na 
 Authority to Ceflui que Ufe 10 devife the 
 Land 52 
 
 6. That by the Statute Ceflui que Ufe has no 
 Power of Alienation, when he has a na- 
 ked Right, and a Ufe in Efl['e, unlefs it be 
 in order to confirm an Eilate in Being, 
 and why 27 
 
 7. Who are within the Statute of i R. ^. 
 c. I. by which a Power of Alienation was 
 annexed to the Eftate of Ceflui que Ufe,, 
 and the Reafon of that Statute 27 
 
 8. Where
 
 A TABLE. 
 
 t. Where the Feoffees to an Ufe, (Hall be 
 bound, the Cefiiii que Ufe enfeoffing the 
 Diflreifor, and why Page 28 
 
 9. Where Cefitii que Ufe may alien in Fee, 
 and why ibid, 
 
 io. Where Ceftni que Ufe^ being a Feoffor 
 upon Condition, entering for a Condi- 
 tion fhall be feifed of the whole Eftate 
 
 32 
 
 11. Where Ceftut que Ufe^ m Tail, aliens 
 by Leafe and Releafe, it only binds the 
 Feoff'ces otherwife by Fine, but binds not 
 the Iflue by a Recovery ibid. 
 
 12. If Cefini que Ufe aliens by Fine, it bars 
 the Entry of the Feoffees after his Death 
 
 ibid. 
 
 13. The Confequence of a Devife by Cefiui 
 que Ufe 37 
 
 14. How Feoffees of Cejlui queUfe m^y alien 
 according to the Devife of CeJ^ui que Ufe 
 
 ibidi 
 1$, Where Cefui que Ufe fhall have an Ac- 
 tion of Debt, but cannot avow, and why 
 
 . 34^ 242 
 
 i6. Where Ceftui que Ufe fhall enter for a 
 
 Condition broken 34 
 
 17. A Rent refer ved by Ccjiui que Ufe fhall 
 go to iiis Heiis ibi£ 
 
 18. Where Ceftui que Ufe^ under a Fine^ 
 fhall hold the Lands charged with a Ufe 
 
 56 
 
 19. Where a Grantee of a Rent from the 
 Feoffee to an Ufe, fhall hold it to the 
 Ufe of Ceftui que Ufe 1 'Ji 
 
 xo. Wh,ere the Tinants of a Manor fhall 
 a anfwei'
 
 A T ABLt. 
 
 atift^er the Rents to the Cejiui que Ufe^ 
 tho' the Services are drowned Page 194 
 
 »i. Whatever Intereft the Cajitii que UJe 
 has in the Ufe, it is executed by the Sta- 
 tute 199 
 
 52. That Cejiui que Ufe could not enter up- 
 on the Lands 239 
 
 23. That tho* it is generally true that if 
 Ccjiuf que Ufe entered upon the Feoffee, 
 he was a Trefpaflbr, yet in fome Cafes, 
 by Intendment of Law, he might enter 
 *and occupy the Lands at the Will of the 
 Feoffee, and in what Inflance 2ioi, lot 
 
 24. What gives CcJlui que Ufe the legal E- 
 ftate 239 
 
 25. Where CeJlui que Ufe of & Remainder 
 in Fecj after fevcral Eftates of different 
 Natures, fhall have his Remainder, when 
 the Eflates happen to determine, and fhall 
 not ftay 'till they are all determined, 
 tho' the Words are after all the Eftates 
 ended 231 
 
 •6. The Conflrudiort of the Judges upon, 
 the Statute appointing a Juryman to have 
 40 s. per Anmim^ that Cejiui que Ufe was 
 within that Statute 205 
 
 ContiitiDm 
 
 What was held not to extinguifh a Condi- 
 tion 266 
 Vide Cejiui que Ufe 9, 15 
 
 Contiitional aw^ 
 
 Oi Cortditional Vk»* 26^
 
 A r A 2L£: 
 
 CouCtJctatiom 
 
 1. That Confiderations of raifihg an Ufe 
 upon a Covenant, are two-fold. Blood 
 or Money Vage 47, 4S 
 
 2. That the tWo Confiderations which are 
 allowed to be valuable in a Deed, are 
 Marriage and Money 47 
 
 3. Brotherly or Paternal Love, are good 
 Confiderations: So of Marriage, but not 
 Friendfhip or Acquaintance 48, 251 
 
 4. Nor is Natural Love a good Confidera-s 
 tion 48 
 
 5. What Confideratioh is neeeflary to the 
 raifing an Ufe 45 
 
 6. Upon a Fine 47 
 
 7. What Confideration is neeeflary to a Co- 
 venant to^ Hand feifed, and how far it 
 extends 112, 307, 252, 253, 254, 255, 
 
 ^56, tsn 
 
 8. What are, and what not good Confide- 
 rations in Covenants to ftand feifed 4-8 
 
 9. That no Ufes will arife without a Confi- 
 deration upon a Bargain and Sale, or 
 Covenant to ftand feifed 46 
 
 10. Where a Ufe may be raifed without a 
 Confideration ihidi 
 
 XI. No Confideration to be averred, but 
 
 what ftands with the Confideration ex- 
 
 pr efled ihid. 
 
 12. Tho' Blood be good Confideration to 
 raife an Ufe, yet muft the Intent of the 
 Party be declared by aDeed, and the Court 
 of Equity muft foliQW that Intent 4S 
 
 2 j|. Whaf
 
 ARABLE. 
 
 13. What Confideration is neceflary to a 
 Bargain and Sale, and what to a Cove- 
 nant to ftand feifed Pt^.ge 112 
 
 14. Where there needs no Confideration 
 to raife an Ufe 114 
 
 15. Where no Ufe arifes, unlefs there be 
 a good Confideration of Money 52 
 
 16. Where the Ufe Ihall ceafe becaufe the 
 Confideration ceafed 277 
 
 Vide Prior and future Ufes 
 Vide Covenants to fiand feifed 
 Vide A'verment, 1 
 Vide Bargains and Sales -^ 22 
 Vide Covenants to fiand feifed 
 
 Conficmatfoit* 
 
 1. Where the Leflee for Years may make 
 Ufe of a Deed, as a Confirmation, and 
 afterwards as a Feoffment 89 
 
 2. Where a Grant to a Tenant at Will may 
 enure as a Confirmation 89 
 
 €0mi?eC ill a JflllC* vide Vine^ 18, 28 
 
 Conu^ec of n Statute* vide Vraudu- 
 
 lent Conveyances^ 6 
 
 €ontiltfl:ent iKemaUltier^^ vide Re- 
 mainders 
 
 .COpatCenetSf* vide ^wd el Deforciat, la 
 Vide Contingent Remainder, 8 
 
 G g Cop]v
 
 A r A B L£, 
 
 How a Copyholder, furrendering to the 
 Ufe of his Laft Will, may difpofe of his 
 Eftate Page 3^6 
 
 Vide Releafe, i 
 
 Vide Contingent Remainder, 8 
 
 CO^pO^ationiS* Vide Seifm to Ufes, 7 
 
 1. Whether a Man may have an A6lion of 
 Covenant, to recover Damages^ tho' no 
 Ufe could arife 257 
 
 2. The Difference between a Covenant that 
 Lands are free from all Incumbrances, 
 and that a Man fhall execute a Deed, 
 \vith a Covenant that the Lands are free 
 
 343 
 
 3. The Difference between a Covenant that 
 
 the Lands are free, ^c. and that the 
 Truflecs fhall enjoy the Lands free, &e. 
 
 343 
 
 ColJcnnnt^ to Clant! fctfc^* 
 
 1. Of Covenants to ftand feifed, in Confi- 
 deration of Blood, and their Original 
 
 no 
 
 2. Who may covenant to ftand feifed, and 
 to whom HI 
 
 .^. By what Words a Man may covenant 
 to ftand feifed 114 
 
 4. That a Bargain and Sale in Confideration 
 of Love, and for increafing his Daughters 
 
 Portions,
 
 A TABLE. 
 
 Portions, fhall enure by Way of Cove- 
 nants to ftand feifed Page 114,115 
 
 5. What fhall be conftrued a Covenant 
 Executory, and not a Covenant to ftand 
 feifed 115 
 
 6. Where a Conveyance, without Attorn- 
 ment or Enrolment is void, and cannot 
 enure by V/ay of Covenant to ftand fei- 
 fed 115 
 
 7. The EfFed of a Covenant to ftand fei- 
 fed, and where fuch Covenant is void 
 
 116 
 
 8. Where a Covenant being void in Law, 
 is void in Equity ibid. 
 
 9. That every Covenant to ftand feifed, 
 prefuppofes a precedent Seifin 116, 117 
 
 10. That if a Mortgagor covenants after 
 Redemption to ftand feifed to the Ufe of 
 J. S. it is a void Covenant , and how in 
 Cafe of a Feoffment 117 
 
 11. Where a Covenant by the Father, to 
 ftand feifed to the Ufe of his Son, fl^all 
 ftill make the Fee in the Father 116 
 
 12. A Covenant to ftand feifed to the Ufe 
 of the Nominee of J. S. is void, but to 
 fuch of the Covenantor's Coufm as J. S. 
 fhall name, is good 49 
 
 13. The Difference between a Covenant to 
 ftand feifed and a Feoffment to a Ufe 
 
 113 
 
 14. Where the Covenantor to ftand feifed, 
 fhall be conftrued to have an Eftate for 
 his own Life, becaufe all the Remain- 
 ders were to commence after his Death 26 
 
 15. Whether a Covenant, being Contra- 
 tradidory to what went before in the 
 
 G g 2 fame
 
 A TA B LE. 
 
 fame Deed, fhall be void, or how far it 
 Ihall extend Page 272 
 
 Vide Dower, 49 
 
 Debt* 
 
 Where Cejiiii que Ufe fhall have an Aclion 
 of Debt 34 
 
 2?rclaration0 of oresf* 
 
 1. Who may declare Ufes 39, 40, 41, 42, 
 
 435244 
 
 2. That one Non compos mentis may de- 
 clare Ufes 42,246 
 
 3. That an Infant may declare Ufes 245, 
 
 246,251 
 
 4. See more of Declarations of Ufes, by 
 Infants 251 
 
 5. Declaration of Ufes by Jointcnants, fe- 
 verally 42 
 
 6. A Baron and Feme cannot declare Ufes 
 upon a Feoffment, fo as to bind the 
 Wife 39 
 
 7. What became a Doubt upon the Statute 
 of Frauds, concerning a refulting Ufe, 
 and that by the Statute of 4 yimie, c. 
 16. a Man may declare the Ufes of a 
 Fine and Recovery, by a fubfequent 
 Deed 62 
 
 8. What is fufficient to declare an Ufe 
 which would not have been fufficient to 
 <i Covenant to raife an Ufe 275 
 
 9. Where
 
 A TABLE. 
 
 9. Where a Deed Declaratory of an Ufe 
 was neceflary at Common Law Page 
 
 270, 142 
 
 10. Where a Letter is a good Declaration 
 of a Truft 347 
 
 11. What fhall not controul Ufes declared 
 by a Deed 273 
 
 Vide Fine^ 6, 7, 8, 14, 15 
 Vide Leafe, 4 
 
 To take the Dowrefs's Oath. Vtde Dower, 
 
 1. Whether the laft Deed, or the firft, 
 fhall be moft effedual 96 
 
 2. Where a Perfon not named, but in the 
 Habendum of a Deed, fhall not take by 
 the Habendum 235 
 
 T>zMz, lOzMtsu nnti Dcl3ircc. 
 
 1. If a Limitation of a Ufe in a Devife, 
 be void, whether the Devifee fhall be 
 feifed to the Ufe of the Devifor, and 
 his Heirs 281 
 
 Vide Averment, $ 
 
 2. Where the Devifee claims by the Sta- 
 tute of Ufes 204 
 
 3. That a Ufe is devlfable 35 
 
 4. The Confequences of a Devife to an Ufe 
 
 Vide Fine, 4 
 Vide Jointures, 9 
 
 Gg3 2:)iTccnt.
 
 A TA B LE. 
 
 2)ifccnn 
 
 1. If the Bargainee dies before Enrolment, 
 his Heirs fiiall take by Difcent Page 2S9 
 
 2. Of Difcents of an Ufe in Reverfion 19 
 
 3. What are the Difcents of an Ufe in Pof- 
 feffion, and what in Reverfion i6 
 
 Vide Dcwcr, 112 
 
 Vide Heirs, 5 
 
 Vide Perpetuities, i, 3 
 
 DiTcontiimancc* 
 
 Vide Bargains and Sales, 15 
 
 What no Difcontinuance within the Statute 
 
 of 1 1 H. 7. c. 2 o. 
 Vide Doivcr, 106, 116 
 
 Di!fciTin, DifTnToi, nnti DilTciTer* 
 
 1. Every fubfequent Confent is equal to a 
 Command precedent to make a Joint 
 DifTeifin ; and tho' the A&: of Difleifin 
 be done by one, yet a fubfequent A61 
 of the other makes them, in Law, efleem- 
 ed Joint DifTeifors 71 
 
 2. Where the Ufe and PolTellion both pafs 
 by the Feoffment of the Diffeifor 241 
 
 3. Where a Releafe to the Diffeifee ex- 
 tinguifhes the Ufe 241 
 
 4. Where the Ufe of the DiiTeifee Ihall 
 ftand good 270 
 
 Vide Cejiiii que Ufe, 2, 7 
 Vide Doner, loS, n6 
 
 Vide
 
 A TABLE. 
 
 Vide Feoffment^ Feoffor^ and Feoffee, 5. 
 Vide Pleadings, 5 
 
 Vide Cefiui que Ufe, 26 
 Vide Dower 152, 153, 154, 155, 156, 157, 
 
 158, 159 
 
 JDomi niin Donee. 
 
 Vide Dower, 12, 
 Vide Limitations, 2 
 
 Dotucr* 
 
 £. What Dower is 354 
 
 2. That the Writ is a Writ Patent 357 
 
 3. That the Wife may remove the Plaint 
 
 358 
 
 4. That the Tenant cannot, without fhew- 
 ing Caufe i^id- 
 
 5. Where it may be removed by a Recordare 
 
 359 
 
 6. Not to be done by a Pone, but by a 
 Tolt i^i^' 
 
 7. To whom the Writ is to be direfted ihid. 
 
 8. Where fhe might have a ^olt on a //>/> 
 0/ R?g/^? 361 
 
 9. Where the Plea is to be removed by a 
 Re cor dare ibid. 
 
 10. Where the Writ is to be direded to 
 the Feoffee 362 
 
 11. Where to the Heir 3^2,363 
 
 G g4 12. Where
 
 A r A B L £. 
 
 12. Where the Writ is to be againft the 
 Donee, direded to the Sheriff Page 
 
 362, 363 
 
 13. That Dower is the Confequence of 
 the Marriage ibid, 
 
 14. For what Purpofes allowed ibid. 
 
 15. To whom to apply for her Dower 364 
 
 1 6. How it ftood before the Statute ^tia 
 Emptorcs 'Terrartim ibid. 
 
 17. Where the Writ is to be brought 365 
 iS. Where the Tenant in Dower is to have 
 
 the Writ againfl; the Leffee for Life 
 
 ibid, 
 
 19. Where the Writ may be returnable in 
 the Common Pleas, tho' the Claufe ^lia 
 Capitalis Dominus^ ^c, be not in the Writ 
 
 365 
 
 20. And the Lord to have no A6lion for 
 fuing the Writ there 366 
 
 21. Where he may a Prohibition ibid. 
 
 22. Where a Doinimis remifit Curiam [uam^ 
 is implied ibid. 
 
 23. Where a Wife is endowed of Part of 
 her Dower, fhe muft have her Writ of 
 K.ight of Dower 367 
 
 24. And the Reafon thereof ibid. 
 
 25. Where a Feme lofeth by Default, fhe 
 may have her Writ of Rigk of Dower 
 
 ibid. 
 
 26. Tenant for Life barred in a Poffeflbry 
 Adlion, could not have a Droit nr el IVrit 
 at Common Law 368 
 
 27. And the Reafon thereof 369 
 
 28. Feme lofing her Dower by AfTife, her 
 Remedy is by Attaint 369 
 
 29. Th; Reafon thereof ibid. 
 
 JO. The
 
 A T A B LE. 
 
 30. The Procefs after Removal Page 369 
 
 31. The Form of the Writ 370 
 
 32. Dower of a Moiety jhid. 
 
 33. Where to be directed to the Heir ibid. 
 
 34. The Form of the Writ of Dower, to 
 the Heir, for the Third Part ibid. 
 
 35. Of the Profits of a Fair 371 
 
 36. Of Stallage ^^/^. 
 
 37. Of an Office ibid. 
 
 38. Of a Mill ii^id, 
 
 39. That fhe ftiall have Dower of what is 
 Appendant and Appurtenant ibid. 
 
 40. Of the Wcit De ^arentina Habenda^ 
 when it lies 3»72 
 
 41. That it is a Writ Vifcountiel ibid. 
 
 42. By what Statute given ibid. 
 
 43. The Form of the Writ 373 
 
 44. How the Sheriff to demean himfelf 
 thereon 3 7 j. 
 
 45. A Writ of Dower, Unde nihil habet^^*]^ 
 
 46. Where it lies ;^;^. 
 
 47. The Form of the Writ in Latin 375 
 
 48. The Demandant not bound to accept 
 the Tender of Dower Hid. 
 
 49. From what Time the Demandant to 
 have Damages Hid, 
 
 50. When the Defendant to plead that he 
 was always ready, ^c. 376 
 
 51. The Form of the Writ again ft the 
 Guardian md. 
 
 $2.. That he is to be named Guardian ibid. 
 
 53. That the Defendant ought to fhew that 
 the Heir was Heir to him laft feifed ibid. 
 
 54. A Precipe of Dower ^d ojiium Ec- 
 elejjcs 377 
 
 SS' Ex
 
 A 1 A'B LE. 
 
 ^$. Ex ajfenfii patris Page siJ 
 
 56. Dower Wf^de nihil hahet may be fued 
 before the Sheriff, by a Jufiicics 377 
 
 57. Praecipe to the Sheriffs of London 378 
 
 58. Dower in London^ againft feveral Te- 
 nants ibid. 
 
 59. One cannot have two Writs of Dower 
 Unde nihil habet^ at one and the fame 
 Time, but the latter (hall abate 376 
 
 60. Where there may be a fecond Writ 
 
 ibid. 
 
 61. Where a Writ of Admeafurement of 
 Dower Heth tbid, 
 
 62. Who may have it 380 
 
 63. The Heir within Age ibid. 
 
 64. Where the Heir at full Age fhall not 
 
 ibid. 
 
 65. Where the Guardian to the Heir fhall 
 have the Writ ibid. 
 
 66. The Form thereof 381 
 
 67. Where it lieth upon an Aflignment of 
 Dower, by the Heir, or the Guardian 
 
 ibid. 
 
 68. Where it is Vicotintiel 382 
 
 69. Where it is Coram Jufiiciariis^ ^c. ibid. 
 
 70. All the Lands to be named ibid. 
 *ji. Where there are to be feveral Writs 
 
 ibid. 
 
 72. The Reafon why the Writ is to be Co- 
 ram Jiijiiciariis Hid. 
 
 73. How theConciufiOR of the Count muft 
 • be 383 
 
 74. How the Dowrefs is to plead 3 84 
 7j:. The Award of the Writ ibid. 
 76. How the Entry i^ to be when the Writ 
 
 is returned ibid. 
 
 77. Where
 
 A r A BLE. 
 
 77. Where there are feveral Inquefts P^. 385, 
 
 78. A Writ for the Guardian ibid. 
 
 79. When the Plaintiff to remove the Plea, 
 without fitting forth a Reafon ibtd. 
 
 80. The Procefs ibid. 
 
 81. And by whom the Admeafurement to 
 be made ibjd. 
 
 82. Where the Grantee of the Ward is to 
 have the Writ 386 
 
 83. Where the Heir, and not the Guardian 
 is to have it ibid^ 
 
 84. Where the Guardian fhall have it ibid. 
 
 85. Where the Heir fhall have an Affife ibid. 
 
 86. The Reafon why the Grantee may have 
 this Writ 386 
 
 87. And not the Heir at his full Age ibid. 
 
 88. Otherwife if the Heir be within Age 
 
 387 
 
 89. W hether the Heir fhall have an Aflife 
 
 ibid. 
 
 90. Where the Guardian fhall have a Writ 
 of Admeafurement of Dower, but not 
 his Aflignee 388 
 
 91. Where the Heir fhall have the Writ 
 
 ibid. 
 
 92. And the Tenant no Remedy by Aflife, 
 but by Scire facias ibid. 
 
 93. Dower not to be avoided by Entry ibid. 
 
 94. Where the Sheriff is conflrued no Wrong- 
 doer 389 
 
 95. And where the Heir can have no A(- 
 fi^e /^/^. 
 
 ^6. The Tenant to be called in by a Scire 
 fiicias ibid 
 
 97. An
 
 A TABLE. 
 
 9*7. An AlTignment of Dower, fuppofed to be 
 done Per Pares, not to be avoided but by 
 Inqueft Page 389 
 
 $8. Whether the Heir may have a .St/r^ Z^- 
 r/'^j, notwithftanding an Inqueft 390 
 
 99. Improvements of the Tenant in Dower, 
 not to be taken from her by Admeafure- 
 ment ibid. 
 
 100. A Difference taken as to the feveral 
 Sorts of Improvements ibid. 
 
 1 01. Where the Wife was endowed, tho* 
 the Husband had noPoflTeflion 391 
 
 102. The like of a Tenant by the Curtefy 
 
 ibid. 
 
 103. Where the Wife not to be endowed 
 when the Heir intrudes upon the King's 
 Polfeffion ibid. 
 
 104. Where the Wife to be endowed, tho' 
 the Husband be attainted, if the Heir 
 be reftored 392 
 
 105. The Reafon thereof ibid. 
 
 106. Where the Wife's Acceptance of a 
 Term, Ihall bar her Dower 393 
 
 107. Alitcr of the Acceptance of a Tenan- 
 cy at Will ibid. 
 
 108. Where the Wife (hall lofe her Dower 
 by a Difcontinuance ibid. 
 
 109. Where the Wife fliall lofe her Dow- 
 er, the Husband being a Diffeifor ibid. 
 
 110. Where the Wife of the Donor fhall 
 not be endowed of Rent, it being ex- 
 tind 394 
 
 XII- Where the Wife fhall have Dower of 
 a Rent, but Ce[fat Excctitio, during the 
 Nonage of the Heir ibid. 
 
 iiz. Whero
 
 A TABLE. 
 
 112. Where the Wife of the Father (hall 
 not have Dower of the Grandmother's 
 Third Part Page 394. 
 
 113. Where Dower defeats Difcent 395 
 
 114. Where Dw cannot he Ex dote ibid. 
 11$' Where the Mother fhall be endowed 
 
 ibid, 
 
 116. The like of that Part which the 
 Grandmother held in Dower 396 
 
 117. Where the Wife of the DifTeifor of 
 the Difcontinuee fhall not be endowed 
 
 ibid. 
 
 118. How the Wife of a Tenant in Com- 
 mon to be endowed 397 
 
 119. Dower by Metes and Bounds ibid. 
 
 120. How to be endowed of a Mill or an 
 Office ibid. 
 
 121. Tenant in Dower praying Aid of him 
 in Reverfion, how to be endowed ibid. 
 
 122. Dower of Lands held in exchange 398 
 
 123. Where a Stranger may plead that fhe 
 holds Lands in Socage ibid. 
 
 124. Whether flie may endow herfelf of 
 Lands, Dc la plnis Beale ibid. 
 
 125. W^here the Son cannot endow Ex af- 
 fenfu patris ibid. 
 
 126. Where that Writ lies 399 
 
 127. Where the Wife of the Mefne Tenant 
 to be endowed ibid. 
 
 128. Where the Wife cannot be endowed 
 of Lands evided by a Title Paraniouiit 
 
 ibid. 
 
 129. Where fhe Ihall have Dower out of 
 Lands recovered in Value ibid, 
 
 130. Where not againft the Heir's Grantee 
 
 400 
 i^i. What
 
 A TA B LE. 
 
 131. What Dovjtr Ad ojiium Ecclefue^ and 
 E% ajfcnfa patris are Page 400 
 
 132. For what Purpofe conftituted 401 
 
 133. A Wife not to have Dower upon the 
 civil Death of the Husband, and why 
 
 ibid. 402 
 
 134. That (he may lofeher Dower by Adul- 
 tery 402 
 
 135. But not if (lie is upon the Lands 
 
 ibid, 
 
 136. How the old Law ftood when Villen- 
 age was in Ufe ibid. 
 
 137. How Ihe might lofe her Dower before 
 the Law was altered ibid. 
 
 138. When file could not claim Dower of 
 the Feoffee 403 
 
 139. How the Ll;w is fince the Statute of 
 ^lia Emptor ei ^errarnm 403, 404 
 
 140. Wife of a Jointenant, where not to 
 be endowed 404, 405 
 
 141. Dower Ex ajjenfii matris & fratris 
 
 ibid. 
 
 142. Patris q3 matiis ibid. 
 
 143. Why not Ex ajfejjfu fratris ibid. 
 
 144. Ad oft i urn Ecclefix ibid. 
 
 145. What a good Marriage to be entitled 
 to Dower ibid. 
 
 146. How formerly ibid. 
 
 147. How in later Times ibid. 
 
 148. When Dower is to be of a Moiety 406 
 
 149. When of the whole ibid. 
 
 150. The Original of Free-Bench ibid. 
 
 151. Dower Ad oftiiim Ecclcfice^ how much 
 to be afligned 407 
 
 152. The Reafon of the ancient Ufe in 
 that Cafe ibid. 
 
 4 153. Wife
 
 A TABLE. 
 
 53. Wife not to be diftrained for Debts 
 due to the King "Page 407 
 
 54. The Form of her Writ to be relieved 
 
 408 
 
 $$. Another Form 409 
 
 S<i. With the Addition of the Claufe, Bum 
 
 tamen hceredcs^ ^c. 409 
 
 57. How it is to be where her Husband is 
 Debtor to the King ibid. 
 
 58. A Writ not to diftrain in the Lands 
 purchafed Jointly by Baron and Feme 
 
 ibid. 
 
 59. Where the Wife holds the Lands dif- 
 charged of the King's Debt 410 
 
 60. Where Tenant in Dower is not to be 
 dillrained for the King's Debt 411 
 
 61. Another Writ in the Kegifler^ not to 
 diftrain for the King's Debt 410 
 
 62. The Diftindion of the Cafes 41 1 
 
 63. Where a Writ De dote Ajjignanda ii- 
 eth 412 
 
 64. When there was to be a Marriage of 
 the Dowrefs ibid. 
 
 (>$. Dower afligned by the Cro\vn 413 
 (>6. The Writ to the Efcheator ibid. 
 
 67. When flie may have a Writ to the 
 Efcheator - ^j^ 
 
 68. Another Writ to the Efcheator 415 
 
 69. When the Wife is to fue in the Chan- 
 cery 417 
 
 70. A Writ to "the Efcheator, when the 
 Lands are held of Spiritual Lords ibid, 
 
 71. A Writ to the Efcheator, where there 
 is a Rent referved 418 
 
 72. Where a Dcdimus to gC to take the 
 Dowrefs's Oath 419 
 
 173. Li-
 
 A 1 ABLE. 
 
 173. Livery to the Heir, with a Sal^uo of 
 Dower ?age 419 
 
 174. The Writ to the Efcheator, in that 
 Cafe ibid. 
 
 175. When the Words SaVoa ^of^ are not 
 to be in the Writ 421 
 
 176. Where the Heir fhall fue Livery of 
 a Reverfion, after the Death of Te- 
 nant in Dower ihidn 
 
 177. That the King is to perfe<5t the Infeu- 
 dation of Dower, and where 422 
 
 178. Where the King fhall fend a Writ to 
 the Efcheator, to make a new Extent 
 
 ,423 
 
 1 79. Where the Dowrefs fhall have a Scivt 
 facias to re-feife the Lands 424 
 
 180. When the King fhall fend a Writ to 
 the Efcheator to re-feife the Lands ibid. 
 
 181. The Form of the Writ. 425 
 Vide Jointures^ 4, 5, 6, 7, 9, i o, 1 1, 16, 1 7 
 
 Vide Dower, 26 
 
 SDureffi?. 
 
 Vide Pleadings, 7 
 
 1. Where the Party may chufe to take an 
 Eflate by Way of Leafe, at Common 
 Law, or by Bargain and Sale, with At- 
 tornment 88, 89 
 
 2. Where the Party may chufe to accept 
 Livery, or to have the Deed enrolled 
 
 88 
 
 4 CnroU
 
 A T: ABLE. 
 
 €m:oImeut> 
 
 1. What an Enrolment is Vage io6 
 
 2. When introduced, and for what Rea- 
 fon 96 
 
 3. What the Tenor of the Enrolment is^ 
 and of the A6i: of Enrolment 107 
 
 4. When the Enrolment muft be, and what 
 pafleth before, and what by the Enrol- 
 ment 295, 296 
 
 5. What Power before or after Enrolment 
 
 292, 293, 294 
 
 o. That the Statute of Enrolment does not 
 
 deftroy the Operation of the Statute 
 
 of Ufes 91 
 
 7. What Contra6ls that are not enrolled, 
 are conftrued to be 106, 107 
 
 8. The Relation between the Enrolment 
 and the Deed 90 
 
 ^. That after the Enrolment, the Freehold 
 is in the Bargainee, from the Date of the 
 Deed 93 
 
 io. That the Bargainee hath not the Fee 
 till Enrolment, and why 92 
 
 ji. Where the Bargainee (hall have the 
 Rent in Arrear, before Enrolment 94 
 
 12. That the Bargainee may enter for a 
 Forfeiture, bfefore Enrolment _ 95 
 
 13. That the Bargainee may be Tenant to 
 the Precipe, may receive a Releafe, or 
 maintain an Aflife before Enrolment 94 
 
 *i\. Where the laft Deed of Bargain and 
 Sale, firft enrolled, fhall not take away 
 the Effea of the firft . 96 
 
 H h IS' Thae
 
 A T A BLE. 
 
 \$. That an Eftate of Freehold or Inheri- 
 tance, muft be enrolled, and not a Term 
 for Years, and why, and where the 
 Deed muft be enrolled Page 98 
 
 16. That the Bargainee can make no Title 
 to pvefent to an Advowfon, before En- 
 rolment 92 
 
 17. How a Releafe to the Bargainor enures 
 before Enrolment 92 
 
 18. When it may be enrolled 99 
 
 19. If the Bargainor or Bargainee die be- 
 fore Enrolment, yet it may be enrolled 
 
 94 
 
 20. From the Date, and from the Day of 
 
 the Date, is all one, and therefore an 
 Enrolment may be on the laft Day of 
 the 6th Month, after the Day of the 
 Date 99 
 
 21. How the Enrolment mvft be, where 
 the Deed has no Date 100 
 
 22. Where there is a Bargain and Sale, and 
 a Recovery, or a Feoffment, and the 
 Deed enrolled, the Land pafles by the 
 Recovery 92 
 
 23. That a Party who claims by a Bargain 
 and Sale, muft ftiew in what Court the 
 Deed is enrolled, and why 109 
 
 24. That Covenants to ftand feifed, in 
 Confideration of Marriage, need not be 
 enrolled 1 1 1 
 
 25. That the Bargainee dying before the 
 Enrolment, his Heirs ftiall take by Di- 
 fcent 289 
 
 26. Where the Party ihall be in by the 
 Fine, tho* the Deed be enrolled after- 
 terwards 289 
 
 Vide
 
 A TABLE. 
 
 Vide Bargains and Sales, 13, 24, 2.$ 
 Vide Leafe, i3c. i 
 Vide Pleadings, 7 
 
 Cittaih 
 
 Vide Fine, 2 
 Vide Trufts, 12 
 
 1. That a LelTee cannot have an Adion of 
 Trefpafs before an adual Entry P^g5 236 
 
 2. By a Bargain and Sale, the Freehold in 
 Law palTes prefently, but not an adual 
 Freehold 'till an Entry ibid, 
 
 3. That a Releafe may be made to one 
 that has but a Freehold in Law 230 
 
 4. Where a Feoffee of a Recoveror, by an 
 erroneous Judgment fhall be entered up- 
 on without a Scire facias 34 
 
 Vide Dower 93 
 Vide Jointures, 9 
 Vide Baron and Feme, 9 
 Vide Pleadings, 2 
 
 equity 
 
 1. That fince the Statute has brought the 
 Ufes into PofTellion, they ought to be go= 
 verned by the Rules of Eftates in Pof° 
 feflion I and therefore there muft be apt 
 Words 75 
 
 2. Where an A<ft is capable of a double 
 Interpretation, that Conftrudion muft 
 be made as confifts moft with Equity 8 
 
 3. Where Equity will not relieve againft 
 the Adt of Law 9 
 
 4. That a Court of Equity conftrued the 
 LimitatiCii of Ufes as thofe of Eftates iii 
 
 H h 2 PolTef-
 
 A r A B L E. 
 
 PolTeflion were at the Courts of Com- 
 mon Law Page i68 
 
 5. A Court of Equity cannot alter the 
 common Import of Words, fo as to fet 
 up Rules of Property oppofite to the 
 Rules of Law 16 
 
 6. But a Court of Equity may mitigate or 
 difpence with the Rules of Law in par- 
 ticular Cafes, where they iliould happen 
 to fhelter Dilhonefty or Oppreflion 18 
 
 7. What Conftrud:ion the Court of Chan- 
 cery makes in dire6ling and judging con- 
 cerning Ly^5 176 
 
 8. As a Court of Equity cannot alter the 
 Difcents of Land, fo it cannot alter the 
 Law and Cuftom of a particular Place j 
 for all immemorial Ufages are Part of 
 the Laws of the Land 19 
 
 9. That Equity having the fole Manage- 
 ment and Difpofal of Ufes, regarded not 
 the ftrid Rules of the Common Law, 
 before the Statute of Ufes^ but now other* 
 wife 238 
 
 10. What the Couft of Equity will do for 
 the Benefit of Commerce, and to fup«* 
 port Family Settlements. Vide Fee upon a 
 Fee 
 
 mantes! ant! Cflatc^ tail. 
 
 1. Where an Eftate limitted to a Man and 
 his Heir, is an Eftate for Life, and the 
 Reafm thereof 24 
 
 2. In whom, the Eilates are before Alie- 
 nation 37 
 
 3. What
 
 A r A B LE. 
 
 3. What is an Eftate-tail veiled in the An- 
 ceftor. Page 21 
 
 Vide Baron and Feme, i 
 
 Cfcficat* 
 
 A Writ for the Demandant in Dower, to 
 the Efcheator. Vide Dower, 165, 166, 
 167, 168, 169, 177, 179 
 Vide Fraudulent Conveyances, 1 3 
 
 CftoppeL 
 
 Vide Averment, 8 
 
 Vtde Fraudulent Conveyances, 16 
 Vide Right, 3 
 
 Vide Dower, 122 
 
 CreCUtO^jS* Vide ^MtUte^* 
 
 1. How the Statute of 37 H. 3. hath al- 
 tered the Common Law, as to the Power 
 of Executors to fell 60 
 
 2. Of a Devife of Lands to Executors, to 
 be fold 66^ 6'], 68, 69 
 
 H h 3 €xmu
 
 A TABLE. 
 
 J, Of Executory Fees, how they began, 
 and what the Rules of Law are, rela-^ 
 ting thereto Fage ii8 
 
 l^^f' Contingent Remainders 10,14 
 
 3. That Executory Fees are conftrued ac- 
 cording to the ftrid: Rules of Law, and 
 under the Power of the Eftate that fup« 
 ports them 
 
 3. The Difference as to Executory Fees, 
 where they arife by Way of Ufe, and 
 where by Way of Devife ^ if it arifeth 
 by Way of Ufe, there muft be a Seifm in 
 fomebody, to be executed in the Grantee 
 of the contingent Ufe, whenfoever it hap- 
 pens 125, 126 
 
 ^. But by a Devife, the Freehold itfelf is 
 transferred, and there needs no Perfon 
 to be feifed to execute the Ufe in the De- 
 vifee 127 
 
 Cjctinffttifijment 
 
 1. That he who hath a Ufe in Right only, 
 may do an Adt, and what to extinguifh 
 It 
 
 2. Where a Rent granted to charitable 
 Ufes fliall not be extinct 15 
 
 3. When the Seigniory and Rent are ex- 
 tinguifhed 341 
 
 Wide Condition 
 'Vide Rent 
 
 fatijei:
 
 A TABLE. 
 
 ifat!jct nnti ^oiu 
 
 X. What fhall be deemed an Advancement 
 for the Son, and not a Trull for the Fa- 
 ther Page 348 
 
 2. What was held an Advancement for 
 Children, and not a Truft for the Fa- 
 ther 34^3 3493 350 
 
 Vide Covenants to fland feifed 11 
 
 Vide Jointenants 6 
 
 lee upon a JTee^ 
 
 Tho' a Fee cannot be limited upon a Fee, 
 by the ftridt Rules of the Common Law, 
 yet the Court of Chancery pafs by this 
 Rule, for the Neceflity of Commerce, 
 and to fupport Family Settlements 76 
 
 Jeoffment, ifeoffo^ anti iTeofTce* 
 
 1. Where a Feoffee is fuppofed to take an 
 Eftate to Ufcs^ and when to his own 
 Ufe 1 
 
 2. When the Feoffee fhall be feifed to the 
 Ufe of another, and when to his own Ufe 
 
 8 
 9. Where a Court of Equity will order the 
 Feoffee to try the Title with the Diffei- 
 for at Common Law 10 
 
 4. That a Feoffee to an Vfe may grant a 
 Way or Common 1 3 
 
 ^4 Where the Feoffee to an Ufe m^y grant 
 the Office of a Steward, Bailiff or Re- 
 ceiver 14 
 H h 4 6. And
 
 A TA B LE. 
 
 6. And may, during the Minority of the 
 Heir, without his Affent, but cannot fet- 
 tle Fees, during Life Page 14, 174 
 
 7. Where a Feoffor is conftrued in of the 
 old Reverfion, and may devife it, and 
 where not 21 
 
 8. Where the Feoffor to the Ufe of his Laft 
 Will, has a qualified Fee, and why 35 
 
 9. What (hall bind the Son of the Feoffor, 
 to the Ufe of his Laft Will 36, 37 
 
 ;o. Where the firft Feoffees may enter, and 
 revive a former Ufe 3 1 
 
 II, Where the Feoffees tq an Ufe^ may 
 enter upon the Alienee of Tenant for 
 Life, and why 29 
 
 %2. W^here the Feoffor may enter and re- 
 vive an Ufe^ for the Benefit of ^mother, 
 who cannot make a Feoffment 240 
 
 13. W^here the Ufe Ihall be to the Feoffor 
 and his Heirs, of the Part of the Mo- 
 ther 238 
 
 Vide Cejiiii que Ufe^^ 7, 9, lo, 13, 2S 
 
 Vide Covenants to and feifed, 13 
 
 F/W^ Dower, 10,138 
 
 Vide Entry, 4 
 
 Vide Heirs, 3 
 
 Vide Enrolment, 21 
 
 Vide Prior and future Ufes 
 
 Vide Leafe, ^c. 2 
 
 Vide Pleadings, 4 
 
 Vide Relcafe, 4 
 
 Vide Remainder, 6 
 
 Vide Revocation 
 
 Y^^e Contingent Remainders, 7, 13, 17, 19 
 
 I fine*
 
 A ^ A B LE. 
 
 J. Of Ufes upon a Fine and Recovery 
 
 Page 282, 283 
 
 ^. That a Fine and Recovery pafs the En- 
 tail at Common Law ^ To does it pafs the 
 Entail of a Truft, in a Court of Equi- 
 ty 33 
 
 3. That the IflTue in Tail, are barred by a 
 
 Fine, tho' not he in Remainder loi 
 
 4. Where the Heir of the Bargainee fhail 
 have the Eftate under a Fine, and not 
 the Devifee, upon a Devife, before the 
 Fine ibid. 
 
 5. That Baron and Feme levying a Fine, 
 it (hall bind the Wife, and why 39 
 
 6. The Husband declaring the Ufes^ fliall 
 bind the Wife, and why, and where not 
 
 40,41 
 
 7. Wherp a Declaration of Ufes by the 
 Husband, on a Fine levied, fhall bind the 
 Wife, during her Coverture, but not 
 after, and why 40 
 
 8. Where no Ufes are declared upon a Fine, 
 it fhall be to the Ufe of the Wife, and 
 why ibid. 
 
 9. Where Ufes of a Fine levied by Huf- 
 band and Wife may be averred without 
 the Wife's Deed , and where her refufmg 
 to aflent to the Ufes, ftiall not bind the 
 Wife 41 
 
 JO. Where the Wife levying a Fine within 
 Age, it fliall bind her, and why ibid. 
 
 Ti. That
 
 A TABLE. 
 
 EX. That the Ufe of a Fine cannot be !i- 
 mitted to a Stranger without a Deed, and 
 where it may P^ge 56, 57, 215 
 
 22. Where a verbal Averment may be al- 
 lowed to reconcile a Difference between 
 a Fine and a Deed to le^d the Ufes 58 
 
 13. That a Covenant to levy a Fine to the 
 Ufe of a Man's Baftard Daughter, is good 
 
 207 
 
 14. That the laft Declaration of the Ufe of 
 a Fine, Ihall not ftand, but the firft 
 
 15. Of Declaration of Ufes on a Fine or 
 Recovery 53, 54, sSn 260, 262, 267, 
 
 268 
 
 i€. Where two Ferfons, having different 
 Eftates in the Land, declare no Ufes up- 
 on a Fine, how they fhall be feifed, and 
 how, where one of the Parties has no 
 Eftate -r- 43 
 
 27. Where it was refolved that a Fine did 
 not deftroy a Remainder limited feniori 
 ptiero 283 
 
 18. A Conltrudion upon a Fine levied to 
 the Conuzees, to make an Eftate to fuch 
 a Perfon as the Conuzor fhould appoint 
 
 284 
 
 29. That a fubfequent Declaration of Ufesy 
 upon a Recovery, is good 261, 271, 
 
 272 
 
 20. What fhall be a good Declaration of 
 Ufes upon a Fine, tho* no Marriage be 
 had, which would not have been good 
 upon a Covenant to ftand feifed 277 
 
 21. Of
 
 A TJ B LE. 
 
 21. Of a Declaration of Ufesy upon a Fine 
 levied to Survivors Page'z'jz 
 
 22. That a Fine Sur Grant and Render 
 cannot be averred by Parol, to be to any- 
 other Ufes than thofe contained in the 
 Fine 268 
 
 23. Where a Fine by Husband and Wife, 
 did not deftroy the Eftate in Remainder, 
 but that it was in Abeyance 280 
 
 24. Where no Ufe fhall arife by Force of a 
 Covenant, without the Fine levied 257 
 
 25. Whether Ufes of a Fine levied of Part, 
 fhall be good 276 
 
 26. W^here a Fine fhall be guided by a Co- 
 venant made before 273 
 
 27. Whether a Fine fhall extend to Aver- 
 ments before the Fine levied 272, 273 
 
 28. Where the Render of the Conuzee 
 cannot extinguifh the Condition, becaufe 
 his Scifin was Inltantaneous 269, 270 
 
 29. How a Ufe fhall arife to Tenant for 
 Life, upon a Recovery 282 
 
 30. Where a Ufe limitted by a Recovery 
 for Part, fhall enure to the Wife for that 
 Part only ^%i 
 
 Vide Attornment, 3 
 
 Vide Baron and Feme, 3 
 
 Vide Cefttii que Ufe, 11, 12, i8 
 
 Vide Canfideration, 6 
 
 Vide Forfeiture, 2 
 
 Vide Jointenants, 2 
 
 Vide Enrolment, 2$
 
 A TJBLE. 
 
 1. what a Forfeiture is Page 102 
 
 2. Where a Fine levied of a Thing lying in 
 Grant, is a Forfeiture loi, 102 
 
 3. That a £//e is not forfeitable for Felony 
 or Treafon, and why 38 
 
 4. That a Term limited in Truft, is for- 
 feitable for Treafon, by QJim que 1'ruft 
 
 39 
 
 5. Where a Feoffment by Tenant for Years 
 is a Forfeiture ibid. 
 
 6. Where a Recovery by Tenant for Life, 
 is no Forfeiture, becaufe he in Reverfion 
 held the Eftate under Trufts for Tenant 
 for Life 63 
 
 ♦7. Who fhall enter for a Forfeiture 243 
 Vide Bargains and Sales^ 16 
 Vide Baron and Feme, 9 
 Vide Enrolme7it, 12 
 Vide Revocation, 14 
 
 ifratitiulent Conljcpanceg* 
 
 1. What accounted a fraudulent Convey* 
 ance 6 
 
 2. Of fraudulent Conveyances 302 
 
 3. Who fhall avoid fraudulent Conveyan- 
 ces 304, 305 
 
 4. Where Purchafors fhall avoid a Gift to 
 the King 306 
 
 5. Who fhall not be efteemed a Purchafor 
 for a valuable Confideration 307 
 
 6. What
 
 A TJBLB. 
 
 6. What fraudulent Conveyance may be 
 avoided P^ige 304, 305, 308 
 
 7. Where a Cognizee of a Statute, ac- 
 cepting a fraudulent Conveyance, fhall 
 ftill be paid his Debt, before a Bond-Cre- 
 ditor 308 
 
 8. That a fraudulent Gift is good againft 
 every Body but Creditors, and will ftand 
 good between the Parties themfelves 306 
 
 9. What is a good Leafe made to the Ufe 
 of the W^ife, (hall be good againft Pur- 
 chafors 3 09! 
 
 I o. What will be a void Leafe againft Pur- 
 chafors ibid.- 
 
 11. Where Conveyances upon a Marriage 
 Ihall not be conftrued Fraudulent 310 
 
 12. That tho' a Deed be fraudulent in it^ 
 Creation, yet by Matter ex foft faSlo, it 
 may be made good 3o9j3Io 
 
 13. Of a fraudulent Conveyance, to pre- 
 vent an Efcheat 310 
 
 14. Where the Vendee fhall not avoid a 
 Settlement, the Power of Revocation 
 being out of the Vendors 311 
 
 15. Pleadings relating to fraudulent Con* 
 veyances 306 
 
 16. That a fraudulent Conveyance may be 
 given in Evidence upon the General IflTue, 
 and need not be pleaded 306 
 
 ifree'Bencfj. 
 
 Vide Dower^ 150 
 
 S-tw
 
 A 1 A'B LE. 
 
 Vide Enrolment^ 9 
 
 Vide Limitation^ 3 
 
 Vide Perpetuities^ 2, 7 
 
 Vide Contingent Kemainders^ 4, 8 
 
 "Where the Grant of the Intereft thfe 
 Grantor had in the Lands which he had 
 before granted was voidj and the Rea- 
 fon thereof Page 198 
 
 Vide Cefiiii que Ufe 
 
 Vide Dower ^ 82 
 
 Vide Purchafors^ 3 
 
 Vide Keleafe, '^ 
 
 ^©uattiiait^ 
 
 Vide Dower, 51, 52, 64, 66, 6>j, 83, 90 
 
 ^)abeniium* 
 
 Vide Deeds, 2 
 
 1. Where the Word Heirs is not a Name 
 of Purchafe, but of Limitation 23 
 
 2. And where it is not a Word of Limita- 
 tion, but of Purchafe 24 
 
 3. Where a Remainder vefts in the Feoffee 
 to an Ufe, fo that his Heirs claim by 
 
 X Difeent a
 
 ■ A TABLE. 
 
 Difcent ^ and where not, fo that his 
 
 Heirs take by Way of Purchafe Pa. 23, 24 
 
 ' 4. What is conftrued a Remainder vefted 
 
 in the Heir, and for what Reafon 25 
 
 5. Where Heirs take by Difcent, as in 
 the old Reverfion 20 
 
 6. Where the Ufe fhall defcend to the 
 Heirs of the Part of the Mother, and 
 where to Heirs on the Part of the Father, 
 and where to the Heirs on the Part of the 
 Purchafor 17, 18, 19, 238 
 
 7. Where the Eftate of Ceftui que Ufe fhall 
 be in the Heirs, till Alienation by the 
 Feoffees, purfuant to the Will 37 
 
 8. Where a Ufe fhall arife to the Heir, up- 
 on a Covenant to fland feifed, and he 
 fhall take by Difcent 277 
 
 9. Where the Heir of the Devifee fhall be 
 feifed in Truft, for the Cure of a Church, 
 for the Time being 344 
 
 10. That a Man limiting an Eflate to 
 his own Right Heirs, makes him feifed 
 of the whole Eflate 5 and the like of an 
 Ufe 19 
 
 Vide Averment J 3 
 Vide Bargains and Sales^ 18, 19 
 Vide Baron and Feme, i o 
 Vide Ceftui que Ufe, 17 
 Vide Dower, 11, 33? 533 ^3? 64, 66, 82, 87, 
 88, 90, 94,97, 102, 103, 129, 172,175 
 
 I. Where the Deed exprefTes a Ufe, an 
 implied one cannot be averred 7 
 
 2. Of
 
 A T A B L E. ■ 
 
 2. OWfes raifed by Implication Page 7, 6, 9 
 
 3. How a C^ may be raifed by Implication 
 of Law 643 6$ 
 
 Vide 'J'rnjls 
 
 Infant 
 
 "Vide Declaration of Ufes, 3 
 Vide Infant-i 3 
 
 Slnqticft* 
 
 Vide Dower J 16, 97, 9 
 
 Intent of tlje pnttie^* 
 
 Vide Confideratmiy 12 
 
 31ointfnnnt0* 
 
 i. Whether Perfons to whom a t}^ is rai- 
 fed by a Fine, or by a Leafe at Com- 
 mon Law, are Jointenants or Tenants in 
 Common 70 
 
 z. Whether a Fine levied to the life of the 
 *Gonuzor and B. and their Heirs makes 
 them Jointenants or Tenants in Com- 
 mon ibid. 
 
 3. Where the Ufe being jointly limited to 
 two, made thtm Jointenants 20, 235 
 
 4. A Leafe for Life, Remainder in Fee 
 to the Right Heirs of 5^. and K. N. alive, 
 the Heirs are Tenants in Common, and 
 "why 70 
 
 5. But
 
 A i: A BLE. 
 
 |. But in Cafe o^ 2iUfe there may be Join- 
 tenants; tho' they do not take at the 
 fame Time Page 71 
 
 6. Where the Father and Son purchafmg 
 Lands Jointly, the Eftate fliall furvive 
 to the Son 72, 229 
 
 7. Where the Moiety of a Jointenant fhall 
 pafs to the Bargainee, and not furvive 
 
 194 
 
 8. Of Bargains and Sales By Jointenants 
 
 290 
 
 9. Where no Ufe fhall arife from a Jointe- 
 nant to the Survivor 275 
 
 ID. On a Sale by one Jointenant of his 
 Moiety, the other fhall furvive 92 
 
 Vide Declarations of Ujesy 5 
 Vide Dower^ 139 
 
 1. Of Joint TrUfts with an Intereft 65 
 
 2. Of Joint Trufts without an Intereft 69 
 
 3. If there be a Joint Truft, and one re* 
 fufes to a6t according to the Truft, the 
 other cannot ad only as to his Intereft 
 
 67 
 
 4. Of Joint Eftates in ^Ufe or 'ffufi 70 
 
 5. At the Common Law Joint Trufts were 
 taken for bare Authorities, and did not 
 furvive 77 
 
 I. What was the Original of Jointures 
 
 25, 147, 239, 289 
 
 li 2. What
 
 A T ji B L E. 
 
 2. What Requifite to make a good Join- 
 ture within the Statute Page 147 
 
 3. FirJ^j That the EOrate muft of Necef- 
 fity take Eifedt immediately after the 
 Death of the Husband 148 
 
 4. Secondly, That it mull be for the Term 
 of htr own Life, or of a greater Eflate, 
 or elfe it doth not anfwer the Defign of 
 Bower, for which it is to be a Recom- 
 pence 150 
 
 5. 'ttbirdly^ It muO: be made to herfeif, and 
 not to others in Trull for her, tho' by her 
 AfTent, and exprefled to be in Satisfac- 
 tion of her Dower 151 
 
 6. Fourthly, It muft be in Satisfa^ion of 
 her whole DoTJuer, and not of Part only ; 
 for if it be in Satisfa6lion of Part only, 
 it is uncertain ibid. 
 
 7. Fifthly, It muft be exprefled to be in 
 Satisfaction of her Dower ibid. 
 
 8. That a Jointure may be made either 
 before or after Marriage 152 
 
 9. That an Agreement to her Jointure 
 made after Marriage, by her Entry into 
 the Lands, concludes her from claiming 
 her Dower 153 
 
 I o. That a Devife of an Eftate for Life, 
 cannot be averred to be in Satisfadtion of 
 Dower, unlefs it be exprefled fo in the 
 Will, and why 152 
 
 11. Where an Averment was fufficient to 
 fhew that the Jointure was made in Sa- 
 tisfaclicn of her Dower ibid. 
 
 12. That an Averment of a Jointure, 
 being in Satisfaction of Dower, is not - 
 travcrfeable ibid. 
 
 13. Where
 
 A TABLE. 
 
 13. Where an Acceptance of a Conditi* 
 onal Jointure is good Page 148 
 
 14. Where a Remainder to the Wife, af- 
 ter a Remainder to fupport contingent 
 Remainders, is a good Jointure ibid. 
 
 15. Where an Eftate limited to the Wife, 
 by Way of Remainder, is not a good 
 Jointure ibid. 149 
 
 16. That a Leafe for the Life of another, 
 or a long Term, is no good Jointure to 
 bar a Woman of her Dower 150 
 
 17. What was no good Jointure to bar the 
 Wife of her Dower upon a Settlement 
 made by her Husband's Father, becaufe 
 it was uncertain whether the Eftate 
 would commence ibid. 
 
 18. Where a Jointrefs Ihall hold Lands 
 fubjeft to a Mortgage or Judgment by 
 Tenant in Tail of a Truft, making a 
 Mortgage or fuffering a Judgment, and 
 why 33 
 
 Vide Baron and Feme, 4, 7 
 
 Milt lit Cai'ft 
 
 Vide ^lod ei Deforciat, 7 
 
 Vide Marriage 
 
 Vide Cojitingent Remainders, 23 
 
 3Iu(ficiesf. 
 
 i « 1
 
 A TA B LE. 
 
 The Law will fuppofe a Man's AAions ra- 
 ther Juft than other wife 7 
 
 1. Where the LefTee is without Remedy, 
 by the Leflbr's felling the Lands and da- 
 ting the Deed and Enrolment before the 
 Leafe 1 09 
 
 2. A Power of making Leafes may be re- 
 ferved upon a Feoffment, Fine or Re- 
 covery to Ufes 4^ 
 
 3. Where one of three Leflees furrenders 
 up the old, and takes a new Leafe to 
 himfelf, it fhall be in Truftfor all 346 
 
 4. Tho' a Leafe for three Years be good 
 by Parol, yet when fuch a Leafe is in 
 Writing, the Truft of that Leafe can- 
 not be declared by Parol 347 
 
 5. What was held a refulting Truft to the 
 Grantor 347 
 
 6. What fhall prevent a refulting Truft to 
 the Affignor of a Mortgage 348 
 
 7. Where Notice of an Incumbrance was 
 necelTary, and where not 309, 310 
 
 8. Where a Notice to Counfel or Attor- 
 ney, ^c. IS good 34> 
 
 Vide Cefitti que Ufe^ 1 
 Vide Confirmatio?t^ i 
 Vide Do-wcr, 18 
 Vide Ele^wn-i i 
 
 Vide
 
 A TABLE. 
 
 Vide Fraudulent Conveyances^ 8 
 Vide Prior and future Ufes 
 Vide Kemaindersy 20, 21, 29 
 Vide Jointures, 4 
 
 Limitation. 
 
 I. That by a Man's limiting a Ufe to his 
 own Right Heirs, the Ufe is ftiJl in him- 
 felf, and why Page 19 
 
 a. But a Man's limiting a Uf^ to his Re- 
 prefentatives, with a particular Qualifi- 
 cation, fb alters the Eftate, that the Ufe 
 jhall alter and defcend in fuch Manner 
 as it is dire<fted, and why 20 
 
 3. Where a Freehold is limited to a Man 
 for Life, and the Remainder to his 
 Right Heirs, tho' after never fo many 
 particular Eftates, the Remainder is 
 vefted in him for three Reafons ; and 
 what thofe Reafons are 21 
 
 4. That a Limitation of a Term for Years, 
 to twenty diftindl Perfons /;/ Ejfe, is 
 good, but otherwife of a Remainder, 
 
 ■ and why 124 
 
 5. What is conftrucd a void Limitation, 
 becaufe the Reverfion is ftill in the Do- 
 nor 124. 
 
 Vide Heirs ^ i 
 
 Vide Marriage 
 
 Vide Perpetuities^ 5, 6 
 
 li 2 JLltJeLT<
 
 A TABLE. 
 
 To the Heir, with a Sal'va dote 
 Vide Dow^er, 173 
 Vide Ele^iion^ 2 
 
 Lontioiu 
 
 Vide Baron and Feme^ 2 
 Vide Releafe, i 
 
 JLo^n ijp Cfcfieat* 
 
 Vide ,5V//7« fo Ufes, 9 
 
 ^artiaffc nni5 damage Settlement* 
 
 I. Where a Settlement is made by the Fa- 
 ther, or other lineal Anceftor, in Con- 
 fideration of the Marriage of his Son, 
 in fuch Cafe all the Remainders limited 
 to his Children and their Pofterity, are 
 within the Confideration of that Settle- 
 ment i but when it is made by a Bro* 
 ther, or any other Collateral Anceftor, 
 on his Marriage, after the Limitations to 
 his own IfTue, all the Remainders limit- 
 ed to Collateral Kindred are voluntary, 
 and not within the Confideration of the 
 Marriage Settlement P^gc 397 
 
 2. Where
 
 A TA BLE. 
 
 z. Where the Feoffor fhail be feifed to Um- 
 felf and his Heirs, till a Marriage takes 
 EfFed Vage 2.']6 
 
 3. Where no Ufe will arife 'till a R^arriage 
 
 258 
 
 4. Where no Ufe will arife upon a Portion 
 paid in Confideration of a Marriage, \xn- 
 lefs the Marriage takes Eife^l 259 
 
 5. Where, by Articles of Marriage, it was 
 intended that the Husband fhould only- 
 have an Eftate for Life, and that he 
 (hould make a Conveyance to the Ufe 
 of the Heirs Male of his Body, and the 
 IfTue of fuch Heirs Male, it was not in 
 the Power of the Husband to deftroy it 
 by a Settlement to any other Ufes 313 
 
 io 328 
 Vide Confideration^ 2 
 Vide Dower ^ 13, 144, 163 
 Vide Fraudulent Conveyances^ 1 1 
 Vide Enrolment y 24 
 Vide Jointures^ 8, 9 
 
 1. When a Seigniory is drowned in the 
 Tenancy 9 
 
 2. If the legal Eftate be merged, and the 
 Owners of the Land have Notice of a 
 Truft, the Land is inverted with it, and 
 they Ihall be forced by a Decree in Chan- 
 cery, to fet it up again 9 
 
 j^altcu
 
 A r A BLK 
 
 Vide Ce^ui que Ufe^ $ I 
 
 Vide PhadifigSy 8 ] 
 
 Vide Declarations to Vfes, % 
 
 Notice* 
 
 Vide Lea^e^ 7, 8 
 
 iDccupann 
 
 Vide Set fin to Ufssj 16 
 Vide Avervienti 9,11 
 
 parol Leare* 
 
 Vide Leafe 
 
 SDf PctpetuitieiGf* 
 
 I. What a Perpetuity is, and the Inconve- 
 niencies thereof P^ge 119, 120, 168, 169 
 
 2. That
 
 A T A B LE. 
 
 &. That it is againft the Rules of Law, 
 that a Freehold for Life fhould delcend, 
 becaufe it creates a Perpetuity ; yet where 
 the Eftate for Life fhall be conftrued 
 a Fee, if there be a Confideration to 
 fupport the Intention of the Parties Page 
 
 11 
 
 3. That the Law allows of no Eftate of 
 
 Inheritance that goes in Lineal Succef- 
 fion, but what is in the Power of the 
 Perfon to whofe Reprefentatives the E- 
 ftate muft defcend 120 
 
 4. How Cautious the Court of Chancery 
 is of giving Encouragement to Perpetui- 
 ties 168 
 
 5. All Limitations that perpetuate, or tend 
 to a Perpetuity, are in themfelves void 
 and repugnant to the Policy of the Law 
 
 118, 119 
 
 6. All Limitations that tend to the Provi- 
 fion of the Family, and to fecure agairft 
 Contingencies, that are within the Parties 
 immediate Profpedt, are to be favoured 
 
 118 
 
 7. What Rules, relating to Perpetuities, 
 are obfervable in Law and Equity, re- 
 lating to Freeholds and Chattels 120, 
 
 121 
 
 £Df pieanfnffg^ relating to Wc0. 
 
 1. In what Manner Ufes are pleadable 81, 
 
 263 
 
 2. That a Ufe may be pleaded without fhew- 
 ing an actual Entry 81 
 
 3. But
 
 A r A B LE. 
 
 3. But in Trefpafs, he muft Ihew an adtual 
 Entry, and the Reafon thereof Page^i 
 
 4. How to plead a Feoffment to an Ufe, 
 where J. S. dilTeifed the Feoffee ibid. 
 
 5. In pleading, the Party fhewed that yf. 
 was feifed to the Ufe of jB. and laid a 
 DifTeifin, without fhewing how he be- 
 came feifed, and held good ihid. 
 
 6. Where the Party pleads that he bought 
 the Land, without Ihewing the Money 
 paid, and held good 82 
 
 7. That if a Man acknowledges and en- 
 rolls a Deed, he cannot afterwards plead 
 Durefs 109 
 
 8. Where an Infant upon a Bargain and 
 Sale, may plead Nonage, and where not 
 
 107, 108 
 
 9. What to be traverfed, and what not in 
 Pleadings relating to Dower 156, 157 
 
 10. Of pleading in Dower 
 Vide Douer., 74 
 
 Vide Fraudulent Conveyances^ 15 
 
 Vide Dower, 6 
 
 1. That Grants to the King muft be by 
 Matter of Record 93 
 
 2. Where the King fhall hold the Lands 
 difcharged from a Rent-charge ibid. 
 
 3. That the King is not fubjecl to the 
 Trufl j that the Perfon attainted was 
 otherwife , of a Tenant in Dower 1 72 
 
 Vide Fraudulent Conveyances, 4
 
 A TA BLE. 
 
 19^10? nnn future Ofe^* 
 
 1. Where a Feoffee fhall be feiCed to former 
 Ufes 173 
 
 2. If a Reverfion be fubje6l to future Ufes, 
 and is granted to a Man and his Heirs, 
 without Confideration, to the Ufe of the 
 Grantee and his Heirs, whetlier it is 
 fubje61: to the former Ufes 1 74 
 
 3. Where a Leflee or Donee, having No- 
 tice of former Ufes, Ihall not be feifed 
 to thofe Ufes, but to their own Ufes 
 
 173 
 
 4. And where to new Ufes 1 74 
 
 5. A future Ufe, notwithftanding the Sta- 
 tute, remains as it was at Common Law, 
 till it com.es /« EJfe, and then the Sta- 
 tute executes the Poffeffion to it, and a 
 future Ufe muft not arife out of the 
 Eftate of Cejlui que Ufe, but out of the 
 Eftate of the Feoffee 
 
 6. Where the old Ufes arrd where the new 
 Ufes fhall fland, 193, 194, 195, 196, 197, 
 
 198,199 
 
 Vide Dower^ 
 
 p^oljiln'tion* 
 
 I9urc!jafer* 
 
 I. If an Equivalent be given, tho' the 
 Contra6t be not executed v/ith all the 
 Formalities of the Law, yet in Equity, 
 
 the
 
 A TABLE. 
 
 the Ufe of the Lands ought to be in the 
 Purchafer Page 49 
 
 2, Where the Purchafer of Lands, charged 
 with a Rent to a Charitable Ufe^ fhall 
 hold it fo charged 15 
 
 3. Where the Payment of the Debts of the 
 Grantor makes the Grantee a Purchafer 
 
 \i<ic Fraudulent Conveyances^ 4j 5} 9 
 
 {niialifien ice* 
 
 Vide Feoffment^ 8 
 
 Qtinrtntinn fjabentia* 
 
 Vide Bvjoer^ 40 
 
 finuia €mpto?cs Ceri-ntum* 
 
 Vide Dcwery 16, 139 
 
 ©fa ^Itit of Quod ei Deforciat. 
 
 1. Where it lieth 426 
 
 2. From v/hence it arofe ibid, 
 
 3. The Form of the Writ 427 
 
 4. That Tenant by the Curtefy is entitled 
 to the Writ 428 
 
 5. Tenants lofing by Default ibid. 
 
 6. Of lofing Lands in a Writ of Right 
 
 429 
 
 7. What no Iffue ibid. 
 
 8. What
 
 A TABLE. 
 
 8. What enough to (hew in the Writ Page 
 
 429 
 
 9. That it lies againft a Stranger to the 
 Recovery 430 
 
 10. Where the Party is not to have this 
 Writ) but a Fortnedon 421 
 
 11. Where the Wife fhall have the Writ 
 
 ibid, 
 
 12. Where Coparceners ftall join ibid, 
 
 13. Tenant for Life or in Tail, making De- 
 fault 432 
 
 14. Departure in Defpight of the Court 
 
 ibid, 
 
 15. Baron and Feme ibid. 435 
 
 1 6. Tenant for Life, lofing by Default in a 
 CeJJavit ibid. 
 
 1 7. Tenant by a Receipt ibid. 
 
 18. Whether the Tenant fliall have the 
 Writ ibid. 
 
 19. The like ibid. 
 
 20. Where the Writ is general ibid. 
 2.1. Obfervations on the Writ ibid. 
 
 That Grants to the King, or Inftruments 
 to any Subject made in open Court, are 
 Records, and as fuch are uncontroulable 
 
 106 
 
 Vide Prerogative^ i 
 
 Vide Do'x^r, 5, 9
 
 1. What is a fufficient Freehold to make a 
 Tenant to the Pracipey for a Recovery 
 
 Page 21 
 
 2. A Perfon fufFering a Recovery to the 
 Cy"^ of his Laft Will, how he may dif- 
 pole of the Eftate 36 
 
 3. Where the Word heteafter^ in a Deed 
 to lead the Ufes in a Recovery, excludes 
 the Ufes from being executed on the Re- 
 covery 79 
 
 Eeleafe* 
 
 1. The Lord releafing to a Copyholder to 
 the Ufe of another, is a good Ufe 53, 
 
 251 
 
 2. Whether it be fo when a Releafe enures 
 by Way of Enlargement of an Eftate 53 
 
 3. Otherwife, if it enures by Way of tranf- 
 mitting an Eftate, or by Extinguifliment 
 
 ibid. 
 
 4. "Where the Ufe is gone by a Releafe from 
 the Tenant for Life, to the Feoffee i2 
 
 5. A Releafe to a Bargainee for Years, in 
 PofTeffion, will be good to enlarge his 
 Eftate 230 
 
 6. At Common Law, no Man could re- 
 leafe to a Tenant for Years, unlefs in 
 Poffeflion, and why 104 
 
 7. Where the LefTor for Life or Years 
 may releafe to the Grantee of the Re- 
 verfion ihid. 
 
 8. Where a Bargainee for Years, with a 
 R^eleafe to him, for the Ufe of B. may 
 
 3 take
 
 A TABLE. 
 
 take that Refc^fe at Common Law, yei 
 it ihail not clcilroy the Ellate of B. Page 
 
 EemainUct ann Reijerfian* 
 
 i„ Where the Remainder-Man has no Pow- 
 er to alien in Fee, by the Statute of 
 1 R. 3. and why 29 
 
 2. Where he in Remainder may make a 
 a Leafe for Years, or grant a Rent- 
 charge, to commence after the Death of 
 Tenant for Life, and why 30 
 
 3. Where Reverfioners to anUfe of different 
 Eftates, may grant their Eftates ibid. 
 
 4. Where a Remainder is vefted in the 
 Grantee for Life 21 
 
 5. Where he in R-emainder in Tail, after a 
 Ufe to C D. for the Term of Twenty- 
 four Years, fhail take when the legal In- 
 tereft of the Term ceafes, and before the 
 Expiration of the Time of the Term 
 
 226 
 
 6. Where there is this Difference, that the 
 Remainder-Man's Intereft fhall not com- 
 mence prefently upon the Tenant for 
 I^ife's refufing to accept the Eftate upon 
 a Covenant to ftand feifed; otherwife in 
 the Cafe of a Feoffment of Ufes^ and 
 the Reafoa thereof 227 
 
 C0ntingcnt E.emainUet.0. 
 
 of Contingent Remainders, and in what 
 Manner they are executed 127 
 
 2. Three
 
 A TABLE. 
 
 2. Three Preliminaries neceflary to an En-^ 
 quiry into Contingent Remainders, and 
 what they are Page 127 
 
 3. The feveral Opinions of great Men 
 about the fame 128, 129 
 
 4. When Contingent Remainders are limi- 
 ted, there mull be a Freehold to fupport 
 them 76 
 
 5. And if the Remainder does not veil, 
 during the Determination of the parti- 
 cular Eftate, it Ihall never veft 77 
 
 6. Where the Contingent Remainder is de- 
 ftroyed, there not being a particular E- 
 ftate fufficient to fupport it 127 
 
 7. Where a Contingent Remainder is de- 
 ftroyed by the Feoffment of Tenant for 
 Life 132 
 
 8. Where the Contingent Remainder i$ 
 deftroyed by the Eftate of the Te- 
 nants defcending to Coparceners, vv^here- 
 by the Freehold is altered ibid. 133 
 
 9. Where the Remainder to the Right 
 Heirs of A. and B. is gone by a Re- 
 leafe from the Donor to A. ihid. 
 
 I o. The Difference between deftroy ing Con- 
 tingent Remainders, and executory Fees 
 
 132 
 
 11. That a Bargain and Sale in Fee, by 
 Tenant for Life, does not deftroy the 
 Contingent Remainder 135 
 
 12. Where the Surrender of a Copyhold 
 Tenant for Life, Ihall not deftroy the 
 Contingent Remainder 139 
 
 13. Where a Feoffment to D. of Lands 
 of which the Feoffor had covenanted to 
 
 ^ ftand
 
 A TABLE. 
 
 ftand feifed upon a Contingency, did not 
 deftroy the Contingency Page 233 
 
 14. And tho' the FeofFee had Notice 137 
 
 15. What was conftrued a contingent Re- 
 mainder, and not an Executory Fee, be- 
 caufc it was limited to take Place upon 
 the Determination of the Eftate for Life 
 
 133 
 
 16. Where a contingent Remainder will 
 veft, tho* the Tenant for Life be diffei- 
 fed 136 
 
 17. A Collateral Warranty bars the Con- 
 tingency, tho' it afterwards happens, du- 
 ring the particular Eftate 36 
 
 18. Where a Feoffment of Cejiai que Ufe 
 for Life, does not deftroy the Contin- 
 gent Remainder 136 
 
 19. Where the Re-continuance of the E- 
 ftate of Cefiui que Ufe ftiall not revive his 
 own Eftate, but the Eftate of the Re- 
 mainder dependant upon it 236 
 
 20. Where, 'till the Feoffees to an Ufe, 
 have entered to revive the Eftate, the 
 Remainder upon a Contingency is gone 
 
 137 
 
 21. Where B. forfeits his Remainder for 
 Life by a Feoffment, and levies a Fine, 
 this (hall not veft a contingent Remain- 
 der ; and yet the Entry of a precedent 
 Tenant for Life fhall preferve the con- 
 tingent Ufe 138 
 
 22. Where a Leafe for Years will not pre- 
 vent the contingent Remainder from 
 fpringing up when it happens ibid. 
 
 23. Where a Conditional Remainder is li- 
 mited to him in Remainder for Life, up- 
 
 K k on
 
 A T A BLE. 
 
 on a Difturbance of his Eftate, Ihall not 
 veft, becaufe the Difturbance is by a 
 Leafe to commence after his Death Page 
 
 138, 139 
 
 24. Of the Remainder of Terms, and how 
 far they favour of a Perpetuity 122, 123 
 
 25. Where a Remainder of a Term is good, 
 when it muft. happen within the Compafs 
 of a Life, and how it will be on a Death, 
 with Failure of Iflue ihid. 
 
 26. The Difference between a Remainder 
 of a Chattel, limited by a Deed, and 
 by a Devife 121,122 
 
 27. Where the particular Eftate deter- 
 mines by Merger, the Remainder can- 
 not veft 135 
 
 28. Where the Wife a Devifee for Life, 
 (Remainder upon a Contingency,) toge- 
 ther with a fecond Husband, purchafes 
 the Pveverfion, tho' this would revive the 
 Wife's Eftate, yet it is not fufficient to 
 fupport the contingent Remainder ibid. 
 
 29. Otherwife, if it had been by the fame 
 Conveyance ihid. 
 
 30. For when it is by the fame Convey- 
 ance, the Eftate opens and fhuts to let 
 in the contingent Remainder, after the 
 Eftate for Life is determined ihid. 
 
 31. Where a Leafe for Years, made by the 
 Tenant for Life, ftiall not deftroy the 
 Remainder's Eftate 139 
 
 32. Where the Covenantor, having gran- 
 ted three Eftates, fhall be conftrued to 
 have three different Reverfions in him 
 
 114 
 
 33. Where
 
 A TABLE. 
 
 33. Where the Remainder, limited by 
 Tenant in Tail is void, and that a Fine 
 afterwards levied, cannot help it Vage 
 
 III 
 
 34. For what Reafon an Eftate limited by 
 a Man to himfelf, for Life, with a Re- 
 mainder to his Heirs, vefts the Remain- 
 der in himfelf 21 
 
 35. Where the Remainder fliall pafs by 
 the Delivery of the Deed 50 
 
 36. The Wife's waving her Jointure fet- 
 tled on her, during her Coverture, Re- 
 mainder to J . S. J. S. fhall have the 
 Remainder, on her waving her Jointure 
 
 154 
 
 Vide Baron and Feme^ 9 
 Vide Fine^ 3, 17, 29 
 Vide Heirs J 3, 4 
 Vide "Jointenants^ 4 
 Vide Joi72tures, 14, 15 
 Vide Marriage^ 1 
 Vide Remitter, 3 
 Vide Limitation^ 3 
 
 Eennttci% 
 
 1. Where a later and defeazable Title, and 
 a former and indefeazable Title concur 
 in the fame Pcrfon, fuch Perfon is re- 
 mitted to his former Eftate 154 
 
 2. Where the Wife fhall be remitted af- 
 ter a Feofifment made by the Husband, 
 to the Ufe of himfelf and Wife, the Re- 
 mainder to C 154 
 
 K k 2 3. And
 
 A TJ. B LE. 
 
 3. And that by her Remitter fhe reconti- 
 nues an Eftate for him in Remainder, 
 limited by the Deed of Jointure Page 
 
 4. But when there are two Titles, and the 
 one indefeazable, but the other not de- 
 feazable by a third Ferfon, but both 
 equally firm, there the Wife Ihall not be 
 remitted Nolens iiolens 155 
 
 5. Where a Wife has two Titles, both 
 equally firm, fhe fhall be fuppofed to be 
 in of her elder Title, becaufe every one 
 is prefumed to dioofe what is moft for 
 their Benefit i55 
 
 6. W^here the Iflue in Tail ihall not be re- 
 mitted 7^ 
 
 7. Where the Wife (hall not be remitted 
 
 ibid. 
 
 8. That no Man can be remitted againft 
 his own A61 to the contrary 79 
 
 Ecmotjai of pica of 'Dmtx. 
 
 Vide Dozver, 79 
 
 Eent> 
 
 1. Where the Rent is extinft by the Lord 
 or Grantees being alfo Ceftui que Ufe^ and 
 what will not extinguilh the Rent by an 
 A'(5t of the Ter-tenant only 31 
 
 2. What will extinguilh a Rent 13? 3 1 
 
 3. Who fhall not take Advantage upon De- 
 mand of a Rent, without Notice 103 
 
 Vide
 
 I 
 
 A TABLE. 
 
 Vide Bargains and Saks^ 1 1 
 
 Vide Dower J no, 1 1 1 
 
 Vide Exth2guijbment^ 2, 3 
 
 Vide Enrolment^ 10 - 1 
 
 Vide Purcbafers^ 2 
 
 Vide Prerogative^ 2 
 
 Vide i^^y^5 5, 6 
 
 Eeuocation of dfejof* 
 
 1. The different Powers of Revocations 
 
 Page 141 
 
 2. Where a Power of Revocation may be 
 referved, and where not 140 
 
 3. Of a Power of Revocation appendant, 
 annex'd to theEftate of the Land 141, 
 
 142 
 
 4. Of a Power of Revocation in Grofs, 
 what it is, and what does not deftroy 
 fuch Power ibid. 
 
 5. Where a Fine or Feoffment in Fee, 
 deftroys all the Powers of Revocation, 
 and where not 143, 144 
 
 6. That a Tenant for Life may releafe a 
 Power of Revocation to him in Remain- 
 der 143 
 
 7. Where the Power of Revocation is Am- 
 ply Collateral 144 
 
 8. Of the Manner of Revocation ibid, 
 
 9. That a Tenant for Life, having a Power 
 of Revocation, upon his revoking, is 
 feifed of his former Ufe ibid. 
 
 10. Where a Power of Revocation is ap* 
 pendant and annex'd to the Eftate, nn- 
 
 K k 3 Uefs
 
 A TA BLK 
 
 lefs it be executed during the Continu- 
 ance of the Eftate, it can never be exe- 
 cuted Page 142 
 
 II. Whether a Power of Revocation was 
 extinft by the Fine, or that the Deed of 
 Revocation of Ufes was to be reckoned 
 together as one Conveyance 278, 279 
 
 Vide Fraudulent Conveyances^ 13 
 
 J 2. If there be Tenant for Life, with a 
 Power to revoke the Remainders, and 
 limit new ones, he may do both by the 
 fame Conveyance 145 
 
 13. If a Man makes a Feoffment, with 
 Power of Revocation, when he hath 
 executed that Power, he cannot limit 
 new ones upon the fame Feoffment 146 
 
 14. He may revoke Part at one Time 
 and Part at another. Revocation of Ufes 
 not being like to a Condition, which is 
 in its Nature entire T45 
 
 15. What is a good Tender of Payment of 
 Money, to fave the Power of Revoca- 
 tion 146 
 
 16. A Power of Revocation is in feme 
 Cafes a Forfeiture, and where it is fo, 
 and where not ibid, 
 
 I. That a Perfon who only may have a 
 Right, has at prefent in Law no Right 
 in him^ and therefore it is a Contra- 
 didion to allow him to ad as a perfon 
 having a Right, by transferring an In- 
 terefl to another ; and fee an Example 
 according to this Rule 125 
 
 2. He
 
 ^ T^BLE. 
 
 2. He that has a Ufe in EJfe^ has Power 
 by I R. 3. to make a Feoffment, but not 
 he that has a Ufe in Right only ^ but 
 fuch a Perfon may do an Ad to extin- 
 guifli his Right Page 240 
 
 3. The meer A6t of delivering Pofleflion, 
 paiTes a Right in lefler Eftates, but 
 in greater Eftates Polfeflion is no Evi- 
 dence of a Right 6$ 
 
 1. Where a Scire facias is not maintain- 
 able to have Execution of Lands in the 
 Hands of the Bargainee 95 
 
 2. Where the Party may enter without a 
 Scire facias 243 
 
 Vide Dower^ 92, 98, 179 
 
 Vide Merger 
 
 1. No Ufe is to arife till there be Seifm 
 where a Charter of a Feoffment is made, 
 with a Letter of Attorney to deliver 
 Seifin 49 
 
 2. Otherwife, if a Man, for a Confidera- 
 tion, fells Lands, with a Letter of At- 
 torney to deliver Seifin 50 
 
 K k 4 ecifin
 
 A TA B LE. 
 ^tiUn to Wz0. 
 
 1. Who may be feifed to an Ufe, and 
 what is neceflfary thereto Page 5 
 
 2. Firfi^ That the Perfon be capable of a 
 Confidence and Truft tbid. 
 
 3. Secondly^ That he take it up under 
 the Truft limited 6 
 
 4. That Bodies Politick are not capable, 
 and why 5 
 
 5. That the King is not, and why 5, 6 
 
 6. That Aliens and Perfons attainted, are 
 act capable of an Ufe^ and why 170, 
 
 171 
 
 7. That Corporations are not, and why 
 
 ibid, 
 
 8. That Tenant by the Curtefy, or in 
 Dower are not, and why ibid. 
 
 ^. That a Lord by Efcheat cannot, and 
 why 171, 172 
 
 I o. Where the Grantee of a Seigniory Ihall 
 hold the Tenancy to a U[e 12 
 
 11. Where a Feoffee, being a Recoveree, 
 fhall be feifed to an U[e 13 3 61 
 
 12. That the Purchafer of a Charitable 
 life fhall not be feifed to fuch Ufe 14 
 
 13. Yet where a Feoffee of a Purchafer 
 'fhall 15 
 
 14. He that comes in of another Eftate 
 than that which the Feoffee to the Ufe 
 had, fhall not be feifed to U[es in Ejfcy 
 nor to future and contingent Ufes 1 75 
 
 15. That a Tenant in Tail cannot be feifed 
 %o an Ufe, and why 1 1 
 
 1 6. Thai
 
 A TABLE. 
 
 1 6. That an Occupant may, and why Page 
 
 II 
 
 1 7. That a Difleifor, Abator or Intruder, 
 cannot be feifed to an Ufe 10 
 
 18. Where the Alienee of Tenant for Life 
 fhall not be feifed to an Ufe^ and why 
 
 xo 
 
 19. Where a Feoffee, being a Recoveror 
 in Value, fliall be feifed to his firft Ufe 
 
 Vide Covenants to ftand feifed 
 
 Vide Dower^ 94 
 
 1. The feveral Sorts of Ufes executed by 
 the former Qaufe of the Statute, and 
 their feveral Incidents 74. 
 
 2. The Execution of Jointures, by the lat- 
 ter Claufes of the Statute ibU. 
 
 3. The Cafes of the Statute tbid, 
 
 4. The Difference between the Statutes of 
 6 R. 2. and 11 H. 7. 161 
 
 5. The Reafon af the Statute of i R. 3. 
 c. 1. 27 
 
 6. Who are within that Statute 27, 28, 
 
 29530331 
 
 7. What Authority is given by that Sta- 
 tute 31, sz 
 
 8. The Alteration of Property, as to Ofes^ 
 by 27 H, 8. ff, 10.
 
 A TABLE. 
 
 Vide Leafe^ 3 
 
 Vide Contingetit Kemainder^ 12 
 
 Where the Intereft Ihall furvive, and the 
 Truft with it Page 66 
 
 Vide Authority^ i 
 Vide Jointenants^ 6, 7, 9, 10 
 
 Ccitant0 in Common* 
 
 Vide Bower ^ 118 
 Vide Jointmants-i 2, 4 
 
 tenant m Sttt* 
 
 Vide Bargainor and Bargainee^ i 
 
 Ceitant ill CaiU 
 
 1. The Confequence of a Sale of Lands in 
 Fee hy 7'enants in Tail 83 
 
 2. That Tenant in Tail has fome Proper- 
 ties of a Tenant in Fee, and others only 
 of Tenant for Life 84 
 
 3. Where an Eftate-tail is veiled in the 
 Anceftor 21 
 
 4. Where Tenant in Tail, levying a Fine, 
 Ihall ftill be feifed in Tail as before 280 
 
 Vide Bargainor and Bargainee^ i 
 
 Cenant
 
 A TABLE. 
 
 Cenattt fo^ Life^ 
 
 Where the Ufe fliall be to Tenant for Life 
 
 Page 249, 250 
 Vide Bargatnof mtd Bdrgainee^ 7, 8 
 Vide ^od ei Deforciaty 13, 1 6 
 Vide Forfeiture, 6 
 Vide Kekafe^ 4 
 Vide Revocation, 6, 9, 
 Vide Contingent Remainder Sy 11, 15 
 
 tenant ftp tjje Curttrp^ 
 
 That a Man cannot be Tenant by the Cur* 
 tefy of an Ufe, and why 239 
 
 Y'ldQ Baron and Fern ey 11 
 Vide Dower, 102 
 Vide %{od ei Deforciaty 4 
 
 Cennnt ftp Ecceipt* 
 
 Vide ^iod ei Deforciat^ 17 
 
 Cennnt to t6c precipe* 
 
 Vide Recovery, i 
 Vide Enrolment, 13 
 
 Ceitaitt at 22liII> 
 
 Vide Bargainor and Bargainee, 5 
 
 Cenant in 2)otDer* 
 
 Vide Prerogative, 3 
 Vide Dower 
 
 Cenant foi geat^/ 
 
 Vide Releafe, $ 
 
 Cermsi of f ^atsf. 
 
 I. The Original of Terms that attend the 
 Inheritance, and when created, and for 
 what Purpofe 163 
 
 jj. That Entailing of a Term is not within 
 the Statute De Denis i^^- 
 
 4 3. That
 
 A TABLE. 
 
 3. That the Tenant in Tail may difpofe of 
 a Term without a Fine and Recovery Page 
 
 164 
 
 4. That a Term will be Aflets to pay In- 
 teftates Debts ibid, 
 
 5. Of Terms in Grofs 165 
 
 6. Where a Term limited to attend a Fee 
 fhall be Aflets, and why 37 
 
 7. Where a Term limited in Truft is for- 
 feitable for Treafon, and why 39 
 
 8. Where a Term limited in Truft to at- 
 tend the Inheritence, is not forfeitable, 
 and why ibid. 
 
 Vide Limitationsy 4 
 
 Citle paramount 
 
 That a Perfon claiming by Force of a Title 
 Paramount to the Ufe, fhall never be 
 fubjed to any Charges that take their 
 R;fe and Date from an inferior Time 
 and Title j*j^ 
 
 Vide JDowefy 128 
 
 Colt. 
 
 Vide Dower, 6 
 
 Vide yowturesy 12 
 Vide Pkadingsy 9 
 
 Cmrom 
 
 Vide Forfeit ure^ 3, 4 
 Vide FkadingSy p
 
 A TABLE. 
 
 What to be tryed by Nul tiel Record, and 
 what by a Jury Page 107 
 
 I. That the Manner of Taking a Truft 
 may be by exprefs Words ,or by Imph'ca- 
 tion only 6 
 
 2.. And how by exprefs Words ihid. 
 
 3. And how by Implication 8, 9, lo, 11, 
 
 12, 13,14, 15 
 
 4. That Equity will fet up a Truft where 
 the legal Eftate is merged 29 
 
 5. That there can be no Truft without an 
 Eftate in Being 19 
 
 6. What fhall be deemed a Truft for the 
 Wife, and not an Ufe executed by the 
 Statute 351 
 
 7. Where the Lands fhall be adjudged to 
 beloug to the Wife, and not to the Execu- 
 tors in Truft for the Wife 352 
 
 8. What Money lent to be difpofed of as 
 A. fhould diredl, was held a Depojltum 
 or Truft 345 
 
 9. Where the Over-plus of an Eftate, af- 
 ter the Mortgage-Money paid off, was 
 adjudg'd to be a Truft for the Wife and 
 Children 345 
 
 10. Where the Son promifing to be a 
 Truftee for his Mother, prevails upon 
 her Husband to make a Will at the Son*s 
 Requeft, and to name the Son Executor, 
 made him a Truftee for his Mother 345 
 
 4 II. What
 
 A 1 A'BLE. 
 
 11. What was decreed a Truft for him 
 that paid the Purchafe-Money, tho' the 
 Lands were purchafed in another's Name 
 
 Page 346 
 
 12. That a Truft may be entailed 243 
 
 13. What Trufts are liable to Debts, and 
 by what Statutes ibid. 
 
 14. That a Truft of a Fee is not forfeit- 
 able ibid. 
 
 Vide Alien 
 Vide Father and Son 
 Vide Fine 
 Vide Leafe, 3 
 Vide Prerogative, 3 
 
 Vide Dower, 50 
 
 dloUmtntp Settlement* 
 
 Vide Fraudulent Conveyances 
 Vide Marriage 
 
 m\\m\\% Cottttacf* 
 
 Vide Baron and Feme, 6 
 
 1. What Is a Ife i 
 
 2. The Conftrudlioii of the Common Law 
 and of Equity, as to an C^ s 
 
 3. The Original of Ufes, and the Reafon 
 of their prevailing with Mankind 3 
 
 4. What is the Nature of Ufes at Common 
 Law 4 
 
 5. The
 
 A TABLE. 
 
 5. The feveral Sorts of Ufes Abfolute or 
 Conditional, Sole or Conjoint Page 66 
 
 6. That two Things are neceflary to an 
 life i firfi. That the Perfon be capable 
 of Confidence and Truft ; fecondly^ That 
 he take it up under the Truft appoin- 
 ted, 5 
 
 7. The Inconveniency of Ufes^ for which 
 the Statutes of i Kic. 3. and 27 H. 8. was 
 made 72, 73, 74 
 
 8. The Alteration made by the laft Sta- 
 tute 4 
 
 9. What was the Nature of Ufes at Com- 
 mon Law 4 
 
 10. That a C^ was not a Thing at Common 
 Law, annex'd to the PoflTeflion of the 
 Land, but to the Privity of Eftate 167 
 
 1 1 . That Ufes are only Creatures of Equi- 
 ty, and not taken Notice of at Common 
 Law 1 02 
 
 12. That they have been always changed 
 and modified according to the Intent of 
 the Parties interefted 20 
 
 13. That the Court of Equity will diredb 
 an Ufe to fuch Perfons as the Common 
 Law appoints Reprefentatives 16 
 
 14. By what Rules of Law Ufes are go- 
 VxCrned 75 
 
 15. How a Ufe paflTed at the Common 
 Law 905 91 
 
 16. What was provided by 27 H. 8. c, io» 
 and what by c. 16. 91 
 
 17. Who may be feifed to an C^ 4 
 
 18. That Bodies Politick, Aliens, and Per- 
 fons attainted, nor the King cannot 5 
 
 19. That
 
 A 1 ABLE. 
 
 J 9. That a Lord by Efcheat, or entering 
 for Mortmain, or Recovering by Cejfavit^ 
 and a Tenant in Tail cannot be feifed to 
 an life Page i o, n 
 
 20. That the King poflTefTed of a Term 
 forfeited for Treafon, cannot 12 
 
 21. That he in Remainder being a Diffei- 
 for, cannot ihid. 
 
 22. That a Tenant in Dower, or an Oc- 
 cupant may 11 
 
 23. Where a Grantee of a Rent fhall be 
 feifed to an Ufe 1 3 
 
 24. That a DifTeifor cannot ftand feifed to 
 an Ufcy and theReafbn 201 
 
 25. That he who ftands feifed to an Ufe^ 
 muft come in in Privity of that Eftate to 
 which the Ufe is annex'd 193 
 
 26. Where the Alienee fhall not be feifed 
 to former Ufes 10 
 
 27. Who may declare or raife Ufes 39 
 
 28. By what Words Ufes may be raifed 60 
 
 29. In Cafes of Marriage ibid. 
 3c. To whom a Ufe may or may not be 
 
 raifed 43, 44 
 
 31. To an Alien, but the King Ihall have 
 the Ufe gained by Purchafe, and why ihid. 
 
 32. How the King may have an Eftate of 
 his Feoffees, to Ufe 44 
 
 33. That a Monk could not have an Ufe^ 
 and why ibid. 
 
 34. That a Baftard, by Reputation, the 
 Son of fuch a one, cannot have a Ufe 
 
 206 
 
 35. An Ufe to the Poor of the Parifh of 
 Dale IS good, tho* no Corporation 44, 
 
 ^ 204 
 
 56. That
 
 1 
 
 A TA BLE. 
 
 36. That theKing cannot have an UfcPa.20^ 
 
 37. Where no Ufe will arife to Strangers 
 
 254 
 
 38. In what Manner Ufes may be raifed 53 
 
 39. That a Ufc cannot be raifed without a 
 Deed or Feoifment $6 
 
 40. What are the feveral Properties of an 
 Eftate in an Ufe 16 
 
 41. That there may be PojfeJJlo fratris of 
 an Ufe^ and why 16, 17, iS, 238, 239 
 
 42. That an Ufe was not originally alienable 
 or devifeable, and why 35 
 
 43. How a Ufe is alienable 25 
 
 44. That a Ufe cannot be limited upon an 
 Ufe 194 
 
 45. That a Ufe is not Extendible or AfTets, 
 and why 37 
 
 46. Where a Term limited to attend a Fee 
 fhall be AfTets . ibid. 
 
 47. Where and what Confideration is ne- 
 cefTary to the raifing an Ufe 45, 46 
 
 48. That there cannot be two Ufes of one 
 and the fame Land 200 
 
 49. In what Manner Ufes are executed by 
 the Statute 76 
 
 50. What necefTary to the Execution of 
 an Ufe-, firft^ a Perfon feifed ; fecond^ 
 ly-f in Keriim Natnra ; thirdly-, that the 
 Eftate of the Feoffees may veft in Cefini 
 que Ufe 80 
 
 51. Where a Feoffment in Fee is made to 
 the Ufe of fuch Perfons as the Feoffor 
 fhall appoint by his Laft Will, which 
 was made before, and publlfhed after 
 the Feoffment, whether the Eftates are 
 executed 229 
 
 L I 52. If
 
 A TABLE. 
 
 52. If a Feoffment be made in Fee to tKe 
 Ufe of the Feoffee and his Heirs, in Truft 
 for 7. S. and his Heirs, whether this 
 Eftate be executed in J. S. by the Sta- 
 tute Page 194 
 
 53. Where the Tenant muft have a Free- 
 hold in the Land, otherwife the Statute 
 executes no PofTefTion to the Ufe 5 yet if 
 a Fine be levied to the Ufe of one for 
 Years, it is executed 199 
 
 54. Where the Recoveror fhall have a Rent 
 executed in him, by the 27th of H. 8. 
 €. 10. and may diftrain for the Rent 
 
 200 
 
 55. Whether a Covenant, in Confideration 
 that the Lands Ihould remain to the 
 Heirs Male of the Body of the Cove- 
 nantor, and in Confideration of Brother- 
 ly Love and Affedion, and that the 
 Lands fhould remain in the Blood of the 
 Covenantor, was fufficient to raife an 
 Ufe 208 
 
 $6. That a Term affigned over is not exe- 
 cuted by the Statute 79 
 
 57. Yet a Man may limit the Ufes of a 
 Freehold for fix Years, and it will be 
 executed 80 
 
 58. Where there are two Ufes limited, when 
 the new Ufes fhall ftand 8, 9 
 
 59. A Ufe fhall not be fufpended or be ex- 
 t'lnSi by a Joint or Sole Seifin of the 
 Lands 236 
 
 60. That Ufes cannot be deflroyed or al- 
 tered without a Tranfmutation of the 
 Poffeflion, by which the Privity of E- 
 
 ftate, 
 
 4
 
 A TA'BLE. 
 
 ftate, or the Truft and Confidence is al- 
 tered and gone Page 200 
 
 61. Of Ufes raifed by Tranfmutation of 
 the Pofleffion, as upon a Fine, Feoffment 
 or Recovery 75 
 
 62. That a Releafe from Ceflui que Ufe to 
 the Dijfesfor, extinguifhes the Ufe 28 
 
 63. Where he in Remainder releafing to 
 Tenant for Life, deftroys the Ufes 232 
 
 64. Of Ufes that pafs without a Tranfmu- 
 tation of PoiTeflion 82 
 
 65. Of Ufes raifed by Way of Bargain and 
 Sale, on the Confideration of Money 
 
 66. Of Ufes raifed by Way of Covenant 
 to ftand feifed, on the Confideration of 
 Blood ibid. 
 
 67. Of Limitations of Ufes upon Convey- 
 ances 2'59 
 
 68. Of Ufes in Poflibility 118 
 
 69. Why a Ufe declared upon a Convey- 
 ance of Lands after Purchafed,isbad 117 
 
 70. Where the Court of Chancery would, 
 before the Statute, have forced the Par- 
 ty to execute an Ufe which is now exe- 
 cuted by the Statute 60 
 
 71. As to the Execution of Ufes by the laft 
 Claufe of the Statute 147 
 
 72. Where a Man has a new Eftate that 
 is fubjedt to no Ufes, the Law by Con- 
 ftru6tion will not make his new Eftate 
 fubjeA to Ufes annex'd to an old Eftate 
 
 167 
 
 73. What Rules of Law are (ct afide by 
 ' the Statute of Ufes 77 
 
 74. If
 
 A rABL£. 
 
 74.' If Ufcs were executed, they were de- 
 fcendible as Eftates-tail Page 237 
 
 75. Whether Contingent Ufes are dellroy- 
 ed by a Feoffment of the Feoffee to Ufes 
 
 166 
 
 76. What fhall not raife a life itz 
 
 77. How a Man may declare the Intent of 
 a future A61:, and why 117 
 
 78. By what Words Ufes may be raifed 
 
 60, 6ij 62 
 
 79. That a Ufe may be entailed, and why 
 
 63 
 
 80. To what Ufes a Conveyance fhall be 
 faid to be made 257, 258 
 
 81. What may be granted to an Ufe 281, 
 
 282, 283 
 
 That a Warranty is a Covenant annex'd 
 to the Freehold, and its Confequences 
 
 103 
 
 Vide Bargainor and Bargabiee^ 3 
 
 1. That a Man may have an Adion of 
 Wafle, tho' he does not alledge the Feoff- 
 ment to be made to the Feoffees, and 
 their Heirs 276 
 
 2. Who fhall punifh Wafte 243 
 
 mnt of Kiryfjt* 
 
 Vide Dower^ 8, 23, 25 
 
 mtit aifcoautieU 
 
 Vide Dower, 41, 68 
 
 FINIS.
 
 ERRATA. 
 
 "JjAGE 9. in the Margin for Hat, read Not, p. iS, 
 Jt Line l. for Dower r> Power ^ p. 32. /. 30. for 
 fevered r. faved, p. 37. /. 15. for him r. them. p. 67. 
 /. 22. for fointenants r. yo'mt Tfufiees, p. 69. I. 2. r. 
 can't take EffeB^ /». ill. for muji r. w/jy, />. 120. /. 2. 
 for be prolonged r. belongs p. 151. I. 26. for for r. of, 
 p. 166. /. 4. for 7r;/^ r. Trtffieey p. 170. /. 1 9. for 
 ihe r. //je«>, /. 20. for behalf r. behoof, /. 21. for we r, 
 <<;«»•«, p. 173. /. 3. r. a Way or Common, p. 179. «//. /. 
 for 'y;«re r. where, p> 218. /. 35. for «r w, p. 2' 30. 
 ^.23. for devifed r, divided.
 
 li 
 
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