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<DATE>2014-08-12</DATE>
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<NAME>Anne Simpson</NAME>
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<IDG S="marc" R="UM" ID="B43541">
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<DIV1 TYPE="title page">
<PB REF="1">
<PB REF="2" MS="y">
<P>The Compleat LAWYER. OR A TREATISE Concerning TEN&V;RES AND ESTATES</P>
<P>In Lands of Inheritance for Life, and for Yeares: Of Chattels Reall and Per&s;onall, and how any of them may be con|veyed in a Legall Forme, by Fine, Recovery, Deed, or Word, as the Ca&s;e &s;hall require.</P>
<P>Per <HI>GULIEL. NOY,</HI> Armigerum, nuper Attournatum Generalem <HI>CA|ROLI</HI> Regis defunctum.</P>
<P><HI>LONDON,</HI> Printed for <HI>D. Pakeman,</HI> and are to be &s;old at his Shop, at the Signe of the <HI>Rainebow,</HI> neer the <HI>Inner-Temple-gate in Fleet&s;treet.</HI> 1651.</P>
</DIV1>
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<BODY>
<DIV1 TYPE="treatise">
<PB REF="3" MS="y">
<PB REF="3" MS="y">
<HEAD><HI>The Compleat Lawyer.</HI> OR, A Treati&s;e concerning Tenures and E&s;tates in Lands of Inheritance for Life, &amp;c.</HEAD>
<P>Que&s;tion. <HI>_HOw were the multitudes of people at the fir&s;t divided?</HI></P>
<P>An&s;wer. Into Families, Common-wealthes, and Kingdomes.</P>
<P>Q. <HI>To what end?</HI></P>
<P><HI>A.</HI> To live godly, peaceably, and quietly together.</P>
<P>Q. <HI>How is that performed?</HI></P>
<P><HI>A.</HI> By keeping the Law of God, which we call Religion, and by executing vertue,
<PB N="2" REF="4"> and puni&s;hing vice, by which vertue and good manners doe &s;pring.</P>
<P>Q. <HI>What doth be&s;t uphold and maintaine the&s;e things?</HI></P>
<P><HI>A.</HI> The Law.</P>
<P>Q. <HI>How manifold is that?</HI></P>
<P><HI>A.</HI> Two fold, <HI>viz.</HI> The Law of Nature, and the Law written.</P>
<P>Q. <HI>What is the Law written?</HI></P>
<P><HI>A.</HI> It is either Divine or Civill.</P>
<P>Q. <HI>What doth the Civill Law worke?</HI></P>
<P><HI>A.</HI> A defence and encouragement to the good, and a bridling and puni&s;hment to the evill.</P>
<P>Q. <HI>What el&s;e doth it worke?</HI></P>
<P><HI>A.</HI> A &s;ecurity to the life of man, and qui|et enjoying of <HI>Meum</HI> and <HI>Tuum.</HI></P>
<P>Q. <HI>How came in Meum and Tuum?</HI></P>
<P><HI>A.</HI> By the Law of <HI>Jus gentium,</HI> whereby right and property to Lands, Tenements, goods and Chattells, are belonging to men.</P>
<P>Q. <HI>How doth every Subject in England claime and hold his lands and goods.</HI></P>
<P><HI>A.</HI> By E&s;tates in Law.</P>
<P>Q. <HI>How many E&s;tates in Law are there in Lands and Tenements.</HI></P>
<P><HI>A.</HI> Three, viz. E&s;tates of Inheritance, Francktenement, and Chattells realls</P>
<P>Q. <HI>How are E&s;tates of Inheritance divided?</HI></P>
<PB N="3" REF="4">
<P><HI>A.</HI> Into Fee Simples, and Fee Tayle.</P>
<P>Q. <HI>How are Fee Simples divided?</HI></P>
<P><HI>A.</HI> Into Fee Simples ab&s;olute, and Fee Simple Conditionall.</P>
<P>Q. <HI>What is an ab&s;olute Fee Simple?</HI></P>
<P><HI>A.</HI> When lands are given to me, and to my heires for ever.</P>
<P>Q. <HI>What is a Fee Simple Conditionall?</HI></P>
<P><HI>A.</HI> When Lands are given to me and to my heires for ever, upon Condition I doe &s;uch or &s;uch a thing, &amp;c.</P>
<P>Q. <HI>How are E&s;tates Tayle-divided?</HI></P>
<P><HI>A.</HI> Into tayles generall and &s;peciall, and into Tenant in tayle after po&s;&s;ibilitie of i&s;&s;ue extinct.</P>
<P>Q. <HI>What is an an intayle generall?</HI></P>
<P><HI>A.</HI> When lands or tenements are given to <HI>I S.</HI> And to the heires of his body law|fully begotten or to be begotten.</P>
<P>Q. <HI>What is an intaile &s;peciall?</HI></P>
<P><HI>A.</HI> When lands or tenements are given to a man, and to his wife, and to the heires of their two bodyes between them lawful|ly begotten.</P>
<P>Q. <HI>How is tenant in tayle after po&s;&s;ibilitie of i&s;&s;ue extinct?</HI></P>
<P><HI>A.</HI> When lands are given to a man and his wife, and to the heires of their two bodyes between them lawfully begotten,
<PB N="4" REF="5" MS="y"> if the man or wife die without i&s;&s;ue be|tweene them, the Survivor is Tenant in tayle after po&s;&s;ibility &amp;c.</P>
<P>Q. <HI>Is &s;uch a Tenant puni&s;hable of wa&s;t or noe?</HI></P>
<P><HI>A.</HI> Noe, hee is not puni&s;hable of wa&s;t, yet hee may forfeit his E&s;tate by granting a greater E&s;tate to another then he hath him&s;elfe.</P>
<P>Q. <HI>May other Tenants intayle forfeit their E&s;tates?</HI></P>
<P><HI>A.</HI> Noe, unle&s;&s;e they commit Trea&s;on.</P>
<P>Q. <HI>How is Francktenement divided?</HI></P>
<P><HI>A.</HI> Into foure parts, viz. tenant by Cur|te&s;ie, tenant in Dower, tenant for his owne life, and tenant for another mans life.</P>
<P>Q. <HI>How are chattells divided?</HI></P>
<P><HI>A.</HI> Into reall and per&s;onall.</P>
<P>Q. <HI>What is a chattell reall?</HI></P>
<P><HI>A.</HI> A terme for yeares, the ward of lands, and tenant at will.</P>
<P>Q. <HI>What are Chattells per&s;onall?</HI></P>
<P><HI>A.</HI> All manner of Goods, Corne, Cat|tell, Hou&s;hold&s;tuffe, and vten&s;ills what&s;oe|ver.</P>
<P>Q. <HI>How doth a Fee &s;imple in lands or Tene|ments pa&s;&s;e from one to another?</HI></P>
<P><HI>A.</HI> It may pa&s;&s;e by a Fine, or by Deed, in ray&s;ing of a v&s;e upon valuable con&s;idera|tions,
<PB N="5" REF="5" MS="y"> or by deede with Livery of &s;ei&s;in, or or by a will in writing <HI>&s;ealed</HI> &s;ince the Sta|tute of Wills, or by a Deed without livery, inrolled within &s;ixe Moneths after the date therof by the Statute in the 34 yeare of H. 8 and by a Rever&s;ion in fee by Atturnement. But of things incorporate, there can be no Actuall livery, but they pa&s;&s;e by grant in writing onely, or by lineall di&s;cent.</P>
<P>Q. <HI>May Tennant in fee Simple convey his lands and tenements from his wife and heire?</HI></P>
<P><HI>A.</HI> Yey that he may, to whom and by what E&s;tate hee will, except it bee in <HI>mortmaine, contra &s;tatutum</HI> in the &s;eventh of <HI>Edward</HI> the fir&s;t, and excepting &s;uch right &amp; Dower as his wife hath in the &s;aid lands.</P>
<P>Q. <HI>May be charge the&s;e lands?</HI></P>
<P><HI>A.</HI> Yes, either by a yearly Rent with Clau&s;e of di&s;tre&s;&s;e, which is called a Rent-charge, or by an Annuity, or by &s;tatute, and al&s;o if he dye, the&s;e lands &s;hall bee a&s;&s;etts to pay his debts.</P>
<P>Q. <HI>Is there no forfeiture of the&s;e lands?</HI></P>
<P><HI>A.</HI> None, except hee commit felony or trea&s;on.</P>
<P>Q <HI>May they any way e&s;cheate?</HI></P>
<P><HI>A.</HI> Yes, if the tenant die without heire generall or &s;peciall, then the Lord of whom they are holden &s;hall have the &s;ame by e&s;cheate.</P>
<PB N="6" REF="6">
<P>Q. <HI>What is the law &s;ithence the &s;tatute in &s;uch ca&s;es.</HI></P>
<P><HI>A.</HI> If at this day there bee Lord and Tenant in fee Simple by Chivalrie and twenty pence rent, If the Tenant enfeoffe and E&s;tranger of the &s;aid land, the E&s;tran|ger &s;hall hold of the Lord by the &s;aid &s;er|vices and rents as the Tenant did hold, and the Feoffer or &s;eller, &s;hall bee excluded, and be not meant at all.</P>
<P>Q. <HI>What if the &s;aid Tenant maketh a Fe|offement of the &s;aid land to another without ex|pre&s;&s;ing to who&s;e u&s;e?</HI></P>
<P><HI>A.</HI> Then it &s;hall bee to the u&s;e of the Feoffer and his heires, except a valuable con&s;ideration bee given for the land, then it &s;hall bee to the u&s;e of the Feoffees.</P>
<P>Q. <HI>What if the Tenant &s;ithence that &s;ta|tute doth enfeoffe a &s;tranger of part of the land?</HI></P>
<P><HI>A.</HI> Then the &s;tranger &s;hall hold of the Lord <HI>per paticular Morum,</HI> viz. the Rent &s;hall be apportionated.</P>
<P>As if there be twentie Acres of land, and twenty &s;hillings Rent, the Purcha&s;or &s;hall hold by three &s;hillings Rent for three Acres.</P>
<P>But if there be an entire &s;ervice, that cannot be apportionated, as a hor&s;e, a hawke &amp;c. The Lord &s;hall have the whole.</P>
<PB N="7" REF="6">
<P>Q. <HI>What if the purcha&s;e be of the moyetie of of the whole land?</HI></P>
<P><HI>A.</HI> There &s;halI bee noe apportionallment of the Rent &amp;c.</P>
<P>Q. <HI>What if the Lord &s;ithence that &s;tatute purcha&s;e parcell of the tenencie?</HI></P>
<P><HI>A.</HI> By that purcha&s;e all the entire an|nuall &s;ervices be extinct, except it be for the profit of the Comonwealth, then it remai|neth, otherwi&s;e it is extinct. For that pur|cha&s;e read <HI>Bruertons</HI> ca&s;e in the &s;ixt part <HI>de lo: Cooke.</HI></P>
<P>Q. <HI>What if the Lord purcha&s;e parcell of the land where the Rents and &s;ervices are apportio|nated.</HI></P>
<P><HI>A.</HI> Then the rents and &s;ervices &s;hall be apportionated.</P>
<P>Q. <HI>Put a Ca&s;e thereof?</HI></P>
<P><HI>A.</HI> If there be Lord and Tenant of &s;ix Acres of land by &s;ix pence rent, and &s;uite of Court, if the Lord purcha&s;e two Acres, the Rent &s;hall bee apportionated; but other|wi&s;e if the rent and &s;ervices be entire, as &s;uit of Court, homage &amp;c. Extinct.</P>
<P>Q. <HI>VVhat if the&s;e entire &s;ervices come to the Lord of part of the land by the meere Act of God, or of the law?</HI></P>
<P><HI>A.</HI> Then the intire &s;ervices &s;hall remaine to the Lord.</P>
<PB N="8" REF="7" MS="y">
<P>Q. <HI>Put a Ca&s;e of that?</HI></P>
<P><HI>A.</HI> If there bee Lord and Tenant of foure Acres of land, by a Hawke, homage, &s;uit of Court, and herriot, in this ca&s;e, if one of the&s;e Acres di&s;cend to the Lord, the whole &s;ervices remaine.</P>
<P>But if the Lord had purcha&s;ed the &s;aid Acre, or relea&s;ed to the Tenant the &s;ervices of the &s;aid Acre, all the &s;ervices alwaies are extinct.</P>
<P>Al&s;o in this ca&s;e, if the Tenant doth en|feoffe any E&s;tranger of one of tho&s;e Acres, the Feoffee &s;hall hold the whole &s;ervices.</P>
<P>But otherwi&s;e if the &s;ervices may bee ap|portionated, as of Rent, Common, or Per|per, &amp;c. And thereupon are great diver&s;i|ties betweene Rent-&s;ervice and Rent charge</P>
<P>Q. <HI>VVhat apportionallment is there of Rent-Charge?</HI></P>
<P><HI>A.</HI> Rent Charge is now at this day as Rent &s;ervice was before the &s;tatute. That if the partie that hath the Rent, purcha&s;e any part of the land charged, the whole Rent is extinct.</P>
<P>Q. <HI>May a tenure be re&s;erved upon a gift in tayle &s;ithence the &s;aid &s;tatute?</HI></P>
<P>A. Yes, looke how a Tenure may be crea|ted and re&s;erved upon lands and tenements
<PB N="9" REF="7"> in fee Simple before the &s;tatute, &s;o it may be of lands given in the tayle &s;ithence the &s;aid &s;tatute.</P>
<P>Q. <HI>VVhat if the Donor re&s;erveth noe &s;er|vice upon the guift in tayle?</HI></P>
<P><HI>A.</HI> Then the Donee &s;hall hold by &s;uch &s;ervices as the Donor holdeth over.</P>
<P>Q. <HI>How is this to bee under&s;tood?</HI></P>
<P><HI>A.</HI> Where the Rever&s;ion in fee Simple remaineth in the Donor.</P>
<P>Q. <HI>VVhat if the Rever&s;ion be granted over?</HI></P>
<P><HI>A.</HI> Then the Grantee thereof &s;hall hold his Rever&s;ion of the chiefe Lord.</P>
<P>Q. <HI>Is the King tyed by the &s;tatute of</HI> Quia emptores terrarum?</P>
<P><HI>A.</HI> Noe, the King is not Subject to that &s;tatute.</P>
<P>Q. <HI>Vpon what things may a tenure bee re|&s;erved?</HI></P>
<P><HI>A.</HI> Properly upon a Feoffement, or gift in tayle, in lands or Tenements, and of Corporate things, into which may be an Entrie or manuall occupation.</P>
<P>Q. <HI>Of what things may noe tenure bee re&s;er|ved?</HI></P>
<P><HI>A.</HI> Vpon incorporate things, as Courts, Rents, Wayes, Pi&s;caries and &s;uch like.</P>
<P>Q. <HI>Of what things in nature mu&s;t the te|nure bee?</HI></P>
<PB N="10" REF="8">
<P><HI>A.</HI> Of things which are either profitable to the Feoffer or Donor, or to the com|monwealth.</P>
<P>Q. <HI>May the &s;ervice upon the tenure be re|&s;erved to be done by an e&s;tranger?</HI></P>
<P><HI>A.</HI> They cannot properly be &s;o re&s;erved.</P>
<P>Q. <HI>Can the Tenant hold his land by two te|nures?</HI></P>
<P><HI>A.</HI> Noe, one parcell of land cannot bee holden by &s;everall tenures.</P>
<P>Q. <HI>VVhat tenure and &s;ervice may be re&s;er|ved upon an E&s;tate of franktenement?</HI></P>
<P><HI>A.</HI> Commonly upon an E&s;tate of frank|tenement nothing is re&s;erved but Rent, and to that Rent fealtie is incident by proper Right.</P>
<P>Q. <HI>VVhat is Franktenement?</HI></P>
<P><HI>A.</HI> In e&s;tate for ones life, or for another mans life.</P>
<P>Q. <HI>How doth it pa&s;&s;e?</HI></P>
<P><HI>A.</HI> Either by writing, or by paroll, and upon the &s;ame generally there mu&s;t be a livery of &s;ei&s;in.</P>
<P>Q. <HI>How many maner of E&s;tates for life are there.</HI></P>
<P><HI>A.</HI> There are foure, Tennant for his owne life, for another Mans life, Tenant in Dower, and by Courte&s;ie.</P>
<P>Q. <HI>Have the&s;e like power as the other Ten|nants have.</HI></P>
<PB N="11" REF="8">
<P><HI>A.</HI> Noe, the &s;aid Tenants for life, and tenants for yeares, may not grant a greater e&s;tate to another of the &s;aid lands, then he hath him&s;elfe, nor may not commit wa&s;t, nor charge, nor incumber the &s;aid lands, longer then they have e&s;tate therein.</P>
<P>Q. <HI>VVhat doe you call wa&s;t.</HI></P>
<P><HI>A.</HI> Wa&s;t is properly any thing that is done, or committed in the &s;aid land to the di&s;inheriting of the le&s;&s;or, or of him in the rever&s;ion.</P>
<P>Q. <HI>VVho &s;hall punni&s;h wa&s;t or forfeyures.</HI></P>
<P><HI>A.</HI> He that is next in rever&s;ion or re|mainder in the &s;aid land of an E&s;tate of in|heritance.</P>
<P>Q. <HI>By what law.</HI></P>
<P><HI>A.</HI> Tenant in Dower and Tenant by the Curte&s;ie, before the &s;tatute of Glou|ce&s;ter, and the re&s;t by the E&s;tatutes.</P>
<P>Q. <HI>VVhat call you a Rever&s;ion or Remain|der?</HI></P>
<P><HI>A.</HI> The e&s;tate that dependeth, and is to come in po&s;&s;e&s;&s;ion after the&s;e particular E|&s;tates ended.</P>
<P>Q. <HI>How doth a Rever&s;ion pa&s;&s;e, &s;ithence there can be noe livery of &s;ei&s;in without licence of the Terre tenant?</HI></P>
<P><HI>A.</HI> It doth pa&s;&s;e properly by deed in writing, and Atturneyment of the par|ticular
<PB N="12" REF="9"> Tenant, or by fine, &amp;c.</P>
<P>Q. <HI>How doth a Remainder pa&s;&s;e?</HI></P>
<P><HI>A.</HI> Alwaies it beginneth with the parti|cular E&s;tate, and dependeth upon the &s;ame, otherwi&s;e it is commonly not good, un|le&s;&s;e it be by devi&s;e, or will, and it mu&s;t be|gin when the particular E&s;tate endeth; or or el&s;e it is naught.</P>
<P>Q. <HI>Put me a ca&s;e upon that point?</HI></P>
<P><HI>A.</HI> If a lea&s;e be made to <HI>I. S.</HI> of Cer|taine lands for life, the Remainder thereof to the right heires of <HI>I. N.</HI> this is a contin|gent Remainder, for if <HI>I. S.</HI> dye in the life of <HI>I. N:</HI> the Rever&s;ion thereof is void, o|therwi&s;e if <HI>I.N.</HI> dye in the life of <HI>I</HI> S: and hath an heire, then the remainder is good.</P>
<P>Q. <HI>VVhat difference is there between a Rever&s;ion and remainder?</HI></P>
<P><HI>A.</HI> Great difference, The Rever&s;ion is the remnant of the E&s;tate, that the Donor or lea&s;or re&s;erveth in him&s;elfe, and pa&s;&s;eth not with the particular E&s;tate.</P>
<P>But the Remainder alwaies pa&s;&s;eth with the particular E&s;tate at the fir&s;t Creation thereof, but being created, may pa&s;&s;e as a Rever&s;ion without the particular E&s;tate. Al&s;o he that cometh to lands by Remain|der, cometh in as a Purcha&s;or, and &s;hall not bee in ward, but the other in rever&s;ion may be in ward.</P>
<PB N="13" REF="9">
<P>Q. <HI>What other E&s;tates are there unmentio|ned.</HI></P>
<P><HI>A.</HI> There is Tenant by the &s;tatute Mar|chant of the &s;taple, Tenant by Elegit, Te|nant for yeares, Tenant at will, and Tenant by Sufferance.</P>
<P><HI>Q. Doth an action of wa&s;t lye again&s;t the&s;e Tenants.</HI></P>
<P><HI>A.</HI> Noe, but onely again&s;t tenant for yeares, and he is &s;ubiect unto the like law, as tenant for life is.</P>
<P>Q. <HI>May an e&s;tate of Remainder depend up|on an E&s;tate for yeares?</HI></P>
<P><HI>A.</HI> Yes, very well, and then if the Re|mainder be for one life or more, there mu&s;t be livery of &s;ei&s;in made to the tenant for yeares at his fir&s;t entrie.</P>
<P>Q. <HI>If Tenant for yeares dye, who &s;hall have his terme.</HI></P>
<P><HI>A.</HI> If he doe not grant it in his life, nor devi&s;e it by his will, his Executors or ad|mini&s;trators &s;hall have the &s;ame.</P>
<P><HI>Q. How may it pa&s;&s;e.</HI></P>
<P><HI>A.</HI> Either by writing, or by paroll, and it &s;hall be a&s;&s;etts to pay the owners debts if he dye po&s;&s;e&s;&s;ed thereof.</P>
<P><HI>Q. What doe you call a&s;setts?</HI></P>
<P>There is a&s;&s;etts intermaines which is goods and Chattells of the Decedent, and there
<PB N="14" REF="10"> is a&s;&s;ets per di&s;cent, which is land in fee Simple, and both the&s;e &s;hall be liable to pay debts &s;o farr as they will goe.</P>
<P>Q. <HI>VVhat doe you meane by devi&s;e or will?</HI></P>
<P><HI>A.</HI> When lands, goods, and Chattells, are devi&s;ed or given by the la&s;t will and te&s;tament of any.</P>
<P>Q. <HI>May lands be &s;o given without licence?</HI></P>
<P><HI>A.</HI> Yes they may, &s;ithence the Statute of wills. 32. <HI>H.</HI> 8.</P>
<P><HI>Q. How was the Law before that Statute?</HI></P>
<P>No man before that Statute could give Lands or Tenements by his Will in wri|ting, to make an E&s;tate of franke tenement or upwards, unle&s;&s;e the &s;ame were in u&s;e, viz. in the hands of the Feoffees.</P>
<P><HI>Q. How is the Law &s;ithence that Statute?</HI></P>
<P><HI>A.</HI> Sithence that Statute a man may de|vi&s;e all his lands in &s;occage, and two parts of his lands holden in Knights &s;ervice.</P>
<P><HI>Q. Why may hee not devi&s;e the other third part?</HI></P>
<P><HI>A.</HI> Becau&s;e it ought to de&s;cend, that the lord be not defrauded of his Tenure, viz. Ward, Marriage, &amp;c.</P>
<P><HI>Q. How be Wills made?</HI></P>
<P><HI>A.</HI> Either in writing, or el&s;e without writing, and then it is a Nuncupative Will; but no E&s;tate in Lands for life, or upwards
<PB N="15" REF="10"> will pa&s;&s;e by a Will Nuncupative, which is without writing.</P>
<P><HI>Q. What generall learning is el&s;e of wills?</HI></P>
<P><HI>A.</HI> The la&s;t Will is alwaies of force, <HI>Quia voluntas e&s;t ambulatoria &amp; non con&s;ummatur v&s;que ad mortem Te&s;tatoris,</HI> and then the in|tent of the devi&s;or &s;hall be much taken ther|in, as far as the words will extend.</P>
<P><HI>Q. What doe you meane by the words u&s;e?</HI></P>
<P><HI>A.</HI> I di&s;tingui&s;h it thus, That before the Statute of 27. <HI>H.</HI> 8. one man might have the lands, and another the u&s;e of the &s;ame lands.</P>
<P>Q. <HI>What did invent tho&s;e v&s;es?</HI></P>
<P><HI>A.</HI> Two things, viz. feare and fraud; feare in the time of War and troubles, and fraud to defeate the lords of the fee and Creditors.</P>
<P><HI>Q. How many manner of v&s;es are there?</HI></P>
<P><HI>A.</HI> Two viz. in E&s;&s;e, and to come in con|tingencie.</P>
<P><HI>Q. How in E&s;&s;e?</HI></P>
<P><HI>A.</HI> Either in po&s;&s;e&s;&s;ion, or rever&s;ion, or remainder.</P>
<P><HI>Q. How in contingencie?</HI></P>
<P><HI>A.</HI> U&s;es which may come and after be in po&s;&s;e&s;&s;ion, rever&s;ion, or remainder, if they be not cut off or barred.</P>
<P><HI>Q. What things are incident to tho&s;e v&s;es?</HI></P>
<PB N="16" REF="11" MS="y">
<P><HI>A.</HI> Confidence in the per&s;ons enfeoffed and purity in e&s;tate.</P>
<P><HI>Q. Did they good or harme in Common Law?</HI></P>
<P><HI>A.</HI> They did more harme then good, whereupon diver&s;e Statutes were enacted, as 1^o <HI>R.</HI> 2. the 4. H. 4. 1^o H. 7. the 11. H. 7. and 1^o <HI>R.</HI> 3. were ordained to &s;uppre&s;&s;e the mi&s;chiefes that v&s;es brought in.</P>
<P><HI>Q. Were tho&s;e mi&s;chiefes remedied by tho&s;e Statutes?</HI></P>
<P><HI>A.</HI> No, they were not, untill the Statute of 27. <HI>H.</HI> 8. by which &s;tatute u&s;es were tran&s;|ferred into po&s;&s;e&s;&s;ion, &s;o that now upon creating of an u&s;e, it is pre&s;ently turned in|to po&s;&s;e&s;&s;ion, and the the Feoffees are but conduit pipes to leade the u&s;es.</P>
<P>Q. <HI>How was it before that &s;tatute?</HI></P>
<P>A. Before that &s;tatute, he that had the po&s;&s;e&s;&s;ion, viz. the Feoffes might &s;ell the land from <HI>Ce&s;tui que u&s;e,</HI> and he had but his remed in the Chancerie.</P>
<P>Q. <HI>Are there any u&s;es now in law.</HI></P>
<P>A. Yes, but they are tran&s;ferred <HI>ip&s;o facto</HI> into po&s;&s;e&s;&s;ion, &amp; hereupon the Feoffee is excluded.</P>
<P><HI>Q. VVhy are they u&s;ed.</HI></P>
<P>A. Properly to e&s;tate wives, for the hu&s;|band cannot enfeoffe or grant Immediately to his wife, becau&s;e they are but one per&s;on in the law.</P>
<PB N="17" REF="11">
<P>Q. <HI>How mu&s;t &s;uch an E&s;tate be made?</HI></P>
<P><HI>A.</HI> The husband mu&s;t enfeoffe two or three to the u&s;e of his wife for life, or otherwi&s;e.</P>
<P>Q. <HI>Why mu&s;t he infeoffe two at the lea&s;t?</HI></P>
<P><HI>A.</HI> Otherwi&s;e one Feoffee hath &s;uch an e&s;tate thereby, that his wife cannot have her Dower.</P>
<P>Q. <HI>May not the &s;ubject hold lands of <GAP DESC="illegible" REASON="left margin cropped or obscured" RESP="MURP" EXTENT="1+ letters">he King?</HI></P>
<P><HI>A.</HI> Yes, all the lands of England are holden either mediately or immediately from the King as Lord Paramount&punc;</P>
<P>Q <HI>How may they bee holden of the King?</HI></P>
<P><HI>A.</HI> By Knights &s;ervice in Capite, by &s;occage in Capite, by Knights &s;ervice won in Capite, by &s;occage won in Ca|pite by grand &s;erjeantie, and by pettie Serjeantie.</P>
<P><HI>Q. What difference is there in the&s;e Te|nures?</HI></P>
<P><HI>A.</HI> Many great differences. All lands holden in Capite in Chivalry, doe draw ward, Marriage, and reliefe, viz. a Knights fee is fiue pound, and &s;o ratably, and it cau&s;eth all other lands holden of mea&s;ne Lords to be in ward. Al&s;o the tenant cannot grant the&s;e lands for life, or for any other higher e&s;tate without
<PB N="18" REF="12" MS="y"> licen&s;e of the King, nor his wife cannot marry without licen&s;e, and if they doe, they &s;hall an&s;wer the King mea&s;ne pro|fitts. And if a Tenant enter, and &s;ell without licen&s;e, he mu&s;t pay for his li|cence one yeares profit thereof. But to have a licen&s;e before he enter, and &s;ell, is but the third part of one yeares profit. Al&s;o the heire having been in ward, when when he cometh to full age, mu&s;t &s;ue livery, which will co&s;t him one yeares profit. And if he be at full Age at the death of his Ance&s;tor, then he mu&s;t have a primer &s;ei&s;in, which is of like charge.</P>
<P><HI>Q. What if it bee holden in &s;occage in Ca|pite?</HI></P>
<P><HI>A.</HI> That draweth not ward &amp;c. nor any other lands, and the Reliefe is one yeares rent, but the tenant mu&s;t &s;ue his livery or primer &s;ei&s;in of tho&s;e lands onely.</P>
<P>Q. <HI>What of lands in Knights &s;ervice onely?</HI></P>
<P><HI>A.</HI> That draweth onely ward, Mar|riage and reliefe, onely for that land, in ca&s;e of a common per&s;on, but that the King mu&s;t have his Prerogative without Prioritie or po&s;terioritie.</P>
<PB N="19" REF="12">
<P>Q. <HI>What doe you meane by prioritie?</HI></P>
<P><HI>A.</HI> That if a common per&s;on holdeth &s;everall lands of two Lords by Knights &s;ervice, the elde&s;t tenure, viz. he that made the fir&s;t Feoffement, which is not &s;o in the Kings ca&s;e.</P>
<P>Q. <HI>How may one otherwi&s;e hold of the King?</HI></P>
<P>A. He may hold by grand Serjeantie, and by pettie Serjeantie.</P>
<P>Q. <HI>How doe they differ?</HI></P>
<P>A. Grand Serjeantie is Knights &s;er|vice and more, for the reliefe thereof is the value of the land by yeare, and Pettie Serjeantie is &s;occage in nature.</P>
<P>Q. <HI>Put a ca&s;e thereof?</HI></P>
<P>A. He that holdeth of the King to find a man to &s;erve in the warrs by for|ty daies at his own co&s;t, holdeth by grand &s;erjeantie; But he that is to find a hor&s;e, or &s;uch a thing, to &s;erve as afore|&s;aid, that is pettie &s;erjeantie, becau&s;e it <GAP DESC="illegible" REASON="left margin cropped or obscured" RESP="MURP" EXTENT="1+ letters">s not to be done by a mans body.</P>
<P>Al&s;o the tenant may hold of the King, or of a common per&s;on by E&s;cu|<GAP DESC="illegible" REASON="left margin cropped or obscured" RESP="MURP" EXTENT="1+ letters">ge, Homage, Ance&s;t. Or by homage, feal|<GAP DESC="illegible" REASON="left margin cropped or obscured" RESP="MURP" EXTENT="1+ letters">ie, and &s;uit of Court.</P>
<P><HI>Q. What is the meaning thereof?</HI></P>
<P><HI>Put me a ca&s;e thereof?</HI></P>
<PB N="20" REF="13">
<P>A. E&s;cuage uncertaine is Knights &s;er|vice, and E&s;cuage certaine is &s;occage. Homage Ance&s;t. is alwaies between the Feoffor and Feoffee and their heires; the other Homage is &s;ometimes joyned to Knights &s;ervice, and &s;ometimes to &s;oc|cage. And fealtie is alwaies incident to all manner of Tenures and E&s;tates.</P>
<P><HI>Q. Of what nature are the&s;e &s;ervices?</HI></P>
<P>A. Some of them are valuable, and &s;ome not.</P>
<P><HI>Q. &V;pon what cau&s;e were they re&s;erved?</HI></P>
<P>A. To keepe a knowledge between the Lord and tenant in liew and recom|pence of the land.</P>
<P>Q. <HI>VVhat remedy is there if the tenant doth not his &s;ervice?</HI></P>
<P>A. The Lord may of common right di&s;traine for them, and if the tenant die without heire generall or &s;peciall, or be attainted, the Lord &s;hall have the land by E&s;cheate, as having noe tenant to doe his &s;ervice. And thus much brief|ly of E&s;tates, tenures, and &s;ervice.</P>
<P>Q. <HI>Why hath the Lord the ward of the t<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">e body and lands of the heire being not twenty one yeares of age?</HI></P>
<P>A. Becau&s;e if the land be given to the tenant to doe &s;ervice of Chivalrie, and
<PB N="21" REF="13"> when the tenant dyeth, his heire be|ing within age, for that &s;uch a tenant cannot doe the &s;ervice, the Lord will have the body and land untill he come to age.</P>
<P><HI>Q. When &s;hall &s;uch an heire he &s;aid to be in ward?</HI></P>
<P>A. When the Father dyeth &s;ei&s;ed of lands holden in Knights &s;ervice and his heire being a &s;onne, and within the age of one and twenty yeares, and if it be a daughter, within the Age of fourteen yeares, the Lord &s;hall have the ward un|till &s;ixteen yeares by the &s;tatute law.</P>
<P>Q. <HI>VVhy if the Father die &s;ei&s;ed but of a Rever&s;ion of the &s;aid land, an e&s;tate for life or yeares then being on foot?</HI></P>
<P>A. The heire &s;hall be in ward for his body.</P>
<P><HI>Q. Is it &s;o if the Father die &s;ei&s;ed of a Remainder?</HI></P>
<P>A. Noe, the heire there &s;hall not be in ward, if the tenant for life be living.</P>
<P><HI>Q. What other difference are t<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">ere?</HI></P>
<P>A. If lands holden in Knights &s;er|vice come to the heire by di&s;cent, hee &s;hall be in ward, but if it come by pur|cha&s;e, he &s;hall not be in ward.</P>
<P><HI>Q. Put a ca&s;e thereof?</HI></P>
<PB N="22" REF="14">
<P>A. If the Father and Sonne purcha&s;e lands, holden as afore&s;aid, to them, and to the heires of the Father, and the Fa|ther dyeth, the Sonne within age &s;hall be &s;aid to bee in by purcha&s;e, and not by di&s;cent, and &s;hall not bee in Ward. But by the Statute in the 30th. of <HI>Hen.</HI> 8. If it be holden by the King, hee &s;hall be in Ward.</P>
<P>Q. <HI>When &s;hall the heire be &s;aid to be out of ward?</HI></P>
<P>A. If it be a Male, when hee accom|pli&s;heth the age of twenty yeares; if it be a Female, &s;he mu&s;t be full fourteene yeares at the death of her Ance&s;tor, o|therwi&s;e the Lord will have her Ward untill &s;he be &s;ixteen by the Statute.</P>
<P>And al&s;o, if the heire being in Ward, and within age, be made a Knight, then he &s;hall be out of Ward: But otherwi&s;e if he be made a Knight in the life of his Father.</P>
<P>Q. <HI>What is the Lord to have by his Tenant when hee cometh to full age?</HI></P>
<P><HI>A.</HI> He is to have the value of his Mar|riage, if hee doth not take a wife du|ring his Nonage, and the double value of his Marriage, if hee take a wife du|ring his Nonage, and the double value
<PB N="23" REF="14"> of his Marriage, if hee take a wife during his Nonage, if the Lord tender him a wife without di&s;paragement. But note that the fir&s;t tender is not ma|teriall.</P>
<P>Q. <HI>How &s;hall that value be tryed?</HI></P>
<P>A. By a Jury, &s;worn to try and value the &s;ame.</P>
<P>Q. <HI>Shall the heire in Soccage within age be in ward?</HI></P>
<P>A. Yes, untill hee come unto the age of fourteene yeares, and then the Guar|dian is to account unto him for the profits of the &s;aid lands, and after the age of fourteene yeares, hee is to take the profits of his lands by his <HI>Procheni amie.</HI> But the Guardian in Chivalry is not &s;o to doe, but to have the VVard of Body and Land to his owne u&s;e untill the age afore|&s;aid.</P>
<P>Q. <HI>Who ought to have the ward&s;hip of the heire in Soccage?</HI></P>
<P>A. If his Lands doe de&s;cend unto him by the fathers &s;ide, his next Uncle or friend on the Mothers &s;ide, to whom the Land may not de&s;cend; <HI>Et &s;ic &egrave; con|ver&s;o.</HI></P>
<PB N="24" REF="15">
<P><HI>Q. What is the reliefe of lands in Soc|cage?</HI></P>
<P><HI>An&s;.</HI> The value of one yeares rent.</P>
<P>Q. <HI>What if a man bee di&s;&s;ei&s;ed of his lands and tenements, or di&s;po&s;&s;e&s;&s;ed of his goods and chattels, what remedy hath hee in Law?</HI></P>
<P><HI>A.</HI> His remedy is either to enter into the Lands and Tenements, if his En|trie be congeable, as if there bee no di&s;continuance nor di&s;cent ca&s;t; or el&s;e to bring his Action, and &s;o to recover the &s;ame by cour&s;e of the Law, upon every which Action there is a proper and &s;peciall Writ ordained.</P>
<P>Q. <HI>How many manner of Actions are there?</HI></P>
<P><HI>A.</HI> There bee Actions reall, and Actions per&s;onall, and Actions mixt.</P>
<P>Q. <HI>VVhat doe you call Actions reall?</HI></P>
<P><HI>A.</HI> Some are po&s;&s;e&s;&s;ory, and &s;ome are ance&s;ter, the fir&s;t being where the plain|tiffe hath been &s;ei&s;ed, and is di&s;&s;ei&s;ed, and the other where the plaintiffe was never &s;ei&s;ed, but &s;ome of his Ance&s;tors, who&s;e next heire he is.</P>
<PB N="25" REF="15">
<P>Q. <HI>What &s;hall the plaintiffe recover in reall Actions?</HI></P>
<P><HI>A.</HI> In a reall Action the Plaintiffe &s;hall recover the thing in demand.</P>
<P>Q. <HI>For whom, and again&s;t whom doe the&s;e Actions lye by Law?</HI></P>
<P><HI>A.</HI> Alwaies by, or again&s;t Tenant for life.</P>
<P><HI>Q. Shall the Plantiffe in the&s;e reall Actions alwaies recover Co&s;ts and Dama|ges?</HI></P>
<P><HI>A.</HI> In &s;ome of the&s;e Actions he &s;hall, in &s;ome not.</P>
<P>Q. <HI>How &s;hall he know what Action doth lie properly for every demandant?</HI></P>
<P><HI>A.</HI> That is great learning, and a long di&s;cour&s;e.</P>
<P>Q. <HI>Let me &s;omewhat under&s;tand it in generall.</HI></P>
<P><HI>A.</HI> Fir&s;t you mu&s;t note that there are &s;ome Writs onely for Tenant in Fee Simple, as a Writ of Right, of <HI>Ayel, Be&s;aiel, Cozenage, nuper obiit,</HI> and &s;uch, like as <HI>Natura brevium</HI> will &s;hew thee.</P>
<P>Al&s;o, there are &s;ome Writs one|ly for Tenant in taile, and the Donor, as a <HI>Formedon in re|mainder,
<PB N="26" REF="16"> di&s;cender, &amp; in reverter.</HI></P>
<P>The fir&s;t for Tenant or heire in tayle, the &s;econd for him in the Remainder, when there is noe heire, and the intay|led land ought to come unto him by his Remainder.</P>
<P>And for the Donor, when both the other doe faile, and for want of heire or remainder, the land ought to revert or come back to the Donor.</P>
<P>And &s;ome other wtitts doe lye for Tenant for life, again&s;t Tenant for terme of life, and the writt of <HI>Novell Di|&s;&s;ei&s;in,</HI> and all the writts of Entrie in degree as the ca&s;e lyeth, viz. that the writt of Entrie <HI>&s;ur di&s;&s;ei&s;in,</HI> the writ of of Entrie in the <HI>Per, Cui,</HI> and <HI>Po&s;t,</HI> and in all the&s;e damages are to be recovered, and not commonly in the former.</P>
<P><HI>Q. How are the&s;e and the former to be tryed?</HI></P>
<P><HI>A.</HI> The writt of Right being the highe&s;t writ in nature, lyeth where all the re&s;t fayle, and is to be tryed by bat|tle and grand A&s;&s;i&s;e; and the i&s;&s;ue is by joyning the mi&s;e upon the meere right, and the re&s;t are to be tryed by verdict of twelve men, unto which the parties may have their due Challenge.</P>
<PB N="27" REF="16">
<P>Q. <HI>What is the nature of actions per&s;o|nalls?</HI></P>
<P>A. It is for the mo&s;t part to recover Co&s;ts and damages for the thing in de|mand, and are to be tryed by verdict as afore&s;aid.</P>
<P>Q. <HI>Recite &s;ome of the&s;e writts for acti|ons per&s;onall?</HI></P>
<P>A. There are many, as a writ of tre&s;|pa&s;&s;e, of debt, Accompt, Deceipt, Detynue, Covenant &amp;c. <HI>vide Natura brevium.</HI></P>
<P>Q. <HI>How el&s;e doe the reall and per&s;onall actions differ?</HI></P>
<P>A. In reall actions, the land mu&s;t be &s;ummoned and the view taken. But in per&s;onall Actions, the per&s;on of the De|fendant mu&s;t be &s;ummoned.</P>
<P><HI>Q. What are actions mixt?</HI></P>
<P>A. They are part in realtie, and part in per&s;onaltie.</P>
<P>Q. <HI>Recite one thereof?</HI></P>
<P>A. There is the Action of wa&s;t, in which the place wa&s;ted, &s;hall be recove|red and treble damages.</P>
<P>Q. <HI>How and by whom are the&s;e trialls to be executed in law?</HI></P>
<P>A. They are executed two wayes, ei|ther by Judges, <HI>which ought to be twelve,</HI> or by Iurors <HI>lay men,</HI> which ought to be twelve and Freeholders.</P>
<PB N="28" REF="17">
<P><HI>Q. When by the Judges?</HI></P>
<P>A. When the Councell in law of both &s;ides doe demurre in law, that is, re&s;teth upon a meere point in law, that &s;hall be tryed by Judges.</P>
<P>Q. <HI>When by a Iurie.</HI></P>
<P>A. When the &s;aid Lawyers joyne up|on an i&s;&s;ue in fait which mu&s;t be tryed <HI>juxta probatum &amp; allegatum, viz.</HI> by evi|dence and witne&s;&s;es.</P>
<P>Q. <HI>Where &s;hall the tryall in fait bee?</HI></P>
<P>A. In that County where the Iurors may take be&s;t notice of the matter; <HI>nam ibi &s;emper debet fieri triatio ubi Iuratores Meliorem po&s;&s;unt habere notitiam.</HI></P>
<P><HI>Q. How is that meant?</HI></P>
<P>A. As when one is robbed in one Countie, and the goods are found in another Countie, or wounded in one Countie, and dyeth in another Countie, &s;ometimes the Counties &s;hall joyne to|gether if they may.</P>
<P>Q. <HI>You have rea&s;onably &s;ati&s;fied mee in this matter, perceiving thereby that the law is the life and &s;inewes of every Com|mon-wealth. But what doth your law con&s;i&s;t of?</HI></P>
<P><HI>A.</HI> It con&s;i&s;teth of a po&s;itive law, of Cu&s;tome, and of &s;tatute.</P>
<PB N="29" REF="17">
<P>Q. <HI>What doe you call the po&s;itive law?</HI></P>
<P>A. That which was the fir&s;t law, be|fore Cu&s;tomes or &s;tatutes did alter the &s;ame.</P>
<P>Q. <HI>Shew me &s;ome example of your po&s;i|tive law?</HI></P>
<P>A. There is a po&s;itive law in England, that a di&s;cent doth toll an Entrie, that between &s;ome Tenants the &s;urvivor &s;hall have the whole, if noe act be made to the contrary, that the elde&s;t &s;onne &s;hall inherit, and all the daughters by equall portions. <HI>Et &s;ic de ceteris.</HI></P>
<P>Q. <HI>VVhat doe you call Cu&s;tome?</HI></P>
<P>A. Cu&s;tome may be in free land or in Coppiold land.</P>
<P>Q. <HI>How in the one and how in the other?</HI></P>
<P>A. By the Cu&s;tome in certaine Bur|roughs which is called Burrough Eng|li&s;h, the yonge&s;t &s;ome &s;hall inherit. And in Gavelkind all the &s;onnes, <HI>&amp; &s;ic de cete|ris.</HI></P>
<P>And in Copyhold land the words <HI>&s;ibi et &s;uis</HI> doe create an e&s;tate of inheri|tance, and the wife of a Copyholder that dyeth &s;ei&s;ed of his Copyhold lands &s;hall have her free Bench during her widdowhood.</P>
<P>Q. <HI>How are the&s;e cu&s;tomes maintained?</HI></P>
<PB N="30" REF="18" MS="y">
<P>A. The life of a Cu&s;tome is u&s;e and continuance, &s;o that it be not altogether again&s;t rea&s;on.</P>
<P>Q. <HI>What doe you call your Statutes?</HI></P>
<P>A. Acts and Lawes, which are e&s;ta|bli&s;hed by Act of Parliament, <HI>by the King, the a&s;&s;ent of the Lords Spirituall and Temporall, and the Commons of the Realme.</HI></P>
<P>Q. <HI>To what end are they made?</HI></P>
<P>A. They are made generally either to abridge the power of the Common-Law, or el&s;e to enlarge the &s;ame.</P>
<P>Q. <HI>Was the Common-Law defective be|fore the&s;e Statutes?</HI></P>
<P>A. No, not altogether defective, but the Law hath been by great wi&s;dome al|tered, or at lea&s;t increa&s;ed, or abridged, according to the offences of the Subjects growing and increa&s;ing from time to time.</P>
<P>Q <HI>Shew me &s;ome examples thereof?</HI></P>
<P>A. At the Common-Law, the coun|terfeiting of the great Seale of this Realme was Felony, and now by Sta|tute it is Trea&s;on. So the cutting of a pur&s;e was but Tre&s;pa&s;&s;e, and afterwards the lo&s;ing of his thumbe, and now Felony, and &s;o of divers other things.</P>
<PB N="31" REF="18">
<P>Q. <HI>Have the&s;e Statute Laws amended or paired the Common Law?</HI></P>
<P>A. Where it hath not altered the po|&s;itive Law, but hath onely increa&s;ed or decrea&s;ed the puni&s;hment thereof, it hath done great good, but where it hath altered the Common Law in &s;ub&s;tance, it hath done great harme.</P>
<P>Q. <HI>Shew me an example where a Statute hath altered the Common Law?</HI></P>
<P>A. Among&s;t others, I will &s;peak on|ly of the Statute of <HI>We&s;tm.</HI> the &s;econd, of <HI>Entailes.</HI></P>
<P>Q. <HI>Did that Statute good or harme?</HI></P>
<P>A. In my opinion much more harme then good to the Common-wealth and Subjects.</P>
<P>Q. <HI>Shew me &s;ome of the conveniences, and inconveniences.</HI></P>
<P>A. The fir&s;t cau&s;e of that Statute was to continue lands in the i&s;&s;ue in taile, or in him in remainder <HI>&s;ecundum voluntatem Donatoris,</HI> which now may be cut off by fine and recovery.</P>
<P>Secondly, if the Father dye farre in debt, the&s;e lands will not bee liable to pay his debts, and thus &s;ometimes the Creditor is undone, and many times de|frauded.</P>
<PB N="32" REF="19">
<P>Thirdly noe man can take any good E&s;tate from the Tenant in Tayle con|trary to the &s;tatute of 2. <HI>H.</HI> 8. But he mu&s;t be at the charges of a fine and Recovery, whereby the e&s;tates of poore men are de|feated.</P>
<P>Fourthly, if the Father commit felo|ny, the &s;onne &s;hall have the lands' which is an encouragement to evill.</P>
<P>All which as it &s;tandeth in my opini|on, hath brought more harme then good, as Purcha&s;ors defeated, lea&s;es evicted, E&s;tates and grants upon good con&s;ide|rations avoyded, Creditors defrauded, offendors emboldened, and divers other inconveniences.</P>
<P>Q. <HI>I under&s;tand this, and the law in the &s;ame &s;ort in the re&s;t. But how may e&s;tates in tayle be cut off</HI> contra voluntatem Donato|ris, <HI>and I will trouble them no more?</HI></P>
<P><HI>A.</HI> Alwaies the donee in tayle in po&s;&s;e&s;&s;ion, by a gift in tayle by his An|ce&s;tor, by a fine duly executed may cut off that intayle, and conclude parties and parties viz. tho&s;e who are parties to the &s;ame fine, and their heires.</P>
<P>If it be with Remainder over to per|&s;ons named in the deed, then there nee|deth a fine with Recovery to make it
<PB N="33" REF="19"> &s;ure, yet the fine is good as long as the fir&s;t Donee hath i&s;&s;ue living, and doth binde him in the remainder, if he maketh not his claime within five years after his title accrued.</P>
<P>But by a Recovery with a fine it is barred pre&s;ently after the perfecting.</P>
<P>Q. <HI>How mu&s;t this fine and recovery bee &s;ued out?</HI></P>
<P><HI>A.</HI> Fir&s;t there mu&s;t be a Recognition of the Sellor, which is the Conizor by <HI>Dedimus pote&s;tatem,</HI> or in the Common Pleas before the Judges to the Buyer called the Cognizee, of the nature and quantity of the land, and then fini&s;hed accordingly to make him Tenant of the land. Then take a <HI>Praecipe quod reddat,</HI> or a Writ of <HI>Entrie</HI> in the <HI>Po&s;t,</HI> mu&s;t be brought by two &s;trangers again&s;t the &s;aid Tenant, and he mu&s;t vouch the Co|nizor, <HI>viz.</HI> the Tenant in taile, and hee mu&s;t appeare by Atturney or in per&s;on, and vouch the common voucher, and &s;o the Tenant to hold in quiet po&s;&s;e&s;&s;ion, and the Conizor, or tenant in taile to recover over &s;o much land, and this re|covery over (&s;o pur&s;ued) is the rea&s;on of the Law, &amp; called the double Recoverie.</P>
<P>Q. <HI>VVhat is the &s;ingle Recovery?</HI></P>
<PB N="34" REF="20">
<P><HI>A.</HI> Such a Praecipe or Writ of Entry in the <HI>Po&s;t</HI> mu&s;t be brought again&s;t the Tenant in taile, and hee mu&s;t vouch the common vouchee, which mu&s;t ap|peare as afore&s;aid, and confe&s;&s;e the war|rantie.</P>
<P>Q. <HI>Why is this not &s;o good as the o|ther?</HI></P>
<P><HI>A.</HI> Becau&s;e it behoveth there the tenant in tayle to be &s;ei&s;ed of the &s;tate taile at the time of the Recovery; for if he be &s;ei&s;ed of any other e&s;tate at the time of the Recovery; as if hee fir&s;t di&s;continue the taile, and &s;o bee &s;ei&s;ed of a Fee Sim|ple at the time of the Recovery, then the Recovery is voyd.</P>
<P>Al&s;o a Collaterall warrantie from the Ance&s;tor of the Tenant in taile, which Ance&s;tor dying without i&s;&s;ue, and the &s;aid warrantie de&s;cending upon the &s;aid i&s;&s;ue in tayle, is a bar al&s;o of the tayle, if he maketh not his claime in the life of his &s;aid Ance&s;tor.</P>
<P>Q. <HI>If the Remainder afore&s;aid be in the King, &s;hall the King bee barred as afore|&s;aid?</HI></P>
<P><HI>A.</HI> This was &s;omewhat doubtfull be|fore the Statute of 34 <HI>&amp;</HI> 35 <HI>Hen.</HI> 8. But &s;ithence that Statute it is no di&s;conti|nuance
<PB N="35" REF="20"> of the tayle, nor bar to the Te|nant in tayle, nor to the King in Re|mainder; yet the Law maketh a diffe|rence at this day, if the King give lands in tayle, with the Remainder or Rever|&s;ion in the King, a Fine or Recovery will not bar that Entayle.</P>
<P>But if a common per&s;on give lands in tayle without a Rever&s;ion or Remain|der in the King, that entayle may be cut off by a Fine and Recovery. And &s;o the difference is, when the gift is from the King, and when from a meane per|&s;on. And thus much generally of entay|led lands.</P>
<P>Q. <HI>I pray you put me &s;ome more diffe|rence between the Prerogative and grant of the King, and of a meane per&s;on; and fir&s;t touching his per&s;on?</HI></P>
<P><HI>A.</HI> Fir&s;t the Kings Maje&s;ty hath two bodyes, <HI>viz.</HI> a Naturall and a Politique body.</P>
<P>Q. <HI>Where, and when hath he a Politique body?</HI></P>
<P><HI>A.</HI> For three cau&s;es, <HI>viz. Cau&s;a Maje|&s;tatis, nece&s;&s;itatis, &amp; utilitatis.</HI></P>
<P>In the fir&s;t hee cannot give, nor take, nor grant but by matter of Re|cord.</P>
<PB N="36" REF="21">
<P>Secondly to avoid <HI>inter-Regnum</HI> and Nonage, <HI>&amp;c.</HI> That body cannot dye.</P>
<P>Thirdly, to take lands by di&s;cent, and in that ca&s;e the halfe blood cannot hurt. <HI>Vide Cooke, Calvins</HI> ca&s;e.</P>
<P>Q. <HI>VVhat is the meaning of all this?</HI></P>
<P><HI>A.</HI> That the King or Queen of <HI>Eng|land</HI> in their politique bodies cannot be di&s;abled, as by death, Nonage, Marriage, or any &s;uch like, as a common per&s;on may be.</P>
<P>Q. <HI>What of his naturall body?</HI></P>
<P><HI>A.</HI> He may have lands by di&s;cent and purcha&s;e as a common per&s;on may doe by way of Remainder or matter of Re|cord.</P>
<P>Q. <HI>VVhat is his Prerogative in grants made unto him, and in grants made by him?</HI></P>
<P><HI>A.</HI> It is a ground in Law, <HI>quod nemo pote&s;t plus juris ad alium transferre quam in ip&s;o e&s;t.</HI> And further, nothing can pa&s;&s;e from the King, nor for the mo&s;t part to the King, but by matter of Re|cord, <HI>viz.</HI> by Letters Patents under the great Seale, and that the King cannot pa&s;&s;e any thing by livery of &s;ei&s;in, nor by matter in fait, nor cannot di&s;&s;ei&s;e, nor be di&s;&s;ei&s;ed.</P>
<P>Al&s;o it is a Maxime in Law, <HI>quod nul|lum
<PB N="37" REF="21"> tempus occurrit Regi,</HI> that there &s;hall be no Laches nor E&s;topples in the King for any right or title contrary to his ex|pre&s;&s;e grant.</P>
<P>Q. <HI>Then it &s;eemeth that grants made from the King &s;hall be taken &s;trictly?</HI></P>
<P><HI>A.</HI> Yes, the King mu&s;t not bee decei|ved in his grant, and the thing mu&s;t bee named, and expre&s;&s;ely &s;et downe; for things not named will not pa&s;&s;e by this word Appurtenances, and the grant &s;hall not bee taken &s;trictly again&s;t the King, nor large&s;t for the Grantee, as in a com|mon per&s;ons ca&s;e.</P>
<P>Q. <HI>What things in a common per&s;ons ca&s;e will pa&s;&s;e by this word Appurtenances?</HI></P>
<P><HI>A.</HI> An Advow&s;on appendant, common appendant, or appurtenant, and by rea|&s;on of Vicinage, wayes, and &s;uch like.</P>
<P>Q. <HI>What things may pa&s;&s;e by the grant of another thing, as incident thereunto?</HI></P>
<P><HI>A.</HI> Many things may pa&s;&s;e by the grant of another thing without &s;peciall na|ming of the &s;ame.</P>
<P>As a Rent by the grant of the Rever|&s;ion. By grant of a Mannor, the Hun|dred Court or Leete, and the &s;ervices. By grant of a Faire, the Court of Py|powder, and many things e&s;e in the &s;ame nature.</P>
<PB N="38" REF="22">
<P>Q. <HI>Which be things corporate and incor|porate?</HI></P>
<P><HI>A.</HI> Things Corporate are whereof there may be an Actuall po&s;&s;e&s;&s;ion, and entrie there unto, as of a Mannor, a hou&s;e, lands, tenements, and &s;uch like.</P>
<P>Q. <HI>Which be things incorporate?</HI></P>
<P><HI>A.</HI> Things incorporate are rents, Courts, &s;ervices, Common, and &s;uch like, and the&s;e may be appendent, appur|tenant, or belonging to corporate things, as lands and &s;uch like.</P>
<P>Q, <HI>What doe you call Common?</HI></P>
<P><HI>A.</HI> It is the depa&s;turing of one mans Cattle in the lands of another man, in which the commoner hath no e&s;tate, but it is according to the nature of the com|mon claymed.</P>
<P>Q. <HI>How many &s;orts of commons are there?</HI></P>
<P><HI>A.</HI> Fower, Common appendent, appurtenant, ingro&s;&s;e, and by rea&s;on of vicinage.</P>
<P>Q. <HI>How doe they differ?</HI></P>
<P><HI>A.</HI> Many wayes, Common appen|dant and by rea&s;on of vicinage cannot be but by Pre&s;cription, time out of minde, but the other two may begin at this day.</P>
<P>Al&s;o Common appendant belongeth
<PB N="39" REF="22"> properly to arrable land, or to meadow, or pa&s;ture that was anciently arrable land, and it mu&s;t be u&s;ed with &s;uch Cat|tle as are levant and couchant upon the &s;ame lands, viz. the &s;ame both in &s;um|mer and winter, and with &s;uch Cattle as may hide and gaine the lands, viz. eare and muck the &s;aid lands, and not with hoggs, goates or gee&s;e.</P>
<P>But if the Commoner purcha&s;e any part of that land, or the tenant &s;ell any part thereof, the common &s;hall be ap|portioned; But if the commoner buy alI the &s;aid lands by an equall e&s;tate, with the commoner, the common is drowned, and common appendent can|not be &s;evered or granted from the land, otherwi&s;e of appurtenant. But if the Commoner appurtenant purcha&s;e any part of that land, the whole common is extinct, becau&s;e it is again&s;t common right, and common appurtenant may belong to any, and for all manner of Cattle <HI>&s;ans nombre,</HI> &s;o as the u&s;age and clayme of either of the&s;e commons &s;heweth and declareth what manner of common that is.</P>
<P>Common ingro&s;&s;e may be by grant or pre&s;cription to have common in ano|ther
<PB N="40" REF="23"> mans lands with twelve oxen, or or twelve kine or le&s;&s;e, to a certaine number; and that may be granted over to another.</P>
<P>Common by rea&s;on of vicinage is when two Seignories or Lord&s;hipps, and the Tenants thereof have u&s;ed time out of mind to common together in in their commons or feilds in the fallow or common time, by rea&s;on of their ad|joyning, and want of inclo&s;ure, and this common is of the nature as com|mon appendant, and the one Seignorie or Lord&s;hipp; may inclo&s;e from the o|ther, and drive or keepe the ones cattle out of the others Seignorie or Lord&s;hip; but the one may not not &s;taffe-drive their cattle into the others Seignorie or Towne&s;hip, and the one cannot have an action of tre&s;pa&s;&s;e again&s;t the o|ther, if the ones cattle wander or vo|luntarily goe and depa&s;ture the others Seignorie or Lord&s;hip.</P>
<P><HI>Quaere</HI> if the one may inclo&s;e part of their &s;aid lands from the other, and leave part thereof for common; <HI>vide Tyrinhams</HI> ca&s;e in <HI>Cooke.</HI> Al&s;o none of the&s;e commoners can have an action of Tre&s;pa&s;&s;e again&s;t an e&s;tranger which
<PB N="41" REF="23"> &s;hall doe tre&s;pa&s;&s;e there, nor is to take his common otherwi&s;e then with the mouth of his cattle. <HI>Quaere</HI> if the Com|moner may trench the ground to loo&s;e out the water that hurteth the &s;aid land, Stat. 12 <HI>H.</HI> 8.</P>
<P>Q. <HI>Make me I pray you better to under|&s;tand briefly what Tenant in Dower is?</HI></P>
<P><HI>A.</HI> Dower is &s;uch an E&s;tate for the third foote during the wifes life, in all &s;uch lands and tenements, as her husband was at any time &s;eized of an e&s;tate of in|heritance during the coverture.</P>
<P><HI>Q. Is the wife to have a third during her life of all &s;uch lands and tenements?</HI></P>
<P><HI>A.</HI> No, he mu&s;t be &s;ole &s;eized there|of, and not in joynt tenancy.</P>
<P>Secondly hee mu&s;t have the Franckte|nement and the inheritance of the &s;aid land in the &s;aid Baronie, <HI>&s;imul &amp; &s;emel</HI> during the Coverture.</P>
<P>And thirdly he mu&s;t be &s;eized of &s;uch an E&s;tate in the Coverture, that the child that hee &s;hall beget of the &s;aid wife, may by po&s;&s;ibility inherit the &s;aid lands.</P>
<P>Q. <HI>Of what age ought &s;uch a wife to be at the death of her husband?</HI></P>
<P><HI>A.</HI> Of the age of nine years.</P>
<PB N="42" REF="24">
<P>Q. <HI>May the husband by his act any way bar the wife of her Dower?</HI></P>
<P><HI>A.</HI> Yes, in committing of Trea&s;on, but not of Felony, by the Statute in the fir&s;t of <HI>E.</HI> 6. by laches, entry, &s;uite, and pleading.</P>
<P>Q. <HI>May tenants in Dower forfeit their E&s;tates?</HI></P>
<P><HI>A.</HI> Yes, diver&s;e wayes, as other Te|nants for life may, and al&s;o by elopment from her husband in his life without re|conciliation.</P>
<P>Q. <HI>May the wife of him that holdeth lands of the King in Capite be endowed by the heire or any other common per&s;on?</HI></P>
<P><HI>A.</HI> No, &s;he ought to come into the <HI>Chancery,</HI> and there make an oath, that &s;he will not marry without the Kings licen&s;e, whereupon a Writ &s;hall bee di|rected to the E&s;cheator to endow her.</P>
<P>Q. <HI>May the wife have Dower, and al&s;o Joynture of her husbands lands?</HI></P>
<P><HI>A.</HI> Noe, unle&s;&s;e it bee in e&s;peciall ca&s;es.</P>
<P>Q. <HI>VVhen may the wife be at her Election?</HI></P>
<P><HI>A.</HI> If the Joynture be made during the Coverture, then at the decea&s;e of her husband, &s;he may chu&s;e the one, or the other, but if it bee made before the
<PB N="43" REF="24"> Coverture, then &s;hee mu&s;t be tyed to her Ioynture onely.</P>
<P>Q. <HI>Was it &s;o at the Common law?</HI></P>
<P><HI>A.</HI> Noe, but is now &s;o by the &s;tatute of 27. <HI>H.</HI> 7. <HI>vide &V;ernons</HI> ca&s;e in the fourth part of the Lord <HI>Cookes</HI> reports.</P>
<P>Q. <HI>Is tenant in Dower puni&s;hable of wa&s;t.</HI></P>
<P><HI>A.</HI> Tenant in Dower and by the cur|te&s;ie were puni&s;hable of wa&s;t by the Common law, and the other particular Tenant by the &s;tatute of <HI>Marlebridge.</HI></P>
<P>Q. <HI>How many Ages of women are there to be ob&s;erved in law?</HI></P>
<P><HI>Q.</HI> Eight, Fir&s;t &s;eaven yeares in ayde <HI>pur fil marrier.</HI> Next nine yeares to bee endowed of her husband, if her husband be &s;even yeares of age or upwards at his death, ten yeares upon ravi&s;hment, twelve to con&s;ent to marriage, full foureteen to be free from ward untill the age of &s;ixteene, &s;eaventeen to be an Ex|ecutor, twenty and one to doe all actes.</P>
<P>Q. <HI>What doe you call Tenant by the courte&s;ie?</HI></P>
<P><HI>A.</HI> It is when the husband after the death of his wife, is to have an e&s;tate for life in the lands of the wife, and where|of &s;he dyed &s;ei&s;ed of an E&s;tate of Inheri|tance.</P>
<PB N="44" REF="25">
<P>Q. <HI>What E&s;tate ought the wife to have in the &s;aid lands whereof the husband may be tenant by the curte&s;ie?</HI></P>
<P><HI>A.</HI> She ought to have &s;uch an e&s;tate as the husband is to have by whom &s;he claymeth Dower as afore&s;aid. And be|&s;ides the wife mu&s;t thereof have a po&s;|&s;e&s;&s;ion in fait, and not onely in law, ex|cept it be of an Advow&s;on, or of a rent, but otherwi&s;e in Dower.</P>
<P>Q. <HI>What el&s;e is requi&s;ite to make him Tenant by <GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">h<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter"> curte&s;ie?</HI></P>
<P><HI>A.</HI> He mu&s;t have a child by his wife during the Coverture, that is borne a|live</P>
<P><HI>Q. May he forfeit his E&s;tate?</HI></P>
<P><HI>A.</HI> Yes, as tenant in Dower may.</P>
<P><HI>Q. May his wife hurt his e&s;tate, or po&s;|&s;ibilitie of E&s;tate?</HI></P>
<P><HI>A.</HI> Yes, if the wife commit felony be|fore he is intituled to be tenant by the Curte&s;ie, viz. having noe i&s;&s;ue, he &s;hall not be tenant by the Curte&s;ie, but o|therwi&s;e after i&s;&s;ue.</P>
<P><HI>Q. What other particular E&s;tates are there?</HI></P>
<P>A. There is tenant by elegit, &s;tatute Merchant of the &s;taple.</P>
<P>Q. <HI>What is tenant by Elegit?</HI></P>
<PB N="45" REF="25">
<P><HI>A.</HI> It is the Creditor or debtee that hath the moytie of all the lands of the debtor delivered unto him by way of Extent, with all the goods of the &s;aid debtor untill the debt be levyed by the &s;tatute of <HI>VVe&s;tm.</HI> The &s;econd.</P>
<P>Q. <HI>What is tenant by &s;tatute or Recogni|zance?</HI></P>
<P><HI>A.</HI> It is &s;uch a creditor which hath all the lands and tenements of the deb|tor delivered unto him by Extent, un|till the &s;aid debts be paid by the yeare|ly value thereof.</P>
<P>Q. <HI>VVhat if the land extended grow bet|ter and of more yearly profit?</HI></P>
<P><HI>A.</HI> Then the debtor may have an <HI>Au|dita quaerela,</HI> and thereupon &s;horten the Extent and time of payment.</P>
<P><HI>Q. VVhat if the Cognizee purcha&s;e part of the &s;aid land?</HI></P>
<P><HI>A.</HI> If the Cognizee purcha&s;e any part of the &s;aid land after the execution &amp; extent, the whole is di&s;charged; But if it be before the execution, &amp; after the &s;tatute acknow|ledged, it is a di&s;charge for the other Feo|ffees of the &s;aid land. And al&s;o if the Cog|nizor repurcha&s;e the &s;aid land of the Cog|nizee, an extent may be &s;ued thereof.</P>
<P><HI>Q. What if divers &s;trangers be &s;e|verally
<PB N="46" REF="26"> enfeoffed of the &s;aid Land, and an extent be &s;ued again&s;t one onely?</HI></P>
<P><HI>A.</HI> He &s;hall have an <HI>Audita quaerela</HI> to have contribution of the re&s;t. But if the Conizor re&s;erve any part upon &s;uch a Feoffement, and an extent be &s;ued onely again&s;t him, hee &s;hall have a Contribu|tion. <HI>Quaere</HI> if his heire &s;hall have Con|tribution.</P>
<P>Q. <HI>VVhat difference is there between the&s;e Statutes and an Obligation?</HI></P>
<P><HI>A.</HI> The&s;e Statutes binde the land from the time of the acknowledgement, and maketh it liable in who&s;e hands &s;oever it be to pay the Debts. But the Obliga|tion bindeth not the lands nor goods but from the time of the Judgement.</P>
<P>Q. <HI>Doth a writ of wa&s;te lye again&s;t &s;uch a tenant?</HI></P>
<P><HI>A.</HI> No Action of wa&s;te lyeth again&s;t &s;uch a tenant, but an action of accompt.</P>
<P>Q. <HI>Be&s;ides the&s;e grounds of Law, and matters before rehear&s;ed, what is the generall learning of making and di&s;&s;olving of Con|tracts?</HI></P>
<P><HI>A.</HI> Fir&s;t, it is a generall learning, that there mu&s;t be in every Contract <HI>quid pro quo, viz.</HI> Some valuable con&s;ideration between the parties to be payed or per|formed,
<PB N="47" REF="26"> either pre&s;ently, or at a day to come, or el&s;e &s;ome earne&s;t to bee given pre&s;ently, otherwi&s;e the Contract is void; for <HI>ex nudo pacto non oritur actio.</HI> And &s;ome doubt whether a con&s;idera|tion pa&s;t, doe make a contract good. Another learning is, that in an Action of Tre&s;pa&s;&s;e, <HI>quod actio per&s;onalis moritur cum per&s;ona,</HI> and the heire or executor &s;hall not be charged therewith.</P>
<P>Q. <HI>You have rea&s;onably &s;atisfied me in generall concerning grants to men, and from men; Now &s;hew me a little how &s;uch Con|tracts and grants may be di&s;charged and a|voyded by the Law by parties con&s;ent, and I will make an end?</HI></P>
<P><HI>A.</HI> Fir&s;t, it is a generall ground, <HI>Quod nihil e&s;t tam conveniens naturali aequi|tati quam unumquod&abque; di&s;solvi eo ligamine quo ligatur.</HI></P>
<P>Q. <HI>V&V;hat doe you meane by that?</HI></P>
<P><HI>A.</HI> As there are matters of Record, and in fait, and &s;ome matters in fait by writing, and &s;ometime by paroll, the matter of Record generally mu&s;t be de|feated by the like matter, and the mat|ter in writing by matter in writing, and not by paroll, except it be in few ca&s;es.</P>
<P>Q. <HI>Put me a ca&s;e thereof?</HI></P>
<PB N="48" REF="27">
<P><HI>A</HI> If I enter into a Bond to pay &s;ix pounds at a day, I may plead Payment thereof by paroll and witne&s;&s;es, but o|therwi&s;e of a Bond without condition.</P>
<P>Al&s;o every lea&s;e or e&s;tate of Franktene|ment or for yeares, may be drowned by taking an higher e&s;tate in the &s;ame land at any time after. Al&s;o the&s;e le&s;&s;er e&s;tates may be &s;urrendred into greater E&s;tates, and the le&s;&s;er &s;o drowned.</P>
<P>Q. <HI>Put me a ca&s;e thereof?</HI></P>
<P><HI>A.</HI> A lea&s;e is made to one for life, the Remainder to another for life, the Re|mainder to the third in tayle, if he that hath the fir&s;t e&s;tate for life &s;urrender to him in tayle, or in fee, the &s;urrender is voyd, becau&s;e of the meane E&s;tate for life.</P>
<P>Q. <HI>How by Relea&s;es?</HI></P>
<P><HI>A.</HI> There it behoveth that he that re|lea&s;eth hath an E&s;tate in <HI>E&s;se</HI> at the time of the Relea&s;e made, and that he to whom the Relea&s;e is made hath a Franktene|ment in the land, or in fait.</P>
<P>Q. <HI>Somewhat let me under&s;tand the na|ture of Tythes, and what you call them?</HI></P>
<P><HI>A.</HI> It is commonly the tenth part of the yearely profits which the lay man pays to the &s;pirituall man out of his lands, tenements, and hereditaments.</P>
<PB N="49" REF="27">
<P>Q. <HI>How many manner of Tythes are there?</HI></P>
<P><HI>A.</HI> Three, viz. temporall, prediall, and mixt.</P>
<P><HI>Q. When began the&s;e tythes?</HI></P>
<P><HI>A. Abraham</HI> gave the fir&s;t tithes to <HI>Melchi&s;edeck?</HI></P>
<P>Q. <HI>Did</HI> Abraham <HI>then give the tenth of his increa&s;e?</HI></P>
<P><HI>A.</HI> Many doubt whether it was more or le&s;&s;e.</P>
<P>Q. <HI>May the &s;pirituall man take all tho&s;e tithes without deliverie?</HI></P>
<P><HI>A.</HI> Noe, although they be &s;evered the ninth from the tenth, but mu&s;t be &s;et out by the lay man, for <HI>Melchi&s;edeck</HI> did not take his Tythes, but <HI>Abraham</HI> gave his tithes.</P>
<P>Q. <HI>What remedy had the &s;pirituall man if the lay man would not give his tythes?</HI></P>
<P><HI>A.</HI> He had noe remedie before the &s;ta|tute in 2. E. 6. but to &s;ue for the &s;ame in the &s;pirituall Court, for by that &s;ta|tute treble damage are given to the &s;pi|rituall man, upon wrongfull deteyning or taking away the &s;aid Tythes.</P>
<P><HI>Q. Who may pre&s;cribe to have tythes or not to pay Tythes?</HI></P>
<P><HI>A.</HI> Noe lay man except the King, or
<PB N="50" REF="28"> the Patron ought to have Tythes in their owne right, or pre&s;cribe to pay tythe. <HI>&V;ide Cooke le &s;econd part del Re|port Ca: Leve&s;que de Winche&s;ter.</HI></P>
<P><HI>Q. Are tythes alwayes to be payed</HI> pro|prio genere.</P>
<P><HI>A.</HI> Noe lay man can pre&s;cribe in <HI>non decimando,</HI> but in <HI>modo decimandi?</HI></P>
<P>Q. <HI>Of what things are tythes properly to be payd?</HI></P>
<P><HI>A.</HI> Out of &s;uch things as doe increa&s;e and bring a yearely profit, as of Corne, gra&s;&s;e, wood, Cattle, <HI>Silva cedua,</HI> wooll, calves, and &s;uch like.</P>
<P>Q. <HI>What Tythes are to be paid in cut|ting downe of great trees?</HI></P>
<P><HI>A.</HI> None at all, becau&s;e it is a de&s;tructi|on of the &s;tock, and &s;o it &s;eemeth of all wood above twenty yeares growth.</P>
<P>Q. <HI>Where are tho&s;e tythes to be recove|red?</HI></P>
<P><HI>A.</HI> If the right of tythe be in que&s;tion, in the &s;pirituall Court; but if the lay man pre&s;cribe <HI>in modo Decimandi,</HI> then upon the libel, he is to &s;ue a Prohibition, alleaging his manner of tithing, and &s;hall be tryed at the common law by a Iury, for the &s;pirituall Court will allow noe &s;uch plea, but in <HI>proprio genere.</HI></P>
<PB N="51" REF="28">
<P>Q. <HI>To what Spirituall man is the Lay man to pay his Tythes?</HI></P>
<P><HI>A.</HI> Mo&s;t commonly to the Par&s;on or Vicar of the Pari&s;h.</P>
<P>Q. <HI>What? was it alwaies &s;o?</HI></P>
<P><HI>A.</HI> No, before the Councell of <HI>La|tecan,</HI> the Lay man might have pay d his Tythes to any Spirituall man what&s;oe|ver that would take cure of his &s;oule.</P>
<P>Q. <HI>Are all payed at this day to the Par|&s;on or Vicar of the Pari&s;h?</HI></P>
<P><HI>A.</HI> No, &s;ome were given out of hou&s;es of Religion, as to Abbies, Prio|ries, Nunneries, Chaunteries, and &s;uch like.</P>
<P>Q. <HI>How happeneth it that Lay men have, and enjoy Tythes contrary to the Law?</HI></P>
<P><HI>A.</HI> That beganne upon Appropria|tions.</P>
<P>Q. <HI>What meane you by that Sir?</HI></P>
<P><HI>A.</HI> It is a Maxime in Law, that the Fee Simple as well of Tythes, as of all other Lands and Tenements, is &s;uch in &s;ome par&s;onas the fee &s;imple of tithes in the Ordinary, Patron, or Incumbent, which three together may grant or charge the &s;aid Tythes at their plea&s;ures.</P>
<P>Q. <HI>What meane you by that?</HI></P>
<PB N="56" REF="29">
<P><HI>A.</HI> I meane that the Spiritualit heretofore abounding in Livings, wer content with the Patron for gaine or fa|vour to grant a great part of the Tythes to any Lay man.</P>
<P>Q. <HI>What did they u&s;ually grant?</HI></P>
<P><HI>A.</HI> Mo&s;t commonly the Rectory or Par&s;onage either in Fee &s;imple, or for a long terme, and for a &s;mall rent.</P>
<P>Q. <HI>How was the Cure then &s;erved and di&s;charged?</HI></P>
<P><HI>A.</HI> By that means a poore Vicaridge was hatched out of a great Par&s;onage, which Vicar in the&s;e daies di&s;chargeth the cure, and the Lay man holdeth the re&s;idue of the Par&s;onage.</P>
<P>Q. <HI>May &s;uch Lea&s;es bee made at this day?</HI></P>
<P><HI>A.</HI> No, divers Statutes have abridged their power in &s;uch ca&s;e, and e&s;pecially the Statute in 13 <HI>Eliz.</HI> So that they can make no good Lea&s;e but for three lives, or one and twenty yeares, according to the Statute.</P>
<P>Q. <HI>Now la&s;tly a word or two concerning the quantity of Lands and Tenements, and their &s;peciall names and tearmes in Law, and of all manner of Reliefs,</HI> &amp;c. <HI>due for the &s;ame, and then I &s;hall fully make an end?</HI></P>
<PB N="57" REF="29">
<P><HI>A.</HI> Fir&s;t you mu&s;t note, that two Fardells of Land make a Nooke of Land, and two Nookes make halfe a Yard of Land, and two halfe Yards make a Yard Land, and four Yard Lands make a Hide of Land, and foure, and &s;ome &s;ay eight Hides make a Knights Fee, the Reliefe whereof is 5.l. and &s;o ratably. And every Knights Living or Revenue heretofore was, or ought to have been 20.l. <HI>per annum.</HI> And the yearely Revenue of every Baron was, or ought to have been foure hundred Markes. And the yearely Revenue of every Count or Earl 400.l. whereas the Reliefe of a Baron was, and is 100. Marks, of an Earle or Count 100.l. and of every Duke 800.l. So you may note, that the Knights Revenue at the fir&s;t being 20.l. <HI>per annum,</HI> the Baron at the fir&s;t was to have thirteene Knights Fees, and a quarter of a Fee. And the Earle or Count twenty Knights Fees, and the Dukes forty Knights Fees, by which proportion the Reliefes afore|&s;aid were rated, as before is mentioned; which is the rea&s;on that Noblemen ought not to be arre&s;ted or attached by their bodies, becau&s;e the Law doth
<PB N="54" REF="30"> pre&s;ume that they have &s;ufficient Lands and Tenements to di&s;charge any Suite.</P>
<P>And they have the&s;e Dignities given them by the King for two purpo&s;es, <HI>viz. ad con&s;ulend. Regi tempore pacis, &amp; ad defendend. Regem tempore belli;</HI> in token whereof they are adorned with a Cap of honour on their heads, and with a &s;word by their &s;ides.</P>
<P>Al&s;o there is another reliefe due after the death of the Tenant that holdeth by Grand Serjeantie, and likewi&s;e after the death of the Tenant that holdeth in So cage, whereof I have made mention before. And the Reliefe for lands in Soccage is due to the Lord immediately after the decea&s;e of the Tenant, of what age &s;oever the heire is. But of the re&s;t, when the heire hath not been in Ward, and is of full age, at the death of his An|ce&s;tor, &s;uch a Reliefe is due pre&s;ently after the death of his &s;aid Ance&s;tor, being tenant of any &s;uch lands, or of any &s;uch E&s;tate, as before is mentioned.</P>
<TRAILER>&V;ale.</TRAILER>
<EPIGRAPH>
<Q><L>Quicquid agas prudenter agas, &amp; re&s;pice finem,</L>
<L>Lex plus laudatur quando ratione probatur.</L></Q>
</EPIGRAPH>
</DIV1>
</BODY>
</TEXT>
<TEXT LANG="eng">
<FRONT>
<DIV1 TYPE="title page">
<PB REF="30" MS="y">
<P>A BRIEFE TREATISE Concerning <HI>TEN&V;RES</HI> &amp; <HI>ESTATES</HI> in Lands and other Heredita|ments, and of Chattells reall and per&s;onall.</P>
<P>And how any of them may be conveyed in a legall forme by Fine, Recovery, Deed<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter"> or Word, as the Ca&s;e &s;hall require.</P>
<P><HI>By the former Author</HI> W. Noy.</P>
<P><HI>LONDON,</HI> Printed in the Yeare, 1651.</P>
</DIV1>
</FRONT>
<BODY>
<DIV1 TYPE="treatise">
<PB REF="31" MS="y">
<PB N="53" REF="31" MS="y">
<HEAD>A BRIEFE TREATISE Concerning Tenants and E&s;tates in Lands, &amp;c. <HI>Hereditaments and Chattells.</HI></HEAD>
<P>_THe mo&s;t part of all &s;uch things which the Kings Maje&s;tie or any of his Subjects doth or may enjoy, are, according to the tearmes u&s;ed in the lawes of England, either Hereditaments or Chat|tells, wee call &s;uch things Hereditaments, which are Hereditary, and in a naturall bo|dy may di&s;cend from Ance&s;tor to heire,<NOTE PLACE="marg">Heredita|ments Na|turall and Politicall.</NOTE> and from heire to heire for ever, or which in a body politique may &s;ucce&s;&s;ively or other|wi&s;e have a perpetuall continuance, as Ho|nours, Me&s;&s;uages, Dignities, Priviledges, Li|berties and &s;uch like. And to &s;ome purpo&s;e it maketh no matter what e&s;tate or intere&s;t
<PB N="58" REF="32"> the party hath which enjoyeth any &s;uch thing, for although hee hath therein the ba&s;e&s;t or meane&s;t e&s;tate that may be, yet the name of an hereditament in a thing enjoy|ed in a natural &s;ence remayneth, becau&s;e it is in his kind hereditary, and an e&s;tate of in|heritance hath therein alwaies his beeing in &s;ome per&s;on, except by &s;ome accident in &s;ome &s;peciall ca&s;e it happen to be for a time &s;u&s;pended, or for ever extingui&s;hed, as &s;hall afterwards appeare.<NOTE PLACE="marg">Grant the intere&s;t of all the heredita|ments which one oc|cupieth and en|joyeth, doth grant Chattells for yeares al&s;o.</NOTE> And therefore he that hath but a tearme of yeares in Lands, gran|teth his intere&s;t in all the hereditaments which hee occupieth or enjoyeth, his inte|re&s;t in the lands is thereby granted; but yet neverthele&s;&s;e hee that hath therein but a terme for certaine yeares, hath but a Chat|tell, and in regard thereof, in common &s;ence it loo&s;eth the name of an heredita|ment of that, in the mo&s;t u&s;uall and proper &s;ence it retaineth the name of an heredita|ment onely in &s;uch per&s;on as hath therein an e&s;tate of Free-hold or inheritance. And therefore if a man &s;ei&s;ed of certaine lands in Fee, and po&s;&s;e&s;&s;ed al&s;o of other lands for tearme of yeares, doth demi&s;e all his here|ditaments, to another for certaine years, the lands, wherein the Lea&s;&s;or had but a terme doe not pa&s;&s;e thereby no more then
<PB N="59" REF="32"> they &s;hould pa&s;&s;e in the &s;ame ca&s;e if the Lea&s;&s;or had demi&s;ed all his Tenements: and yet in a naturall &s;ence Lands reteine the name of a Tenement and Heredita|ment, as well in a Termor, as it doth in him that hath therein a Freehold or Inheritance.</P>
<P>Al&s;o every Heredita|ment is either
<LIST>
<ITEM>Locall,</ITEM>
<ITEM>Tran&s;itory,</ITEM>
<ITEM>or, Mixt.</ITEM>
</LIST></P>
<P N="1">1. Locall,<NOTE PLACE="marg">Locall.</NOTE> as Me&s;&s;uages, which are vulgarly called hou&s;es or lands, be they Arrable Meadow or Pa&s;ture, <HI>&amp;c.</HI></P>
<P N="2">2. Tran&s;itory,<NOTE PLACE="marg">Tran&s;ito|ry.</NOTE> as Dignities, Priviledges, Liberties, Rents, Services, and &s;uch like.</P>
<P N="3">3. Mixt,<NOTE PLACE="marg">Mixt.</NOTE> as Honours, or Mannors, which con&s;i&s;t of Me&s;&s;uages, Lands, Ser|vices, Priviledges, <HI>&amp;c.</HI></P>
<P>Rectories or Par&s;onages when they con&s;i&s;t of things Locall and Tran&s;itory, as Land, and Tythes, and &s;uch like. But a Rectory when it con&s;i&s;ts onely of Tithes (as &s;ome doth) is a Tran&s;itory Hereditament, and the ob&s;ervation of this difference is very materiall in mat|ter of Conveyance, as &s;hall be hereafter declared. But it &s;eemeth that &s;uch things, whereof no e&s;tate of Inheritance
<PB N="60" REF="33"> is, or ever was in being, are not to bee termed Hereditaments. Al&s;o if a man &s;eized of lands in Fee &s;imple, granteth out of the &s;ame a yearely rent, or com|mon of pa&s;ture for life, or for yeares, this rent or common (as to me &s;eemeth) is not properly any Hereditament; be|cau&s;e no e&s;tate of inheritance is, or e|ver was thereof in being. But if a man &s;ei&s;ed of Fee in lands, doth by &s;uf|ficient conveyance in the Law demi&s;e the &s;ame to another for terme of his life, &amp; limiteth the remainder thereof to the right heires of a man that is living at the time of &s;uch demi&s;e, no e&s;tate of inheri|tance is thereof in being in any per&s;on what&s;oever; for by the Law the e&s;tate of inheritance pa&s;&s;eth out of the Lea&s;|&s;or pre&s;ently, and yet it cannot bee in &s;uch heire to whom it is &s;o limited, un|till the death of his Ance&s;tor; for un|till his death he can have no heire, but the per&s;on which is likely to be his next heire, is in the meane time onely termed his heire apparent. Al&s;o if <HI>J. S.</HI> &s;ei&s;ed of a Rent in Fee, doth by &s;ufficient con|veyance grant the &s;ame to another for life or for yeares, and after the &s;ame <HI>I. S.</HI> doth relea&s;e or grant the rent unto
<PB N="61" REF="33"> him that is Tenant in Fee Simple of the land out of which it is i&s;&s;uing, and to his heires, in which ca&s;e the inheritance of the rent is extinct in the land; yet in a common and proper &s;ence during the &s;aid e&s;tate for life, in the &s;ame, and in a naturall &s;ence, during the &s;aid e&s;tate for yeares, it reteineth the name of an He|reditament: For in both the&s;e ca&s;es, an e&s;tate of Inheritance in the thing demi|&s;ed or granted, had once his being; al|beit by matter <HI>Ex po&s;t facto</HI> in the &s;aid ca&s;e of Remainder, it remaineth in &s;u|&s;pence and abeyance for a time, and in the other ca&s;e extingui&s;hed for ever. And in that which followeth, when I &s;peake generally of things Heredita|ry, or Hereditaments, I meane thereby Hereditaments according to the com|mon &s;ence: Chattels are &s;uch things as are not hereditary, but te&s;tamentary, as moveable goods, Lea&s;es for years, Ward|&s;hip of lands and body, and &s;uch like&punc; And they are called te&s;tamentary, as well becau&s;e by the cour&s;e of the common Law, things onely of that nature,<NOTE PLACE="marg">Diver&s;ity.</NOTE> and not hereditaments (as &s;hall be hereafter declared) might bee di&s;po&s;ed by Will and Te&s;tament. As al&s;o becau&s;e after the
<PB N="60" REF="34">
<GAP DESC="duplicate" EXTENT="1 page">
<PB N="61" REF="34">
<GAP DESC="duplicate" EXTENT="1 page">
<PB N="62" REF="35"> death of &s;uch Te&s;tator, the Law doth transferre the &s;ame to the Executor of his la&s;t Will and Te&s;tament for the pay|ment of his debts and legacies; for un|till a Statute made 32 <HI>H.</HI> 8. Heredita|ments were not di&s;po&s;eable by Will, if the Te&s;tator had therein any greater E&s;tate than for yeares, except &s;uch u&s;e as is afore&s;aid, and Hereditaments that were devi&s;able by Will, by a &s;peciall Cu&s;tome, and not by the common Law. And the cau&s;e whereof an e&s;tate of In|heritance of a u&s;e was Te&s;tamentary by the Common Law, did ari&s;e of the &s;ame e&s;timation which the Law then had thereof, being le&s;&s;e than of a Chattell; for a Chattell was protected by Law a|gain&s;t wrongs, but &s;o was not a u&s;e apt remedy by Law, being for the one or|dained, and not for the other. But it is to bee noted, that albeit other Heredi|taments were not Te&s;tamentary by the cour&s;e of the common Law; yet by e|&s;peciall cu&s;tome in &s;ome Cities and Bur|roughs, the Lands and Tenements there|in &s;cituate were alwaies Te&s;tamentary, in regard of their own nature; as Chat|tels were, but <HI>&s;ub modo</HI> by a &s;peciall cu&s;tome.</P>
<PB N="63" REF="35">
<P>Of Chattels, &s;ome are Reall, and &s;ome are Per&s;onall:<NOTE PLACE="marg">Reall, or Per&s;onall.</NOTE> Chattells Reall are properly &s;uch as doe &s;avour of the Realtie <HI>(viz.)</HI> do con&s;i&s;t of &s;uch things as are in their nature Hereditary, Ward|&s;hips of Lands, or of other Heredita|ments, Lea&s;es, or Intere&s;t for yeares, or at will derived out of any thing where|of an E&s;tate of Freehold or Inheritance hath or had a being: Chattells per&s;o|nall are goods moveable, as Goods, Plate, Money, Oxen, Kine, <HI>&amp;c.</HI><NOTE PLACE="marg">Without life or living.</NOTE> And hereby it appeareth that &s;ome Chattels per&s;onall are without life, and &s;ome living: But it is to bee ob&s;erved yet, that living Creatures <HI>ferae naturae,</HI> as Deere, Conies, Hares, and &s;uch like, are not Goods or Chattells, except they are made tame. Al&s;o Characters or Deeds of any e&s;tate of Inheritance or Free|hold, albeit they be moveable, are not Chattels. Al&s;o Chattels reall, are either Locall,<NOTE PLACE="marg">Local.</NOTE> Tran&s;itory,<NOTE PLACE="marg">Tran&s;ito|ry.</NOTE> or Mixt,<NOTE PLACE="marg">Mixt.</NOTE> in &s;uch ca&s;es as is before ob&s;erved of Heredita|ments; for albeit they are termed chat|tels, in regard of the feeblene&s;&s;e of their e&s;tates, yet the things enjoyned by force of &s;uch intere&s;ts, are for the mo&s;t part by nature Hereditaments; and of the&s;e
<PB N="46" REF="36"> diffe|rences in Chattells reall, &s;ome profi|table u&s;e may be made, as hereafter &s;hall al&s;o appeare. And it is to be noted that &s;ome intere&s;ts for years are derived nei|ther from any Inheritance or Freehold, but onely from a mans per&s;on: As if a man doth by deed create an Annuity for years, without limiting it to I&s;&s;ue, out of any Land or Tenement, the &s;ame is derived onely from the per&s;on which granted it, who in his life time, and his Executors or Admini&s;trators that repre|&s;ent his per&s;on after his death, &s;hall bee onely charged therewith; and therefore as well &s;uch intere&s;t in an Annuity, as al&s;o a Ward&s;hip of the body of an In|fant, which con&s;i&s;teth of a per&s;on, may in a &s;trained &s;ence be termed per&s;onall. But albeit the words <HI>Gaard. de Terre.</HI> in the divi&s;ion of Po&s;&s;e&s;&s;ions in the be|ginning of Mr. <HI>Littletons</HI> Tenures, doe &s;eem to imply, that Ward&s;hip of Body is not to be reckoned in the number of chattels reall; yet it appeareth by o|ther expre&s;&s;e bookes, that Ward&s;hip of Body is no le&s;&s;e reall then the Ward&s;hip of Lands: And therfore &s;uch implication as afore&s;aid, is no proofe, that it is to be reckoned in the number of chattels per|&s;onall
<PB N="65" REF="36"> otherwi&s;e then in a &s;trained &s;ence; or things Tran&s;itory or Moveable, con|&s;i&s;ting of any e&s;tate (As Ward&s;hips con|&s;i&s;ting of a terme during the minority of the Ward, or a terme in an annuity, villeine, <HI>&amp;c.</HI>) are not properly called chattels per&s;onal, but real. Furthermore, becau&s;e &s;ome things which may be en|joyed in forme afore&s;aid, are neither Hereditaments nor Chattels, It is there|fore meet to con&s;ider, in what generall tho&s;e things are compri&s;ed: And as to that it is to be ob&s;erved, that not one-tho&s;e things which are neither Heredita|ments nor Chattels, but al&s;o all Here|ditaments what&s;oever, in every &s;uch per&s;on that hath therein any greater e&s;tate than for yeares, are vouched under the generall name of Free|hold, as in the Chapter next follow|ing it doth more at large appear.</P>
<DIV2 TYPE="part">
<HEAD>Franctenement.</HEAD>
<P>WHat is a Freehold, and what is a Chattell, is very lively &s;et forth in the beginning of <HI>Littletons Tenures,</HI> by the &s;aid figure of divi&s;ion of Po&s;&s;e&s;|&s;ions: whereby it appeareth, that
<PB N="66" REF="37"> al manner of e&s;tates of inheritance, or for life (bee they e&s;tates according to the Common Law, or according to the cu|&s;tome, are compri&s;ed in the name of Franctenement) That is to &s;ay, every of them is aptly termed a Freehold within Judgement of Law, is greater than any e&s;tate for yeares, though it be made for many thou&s;and yeares, in re|gard of any probable pre&s;umption that e&s;tate for life may be more perdu|rable, than &s;uch e&s;tate for yeares: but in regard a Freehold, which is proper as well to any e&s;tate of inheritance, as to an e&s;tate for life, in accompt of Law hath alwaies been had in greater e&s;timation than any e&s;tate for yeares; and for this onely cau&s;e a Terme for yeares is &s;ubject to a forfeiture by an <HI>&V;tlary</HI> in a per&s;o|&s;onall action for an offence, wherein the offender is <HI>felo de &s;e,</HI><NOTE PLACE="marg"><HI>Felo de &s;e</HI> forfeiteth all Chat|tels.</NOTE> and &s;uch like, but no e&s;tate of Freehold (unle&s;&s;e it be by &s;ome &s;peciall cu&s;tome) is &s;ubject to any forfeiture of that kinde. The difference between a Franctenement and Chattels being &s;o di&s;covered as is afore&s;aid; It &s;eemeth fit to proceed to the con&s;idera|tion of E&s;tates. An E&s;tate is that which in Latine wee call <HI>Status;</HI><NOTE PLACE="marg">Diver&s;ities.</NOTE> and it may
<PB N="67" REF="37" MS="y"> aptly be thus defined, viz.<NOTE PLACE="marg">The defi|nition of an e&s;tate.</NOTE> An e&s;tate is a permanent abode or Continuance for for a time or for ever, in a thing of &s;uch nature as either is, may, or might be here|ditary, as Mannors, Mills, Lands, Te|nements, Rents, Services, Commons, Dignities, Liberties, Franchi&s;es, Privi|ledges, Offices, and &s;uch like; but no e&s;tate can be proper to Chattells per&s;o|nall. And for that cau&s;e a gift thereof for a momentary time is of like force as if if it were given for ever. But it may be objected that &s;o it may be &s;aid of a of a terme for yeares in lands or other hereditaments (that is to &s;ay) if &s;uch a terme be given or granted for an houre; it is of like force, as if it were given or granted for ever, yet &s;uch terme therein is properly called an e|&s;tate. To which objection I an&s;wer, that although the lawe be &s;o in a grant of a terme, which is as much to &s;ay, his whole intere&s;t in the thing, wherein he is &s;o in|tere&s;&s;ed (viz.) his land, and not his terme therein for one houre; the Gran|tee &s;hall enjoy it no longer then for the time &s;o lymitted, but otherwi&s;e it is of &s;uch gift or grant of Chattells per&s;o|nall; but herein a difference<NOTE PLACE="marg">Diffe|rence.</NOTE> is to be ob|&s;erved,
<PB N="68" REF="38"> betweene &s;uch a gift or grant of goods moveable, and a demi&s;e there|of; for although a grante for yeares of things properly devi&s;able doth enure as a demi&s;e or lea&s;e thereof, yet &s;uch grant hath not the like operation in a thing devi&s;able; only in an unproper or bor|rowed &s;ence.</P>
<P>And therefore albeit a grant of goods moveable for a time, doth alter the property for ever; yet a demi&s;e ther|of for a time &s;hall only enure as a di&s;po|&s;ition of the proffits thereby ari&s;ing du|ring that time. As for example. If a &s;tock of &s;heepe or kine be leten for certaine yeares, the Lea&s;&s;ee hath not thereby the generall property thereof, but onely a &s;peciall intere&s;t or property therein, by force whereof he may take the proffit thereof during the terme; but &s;uch inte|re&s;t therein is not properly an e&s;tate. And albeit it be vulgarly called a lea&s;e of &s;uch Kine or &s;heepe, yet it is not &s;o to be ter|med, otherwi&s;e then in a borrowed &s;ence; For if a man &s;o intere&s;&s;ed therein is like|wi&s;e po&s;&s;e&s;&s;ed of other lea&s;es of lands, and granteth all his lea&s;es to another, his intere&s;t in the&s;e Chattells per&s;o|nall, or the profits thereof, will not pa&s;&s;e
<PB N="69" REF="38"> thereby.<NOTE PLACE="marg">1 Generall</NOTE> Of E&s;tates &s;ome are Gene|rall, and &s;ome Particular,<NOTE PLACE="marg">2 Particu|lar</NOTE> as hereafter appeareth.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Generall E&s;tates.</HEAD>
<P>A Generall E&s;tate is that which wee terme an E&s;tate in Fee Simple, which is the greate&s;t and large&s;t E&s;tate that may be; and it is divided by <HI>Lit|tleton</HI> in his fir&s;t Chapter of his fir&s;t booke according to the Etymology of the words Fee Simple, which in Latine are called <HI>Feodum &s;implex, quia feodum i|dem e&s;t quod Hereditas, &amp; &s;implex idem e&s;t quod legitimum vel purum, &amp; &s;ic Feodum &s;implex idem e&s;t quod hereditas legitima vel hereditas pura;</HI> and it received the name of a generall e&s;tate, not onely becau&s;e it was the mo&s;t common and u&s;uall of all other e&s;tates; but al&s;o for that in regard of the amplene&s;&s;e thereof it is exempted from the number of all particular e|&s;tates.</P>
<P>But yet it is further to be ob&s;erved, that there be three kindes of Fee Sim|ple; The fir&s;t a Fee Simple without any other addition. The &s;econd a Fee Sim|ple
<PB N="70" REF="39" MS="y"> determinable. The third a ba&s;e Fee Simple.</P>
<P>The fir&s;t of the&s;e is more generall and common than any of the re&s;idue, and it can never peri&s;h &s;o long as the &s;ub&s;tance, whereof the e&s;tate ari&s;eth, hath any be|ing. And therefore albeit that hee, which is &s;ei&s;ed of &s;uch e&s;tate, happen to to dye without heire, yet the &s;ame e|&s;tate is not extingui&s;hed but by act in Law, in &s;ome other degree transferred to the Lord, of whom the &s;aid Lands were holden by way of E&s;cheate, be|cau&s;e the land wherein the Tenant hath &s;uch e&s;tate, doth &s;till continue; but if a man &s;ei&s;ed in Fee of a rent charg, or rent &s;eck, dyeth without heire, this Fee &s;im|ple,<NOTE PLACE="marg">Ab&s;olute Conditio+nall.</NOTE> although it be of the fir&s;t &s;ort, doth peri&s;h, becau&s;e the rent, wherein hee hath e&s;tate, being tran&s;itory, is by &s;uch dying without heire, quite &s;wallowed up and drowned in the land, out of which it did i&s;&s;ue. And albeit a Fee &s;im|ple of this kinde is &s;ometimes ab&s;olute, &s;ometimes conditionall, yet the condi|tion thereunto annexed, doth not alter the &s;ame in nature or kinde, but onely in the accidentall quality.</P>
<PB N="71" REF="39" MS="y">
<P>Secondly, a Fee &s;imple determinable is &s;uch as may be determined by a &s;peci|all limitation before the efluction of the time compri&s;ed in the generall and proper limitation.</P>
<P>Thirdly a ba&s;e Fee-&s;imple is when two Fee-&s;imples in one thing are in being at one time, the one being in nature more worthy then the other. In which ca&s;e that that is the lea&s;t worthy, is called a ba&s;e Fee-&s;imple, becau&s;e it is ba&s;e in re|&s;pect of the other.</P>
<P>There is a generall rule in the law, that none can have an e&s;tate lively, but the Donee; which is the party to whom it is given, or the heires of his body.<NOTE PLACE="marg">Every e&s;tate of inheri|tance is either fee-&s;imple or fee-tayle.</NOTE> And it is further to be ob&s;erved, that every e&s;tate of inheritance is either Fee-&s;imple, or Fee-taile; of the one hath been &s;ufficiently &s;poken for this time: For the other, &s;ome further touch &s;hall be given in the Chapter next follow|ing.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Particular E&s;tates.</HEAD>
<P>A particular e&s;tate is &s;uch as is de|rived from a generall e&s;tate by &s;epa|ration
<PB N="72" REF="40"> of one from the other; As if a man &s;ei&s;ed in Fee &s;imple of lands or Te|nements, doth thereof Create by gift, or grant an e&s;tate Tayle, or by demi&s;e, a lea&s;e for life, or any e&s;tate for yeares, the&s;e are in the Donee or Lea&s;&s;ee parti|cular e&s;tates in po&s;&s;e&s;&s;ion, derived and &s;e|parated from the Fee &s;imple in the Do|nor or Lea&s;or, in rever&s;ion. Al&s;o if lands be demi&s;ed to <HI>A.</HI> and the e&s;tate tayle ly|mitted to <HI>B.</HI> the&s;e are particular e&s;tates derived <HI>ut &s;upra,</HI> and &s;eparated in intere&s;t from the Fee &s;imple in remainder given to <HI>C.</HI> albeit the &s;ame remainder doth depend upon tho&s;e particular e&s;tates. And of particular e&s;tates, &s;ome are Created by agreement betweene the parties, as the particular e&s;tates before &s;pecified; and &s;ome by the act of law, as the &s;tate of tenant entayle, apres po&s;&s;ibility, d 'i&s;&s;ue extinct, E&s;tates by the Curte&s;y of Eng|land, Dower and ward&s;hipp. For albeit an e&s;tate in Dower be not compleate, untill it be a&s;&s;igned, which oftentimes is is done by a&s;&s;ent and agreement be|tweene parties; yet becau&s;e the party, that &s;o a&s;&s;igneth the &s;ame, is compellable &s;o to doe by cour&s;e of law; that e&s;tate is al&s;o &s;aid to be only created by law.
<PB N="73" REF="40"> Al&s;o an e&s;tate at will is a kinde of par|ticular e&s;tate, but yet not &s;uch as maketh any divi&s;ion of th' e&s;tate of the Lea&s;or, for notwith&s;tanding &s;uch e&s;tate, the Lea&s;or is &s;ei&s;ed of the lands in his demea&s;ne, as of Fee in po&s;&s;e&s;&s;ion, and not in rever&s;ion: Al&s;o an e&s;tate at will is not &s;uch a par|ticular e&s;tate, whereupon remainder may depend. But of all the &s;tates before men|tioned many fruitfull rules and ob&s;erva|tions are both generally and particular|ly &s;o lively &s;et forth by the &s;aid Mr. <HI>Lit|tleton</HI> in the 1. 2. 4. 5. 6. 7. and 8th. chap|ters of his fir&s;t booke, which is extant a&s;|well in Engli&s;h as in French; whereunto I refer you.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Po&s;&s;e&s;&s;ion.</HEAD>
<P>IT is further to be ob&s;erved, that all e&s;tates that have their being are in po&s;|&s;e&s;&s;ion, rever&s;ion, remainder, or in right, but of all the&s;e po&s;&s;e&s;&s;ion is the princi|pall, for that it is the full fruition of all the fruite of the e&s;tate. There are two de|grees of po&s;&s;e&s;&s;ion, The fir&s;t and Chief|e&s;t po&s;&s;e&s;&s;ion in <HI>fait,</HI><NOTE PLACE="marg">Two de|grees of po&s;&s;e&s;&s;ion
<LIST>
<ITEM>1 po&s;&s;e&s;&s;i|on in <HI>fait.</HI></ITEM>
<ITEM>2 po&s;&s;e&s;&s;i|on enley.</ITEM>
</LIST></NOTE> the other po&s;&s;e&s;&s;ion in law. Po&s;&s;e&s;&s;ion in <HI>fait</HI> or deede is &s;uch as is before &s;poken of, and that is
<PB N="74" REF="41"> mo&s;t proper to an e&s;tate which is pre&s;ent and immediate, but &s;uch po&s;&s;e&s;&s;ion of immediate e&s;tate, if it be no greater then a terme; doth operate and endure to make the like po&s;&s;e&s;&s;ion of the Free-hold, or Rever&s;&s;on. When a man is &s;aid to have a terme, it is to be intended a terme of yeares; when it is &s;aid, a man to have the Fee of Lands, it is al&s;o to be intended a Fee &s;imple; po&s;&s;e&s;&s;ion in Law, is that po&s;&s;e&s;&s;ion which the Law it &s;elfe ca&s;teth upon a man before any entry or perancy of profits. As if there be a Fa|ther and Sonne, and the Father dyeth &s;ei&s;ed of lands in Fee, and the &s;ame doe de&s;cend to his &s;onne as his next heire, in this ca&s;e before any entry, the &s;onne hath a po&s;&s;e&s;&s;ion in Law. So it is al&s;o for a Rever&s;ion expectant, or a Remain|der dependant upon a particular e&s;tate for life; In which ca&s;e, if Tenant for life die, he in rever&s;ion or remainder be|fore his entry, hath onely po&s;&s;e&s;&s;ion in Law. All manner of po&s;&s;e&s;&s;ions, that are not po&s;&s;e&s;&s;ions <HI>en fait,</HI> are onely po&s;&s;e&s;&s;ions in Law; and it is to bee ob&s;erved, That if a man have a greater e&s;tate in Lands than for years, the proper phra&s;e of &s;peech is, that
<PB N="75" REF="41"> he is thereof &s;ei&s;ed; but if for yeares onely, then he is thereof po&s;&s;e&s;&s;ed; but yet neverthele&s;&s;e the &s;ub&s;tantive po&s;&s;e&s;|&s;ion is proper, as well to the one as the other.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Rever&s;ion.</HEAD>
<P>A Rever&s;ion is properly an E&s;tate which the Law re&s;erveth to the Donor, Grantor, Lea&s;&s;or, or &s;uch like, when he doth di&s;po&s;e a Lea&s;e, or other e&s;tate in Law, then that whereof he was &s;ei&s;ed at the time of &s;uch di&s;po&s;ition. As if a man &s;ei&s;ed of lands in Fee, doth give the &s;ame to another, and the heires of his body, or if hee doe de|mi&s;e the &s;ame for life or yeares, in this ca&s;e the Law reverteth the rever&s;ion thereof in Fee to the Donor, or Lea&s;&s;or, or his heires, becau&s;e hee departed not with his whole e&s;tate, but onely with a particular e&s;tate, which is le&s;&s;e than his e&s;tate in Fee: And &s;uch rever&s;ion is &s;aid to be expectant upon the particular e|&s;tate al&s;o, if he that is but a Tenant for life of land by deed or parol, giveth the &s;ame to <HI>I.S.</HI> in tayle, or for terme of his life, which is a greater e&s;tate than he may
<PB N="76" REF="42"> lawfully di&s;po&s;e; in this ca&s;e the Law re&s;erveth a rever&s;ion in Fee in &s;uch Do|nor, though he were formerly but Te|nant for life. And the rea&s;on thereof is, for that by &s;uch unlawfull di&s;po&s;ition, which by deed or word cannot be with|out livery and &s;ei&s;in, he doth by wrong pluck out the rightfull e&s;tate in Fee, that was thereof formerly &s;ei&s;ed in rever&s;ion or remainder, and by force thereof, by a priority of time gained in an in&s;tant, he was &s;ei&s;ed of a Fee &s;imple at the time of the execution thereof. But if a man &s;ei&s;ed of lands in Fee &s;imple, giveth the &s;ame unto <HI>A.</HI> and his heires untill <HI>B.</HI> do dye, without heire of his body; in this ca&s;e the Law re&s;erveth no rever&s;ion in the Donor, becau&s;e the &s;tate &s;o di&s;po|&s;ed to <HI>A.</HI> is a Fee &s;imple, which though it be a Fee &s;imple determinable, is in na|ture &s;o great, as the &s;tate which the Do|nor had at the time of &s;uch gift, and con&s;equently he departed thereby with all his e&s;tate. And thereby an apparent difference is between a gift made to <HI>A.</HI> and the heires of his own body, and a gift made to him and his heires un|till <HI>B.</HI> dye without heire of his body; for in the one ca&s;e the Donee hath but
<PB N="77" REF="42"> an e&s;tate taile, in the other a Fee &s;imple determinable; <HI>A.</HI> hath a po&s;&s;e&s;&s;ion of rever&s;ion; for if <HI>B.</HI> dye without heire of his body, then whether <HI>A.</HI> be living or dead, the land &s;hall revert to the Do|nor. But &s;uch po&s;&s;ibilitie of Rever&s;ion is much differing from the nature and property of a Rever&s;ion; for he that hath but &s;uch a po&s;&s;ibility, hath no e&s;tate, nor hath hee power to give his po&s;&s;ibility; but in the other ca&s;e, the Donor hath e&s;tate in Fee, and therefore hee hath power to di&s;po&s;e thereof at his plea|&s;ure.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Remainder.</HEAD>
<P>A Remainder is a remnant of an e|&s;tate di&s;po&s;ed to another at the time of creation of &s;uch particular e|&s;tate whereupon it doth depend. As if <HI>I. S.</HI> &s;ei&s;ed of lands in fee, demi&s;eth the &s;ame to <HI>B.</HI> for life, the Remainder to <HI>C.</HI> and the heires of his body, the re|mainder to <HI>D.</HI> and his heires; In this ca&s;e <HI>B.</HI> hath a particular e&s;tate for life, and the remnant of the e&s;tate of the Lea&s;&s;or is then al&s;o di&s;po&s;ed to <HI>C.</HI> and
<PB N="79" REF="43"> <HI>D. ut &s;upra</HI> whereby <HI>B.</HI> hath an e&s;tate for life: <HI>C.</HI> A remainder in tayle: and <HI>D.</HI> a remainder in Fee depending in order upon the particular e&s;tate in po&s;&s;e&s;&s;ion; and in every remainder five things are requi&s;ite.<NOTE PLACE="marg">5 things Required in a re|mainder.</NOTE></P>
<P N="1">1. That it depend on &s;ome particular e&s;tate.</P>
<P N="2">2. That it pa&s;&s;e out of the Donor grantor or lea&s;&s;or at the time of Creati|on of the particular e&s;tate, whereupon it mu&s;t depend.</P>
<P N="3">3. That it ve&s;t during the particular e&s;tate, or at the in&s;tant time of the deter|mination thereof.</P>
<P N="4">4. That when the particular e&s;tate is created, there be a remnant of an e&s;tate left in the Donor to be given by way of remainder.</P>
<P N="5">5. That the per&s;on or body, to whom the remainder is limitted, be either ca|pable at the time of the limitation thereof, or el&s;e <HI>Potentia propinqua</HI> to be thereof capable during the particular e&s;tate; If lands be given to <HI>I. S.</HI> and his heires the remainder for default of &s;uch heire, to <HI>I D.</HI> and his heirs, that remainder is voyd becau&s;e it doth not depend upon any particular e&s;tate. But
<PB N="78" REF="43"> if land be given to <HI>I D.</HI> and his heires during the life of <HI>I,</HI> <MILESTONE UNIT="Rea&s;on."> <HI>N.</HI> the remainder to <HI>I B.</HI> this remainder is good,<NOTE PLACE="marg"><P>No re|mainder can de|pend upon a Fee &s;im|ple.</P>
<P>But up|on a par|ticular e|&s;tate de|&s;cendable. <HI>Nota.</HI></P></NOTE> for it is not limitted to depend upon a Fee-&s;im|ple, but upon a particular e&s;tate, which is only called an e&s;tate for life of <HI>I B.</HI> di&s;|cendable. If lands be given to <HI>B.</HI> For twelve yeares, if <HI>C.</HI> Doe &s;o long live, the remainder after the death of <HI>C.</HI> to <HI>D</HI> in Fee, the remainder is voyd, for in that ca&s;e it cannot pa&s;&s;e out of the <HI>Leor. al temps dl Creation dl perticuler e&s;tate p^r. ans.</HI> But if a lea&s;e be made to <HI>B.</HI> for life, the remainder to the heires of <HI>C.</HI> who is then living, this remainder is good up-a contingency, That if <HI>C.</HI> Dye in the life of <HI>B.</HI> For this remainder may well pa&s;&s;e ount of the Lea&s;or, <MILESTONE UNIT="Rea&s;on."> pre&s;ently in a|bayance, without any inconvenience, be|cu&s;e only the inheritance is &s;eparated from the Freehold as in abayance.</P>
<P>If lands be given for life with a re|remainder to the right heires of <HI>I S.</HI> and the tenant for life dieth in the life of <HI>I S.</HI> This remainder is void, be|cau&s;e it did not ve&s;t or &s;ettle either du|ring the particular e&s;tate, or at the time of the determination thereof; for un|till <HI>I S.</HI> dye, no per&s;on is thereof, capable
<PB N="80" REF="44"> by the name of his heires; but if lands be given to <HI>I. S.</HI> for terme of his life, the remainder to his right heire in the &s;ingular number, and the heires of his body; and after <HI>I. S.</HI> hath i&s;&s;ue a &s;on and dyeth, this is a good Remainder, and the &s;onne hath thereby an e&s;tate tayle; for although it were unpo&s;&s;ible, that &s;uch remainder &s;hould ve&s;t during the parti|cular e&s;tate; becau&s;e during his life none could be his heire; yet it might ve&s;t at the in&s;tant of his death, which was at the time of his determination of the particular e&s;tate. Concerning a fourth thing, if a man &s;ei&s;ed of lands in Fee, granteth out of the &s;ame rent or common of pa&s;ture, or &s;uch like thing (which before the grant had no being) to <HI>I. S.</HI> for terme of his life, the remainder to <HI>I. D.</HI> in Fee, this re|mainder is voyd; becau&s;e of this thing granted, there was no remainder in the grantor to di&s;po&s;e. And whereas &s;ome heretofore have been of opinion, that albeit the &s;ame can take no effect as a remainder, yet it &s;hall take effect as another grant of a new rent or com|mon, <HI>ut res magis valeat quam pereat.</HI></P>
<P>There is a rule of Law, that all things
<PB N="81" REF="44"> enjoyed in a &s;uperior degree,<NOTE PLACE="marg">A Maxim.</NOTE> &s;hould not pa&s;&s;e under the name of a thing in an in|ferior degree: and therefore if lands be given to two per&s;ons, and unto the heirs of one of them, or unto the husband and wife, and the heires of the husband, and he that hath the e&s;tate of inheritance granteth the rever&s;ion of the &s;ame land to another in Fee, &s;uch grant is voyd, becau&s;e the grantor thereof was &s;ei&s;ed in a &s;uperiour degree, <HI>viz.</HI> in po&s;&s;e&s;&s;ion, <MILESTONE UNIT="Rea&s;on."> and not in rever&s;ion, as appeareth 12^o. <HI>Edw.</HI> 4. 12 <HI>&amp;</HI> 13 <HI>Edw.</HI> 3. <HI>Brooke, Title of Grants.</HI> And concerning the fift and la&s;t thing; If a Lea&s;e be made of Land for terme of life, the Remainder to the Major and Commonaltie of <HI>D.</HI> whereas there is no &s;uch Corporation then in being, this Remainder is meer|ly voyd; albeit the Kings Maje&s;ty by his Letters Patents doe create &s;uch Cor|poration during the particular e&s;tate, at the time of &s;uch grant the Remainder was voyd, becau&s;e then there was no &s;uch body Corporate thereof capable, or in <HI>potentia propinqua</HI> to bee crea|ted or made capable thereof during the particular e&s;tate; but the po&s;&s;i|bility thereof was then forraigne,
<PB N="82" REF="45"> and not prabably intended. The like law is if a Remainder bee limited to <HI>Io:</HI> the Sonne of <HI>T. H.</HI> who had then no Sonne, and afterwards during the parti|cular e&s;tate, a &s;onne is born, who is na|med <HI>Iohn,</HI> yet this Remainder is voyd; for at the time of &s;uch grant, it was not probably to bee intended that <HI>T. H.</HI> &s;hould have any &s;onne of that name. Al&s;o before the di&s;&s;olution of Abbies, if a lea&s;e of lands were made to <HI>I. S.</HI> for life, the Remainder to one that then was a Monk, &s;uch Remainder was voyd, for the cau&s;e before alleadged, albeit he were deraigned during the particular e|&s;tate: but if &s;uch Remainder had been limited to the fir&s;t begotten Sonne of <HI>I. S.</HI> it had been good, and &s;hould accordingly have ve&s;ted in &s;uch &s;onne afterwards born during the particular e&s;tate.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Rights.</HEAD>
<P><NOTE PLACE="marg">A twofold Right.</NOTE>A Right in Law is either cloathed, or naked. A Right cloathed is when it is wrapped in a Po&s;&s;e&s;&s;ion, Re|ver&s;ion, or Remainder. A naked Right, which is al&s;o mo&s;t commonly called a
<PB N="83" REF="45" MS="y"> Right, is when the &s;ame is &s;eparated from the po&s;&s;e&s;&s;ion or remainder by di&s;|&s;ei&s;in, di&s;continuance, or other deve&s;ting and &s;eparating of the po&s;&s;e&s;&s;ion from it. As for example, if a lea&s;e of land be made for life to <HI>I. S.</HI> the remainder to <HI>I. D.</HI> in Fee; in this ca&s;e <HI>I. S.</HI> hath a Right cloathed with a po&s;&s;e&s;&s;ion, and <HI>I. D.</HI> clothed with a remainder; but if a &s;tranger that hath no right or title, doth in the &s;ame ca&s;e enter into the land by wrong, &amp; put <HI>I. S.</HI> forth of po&s;&s;e&s;&s;ion, &s;uch entry by wrong, is called a di&s;&s;ei&s;in: &amp; therefore the po&s;&s;e&s;&s;ion is moved from the right; for by rea&s;on thereof, the di&s;|&s;ei&s;or is &s;ei&s;ed of the land, and <HI>I. D.</HI> hath al&s;o the like naked right to the Remain|der by &s;uch di&s;&s;ei&s;in, is likewi&s;e de|ve&s;ted and plucked out of him, and can|not be reve&s;ted in him during the right of &s;uch particular e&s;tate, unle&s;&s;e the po&s;&s;e&s;&s;ion of the particular Tenant be therewith reve&s;ted, which mu&s;t bee by his entry, or recovery by action, and by &s;uch entry of the particular Tenant, or by his recovery with execution, the Remainder &s;hall be reve&s;ted as well as the particular e&s;tate. Al&s;o there is a Right in Goods and Chattels, as well as
<PB N="84" REF="46"> in Lands, Tenements and Heredita|ments, which is al&s;o clothed with a po&s;&s;e&s;&s;ion, &s;o long as the rightfull pro|prietor hath the &s;ame, but if another doth take them from him by wrong, he now hath onely a naked Right to the &s;ame, which cannot be by him granted for the cau&s;e before alleadged; but yet he may relea&s;e his right therein to him that is thereof po&s;&s;e&s;&s;ed; for the &s;ame rea&s;on it is before alleadged of a relea&s;e of Right in Land, and if &s;uch right hap|pen to be forfeited to the King, his High|ne&s;&s;e may grant the &s;ame by his Prero|gative.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Common Recoveries.</HEAD>
<P>A Common Recovery is &s;uch as is &s;uffered and recovered by the a&s;|&s;ent of both parties to the &s;ame of any Mannors, Lands, Tenements, Advow|&s;ons, Rents, Services, or other Here|ditaments for &s;uch e&s;tate thereof, and to &s;uch u&s;e or u&s;es as are between them agreed upon; and it is mo&s;t commonly &s;uffered by the Writ of <HI>Entry &s;ur di&s;&s;ei|&s;in in le po&s;t.</HI> the nature of which Writ is &s;ufficiently &s;et forth by Ju&s;tice <HI>Fitz-Herb.</HI>
<PB N="85" REF="46"> in his book of <HI>Natura Breviu~,</HI> albeit &s;ometimes it hath been, &amp; may be al&s;o u-in other actions. And &s;uch common re|covery is u&s;uall by &s;ingle, double, or treble voucher, as the cau&s;e doth require. And for the better under&s;tanding hereof, it is requi&s;ite to ob&s;erve the terms of Law u&s;ed therein. The immediate party that recovereth, is called the Recove|ror; and the party again&s;t whom the Recovery is had, is called the Recoveree; but in the proceeding therein, hee that is to recover is called the Demandant, and the party again&s;t whom the imme|diate recovery is to be had, is called Te|nant; for it is to be noted, that he mu&s;t be Tenant of the Freehold, or el&s;e the Recovery cannot be a good and &s;uffi|cient a&s;&s;urance in the Law. A voucher is the calling into the Court of &s;ome o|ther per&s;on to warrant the land; and he that fir&s;t voucheth <HI>(viz.)</HI> he that cal|leth another to warranty, is the Tenant, and the party vouched termed the Vou|chee or Tenant by the warrantie. And in a Recovery with a &s;ingle voucher, are included two Recoveries, <HI>viz.</HI> one at the &s;uite of the Demandant again&s;t the Tenant, and another at the &s;uite of the
<PB N="86" REF="47" MS="y"> Tenant again&s;t the Vouchee. And if it be with a double Voucher there are in|cluded in it, three Recoveries, one by the demand again&s;t the Tenant, one o|ther by the Tenant again&s;t the Vouchee, and the third by the fir&s;t Vouchee a|gain&s;t the &s;econd Vouchee. And in a Recovery with a treble Voucher, are included foure Recoveries, whereof three are &s;uch as are la&s;t mention<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">d &amp; a fourth is a Recovery by the &s;econd Vou|chee again&s;t the third; and in the&s;e Re|veries the Demandant hath Judgement to recover the land again&s;t the Tenant, and the Tenant hath likewi&s;e Judgment to recover in value again&s;t the Vouchee; and if it be with a double Voucher, the fir&s;t Voucher hath al&s;o the like Judge|ment to recover in value again&s;t the &s;e|cond; and if it be with a treble Vou|cher, the &s;econd Vouchee hath the like Judgement again&s;t the third. And the Record al&s;o maketh mention of the execution of the Judgement again&s;t the Tenant by Entry, or Writ of <HI>Habere fac &s;ei&s;inam</HI> accordingly. And when &s;uch Recovery is &s;o executed, the u&s;es agreed upon, do forthwith ari&s;e out of the Lands, Tenements, <HI>&amp;c.</HI> &s;o recove|red
<PB N="87" REF="47"> accotding to the mutuall agreement of the parties.<NOTE PLACE="marg">Recoveries with &s;ingle voucher.</NOTE> The &s;cope of a common Recovery, with a &s;ingle Voucher, is to barre the Tenant and his heires of &s;uch onely e&s;tate taile which then is in him, to barre others of &s;uch e&s;tates as they have in any Rever&s;ion expectant, or re|mainder dependant upon the &s;ame. And of all Lea&s;es and Incumbrances derived out of &s;uch Rever&s;ions or Re|mainders. The &s;cope of a common Recovery with a double Voucher,<NOTE PLACE="marg">Recovery with dou|ble vou|chcr.</NOTE> is to barre the fir&s;t Voucher and his heires of every &s;uch e&s;tate as at any time was in the &s;ame Voucher, or any of his An|ce&s;tors, who&s;e heire hee is of &s;uch e&s;tate; and all other per&s;ons of &s;uch right to a Rever&s;ion or Remainder, as were thereupon at any time expectant or de|pendant; and of all Lea&s;es, Charges, and Incumbrances derived out of any &s;uch rever&s;ion or Remainder, and that will be al&s;o a perpetual bar of &s;uch e&s;tate whereof the Tenant was then &s;ei&s;ed of in rever&s;ion or remainder expectant, or dependant upon the &s;ame, <HI>&amp;c.</HI><NOTE PLACE="marg">Recovcry with tre|ble vou|cher.</NOTE> The &s;cope of a common recovery with a treble Voucher, is to make a perpetuall barre of the E&s;tata of the Tenant, and of
<PB N="88" REF="48"> every &s;uch e&s;tate of inheritance as at any time had been in the fir&s;t or &s;econd vou|chee, or any of them, or either of their Ance&s;tors, who&s;e heires he, or they are of &s;uch e&s;tate, and as well of every Re|ver&s;ion thereon dependant, as al&s;o of all Lea&s;es, E&s;tates, Charges, and Incum|brances derived out of any &s;uch Rever|&s;ion or Remainder.</P>
<P>The Law doth &s;o protect the Kings Po&s;&s;e&s;&s;ions, that they cannot be deve&s;ted or taken from him by any faigned Re|covery, Di&s;&s;ei&s;in; and &s;uch protection thereof doth al&s;o &s;upport and pre&s;erve the remote rever&s;ion and remainder pur|&s;uing the &s;ame, that they cannot bee deve&s;ted by a faigned recovery &s;uffered by Tenant in taile in po&s;&s;e&s;&s;ion, or by his Feoffement, or by any di&s;&s;ei&s;in of the Freehold; but yet &s;uch Recovery will be &s;ufficient of the particular e&s;tate taile, of the Recoveree or Vouchee, and of &s;uch Rever&s;ion there upon dependant as are in <HI>e&s;&s;e</HI> between his e&s;tate and Remain|der in the King, unle&s;&s;e the e&s;tate taile of the Recoveree or Vouchee were created by Letters Patents of his Highne&s;&s;e, or of &s;ome of his Progenitors, or by his, or &s;ome of their provi&s;ion.</P>
</DIV2>
<DIV2 TYPE="part">
<PB REF="48" MS="y">
<HEAD>Fines.</HEAD>
<P>AS a common Recovery is an a&s;&s;u|rance of the greate&s;t force to barre &s;uch rever&s;ions and remainders as are a|fore&s;aid in the precedent Chapter, &s;o to another purpo&s;e, that is to &s;ay, to Con|clude &s;trangers of their right, if they doe not make their claime according to the forme of the Satutes in that behalfe made' a Fine, is before all other a&s;&s;urances to be preferred, and it recei|veth the name of a Fine, <HI>Quia finis fi|nem legibus imponit.</HI> In every fine there are two &s;everall parties, the Commi&s;&s;or, and the Commi&s;&s;ee; the party levying the Fine is called the Commi&s;&s;or, and he to whom it is levyed, is called the Commi&s;&s;ee. A fine is partly &s;aid to be le|vyed, when it is knowledged, in the Court, or when it being knowledged el&s;e where, is certified into the Court, and received to be there ingo&s;&s;ed and recorded. There are two &s;orts of Fines, the one at common law, the other levyed and proclaymed according to the &s;ta|tute. Two &s;everall &s;tatutes are chiefly to be con&s;idered in fine levyed, and pro|claymed according to the forme of a &s;tatute, the one of them is the &s;tatute of
<PB N="90" REF="49"> 1. <HI>R.</HI> 3. chap. 7.<NOTE PLACE="marg">1. <HI>R.</HI> 3. cap. 7. 4. H. 7 cap. 24. 32. H. 8. cap. 36.</NOTE> The other is the &s;tatute of 4. H. 7. chap. 24. being in &s;ome thing afterwards explained by a &s;tatute made in <HI>Anno</HI> 32. H. 8. chap. 36. the number of the&s;e proclamations are foure: and to be made at foure &s;everall termes, and a fine levyed, and proclai|med, in the Kings Maje&s;ties Court, be|fore his Ju&s;tices of the common Pleas: of any lands, or hereditaments is or|deyned to be a finall end, and to con|clude as well privies as &s;trangers to the &s;ame, except &s;uch &s;trangers as are wo|men, Covert per&s;ons then being with|in age viz. the age of 21. yeares, in per&s;on, or out of this Realme, or not of whole minde, at the time of &s;uch fine levyed. But this exception is conditio|nall, viv. that they or their heires, inheri|table to the &s;ame lands &amp;c. doe take their action or lawfull entry according to their right and title, within five yeares next after they be of full age of 21. yeares, out of pri&s;on, uncovert, within this Realme, and of whole mind, and the &s;ame actions &s;ue, or their lawfull entries take and pur&s;ue according to the law. Concerning fines with procla|mations, five things are to be ob&s;erved.
<PB N="91" REF="49"> Fir&s;t the time of levying and proclai|ming the &s;ame.<NOTE PLACE="marg">5 things are to be ob|&s;erved concer|ning fines with procla|mations.</NOTE> Secondly the place where, and before whom it is to be le|vyed. Thirdly of what things it be le|vyed. Fourthly what ceremonies are therein to be ob&s;erved. Fiftly the &s;eve|rall times are to be ob&s;erved and con|&s;idered; Fir&s;t that the fine be levyed af|ter the fea&s;t of Ea&s;ter, which was in the yeare of Lord God, 1496. For all fines levyed before that time are out of the compa&s;&s;e of this &s;tatute 4. <HI>H.</HI> 7.<NOTE PLACE="marg">4, H. 7.</NOTE> As by the letter of the &s;ame &s;tatute it ap|peareth; 2. that the proclamation mu&s;t be made in time of the terme; and ther|fore if any of tho&s;e proclamations doe happen to be made either before the be|ginning or after the end of any terme, or on a Sunday, or other Fe&s;tivall day ex|empted from the terme, as on the fea&s;t day on of the <HI>Purificatioa</HI> of <HI>St. Mary</HI> the virgin, <HI>A&s;cention day, all Saints, All Souls</HI> or on the fea&s;t day, of St. <HI>Iohn Bapti&s;t,</HI> if it happen on any other day then on the friday next after <HI>Trinity Sunday</HI> and to be recorded accordingly,<NOTE PLACE="marg">23. <HI>Eliz.</HI> cap. 3.</NOTE> then if it be not holpen by the &s;tatute 23. <HI>Eliz.</HI> cap. 3. All the proclamations are rever|&s;able, by a writ of error, or by Plea, as
<PB N="92" REF="50"> it appeareth in <HI>Finches</HI> ca&s;e <HI>Plow: com.</HI> 266. 267. and then the fine will be of no other natur or force,<NOTE PLACE="marg">Plow. Com. 266. 267.</NOTE> then a fine without proclamations And although in truth, the procalmations were all made within the termes, according to the forme of the &s;tatute, yet if the re|cord or records, doe purport the con|trary, they are rever&s;able by error, or avoydable by Plea, if it be not holpen by the &s;aid &s;tatute; for a record is of that credit in law, that no averment may be admitted to the contrary.</P>
<P>It is to be con&s;idered who are pri|vies, and who are &s;trangers to a fine; ac|cording to the &s;tatute, there are three privities only. 1. privity in bloud only. 2. privity in e&s;tate <HI>(tantum)</HI> 3. privity in bloud and e&s;tate. There are three kindes of privities. 1. in bloud <HI>tantum.</HI> 1. One is when a man is heire to to his late Ance&s;tor, and yet hath no|thing by di&s;cent from him. As for ex|ample, if a father &s;ei&s;ed of lands in fee, doth thereof infeoffe a &s;tranger and his heires, or if he by his la&s;t will and Te&s;ta|ment in writing did di&s;po&s;e the &s;ame, being holden in Soccage to ano|ther in Fee, and hath i&s;&s;ue and dyeth, in
<PB N="93" REF="50"> &s;uch ca&s;e, &s;ch i&s;&s;ue is privy in bloud, having nothing by di&s;cent. 2. One other kinde of privity in bloud is, when &s;omething is de&s;cended unto him, as heire unto his Ance&s;tor and yet he claymeth the &s;ame by &s;ome other right, and not as heire, to &s;uch Ance&s;tor. As for example, if there be a father and &s;onne, and the &s;onne purcha&s;eth lands of a &s;tran|ger in fee, and is thereof di&s;&s;ei&s;&s;ed by his father, who dieth thereof &s;ei&s;ed, and the &s;ame de&s;cend to his &s;onne as heire, in this ca&s;e the &s;onne is privy al&s;o in blood, but not in e&s;tate; for although the po&s;&s;e&s;&s;ion of the &s;ame land came to him by di&s;cent as heir to his father, yet he was therein remitted forthwith to his former e&s;tate. 3. And a third kinde of privity in blood <HI>tantum,</HI> is where a man in &s;ome re&s;pect is privy in blood and e&s;tate, and in ano|ther re&s;pect privy in blood <HI>tantum.</HI> As for example, if there bee two brothers, and the elde&s;t purcha&s;eth lands in Fee, and is thereof di&s;&s;ei&s;ed by his younger brother, afterwards di&s;&s;ei&s;ed by a &s;tran|ger, and that &s;tranger dyeth thereof &s;ei|&s;ed, the younger brother being within age, and afterwards the elder brother
<PB N="94" REF="51"> dyeth without i&s;&s;ue, the younger &s;onne hath two manner of rights to the land; the one is a right of Entry again&s;t &s;uch heire as is in by de&s;cent during his mi|nority; but that right is onely in re&s;pect of his former po&s;&s;e&s;&s;ion which he obtai|ned by di&s;&s;ei&s;in, and not as heire to his brother, and in this re&s;pect he is privy in blood to his elde&s;t brother, but not privy in e&s;tate. The other right that is now in the younger brother, is onely a right in Action, and not a right of En|try, and this is in him as heire to his brother, who&s;e entry was taken away by the &s;aid di&s;cent, in re&s;pect of his right, he is privy in blood and e&s;tate to his bro|ther. Privity in e&s;tate <HI>tantum,</HI> is where a man claimeth an e&s;tate in land, as a&s;|&s;ignee to another; as if <HI>A.</HI> infeoffe <HI>B.</HI> in this ca&s;e <HI>B.</HI> and his heires are privy in e&s;tate to <HI>A.</HI> Privity in blood and in e&s;tates are of two &s;orts, whereof the one may properly be called a privity of blood and e&s;tate, the other is &s;o called unproperly, and in a borrowed &s;ence. That which is properly called a privity in blood and e|&s;tate, is when both privities do accrew by di&s;cent, by or from one Ance&s;tor. The other is, when the one of them accreweth
<PB N="95" REF="51"> by one manner of title, and the other by title of another kinde; As for example: If there be a father and a &s;onne, and the father purcha&s;eth lands, and dieth there|of &s;ei&s;ed, and the &s;ame doth de&s;cend to his &s;onne, hee is to his father in a pro|per &s;ence privy in blood and e&s;tate; becau&s;e both tho&s;e privities do to him accrew, by one di&s;cent from one An|ce&s;tor.</P>
<P>It is to be noted, that &s;uch privyes as the &s;tatute meaneth, are after the in|gro&s;&s;ing <HI>de le fine et proclamation</HI> made according to the forme of the &s;tatute, ab&s;olutely barred without hope of re|covery or re&s;traint, by any claime; but &s;uch as are &s;trangers are barred only conditionally, if they or their heirs doe not claime according to the forme of the &s;tatute within the times therein pre&s;cribed. It is a rule in law, that no error in the fault of the Judge can be a&s;&s;igned to rever&s;e a Judgement, unle&s;&s;e it be &s;o apparant, that it may be tried by viewe of the record, or by in&s;pection of the per&s;on: for if it &s;hould, many grave Iudgments would be overthrowne by corrupt tryalls, of fal&s;e &s;urmi&s;es to the &s;ubver&s;ion of Iu&s;tice and maintenance
<PB N="96" REF="52"> of vice. But if the Judge give judgment for the one party upon the matter ap|pearing of record, whereas he ought to give Iudgment for the other party, this is rever&s;able by error, becau&s;e &s;uch a faulte of the Iudge through ignorance of the law is apparant by the view of the record. Al&s;o a fine levyed by a feme covert is not erroneous, &amp; therefore it is not rever&s;able by error, but avoydable by her. Al&s;o a fine levyed by a feme co|vert at the common law is avoydable by the entry of the husband; yet &s;ince a fine levyed at this day and proclamation according to the forme of the &s;aid &s;ta|tute of 4. <HI>H.</HI> 7. or 31. <HI>Eliz.</HI> Cannot be avoyded by the entry of the husband, of the commi&s;&s;or, as to the e&s;tate of inhe|ritance, but only to the Franktenement during the coverture, and &s;o long af|terwards as he &s;hal be tenant by the cur|tefy, if he had i&s;&s;ue by his &s;aid wife, be|fore the fine levyed. And in that ca&s;e al|beit the husband doe enter within five yeares or before proclamations had and made, the Feme and her heires are bar|red as privyes to the fine, the words of the &s;aid &s;tatute of 4 H. 7. be the fine to be a finall end, and conclude as well
<PB N="97" REF="52"> privies as &s;trangers, and yet all &s;tran|gers &s;hall not be barred by &s;uch fine, the Kinge is no &s;uch &s;tranger as is compri|zed in the &s;aid act; for if the law-makers had meant to conclude the King there|by of his right, then it is not to be doubted (his greatnes being &s;uch as it could not be forgotten) but they would have made &s;ome provi&s;ion for his claime, which thing they have not done, becau&s;e they never intended to conclude him; but others, being bodyes corporate of things that goe by way of &s;ucce&s;&s;ion, are comprized in this word (&s;trangers) in the body of the act. And yet they are not conteyned in the letter of exception, or of any of the &s;avings which doe &s;ave rights, to men and their heires, &s;peaking nothing of corporati|ons or &s;ucce&s;&s;ions, or of any thing in &s;ucce&s;&s;ion.</P>
<P>There be two kindes of liveries;<NOTE PLACE="marg">Livery twofold 1 <HI>en fait</HI> 2. in law</NOTE> the one called a livery en <HI>fait</HI> which is a ce|remony u&s;ed in the execution of a Fee|offment in Fee, or a lea&s;e for life, by de|livery of the ring of the doore of the hou&s;e, or a clod of the land conteined in the Feoffment, in the name of the hou&s;e and other hereditaments therein
<PB N="98" REF="53"> compri&s;ed. The other is called a Li|very in Law, or a livery within the view, with the like ceremony in other forme u&s;ed in the execution of &s;uch Feoffement, or Lea&s;e <HI>pur vie;</HI> but that is not alway made upon the land, but onely in the view thereof, that is to &s;ay, in a place where the parties doe &s;ee and behold the land; and the Feof|fer &s;o beholding the &s;ame &s;aith to the Feoffee, I make livery to you of this land according to the purport of the Deed (if it be a Feoffement by Deed) if it be without Deed, then the words are to this effect <HI>(viz.)</HI> I doe deliver to you &s;ei&s;in of this land; or, if I doe make livery and &s;ei&s;in of this land to you and your heires, or if it be for terme of life, to you for terme of your life. This be|ing done, the Feoffee or Lea&s;&s;ee, mu&s;t en|ter, and before &s;uch entry the livery within the view is not compleate; for if the Feoffer happen to dye before an entry made by the Feoffee, &s;uch livery within the view is voyd, and cannot be good by any entry afterwards made.</P>
</DIV2>
<DIV2 TYPE="part">
<PB N="99" REF="53">
<HEAD>Conveyances and A&s;&s;urances by Deede poll, or by Paroll.</HEAD>
<P>A Conveyance or A&s;&s;urance by Deede poll, is when it is made by a &s;ingle Deed which is not indented, and albeit many Conveyances may be by Indenture, which could not be good by Law, if they were made by Deede poll, or by Paroll; yet <HI>&egrave; conver&s;o</HI> all Conveyances and A&s;&s;urances that may be &s;ufficient by Deede poll, or by Pa|roll, may al&s;o without all que&s;tion bee good by Indenture. Al&s;o what thing &s;oever may be conveyed by paroll, may be al&s;o conveyed by Deede poll, but <HI>&egrave; conver&s;o,</HI> many things may be conveyed by Deed poll, which may not be con|veyed by paroll. Therefore it &s;eemeth fit now to con&s;ider what things in re|&s;pect of their nature and kinde may be conveyed by Deed poll, and not by pa|roll; and as touching Hereditaments tran&s;itory, or things tran&s;itory, which doe pa&s;&s;e properly, or ari&s;e by grant, not by Livery, Rever&s;ions, and Remain|ders
<PB N="100" REF="54"> expectant, or dependant upon a particular e&s;tate in any Hereditaments what&s;oever, may by apt conveyance, pa&s;&s;e, or be created by Deed poll, but not by paroll: and hereupon ari&s;eth the generall rule, that tho&s;e things which do lie in grant, and not in livery, cannot pa&s;&s;e by paroll, but by deede. But &s;uch things as doe lie in livery may pa&s;&s;e without Deedes; Feoffements of Me&s;|&s;uages, Lands, Hou&s;es, Mannors, or Rectories, and &s;uch like, are Good without Deed; and &s;o are Lea&s;es for yeares thereof made; becau&s;e the Free|hold thereof will pa&s;&s;e by Livery; o|therwi&s;e it is of grants of Seignori<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">s in gro&s;&s;e Rents, Services, Commons, Ad|vow&s;ons, Wa&s;ts, Liberties, Franchi&s;es, and &s;uch like, being tran&s;itory, or of &s;uch Remainders or Rever&s;ions as are afore|&s;aid. It is to be noted, that Lands, Te|nements, or Hereditaments, or any e|&s;tate therein, or any e&s;tate in a thing i&s;&s;uing thereof, cannot be conveyed to the King without matter of Record, as by Fine or Recovery, Record, as by Deed inrolled, and therefore a Grant, or any other Conveyance of &s;uch thing by Deed, is not &s;ufficient, unle&s;&s;e the
<PB N="101" REF="54"> &s;ame deed be inrolled. And if a Lea&s;e of Land be made for life to I. <HI>S.</HI> the remain|der to <HI>I.</HI> S. in Fee taile, the remainder to the King in fee, this remainder to his Ma|je&s;ty cannot be good, unle&s;&s;e the &s;ame be by deed inrolled: But a Deed poll thereof inrolled will be no le&s;&s;e &s;ufficient to this purpo&s;e than an Indenture inrolled. And to the enrolment therof, the King is tyed &s;o no time certain, &s;o that an enrolment thereof at any time during his Maje&s;ties life will be good in Law; but if it be not inrolled in his life time, then nothing can thereby be in the King. And if the King grant the &s;ame to another before Inrolement, the grant is voyd, and can|not bee made good by the enrolement thereof afterwards.</P>
<P>There are two &s;orts of conveyances by deed. The one doth enure by tran&s;|mutation of po&s;&s;e&s;&s;ion, transferring of a naked right. Conveyances by deed that doe enure by way of tran&s;mutation of po&s;&s;e&s;&s;ion, are of divers &s;orts; whereof &s;ome do enure by way of removing of a po&s;&s;e&s;&s;ion, and creating of an e&s;tate, &s;ome by creating both of an e&s;tate and po&s;&s;e&s;&s;ion; &s;ome by extingui&s;hment, &s;ome by &s;u&s;pen&s;ion hereof; and &s;ome by remo|ion of the po&s;&s;e&s;&s;ion, and drowning
<PB N="102" REF="55" MS="y"> of the e&s;tate. Conveyances by tran&s;|mutation of a po&s;&s;e&s;&s;ion, that do enure by removing both of the e&s;tate and po&s;|&s;e&s;&s;ion, are &s;uch whereby an e&s;tate and po&s;&s;e&s;&s;ion formerly &s;etled in the one party, are removed to the other party. Conveyances that do enure by removing of a po&s;&s;e&s;&s;ion and creating of an e&s;tate, are &s;uch, whereby a po&s;&s;e&s;&s;ion formerly &s;etled in one party, is removed to another by creation of a new e&s;tate other then &s;uch as was in the party from whom it was derived. A conveyance that doth enure by creation of an e&s;tate and po&s;|&s;e&s;&s;ion, is when the thing conveyed had no being before the making of &s;uch con|veyance. A conveyance by transferring of a po&s;&s;e&s;&s;ion, is &s;aid to enure by way of extingui&s;hment, when the thing and the e&s;tate conveyed are thereby extin|gui&s;hed. A conveyance doth enure by remotion of the po&s;&s;e&s;&s;ion, and a drowning of the e&s;tate. When a &s;urren|der is made of a particular e&s;tate for life, or for yeares to him that hath the Rever&s;ion or Remainder thereof, in which ca&s;e the po&s;&s;e&s;&s;ion of the land is removed, but the e&s;tate is drowned; for he to whom the &s;urrender is made
<PB N="30" REF="55" MS="y"> is not &s;ei&s;ed of the particular e&s;tate, but of &s;uch e&s;tate wherein the &s;ame is drow|ned; and &s;uch &s;urrender, of an e&s;tate which might have beene created with|out deede, or matter of record, may be &s;urrendred by paroll.</P>
<P>Note that a &s;urrender to any per&s;on of a particular e&s;tate which could not be created without deede, matter of re|cord cannot be good by Paroll.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Conveyances by will.</HEAD>
<P>A Conveyance by will is common-called a devi&s;e, the party that gi|veth or bequeathes a thing by will is commonly called the devi&s;or, and he to whom it is bequeathed the devi&s;ee; of devi&s;es generall there be three &s;orts, 1. a devi&s;e by the common law, 2. a devi&s;e by cu&s;tome 3. by force of the &s;tatutes of 32. and 34. <HI>H.</HI> 8. By the common law no manner of hereditaments, wherein the Te&s;tator had any greater e&s;tate then for yeares (except an e&s;tate in a u&s;e of lands or Tenements) was devi&s;able by will, but he that had &s;uch u&s;e in Fee, or for another mans life, might before the &s;tatute. 27. H. 8. <HI>de u&s;ibus in po&s;&s;e&s;&s;io|nem
<PB N="104" REF="56"> transferendis,</HI> have devi&s;ed the &s;ame by will as he might doe of a terme in u&s;e. For the better di&s;cerning what de|vi&s;e is good by the common law, and what not: fix things are meet to be ob|&s;erved. 1. That the devi&s;or be a per&s;on able to devi&s;e. 2. that the devi&s;ee be ca|pable of the thing devi&s;ed, 3. That the things are devi&s;able by law, 4. That the purport thereof being no other in ef|fect, then &s;uch as might &s;tand good in law, in a conveyance by act executed in the life of the devi&s;or, 5. That the de|vi&s;e be not impo&s;&s;ible, 6. that it be cer|taine.</P>
<P>Concerning the fir&s;t of the&s;e fora&s;|much as every will doth take effect by the death of the Te&s;tator, therefore without the death of &s;uch Te&s;tator, there can be no will, and without a will there can be no devi&s;e, and con&s;equent|ly all kinde of corporations are unable to devi&s;e any thing by will, becau&s;e they never dye. A Maior and commonalty, Provo&s;t &amp; fellowes of a colledge, War|dens and commonalty of a company, cannot devi&s;e any thing by wil; no more can a Bi&s;hop, Deane, Par&s;on, or Vicar, devi&s;e any thing devi&s;able, which they
<PB N="105" REF="56"> have not in their politique capacity, (viz) which he hath in right of his Bi&s;hoprick, Deanry, Par&s;onage, or Vicarage, but every of them may de|vi&s;e &s;uch thinges devi&s;able at they have in their naturall capacity; for in re|re&s;pect thereof every of them mu&s;t dye, but there are &s;ome naturall per&s;ons which have no power nor ability in law to devi&s;e any thing by wil; as per&s;ons not of whole minde and Ideots; But an in|fant of 14. yeares of age may make a will, and thereby make an executor of his goods. The husband may devi&s;e goods or chattells to the wife, albeit they are one per&s;on in law; A woman covert hath no power to give any goods by will, for without the con&s;ent of her husband, &s;he cannot by law make a will, either of any of her husbands goods, or of &s;uch chattles in po&s;&s;e&s;&s;ion, or in right of action, as are in her husband in his right, or her &s;elfe in her right. 12. <HI>H.</HI> 7 <HI>Fol.</HI> 24. A man out|lawed in a per&s;onall action, or a per&s;on attainted of felony or trea&s;on, cannot devi&s;e any chattells per&s;onall or reall; for if it were devi&s;able or grantable, the property thereof is in the King, as afore|&s;aid
<PB N="106" REF="57"> by &s;uch outlary or Attainder.</P>
<P>Concerning the &s;econd thing to be ob&s;erved, not only per&s;ons of full age, women &s;ole, and per&s;ons of di&s;cretion and whole minde, but al&s;o infants feme, coverts, Ideots, and mad men are capa|ble of a devi&s;e, becau&s;e it tendeth to their benefit, and not to their prejudice; but yet &s;uch capacity of a woman covert is &s;ubject to a condition in law (viz.) if her husband doe not di&s;agree to the &s;ame; for if at any time during the co|verture he doth di&s;agree thereunto, the devi&s;e is void in law, unles before &s;uch di&s;agreement he did formerly agree to the &s;ame; but if he doe once agree to it, his di&s;agreement afterwards is of no effect. Al&s;o per&s;ons outlawed in a per|&s;onall action, or convict or attainted of fellony or trea&s;on, are capable of a de|vi&s;e; but in &s;uch ca&s;e, if the devi&s;e be of a chattell, the King &s;hall have the thing devi&s;ed, as a chattell forfeited by the outlawry, conviction, or attainder; and if the devi&s;e be of an e&s;tate in Free-hold, or Inheritance in lands or Tenements, then in &s;ome ca&s;e the King, and in &s;ome ca&s;e the Lord, of whom the &s;ame is holden, as the ca&s;e may require, &s;hall be
<PB N="107" REF="57"> intitled thereunto; Al&s;o a devi&s;e made to a childe in his mothers womb is good in law.</P>
<P>Of the third ob&s;ervation, for the bet|ter di&s;covering what thing is devi&s;able by the common law, and what not, a difference is to be ob&s;erved, betwixt an e&s;tate to the u&s;e of another created by law; and an e&s;tate made or conveyed to the u&s;e of another by agreement of parties; for where it is created by law to the u&s;e of another; there it is not devi&s;able by will, but if it be made or conveyed by agreement, it is other wi&s;e; as for ex|ample; If a man &s;ei&s;ed in Fee of lands holden in &s;occage, hath i&s;&s;ue a &s;onne and dyeth, the &s;onne being under 14. yeares of age, in this ca&s;e the law ap|pointeth the care and cu&s;tody of &s;uch i&s;&s;ue, and of the &s;ame lands, which came to him by di&s;cent from his father, unto his mother (if &s;he be living) as Guar|dian in &s;occage, untill he be of the age of di&s;cretion viz. 14. yeares; but this ward|&s;hip in &s;occage, &s;o to her accrewing by by law, is to the only u&s;e and proffit of the Infant, and therefore it cannot be devi&s;able by will, neither &s;hall it goe to the Executor or admini&s;trator of the
<PB N="108" REF="58"> mother after her death, but to the next Ance&s;tor of the Infant of the mothers &s;ide, as it appeareth, <HI>Plowden</HI> fol. 239. and 294. in the ca&s;e between <HI>Osborne</HI> and <HI>Joye.</HI></P>
<P>Concerning the fourth if <HI>ce&s;ti&abque;</HI> u&s;e in Fee of Land before the &s;aid Statute of 27 <HI>H.</HI> 8. had devi&s;ed the &s;ame to <HI>I. S.</HI> and his heires, and for default of &s;uch heires to remaine to <HI>I. D.</HI> or if hee had devi&s;ed the &s;ame to <HI>I S.</HI> and his heires, untill <HI>I. N.</HI> doe happen to die without i&s;&s;ue of his body, the remainder to <HI>I. D</HI> and his heires, this devi&s;e of &s;uch Re|mainder had been voyd; becau&s;e by the rules of Law, a Remainder could not be limitted to depend upon an e&s;tate in Fee &s;imple, &s;o that &s;uch a Remainder could not have been created by convey|ance executed in a mans life.</P>
<P>Concerning the fifth ob&s;ervation; if a man be po&s;&s;e&s;&s;ed of a terme determina|ble by his death, doth devi&s;e the &s;ame by will to another, the devi&s;e is voyd, be|cau&s;e it is unpo&s;&s;ible that it &s;hould take any effect. Al&s;o a devi&s;e to <HI>I.</HI> the &s;onne of <HI>T. S.</HI> of <HI>D.</HI> whereas the &s;ame of <HI>T. S.</HI> hath onely i&s;&s;ue <HI>W.</HI> is voyd, becau&s;e there is no &s;uch per&s;on <HI>in rerum natura.</HI>
<PB N="109" REF="58"> So it is al&s;o, if a terme be devi&s;ed to the Executors of <HI>I. D.</HI> whereas I. <HI>D.</HI> died Inte&s;tate.</P>
<P>Concerning the &s;ixt ob&s;ervation, if any having i&s;&s;ue many children, doth by Will give or bequeath a cup of &s;ilver, a hor&s;e, or any other thing devi&s;able, to one of his &s;onnes, this devi&s;e is voyd, becau&s;e it is uncertaine which of his &s;onnes &s;hould have it; &s;o it is al&s;o, if the like devi&s;e be made di&s;-junctively to <HI>I. S.</HI> or <HI>I. D.</HI> but a devi&s;e to one of his &s;onnes, at the choice of his Executors, is good, becau&s;e the uncertainety may be reduced to a certainety by the election of the Executors. So al&s;o if a man be po&s;|&s;e&s;&s;ed of a terme in lands for 60. years, and by his Will devi&s;e to <HI>I. D.</HI> &s;uch and &s;o many years of his &s;aid terme, as &s;hall be nominated or appointed by his Exe|cutors, this devi&s;e is good, <HI>cau&s;a qua &s;u|pra:</HI> and yet a gift or grant thereof in that form made by conveyance, executed in his life, could not be good, the rea|&s;on thereof is, becau&s;e he can have no Executors in his life time, by rea&s;on whereof it is impo&s;&s;ible to reduce &s;uch Gift or Grant unto a certainety before his death; and a conveyance executed
<PB N="110" REF="59"> in a mans life mu&s;t be reduced to a cer|tainty before his death, or el&s;e it can be of no effect in Law But that rea&s;on cea&s;ed in a devi&s;e (which taketh no effect untill his death) and therefore the Law is therein differing according|ly. Al&s;o it is to be ob&s;erved, that a de|vi&s;e of Chattels may be good, either by will nuncupative, or by writing.</P>
<P>Concerning a u&s;e, it is to bee ob&s;er|ved, that a man &s;ei&s;ed of Lands or Te|nements in Fee, to the u&s;e of him and his heires, could not by the common Law devi&s;e the u&s;e thereof by Will, un|le&s;&s;e the &s;ame Lands or Tenements were devi&s;able by cu&s;tome. But if <HI>I. S.</HI> &s;ei&s;ed of certaine Lands in Fee, had infeoffed certaine per&s;ons thereof to the u&s;e of him&s;elfe and his heires, this u&s;e &s;o &s;eve|red from the po&s;&s;e&s;&s;ion, was devi&s;e|able by the Common Law, albeit the Lands out of which it ri&s;eth were not devi&s;able.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Conveyances by Will of Lands devi&s;able by Cu&s;tome.</HEAD>
<P>IT is to be noted, that albeit by the rule of the Common Law no Here|ditaments
<PB N="111" REF="59"> (other then a U&s;e) was devi|&s;able by Will; yet by particular Cu|&s;tomes in divers Cities, Burroughs, Lands and Tenements therein &s;cituate have alwaies been devi&s;able by Te&s;ta|ment, &s;o that the cu&s;tome doth therein alter cour&s;e of the Common Law. But in every &s;uch devi&s;e, &s;ix things are e&s;pe|cially to be ob&s;erved.</P>
<LIST>
<ITEM>1. That the thing devi&s;ed <GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">ee com|prized within the Cu&s;tome.</ITEM>
<ITEM>2. That the devi&s;e be pur&s;uant to the cu&s;tome.</ITEM>
<ITEM>3. That the power of the Devi&s;or be not re&s;trained by Statute.</ITEM>
<ITEM>4 That the Cu&s;tome be lawfull and rea&s;onable.</ITEM>
<ITEM>5. That the intent of the Devi&s;or be certaine, lawfull, and not unpo&s;&s;i|ble.</ITEM>
<ITEM>6. That the Will bee not counter|manded.</ITEM>
</LIST>
<P>Concerning the fir&s;t of the&s;e, the ob|&s;ervation is double.</P>
<P N="1">1. That the thing devi&s;ed be as well in nature and kinde, as al&s;o in continu|ance, &s;uch as is warranted by the cu|&s;tome.</P>
<P N="2">2. That it be contained within the
<PB N="110" REF="60">
<GAP DESC="duplicate" EXTENT="1 page">
<PB N="111" REF="60">
<GAP DESC="duplicate" EXTENT="1 page">
<PB N="112" REF="61"> bounds and limits thereof. As to the fir&s;t part, if by cu&s;tome all the tenements within a certaine City or Burrough bee devi&s;able by Will; A rent charge, and rent &s;eck which had continuance time out of minde, are in nature, kinde, and continuance, &s;uch as bee compri&s;ed within the cu&s;tome, and therefore are by force of &s;uch cu&s;tome devi&s;able. As to the &s;ec<GAP DESC="illegible" RESP="MURP" EXTENT="2 letters">d part of the ob&s;ervation; If a man &s;ei&s;ed of rent in fee, which time out of memory hath had a continuance, the &s;ame rent is i&s;&s;uing as well out of lands within the limits of &s;uch cu&s;tome, as afore&s;aid, as al&s;o out of Lands not contained within the precincts, this Rent is not devi&s;able by the &s;aid Cu|&s;tome, becau&s;e the &s;ame or any part thereof is not contained within the pre|cincts thereof, which mu&s;t bee taken &s;trictly.</P>
<P>The &s;econd ob&s;ervation hath three branches, one concerning the per&s;on de|vi&s;ing, another touching the per&s;ons to whom the devi&s;e is made; And the third granteth the devi&s;e it &s;elf.</P>
<P N="1">1. As to the fir&s;t branch, a devi&s;e made by a Forraigner, to any per&s;on of lands or tenements &s;cituate within the City of
<PB N="113" REF="61" MS="y"> <HI>London.</HI> &mdash; to the Cu&s;tome of <HI>London,</HI> as appeareth <HI>M.</HI> 8. <HI>&amp;</HI> 9. <HI>Elix.</HI> fol. 255. But yet &s;ome per&s;ons compri|&s;ed within the generall cu&s;tome are by the rule of the common Law exempt from the &s;ame, as a devi&s;e made by a per&s;on lunatique, an Ideot, an Infant, and a man &s;ei&s;ed onely in the right of his wife, is voyd, this cu&s;tome notwith|&s;tanding.</P>
<P>As to the &s;econd branch; Citizens and Freemen of <HI>London</HI> may by the cu|&s;tome of the &s;aid City, without the Kings licen&s;e, lawfully devi&s;e lands in <HI>London,</HI> whereof they are &s;ei&s;ed in Fee, to Guilds or Corporations, as appea|reth by 5. <HI>H.</HI> 7. 10. 19. But if hee bee only a Freeman, and no Citizen, or on|ly Citizen and no Freeman, hee cannot without the Kings &s;peciall licen&s;e law|fully devi&s;e in <HI>Mortmaine.</HI></P>
<P>As to the third branch; if the cu|&s;tome be, that lands and tenements within a certaine Citie be devi&s;able in Fee taile for &s;uch e&s;tate, <HI>We&s;t.</HI> 2. was a Fee &s;imple; al&s;o it &s;eemeth probable, that by force of a cu&s;tome, that maketh lands and tenements devi&s;able, a man may de|vi&s;e tho&s;e things that are therein grow|ing
<PB N="114" REF="62"> as trees, gra&s;&s;e, and &s;uch like. But if a devi&s;e of a rent, or common out of lands devi&s;able, is not pur&s;uant to the cu&s;tom, becau&s;e they had no being at the time of the devi&s;e, and though they had any beginning, yet they were created within the time of memory, they are not devi&s;able for the cau&s;e afore&s;aid. If a hou&s;e be onely erected upon devi&s;able lands by cu&s;tome, a devi&s;e thereof is pur|&s;uant to the cu&s;tome; albeit in that place there was never any hou&s;e before, becau&s;e the hou&s;e doth reteine the na|ture of the land, whereupon it was built as a principall part, whereof it doth con&s;i&s;t, the change of the name not|with&s;tanding.</P>
<P>Concerning the third ob&s;ervation; it is to be noted, that albeit the cu&s;tome hath beene to devi&s;e lands to any per|&s;on or body pollitique, yet the &s;ame may not by force of &s;uch cu&s;tome be de|vi&s;ed at this day in <HI>mortmaine,</HI> upon paine of forfeiture, according to divers &s;tatutes, unle&s;&s;e the licence of the King, with the con&s;ent of the Lords mediate and immediate, be fir&s;t therin had and obtained; for &s;uch cu&s;tome is in that be|halfe qualified and retrained upon the
<PB N="115" REF="62"> paine afore&s;aid by the &s;tatutes of <HI>mort|maine</HI> (viz.) <HI>Magna Charta.</HI> A cu&s;tome that beganne onely &s;ince the &s;tatute, cannot be good; for every cu&s;tome that may evidently appeare to have his be|ginning &s;ince the time of <HI>R.</HI> 1. is voyd in law, as appeareth by 33. <HI>H.</HI> 6. 27. 9. H. 6. <HI>et. Littleton</HI> 38. yet never|thele&s;&s;e the cu&s;tomes to devi&s;e <HI>mort|maine</HI> are not abrogated by any of the &s;aid &s;tatutes; for the devi&s;e, or other forme of alienation in <HI>mortmaine</HI> is not by any of the &s;aid &s;tatutes made voyd, but it is only in advantage of the the Lords, who might &s;u&s;teine lo&s;&s;e thereby, prohibited upon paine of &s;uch forfeiture to them accrewing, as there|by appeareth; &s;o that by licence &amp; con|&s;ent as afore&s;aid, a devi&s;e in <HI>mortmaine</HI> by force of a cu&s;tome may &s;tand good in law, without danger of the penalty of forfeiture.</P>
<P>Concerning the fourth ob&s;ervation; if the cu&s;tome be not lawfull and rea&s;on|able it is voyde; &s;o that a devi&s;e by ver|tue thereof cannot be of any force in law. And therefore if an alien doe pur|cha&s;e and devi&s;e lands lying within a certain Borough by force of a cu&s;tome
<PB N="117" REF="63"> that lands and tenements within the &s;ame Borrough are devi&s;able to aliens in Fee to their owne u&s;e, and by them devi&s;able by te&s;tament, this de|vi&s;e is void, for &s;uch cu&s;tome a|gain&s;t the Kings prerogative is un|lawfull; albeit his highne&s;&s;e cannot be thereunto entitled without office or other matter of Record, yet meane betweene &s;uch purcha&s;e and office found &amp;c. I take the Alien to be pernour of the profits, and that the e&s;tate purcha&s;ed is forthwith in con&s;ideration of the &s;ame lands, untill the kings title doe a|peare by office or other matter of record Al&s;o it is to be ob&s;erved, that a cu&s;tome to devi&s;e a Right, &s;eparated, from the po&s;&s;e&s;&s;ion, cannot be lawfull, becau&s;e it &s;avoureth of maintenance. As touching unrea&s;onable cu&s;tomes, if the cu&s;tome within any Citty or Burrough be, that Tenements therein &s;ituate are devi&s;a|ble by Infants, Ideots, or mad men, it is unrea&s;onable, and therefore void. But a cu&s;tome that the &s;ame be devi&s;a|ble by children of 14, years is good.</P>
<P>Concerning the fifth ob&s;ervation; if the intent of the devi&s;or be uncertain,
<PB N="116" REF="63"> unlawfull, or impo&s;&s;ible, the devi&s;e will be of no force in law. The intent of devi&s;or may be uncertaine, either in the per&s;on to whom he doth devi&s;e, or in the thing devi&s;ed, or in the e&s;tate that &s;hould pa&s;&s;e thereby. And fir&s;t concer|ning the per&s;on it appeareth 49. <HI>E.</HI> 3. 3. one <HI>Iorden</HI> did devi&s;e certain Tene|ments in <HI>London</HI> to one for life, &s;o that after his decea&s;e the &s;ame &s;hould remaine unto 2. of the better &s;ort of the fraternity of <HI>London,</HI> this remain|der was agreed to be void for want of certaintie, which per&s;ons of the frater|nity &s;hould have the &s;ame. Secondly, as as concerning the certainty in the thing devi&s;ed; as for example; if a man &s;ei&s;ed of lands or tenements devi&s;able; doth by wilbequeath a portion therof to <HI>I.S.</HI> this devi&s;e is void becau&s;e it doth not appeare, what or how great a portion thereof the devi&s;ee &s;hould have by foree of the &s;aid will. 3. Albeit the intent of the devi&s;or doth certainly ap|peare, and the per&s;ons to whom the de|vi&s;e is made, and in the lands and tene|ments devi&s;ed, yet if the e&s;tate therein lymitted be &s;o uncairten, that neither by matter expre&s;&s;ed or implyed in the
<PB N="118" REF="64"> will, nor by a common Intendement it cannot be reduced into a certainty, the devi&s;e will be void in law. And there|fore if a man &s;ei&s;ed of lands devi&s;able as well by will nuncupative as by wri|ting, doth by will in writing among&s;t other things bequeath the &s;ame to <HI>I. S.</HI> for &s;uch e&s;tate as is &s;pecified in a &s;che|dule thereunto annexed, and then the devi&s;or dyeth without annexing any &s;chedule to the &s;aid will, or other decla|ration of the certainty of the &s;tate, this devi&s;e is void in law. Now it is be con|&s;idered, that albeit the intent of the de|vi&s;or be certaine in all things, that ne|verthele&s;&s;e though it be unlawfull, the &s;ame will be no force. And therefore it is al&s;o needfull to di&s;cerne, where and in what ca&s;e the intent of the devi&s;or is unlawfull, and where not; and the intent of the devi&s;or is unlawfull, when it is &s;o repugnant to the rules of the law, as that by any coun&s;ell learned in the law, it could take no effect by conveyance executed in his life time; as for example; a devi&s;e of a naked right, or po&s;&s;ibility of a remainder to depend upon an e&s;tate in the &s;imple thereby bequeathed, is &s;aid to be unlawfull; for as no &s;uch re|mainder
<PB N="119" REF="64"> could be bequeathed, <HI>id e&s;t</HI> con|veyed by any act executed in a mans life, &s;o al&s;o no bare right could be conveyed by the like act executed in his life to a|ny per&s;on, other then &s;uch as were &s;ei|&s;ed, or to be &s;ei&s;ed of the free hold of the &s;ame lands at the in&s;tant of the ex|ecution of the conveyance, and that on|ly by way of the extingui&s;hment. And hereupon it followeth, that a man hav|ing right to lands devi&s;able being by defei&s;able title in the po&s;&s;e&s;&s;ion of <HI>I.</HI>S. cannot devi&s;e the &s;ame by will to <HI>I.</HI> D. So al&s;o the Lord, of whom the lands devi&s;able are imediately holden by Knights &s;ervice, cannot devi&s;e his po&s;&s;i|bility of E&s;cheates or ward&s;hip, that may thereof accrew to him, when his Tenant &s;hall happen to die without heires, or the po&s;&s;ibility of wards, when the heires &s;hall be within age.</P>
<P>Concerning an intent impo&s;&s;ible, wee terme that an impo&s;&s;ible intent, which by no probable and common po&s;&s;ibility can be accompli&s;hed, and of &s;uch impo&s;&s;ible intents, there are 3. &s;orts. 1, Impo&s;&s;ible both at the time of the making of the will, and al&s;o at the death of the devi&s;or. 2. Impo&s;&s;ible only
<PB N="120" REF="65"> at the time of the devi&s;e, and not at the time of the decea&s;e of the te&s;tator. 3. Impo&s;&s;ible at the time of the making of the devi&s;e. And as to fir&s;t &s;ort of lands devi&s;able by will, bequeathed to the heires of S. who was attainted of fellony or trea&s;on, unrever&s;ed at the time of the devi&s;e, or death of the devi|&s;or: or if in time of Romi&s;h religion, &s;uch devi&s;e was made to one that was a Monk, being not deraigned at the time of the devi&s;e, or death of the te&s;ta|tor; or if the &s;ame be devi&s;ed to the heires of I. <HI>D.</HI> who was then dead with|out heire; or to a corporation that had noe being at the time of the will, or death of the te&s;tator; Or if a man by his will doe devi&s;e a certain hou&s;e in a Borrough, wherein at the time of his de|vi&s;e and death, he had nothing: Or if lands be devi&s;ed to the executors of I.S. who died inte&s;tate, in every of the&s;e ca|&s;es, the intent of the devi&s;or was im|po&s;&s;ible, both at the time of the devi&s;e and death of the devi&s;or; and for &s;uch impo&s;&s;ibillity, the devi&s;es are ab&s;olute|ly voide.</P>
<P>Concerning the 2. &s;ort; if lands were devi&s;ed to a Monk, who at the
<PB N="121" REF="65"> time of the death of the te&s;tator was de|raigned, or to the heirs of one is that at|tainted of &amp;c. which is afterwards rever|&s;ed before his death, or to a Corporation that hath a being at the time of his death, but not created at the time of the devi&s;e, in the&s;e ca&s;es, the intent of the devi&s;or, was onely impo&s;&s;ible at the time of the devi&s;e, but not at the time of the decea&s;e of the te&s;tator. And yet I take the Law, that tho&s;e devi&s;es be al&s;o voyd, <HI>nam quod ab initio non valet id tractu temporis non convale&s;cit.</HI></P>
<P>The &s;ixt ob&s;ervation is, that the de|vi&s;e be not countermanded; for it is a cleere ca&s;e, that it is countermandable at the plea&s;ure of the Devi&s;or, or thereby the devi&s;e will bee of no force in Law. And it is to be noted, that there are two kindes of Countermands, the one is a countermand in deed, the other a coun|termand in Law. A countermand in deed, is when a Te&s;tator doth expre&s;ly revoke his Will formerly made, or any part thereof; and this countermand by word is of no le&s;&s;e force then if it were by writing; for albeit the Will containe, among&s;t other things devi&s;es of Lands, bee it in writing as an effectuall part
<PB N="122" REF="66"> thereof, in ca&s;e where the cu&s;tome or law doth &s;o require it; yet neverthele&s;&s;e an expre&s;&s;e countermand by word of the will, or of any devi&s;e of lands therein compri&s;ed, will be &s;ufficient in Law to controle the &s;ame, as it appeareth by <HI>Reits</HI> ca&s;e, 14 <HI>El.</HI> Al&s;o, if after the making of the Wil, the Te&s;tator doth cau&s;e a de|vi&s;e therein made to one man to be quite &s;tricken out; this is al&s;o a countermand in deed of that devi&s;e, and the will &s;tan|deth good for all the re&s;idue. A coun|termand which in Law is that which neither by word nor deede is expre&s;&s;ed, but onely in tho&s;e other acts implyed. As for example, the making of another will doth imply a revocation of the former, and therefore it is a countermand in Law thereof. So likewi&s;e if lands be de|vi&s;ed by will, and afterwards the devi|&s;or infeoffeth a &s;tranger in Fee thereof, this Feoffement doth imply a revocation of the devi&s;e of the land, and therefore it is in that part a countermand in Law, al|beit he afterwards repurcha&s;e the &s;ame. 44. <HI>Ed.</HI> 3. 33. And although lands devi|&s;able by a cu&s;tome may be executed by a Writ of <HI>ex grm. querela,</HI> yet if there be no &s;peciall cu&s;tome to the contrary, the
<PB N="123" REF="66"> devi&s;ee may (if he plea&s;e) execute the &s;ame by Entry as it appeareth by 35 <HI>A&s;&s;s. plit.</HI> 12. 40. <HI>A&s;&s;s. p.</HI> 2. 27. <HI>A&s;ss. p.</HI> 60 And in every &s;uch ca&s;e the po&s;&s;e&s;&s;ion in Law of the thing devi&s;ed is immediately after the decea&s;e of the Te&s;tator no le&s;&s;e ca&s;t upon the Devi&s;ee, then it &s;hould have been ca&s;t upon the heire, if no devi&s;e had been thereof made, as appeareth <HI>Brookes title devi&s;e,</HI> 490.</P>
</DIV2>
<DIV2 TYPE="part">
<HEAD>Conveyances by Will, by force of the Statute of <HI>32</HI> &amp; <HI>34.</HI> H. <HI>8.</HI></HEAD>
<P>ALthough Lands and Tenements, wherein a man had any greater e|&s;tate than for years, were not devi&s;able by the Common Law <GAP DESC="illegible" RESP="MURP" EXTENT="1 word"> until<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter"> the making of the Statute 27 H. 8. cap. 10. <HI>de v&s;ubus in po&s;&s;e&s;&s;ionem transferendis,</HI> men did commonly put their lands in u&s;e; <HI>(viz.)</HI> they did enfeoffe others in Fee, to the u&s;e of them&s;elves &amp; their heirs, to the end that they might devi&s;e the &s;ame u&s;e, and by force thereof after the decea&s;e of the Te&s;tator, the Feoffees did at the reque&s;t of &s;uch devi&s;ee, make and execute to them an e&s;tate in the land according
<PB N="124" REF="67" MS="y"> to the u&s;e devi&s;ed, and if the Feoffees did refu&s;e &s;o to doe, the devi&s;ee might thereunto compell him by &s;uite in the <HI>Chancery.</HI> And &s;o by &s;uch &s;ubtill inven|tion the devi&s;ee obteined the effect of a devi&s;e of the &s;ame Lands or Tenements which were not then devi&s;able by Law.</P>
</DIV2>
</DIV1>
</BODY>
</TEXT>
</GROUP>
<BACK>
<DIV1 TYPE="table of contents">
<PB N="125" REF="67">
<HEAD>The Table.</HEAD>
<DIV2 N="A" TYPE="part">
<HEAD>A.</HEAD>
<LIST>
<ITEM>_APportionalment of Rent Charge. <HI>pag.</HI> 9</ITEM>
<ITEM>A&s;&s;ets, what they are called. <HI>pag.</HI> 13</ITEM>
<ITEM>Actions Reall and Per&s;onall. <HI>pag.</HI> 24</ITEM>
</LIST>
</DIV2>
<DIV2 N="C" TYPE="part">
<HEAD>C.</HEAD>
<LIST>
<ITEM>Chattels divided. <HI>pag.</HI> 4</ITEM>
<ITEM>Cu&s;tome why &s;o called, and how they are main|tained. <HI>pag.</HI> 29</ITEM>
<ITEM>Common why &s;o called. <HI>pag.</HI> 39</ITEM>
<ITEM>Contracts and Grants. <HI>pag.</HI> 47</ITEM>
<ITEM>Common Recoveries. <HI>pag.</HI> 84</ITEM>
<ITEM>Conveyances and A&s;&s;urances by Deed poll, or Paroll. <HI>pag.</HI> 99</ITEM>
<ITEM>Conveyances by Will. <HI>pag.</HI> 103</ITEM>
<ITEM>Conveyances by Will, of Lands devi&s;able by cu&s;tome. <HI>pag.</HI> 121</ITEM>
<ITEM>Conveyances by Will, by force of the Statute of 32 &amp; 34 <HI>H.</HI> 8. <HI>pag.</HI> 123</ITEM>
</LIST>
</DIV2>
<DIV2 N="D" TYPE="part">
<HEAD>D.</HEAD>
<LIST>
<ITEM>Devi&s;e or Will defined. <HI>pag.</HI> 14</ITEM>
</LIST>
</DIV2>
<DIV2 N="E" TYPE="part">
<HEAD>E.</HEAD>
<LIST>
<ITEM>E&s;tates in Law how many. <HI>pag.</HI> 2</ITEM>
<ITEM>E&s;tates of inheritance divided. <HI>pag.</HI> 3</ITEM>
</LIST>
</DIV2>
<DIV2 N="F" TYPE="part">
<HEAD>F.</HEAD>
<LIST>
<ITEM>Fee &s;imple how it pa&s;&s;eth. <HI>pag.</HI> 5</ITEM>
<ITEM>Franctenement what it is. <HI>pag.</HI> 10</ITEM>
<ITEM>Fines and Recovery how &s;ued out. <HI>pag.</HI> 33</ITEM>
<ITEM>Franctenement. <HI>pag.</HI> 65</ITEM>
<ITEM>Fines. <HI>pag.</HI> 89</ITEM>
</LIST>
</DIV2>
<DIV2 N="G" TYPE="part">
<HEAD>G.</HEAD>
<LIST>
<ITEM>Grants. <HI>pag.</HI> 35</ITEM>
<ITEM>Generall E&s;tates. <HI>pag.</HI> 69</ITEM>
</LIST>
</DIV2>
<DIV2 N="H" TYPE="part">
<PB REF="68" MS="y">
<HEAD>H.</HEAD>
<LIST>
<ITEM>Hereditaments and Chattels.</ITEM>
</LIST>
</DIV2>
<DIV2 N="L" TYPE="part">
<HEAD>L.</HEAD>
<LIST>
<ITEM>Law how defined. <HI>pag.</HI> 2</ITEM>
<ITEM>Lands and Goods how held. <HI>pag.</HI> 2</ITEM>
<ITEM>Lands and Tenements their quantity and termes. <HI>pag.</HI> 57</ITEM>
</LIST>
</DIV2>
<DIV2 N="P" TYPE="part">
<HEAD>P.</HEAD>
<LIST>
<ITEM>Priority, the meaning of the word. <HI>pag.</HI> 19</ITEM>
<ITEM>Particular E&s;tates. <HI>pag.</HI> 72</ITEM>
<ITEM>Po&s;&s;e&s;&s;ion. <HI>pag.</HI> 74</ITEM>
</LIST>
</DIV2>
<DIV2 N="R" TYPE="part">
<HEAD>R.</HEAD>
<LIST>
<ITEM>Rever&s;ion and Remainder, what difference be|tween them. <HI>pag.</HI> 11</ITEM>
<ITEM>Recovery &s;ingle what it is: <HI>pag.</HI> 33</ITEM>
<ITEM>Rever&s;ion. <HI>pag.</HI> 73</ITEM>
<ITEM>Rights. <HI>pag.</HI> 82</ITEM>
<ITEM>Remainder. <HI>pag.</HI> 76</ITEM>
</LIST>
</DIV2>
<DIV2 N="S" TYPE="part">
<HEAD>S.</HEAD>
<LIST>
<ITEM>Soccage <HI>in Capite. pag.</HI> 18</ITEM>
<ITEM>Statutes what they are, and to what end made. <HI>pag.</HI> 30</ITEM>
</LIST>
</DIV2>
<DIV2 N="T" TYPE="part">
<HEAD>T.</HEAD>
<LIST>
<ITEM>Tenures and Services. <HI>pag.</HI> 20</ITEM>
<ITEM>Tryals how executed. <HI>pag.</HI> 27</ITEM>
<ITEM>Things corporate and Incorporate what they are. <HI>pag.</HI> 38</ITEM>
<ITEM>Tenant in Dower. <HI>pag.</HI> 41</ITEM>
<ITEM>Tenant by curte&s;y. <HI>pag.</HI> 44</ITEM>
<ITEM>Tenant by <HI>Elegit. pag.</HI> 45</ITEM>
<ITEM>Tythes the nature and manner of them. <HI>pag.</HI> 49</ITEM>
</LIST>
</DIV2>
<DIV2 N="V" TYPE="part">
<HEAD>V.</HEAD>
<LIST>
<ITEM>V&s;e, the meaning of the word, &amp;c. <HI>pag.</HI> 15</ITEM>
</LIST>
</DIV2>
<DIV2 N="W" TYPE="part">
<HEAD>W.</HEAD>
<LIST>
<ITEM>Wa&s;t why &s;o called. <HI>pag.</HI> 11</ITEM>
<ITEM>Ward and Ward&s;hip. <HI>pag.</HI> 21</ITEM>
<ITEM>Writs for Actions per&s;onall. <HI>pag.</HI> 27</ITEM>
</LIST>
</DIV2>
<TRAILER>FINIS.</TRAILER>
</DIV1>
</BACK>
</TEXT>
</EEBO>
</ETS>
