The Points of the Second Case.

1. WHen Tenant for Years makes Livery within the view, the Question is, Whe­ther the Feoffer, or the Feoffee, or both, or neither, are Disseisors. See Ash. Disseisin.

It appears by our Books, as in 10. E. 4. fol. 18. that before the Statute of W. 2. cap. 25. Tenant for Years had made a Feoffment, he was the only Dis­seisor, and by the Statute, Tam feofator quam feofa­tus, shall be Disseisors; so as vivente altero eorum lo­rum habeat predictum breve (meaning the Writ of Assise) and the very reason why that Statute was made, was to avoid the mischief which was put in practice in Farmer's Case, in Coke lib. 3. For even as there Tenant for Years, or a Copyholder would Levy a Fine, and yet keep Possession, and then thought by suffering five Years to pass without en­try or claim by the Lessor, that he might gain the Land; so here Tenant for Years would make a Feoffment, then he being the only Disseisor, if he died, there would no Assize lie against the Feoffee; and so the Lessor lost the benefit of this festinum re­medium, which the Statute gives: This very Que­stion being moved by chance in the Court of Wards, Hesketh was of Opinion, that if before the Statute, Tenant for term of Years had made a Feoffment [Page 22]upon the Land, he was the only Disseisor, if within the view the Feoffee was the only Disseisor. But what such a Livery within the view would work since the Statute, he made a great doubt; if I should hold that neither of them both were Dissei­sors, and that nothing pass but only the Term, I should very well maintain the conclusion of my Case to the end, for nothing doth actually pass by Livery within the view, but by Operation of the Law, and the Law will never work to do any Man wrong, and therefore, 9 H. 7. Tenant for Years of one Acre, and in Fee of another, makes a Feoffment of both, and makes Livery only in the Acre wherein he hath Fee, nothing passes of the Acre he had for Years.

28. H. 8. D. 18. One hath a House Leased, and one close in possession, &c. for Act in Law never will work a wrong.

41 E. 3.5. The Tenant pleads non tenure, if the Land descend pendente vere, the Writ shall not abate.

So if nothing pass but the Term, then if I re­solve the sixt point of my Case, that the Term re­mains with the Queen after Marriage, then the Re­lease made to the King works nothing, and so the Lessors best right is to enter for a Forfeiture, al­though the Queen afterwards waive; but I will let this Question rest a while by reason of, &c.

20 Eliz. D. Where by the Opinion of the Chief Justices, That when Tenant of 100 Years makes a Feoffment by Letter of Attorney, the Lessor be­ing upon the Land that the Fee passeth.

2. Whether Livery within the view be good without Deed?

3. Whether a Feoffment made to Baron and Feme [Page 23]without Deed and Livery to the Feme sole, be good to the Husband until disagreement?

4. Whether if Tenant for Years enfeoff two and the Lessor Releases to one, if he shall exclude his Companion?

5. If Baron and Feme are Disseisors, and the Disseisee release to the Baron, if he shall exclude his Wife?

6. A Feme Covert hath a term, and the Hus­band is made King, if the Queen or the King should hold the term?

7. Baron and Feme Disseisors, the Baron is made King, the Disseisee releases to him, if it makes the King and the Queen Joynt-Tenants, or Tenants in Common, or if they shall be seised by moieties, or intireties, or if the release be not utterly void, is the seventh Question.

8. I. S. is Disseised to the use of the Prince, who is made King, the Disseisee releases, if this be not void, for then the King agreeth to the Disseisin.

9. A Feoffment is made to a Feme Covert Alien, the Baron is made King, Office is found, if the King shall have the Land?

10. A Feoffment is made to a Feme Covert, and the Husband is made King, if she can waive?

Points upon the Statute.

• 1. WHether an Adventurer into Virginia, be within the Statute?
• 2. Whether an Inn keeper be within the Statute?
• 3. Whether one born within the Isle of Man be within the Statute?
• [Page 24]4. Whether the keeping of one of the King's Ca­stles, be a keeping of his House within the Statute?

2. and 3. Questions are, Whether a Feoffment made without Deed to the Husband and Wife with Livery within the view to the Wife only, and she enters, will invest any thing in the Husband?

That Livery within the view may be made with-Deed, I make no great question, It is true, that the Books are both ways.

For 38 E. 3.32.38. Ass. 2. Baron and Feme, Allford, 41 E. 3. Jo. Sees Case.

Temp. Hen. 8 Brook, It is good saith he by Deed by Livery within the view.

Thorowgood's Case, Coke, lib. 9. If of the ground, he saith, see you this Land enter according to the Deed.

Cont. 39 E. 3 Ass. 12. I vouchsafe you the Land, 42 E. 3. Fitz. Feoffment. 54. the same Case, Wich: made he a Deed to his Father, Lass. non. Wich: was the Land in vica, Ass. it was half a Mile from the Church yard. 11. Ass. 6.11 E. 3. Ass. 86. Feoff­ment of all but one Chamber. 43. Ass. 20. per Brook, Feoffment without Deed.

But the Question is, whether a Feoffment to two or three by Deed with Livery to one is good to all, but without Deed, but to him to whom, &c.

10 E. 4.1. 8 E. 4.12. 15 E. 4.18.

But here the Baron and Feme cannot take by mole­ties, and their Estate is but one Estate, and they are Disseisors, both at Common Law, and also by Sta­tute, so as if the Baron consent afterwards, he con­sents as one that consents to a Disseisin made to his use.

15. Ass. 11. by agreement to a Rescous made by a Stranger, the Tenant is a Disseisor.

37. Ass. If my Tenant at will, enter into another Man's Land, lying by my Land, or take Estovers or common, if I consent to it, I am a Disseisor.

Tenant for Years enfeoffes, two and the Lessor releases to one of them, if he shall hold his Compa­nion out.

27 E. 3. cap. 9. gives an Ass. of novel dissm. to Te­nant by Statute Staple against him that outs him, as against a Disseisor; yet he hath no Free-hold, for 1 E. 3. a quid juris clamat lies against him, although he be but Disseisor fictitius, yet at the election of the Disseisee, he is a Disseisor in Law, as 7 E. 4. the Vouchee is but tenens fictitius, yet a release is good to him.

If Tenant for Years infeoff two and the Lessor brings assise against one, he shall not plead that his Companion is also Tenant not named; for by the Statute of 3 E. 1. de Conjunctim feofatis, he must slew of whose Feoffment, which if he do, he over­throws his own Estate, and must plead himself was a Disseisor, which the Law will never allow; for 1 E. 4. fol. 7. no man shall be suffered to say, that he himself was a Disseisor. Coke, Beverlies Case 4. Rep.

To stultifie himself, Herl. 5 E. 3. non sanae me­moriae inblenisht himself, 35. Ass. 10.

It is true, that in respect of themselves, they are in by Feoffment and Title, in respect of the Lessor they are Disseisors; then the question is, who shall be in election, and who shall interpret how this re­lease shall work, the Lessor, or the Lessee, or the third Person.

It is probable to say the Lessor, for cujus est dare &c. and H. 7. If one Man be to pay two Sums at one time and place, and pay but one, it is [Page 26]in election, and interpretation of the Payer and not the Receiver, which sum was meant to be payed.

It may be said the release, &c. for the Party to whom a Deed is made, if it inure to two intents, shall, &c. as 7 H. 6. a Feoffment may be used as a confir­mation, 15 Eliz. D. release, and grant of a Rent.

But I conclude, the third Person shall take bene­fit, &c. First, for the reason that int. se, &c. But they are Disseisors, not at Common Law, but by Statute, for the Benefit of the Lessor, of which Sta­tute he may take benefit if he please, or waive it: 3 E. 4. 21 H. 7.32. 19 Eliz. D. Alien and Deni­zen challenge medietatem linguae, so here he hath his election to make him a Disseisor by bringing his Ass. or a Tenant in by Title by the release.

Baron and Feme Disseisors, and a release to a Baron whether shall this inure to the Feme, for they are seised not by parts, but by intireties, it shall go all to the Husband, for flagitiosae rei nulla est societas, it is feodum. princip. & commiatem latronum. The question hath been, if a Feme sole be a Disseisor, and marry, whether the Husband be a Disseisor or not, 6 E. 3.42. he is not, for in a Writ of Entry, sur disseisin against him and his Wife, he had the view; but in our case (I take it) that if no other thing had happened between the Disseisin and the Release, the Husband should have had all.

The Husband is made King, the question is, Ba­ron and Feme are Disseisors, the Baron is made King, the Disseisee releases to the King what is wrought. First, when Baron and Feme are Joyn­tenants by Disseisin, by Title, or by Disseisin, all is one, and the Husband made King; whether do they remain Joyn tenants, or else they are Tenants in Common? Or else hath the King all? Or the [Page 27]Queen all? I hold them to be Tenants in Common, although this case can be matched or compared with no case of the Law, wherein the alteration of the Persons only shall change the Estate of the Parties without making of any new conveyance of the Land. 32 H. 8. Brook Deraign.

22 H. 6.2. A Feoffment to an Abbot, and I. S. they are Tenants in Common, but a Feoffment to A. and B. and A. is made an Abbot, all shall survive to B.

So if a Feoffment to A. and B. and A. acknow­ledgeth himself Villain to I. S. this alters nothing till I. S. enter; but whatsoever the King hath be­fore he is King, or whatsoever descends to him, or he purchases after he is King, he holdeth all, in ju­re coronae suae Angliae. Caluins Case, ex parte matris, Barkley's Case, Gavelkind.

Lancaster. Partition int. sorores Queen Eliz. Queen Mary, Queen Katharine, Ferdinando's Daughters.

So as the King's possession alters the very nature of the Land, and so makes him and his Wife Te­nants in Common.

And that it makes her as it were a Feme sole, I need vouch no authorities, who all know it in Ex­perience.

18 E. 3. fol. The Queen alone brought a Quare impedit.

49 E. 3.4. Cavendish, the King may give Lands or Goods to the Queen.

9 H. 6.13. Margery Parkers Case.

14 H. 4.67. Sci. Fac. by the Duke of Suffolk, against the Queen, to repeal the Patent whereby the King had granted to the Queen the Land of the Duke's Father, Tirwhite: In all times a Precipe hath been brought against the Queen, for she hath [Page 28]always been a Person exempt, notwithstanding the Coverture, so both their Persons being changed, &c. it is as if the King were Dead.

Then have I driven it to this pass, that the re­lease can work but to a Moiety, the question be­ing whether it work for all or for a Moiety, or none, that it should work for none.

If a Feoffment be made to the Wife, and before agreement or disagreement, the Baron is made King; I say he comes too late now to agree or dis­agree, no otherwise then if he had died.

Then the question is this, One makes a Disseisin to the use of I. S. and he is made King, can he now agree to the Disseisin? The rule is, The King cannot be a Disseisor; it is true, that in times past he might.

20 H. 3. Ass 431. Non habet ingressum nisi per Dis­seisinam quam Dominus Rex facit quaerenti dum fuit in­fra aetatene, & in Custodia Comitis de S. and the Te­nant saith, Non habet ingressum per Disseisinam quam Rex fecit, sed habet ingressum per judicium curiae, &c.

But at this day the Law is altered:

22 E. 3.37. 23 E. 3. Entry 11. If the King Disseise one, and makes a Feoffment, the Disseisee shall have a Writ of Entry, neither in the per nor in the post, quam Dominus Rex fecit. See the Book.

1. H. 4. cap 8. It was doubted what remedy one should have, but the Statute is, That if the King enter, and grant the Land of another, if the Grantee enter, the Tenant shall have an Assise, and trebble Damages against the Grantee.

And by the same reason he may not agree to a Disseisin done before, for till agreement, the Dissei­sor was Tenant, and nothing in the King, as 2 H. 7.16. 15 E. 4.15.

If you will say nothing but a Term passed, then in whom was it till I. S. was made King, in right of the Woman, and that it shall remain no otherwise than a Man that hath a Term in the right of his Wife, and is made King, she shall have all her Inheritance, and all her Terms, no otherwise than if he were Dead.

3 H. 7.14. The Queen and her Sisters were vouched as Heirs to E. the 4.

A Baron and Feme Alien, a Feoffment is made to the Feme, the Baron is made King, if upon Of­fice found, the King shall have the Land?

He shall not have it.

For the Baron being made King, she is made a Denizen by relation to the Marriage, which was to prevent the relation of the Office, no otherwise than H. 7. being made K. it had such relation, that it drowned all former Offences, Forfeitures, and Attainders whatsoever.

7 E. 4.31. The King grants a Farm to the Baily and Commonalty of S. they are made Farmers, and a Corporation. 2 H. 7.

A Lord infeoffes his Villain, he hath the Land and his Freedom.

Grondon's Case Commentaries, the King grants Land to a Corporation, this is a Grant, and a Li­cence in Mortmain.

Coke lib. 5.15. Tenant for Life grants a Rent charge to him in the reversion, and his Heirs, who grants it to one, and his Heirs, this is a grant and a confirmation.

A Disseisor makes a Lease for Life, the remain­der to the Disseisee, the Disseisee grants this re­mainder over, this is a grant, and a confirma­tion.

A Parson makes a Lease to the Patron, who grants it over, this is an Assignment, and a Con­firmation.

A Feoffment is made to Baron and Feme, the Baron is made King, if the Feme can waive.

• 1. Whether she can waive or not, as a Feme may after death of her Husband?
• 2. In whom it shall vest?
• 3. How the release should work then?
• 4. Whether a Feme Convert Disseisor can waive?

She may no otherwise than if the Baron were Dead, for she shall have all her own Land, and all her own Leases, but not her Goods.

And it is not of necessity that she expect his Death, for if a Feoffment be made to Baron and Feme, and they are Divorced, the Feme may waive.

In whom it shall vest, Whether in the King or not, because in a sort here was a partition?

But the question will be upon the release, whe­ther that shall relate to extinguish all the right of the Disseisee in all the Land, as if the Case were, Disseisor makes a Feoffment to Baron and Feme, and I. S. the Baron, and I. S. make partition, the Disseisee releases to I. S. this inures only upon his possession for the half; the Baron dies, and the Feme waives I. S. hath all by Survivour, yet shall not the release go to all?

Also by the waiver it cannot go to the King, for that were to make him a Disseisor by the waiver, it cannot return to the Lessee, contrary to his Livery, nor to the Lessor, then will not this amount to an occupancy.

But in this Case the Queen cannot waive, but [Page 31]still in regard of the Lessor she remains a Disseisor; for if a Feme Covert be a Disseisor, and her Hus­band die, she shall not waive the possession, for so for years and days she might take the profits, and yet in the end pay nothing, which were unjust. 41 E. 3. An Infant may be a Disseisor, and cannot waive a descent.

It may be probably alledged, that she might waive, for being a Feme Covert, she may alledge ignorance of the matter of fact, that is, whether her Feoffer had but an Estate for years, or was seised in Fee­simple, and we find in our Books, that great wrongs have been excused by the ignorance of a Man in what wrong he did, and waiving the thing wrong­fully taken. As,

22. Ass. 85. vid. lib. faux imprison. Heire son frere prise, per Scots.

7 H. 6.27. One brought an Action of Trespass for taking his Swans; the Defendant pleaded that he was Lord of such a Mannor, and that in a River within his Mannor, he found the Swans, and took them for strays; but after he had notice whose they were, he waived the possession of them, and let them go; this was a good excuse both of the Tres­pass and Damage.

21 H. 6.14. One brings Trespass, Quare filium suum rapuit, &c. He answered, you married my Sister, and had by her this Son, and you being out of the Country, it was reported you were Dead; whereupon I, as next kin to your Son, seized him, but when I heard you were alive, I sent him home again to his Nurse. Thus rightly did he waive, and avoid his wrong for want of true intelligence, which in Law we call Notice.

But in all those Cases, these wrongs were with [Page 32]intents to do right, and the parties were of opinion they were in the right; but our case is of a Disseisor, which is always intended a wrong-doer.

But you will say, this Woman is no Disseisor at Common Law, her entry was not malum per se, but malum prohibitum, a Statute Disseisor, and she being a Feme Covert, is not bound by Statute.

But I say she is bound by the Statute, for in all Statutes where a Feme Covert is not expresly ex­cepted, she is bound, as the Statute of 13 H. 6. Dis­seisin 1. per Martin. Baron and Feme may both be Disseisors.

35. Ass. 5. Baron and Feme Disseisors, Assise a­gainst the Baron sole abated.

15 E. 4.15. Disseisin is made to anothers use, the Disseisor is Tenant untill agreement.

21 E. 4.53. Tenant is issuing out of Land of the Wife, the Husband and Wife make a Rescous, they are both Disseisors.

That as I have argued the Lessor enters his entry is congeable for a Moiety, that is, the Queen's part.

Tenant in tail makes a Feoffment to a Feme Co­vert without Licence, the Husband dies, the Feme waives.

Points upon the Statute.

AN Adventurer into Virginia, is not within the Statute, for although from time to time we send Trifles thither to exchange with the Savages; yet the main drift and cause of our Traffick thither is for Plantation and Discovery, and not for Mer­chandizing. I hold the same of Greenland, but not of Muscovia.

2. He that is an Inn-keeper is within the Statute, for he buys and sells again retail. Ireland's Case in Smithfield.

3. He was born in the Isle of Man, the Statute is born within her Majesties Dominions, or Denizen, and I should have made small question, but that one born within the Isle of Man, is born in her Majesties Dominions, if it were not for the Book of 11. H. 8. Kell. fol. 202. It was found by an Of­fice, that the Earl of Derby dyed seised of the Isle of Man, the Countess came and prayed to be en­dowed, to whom Brudnell ex assensu Brook & Fitz. Herbert, and all the Kings Counsel said, That the Office was void, because the Isle of Man is not par­cel of the Realm, but the Isle of Wight is parcel of Hamp-shire, and Wales and Ireland are parcel of the Realm, for Writs of Errour lie, &c.

And I think it is very true, Hollinshead description of Britain, fol. 16. b. that the Isle of Man was then no parcel of the Realm; for the first mention thereof in any Chronicles, is the same year that Eng­land was Conquered by the Normans; for when Ha­rold had at Stainford-Bridge Conquered another Harold that was King of Norway, one Gordard the King's Son of Ireland, fled to the Isle of Man, in time Conquered it, and made himself Lord and Land­lord of all the Isle. So as to this day there is not a Free-holder in that Island, but all are Tenants to the King of that Country: It is about thirty miles long and fifteen miles broad, it is not governed by any written Laws or Courts of Record, but all their Controversies are ended by Arbitrators, whom they call Deemsters.

When King John Conquered Ireland, he sent Forces into Man, and wasted it all, but seated no Government there.

1240. One Harold of the Norway Line was re­ceived, and was invested in the Kingdom of Man, by the King of Norway, and yet afterwards he was made Knight by the King of England.

1250. Or thereabouts, in King Ed. 1. time, A­lexander King of Scots having Conquered all the Islands, either by Strength, or for Money, amongst the rest brought the Isle of Man under his Domini­on; the old King's Daughter sued to Edw. 1. as to the Supream Head of Scotland, the Answer, Sequa­tur coram Justiciariis de Banco Regis & ut Justicia.

Edw. 2. granted it to Piers Gaveston, but in Anno 1393. William of Mountacute by strength won it from the Scots, as Thomas of Walsingham saith, and sold it to William Scroop, he was attainted, and so it came to Hen. 4. The King of England he grant­ed it to Henry Peircy to hold it, by carrying before the King Lancaster's Sword; but presently he was attainted, and the King granted it to Sir John Stanley, and so it came to the Earl of Derby.

Seman's Case, 5. Reports.

A Man's House is his Castle, and his Castle is his House.

Points upon the first Case.

1. IF Tenant for years may attorn before Entry. 21 H. 7. One makes a Lease for years, and before the Lessee enter, the Lessor releases to him, the release is void.

One bargains and sells his Land to another, and before the Deed is inrolled, he attorns to the grant of the reversion, and after the Deed is inrolled, and the Bargainee enters. 21 H. 7.28 H. 8. Dyer, Debt for Rent lies before entry of the Lessee.

Litt. Lord and Tenant, the Tenant makes a Lease for life, the Lord grants the Seigniory to the Te­nant for life in Fee, the Tenant ought to attorn, yet he shall not hold of the Tenant for life, during his life.

28 H. 8. Brook. Tenant for twenty years, makes a Lease for ten years, Tenant for ten years attorns, it is good.

20 H. 6, 7. A Seigniory is granted by Deed to one for life, the remainder in Fee Tenant for life dies before attornment, &c. contrary if it were by Fine.

11 H. 4.18. One who hath nothing in the Land must attorn, as Tenant in Dower who hath assign­ed her Estate:

2. The reversion of Tenant in tail is granted, he commits Treason, and attorns, and is attainted.

12 E. 4.3. Tenant in tail shall not be compel­led to attorn, but 15 E. 4.13. if he attorn volun­tarily, it is good.

Nor Tenant in tail, after possibility, &c. 46. E. 3.13. 39 E. 3.20. 3 H. 6.12. 5 H. 5. Attornment. 17. One makes a gift in tail rendring Rent, the Do­nor by Fine grants the Rent, the Tenant in tail must attorn. 8 H. 5.10. Tenant for life grants his Estate upon condition, the Lessor grants the rever­sion, Tenant for life attorns, and after performs the condition, yet the Attornment is void.

But all the question is upon the relation of the Office, and this shall not vacate the Attornment, for it shall not relate for the mean profits of the Land. Sir VVilliam Fleetwood's Case, Cook, lib. 8. by the same reason, if Rent were reserved, it were well paid, and well received, and sufficient to invest the reversion in the Grantee.

3. Adventurer to the East-Indies is within the Statute.

4. Gardian of a Ship is within the Statute.

The Chancellor hath authority to award a Com­mission, but not to grant Supers: And therefore death of the King, or a new Commission leaving out the old Commission may be, but no Supers.

If the King present to a Benefice above 20 l. the Chancellor cannot make a revocation, but as well in our Case, as in that Case by Warrant under the Signet, Privy Seal, or Seal Manual, the Chancellor may award Supers.

6. Denizen of Ireland.

Points upon the Third Case.

1. TEnant for life, the remainder to the right Heir of I. S. makes a Feoffment in Fee upon condition, and enters for the condition bro­ken, who shall enter for the forfeiture.

The Feoffer shall not enter, for all is out of him by the Feoffment, and he hath nothing but a pos­sibility.

The right Heir of I. S. shall not enter, for his re­mainder is destroyed.

The first Question is upon the Statute of W. 2. cap. 25. Whether if Lessee for years make a Feoff­ment by Livery within the view, the Feoffer or Fe­offee, or both of them, or neither, be Disseisors.

2. Upon Baron and Feme, whether a Feoff­ment without Deed to the Baron and Feme, and Livery only to the Feme, invests any thing in the Husband.

3. Upon the matter, admit they are both Dis­seisors, whether the release made to the Husband shall exclude the Wife? it shall, but in this Case, where Tenant for years enfeoffes two, and the Lessor [Page 37]releases to one, he shall not hold out his Compa­nion.

4. Baron and Feme are Joynt-Tenants of a term, and the Baron is made King; what is become of the term, and so of Freehold.

Whether the King shall have all, or the Queen all, or they remain Joynt-Tenants, or Tenants in Common, they are Tenants in Common.

5. A Feme commits a Disseisin to the use of her and her Husband, and the Husband is made King, and the Disseisee releases to the King, what is wrought, if he can agree to the Disseisin being King.

6. A Feme Covert Alien purchaseth, the Hus­band is made King, and Office is found.

7. A Feme Covert purchaseth, the Husband is made King, if he can waive.

Points upon the Statute.

• 1. IF one born in the Isle of Man is within the Statute?
• 2. If Adventuring to Virginia is Merchandizing?
• 3. If an Inn-keeper be within the Statute?
• 4. If going to the Isle of Man be a Departing?
• 5. If keeping of a Castle be a keeping of his House?

Ʋpon the Second Division.
The Points of the First Case.

• 1. IF one may release to one, to the use of another?
• 2. Two Disseisors are, and they intermarry, and the Disseisee releases to the Husband, to the use of the Wife in tail, where the Fee-simple is?
• 3. If Marriage of a poor Maid be a good consi­deration to raise an use to the Maid, or to A.
• 4. Lands are given to a Feme Covert, and to her Heirs Females in tail, she takes Husband, hath Issue a Son and a Daughter, if the Husband shall be Te­nant by the Courtesie?
• [Page 42]5. If the Issue in tail in the life of Tenant by the Courtesie makes a present Lease, if this shall be good against the Issue of the Issue, after the death of Tenant by the Courtesie.

Points upon the Statute.

• 1. IF a Feme Covert sole Merchant be within the Statute.
• 2. If the Husband of such a Feme by her Bank­rupting shall be also a Bankrupt?
• 3. If the Outlawry of the Husband for the Wives debt shall make the one, or the other, or both Bankrupts?
• 4. If the Lands or Goods of the Husband shall be sold for the Debts of the Wife?
• 5. If the inheritance of the Wife shall be sold?
• 6. If one born upon the Coast of Flanders is born out, or within the King's Dominions?
• 7. If one born in the Port of Diep, is born with­in the King's Dominions?
• 8. If the Wife of an Alien sole Merchant be with­in the Statute?
• 9. If a Wife Alien, and the Husband English, be within the Statute?
• 10. If the Estate of Tenant in tail a Bankrupt shall be sold?
• 11. If by Entry of the Commissioners and Sale, the Vendee shall avoid a Lease, which Tenant in tail a Bankrupt might have avoided?

1. If one may release to the use of another, or if an use can be raised upon a release, and it may for three reasons.

A Release may be upon conditi­on, for there the case was put in Libro, and consequently to an use. But by 43 Ass. 12. the condition and the release ought to be both in one Deed. 17 Ass. 2. 31 Ass. 32.

2. Secondly, it is a good proof, that a release to a Disseisor may be to an use, when a Disselsm may be to an use; as 34 Ass. 12. 37 Ass. 8. 1 H. 5.4. 15 E. 4.15. All is in the Disseisor until agreement; And 2 H. 7.16. If one disseise another to the use of a third, the first is Tenant until agreement, but after all is in him to whose use, although not to be punished for the force.

3. My third Argument is taken out of the Book of 17 E. 3.5. where it is said, That if the Disseisee take homage of the Disseisor, he shall never have an Assise, for now they be Lord and Tenant, when at first the Disseisor was in the post, and destroyed the Disseisees Estate, and held of the Lord Para­mount: So I hold that if before the Statute of Quia Emptores Terrarum, the Disseisee had released to the Disseisor, the Disseisor must have held of him, al­though it is true, that since that Statute, a release of all his right in the Land, releases his Seigniory, as 34 Ass. But Temp. E. 1. Ass. 423. In a Writ of Entry in the Post of Disseisin made by A. to the De­mandants Grandfather, which A. infeoffed the Grandfather of the Tenant, the Tenant answered, after A. infeoffed my Grandfather, your Grandfa­ther confirmed and released to my Grandfather, re­serving homage, and my Grandfather did homage to yours, and my Father to your Father, &c. But he relied upon the Deed, a Tenure was reserved upon the confirmation, in which Case a release [Page 44]makes a degree; See my Moot Book, fol. 121. Then if an use may be raised out of the possession of a Disseisor, if a condition out of a release, and a te­nure out of a confirmation, by the same reasons an use may be raised, or declared by release.

2. Two Disseisors and they intermarry, it may seem they are mutually and respectively in by title, for if the Husband make a Feoffment of his moiety, yet he hath title to be Tenant by the Courtesie of her part, and she hath title of Dower to his part after the Feoffment which is in severance of the Joynture.

Kelloway's Case, Incerti Temp. fol. 129. This Case is well debated, which was, A. Feme sole, and A. Joynt-Tenants, she marries B. A. releases to B. whether this shall inure to the Husband only, or to the Wife.

Keble saith, That it shall inure to the Baron sole, for before marriage he might have infeoffed the Ba­ron, and it is no reason that he should be hindred to convey the Land to none but the Feme by re­lease, and by the release he shall be Tenant in Common with himself in right of his Wife.

But by others the Law is contrary, for he might have infeoffed others as well as have released to the Baron, also a release to one shall be in many cases to the benefit of another, as a Release to Tenant for Life, &c.

9 Eliz. Dyer 263. This Case seems to make against me, Baron and Feme, and I. S. were Joynt-Purchasers, I. S. released to the Baron, nothing went to the Wife; but I say, that cannot be, for the Baron and Feme being seised by intireties, the release could not make them hold the Land by se­veral moieties.

16 H. 9. Fitz. Herb. Release. 45. Nor do I agree that Case, for there the Case was, that a Woman was Tenant for life, and she takes Husband, the Lessor releaseth to the Husband and his heirs, by Paston, he had the reversion, for the Free-hold of the Husband was in right of his Wife, and the re­lease to him conjoyns that right, but I agree well that the Fee-simple shall be in the Husband, &c.

19 H. 6.35. One makes a Feoffment upon con­dition that he shall make a Feoffment over, if he doth it not, the Feoffer may enter; but if one makes a Feoffment in Fee upon condition that the Feoffee shall make a gift in tail, and he doth it, the Feoffee, and not the Feoffor shall have the reversi­on: So here.

3. If marriage of a poor Maid be a good consi­deration to raise an use, it is good to carry the Fee­simple to the Husband, and the intail to the Wife.

Before the Statute of Quia Emptores Terrarum, one might have created a Tenure in performance of a charitable use, as to make or repair a Bridge, or to keep a Castle. 34 H. 8. Brook. p. 51.

6 E. 3.13. One holds by three pence to aid the Sheriff, and good, and another by four pence of the Wapentake Fine, and good, because for to dis­charge the publick contribution.

12 H. 7.18. Keeping of a Beacon, whereby the Country may be warned when the Enemies come.

11 H. 7.12. The same for finding a Chaplain chanting in such a place.

And by the same reason that a Tenure may be created, an use may, and the same consideration.

For before Qui Emptores Terrarum, If one had made a Feoffment in Fee without declaring an use, it was to the use of the Feoffee, for the Law crea­ted [Page 46]a Tenure which was a sufficient consideration; but after no use to the Feoffee, but to the Feoffor, if neither Tenure created, nor use declared, and for that a lease for life, or for years, or in tail is to the use of the Lessee, or Donee, for the Law will create a Tenure of him in reversion: So here is a good consideration to raise the use of the Fee to the Husband, and the Estate tail to the Wife is good, without other consideration than that Tenant in tail must hold of him in reversion. 24 H. 8. Brook.

4. Lands are given to a Feme, and her Heirs Fe­males, and she hath Issue a Son and a Daughter and dies, if the Husband shall be a Tenant by the Courtesie? He shall.

Cook lib. 8. Pains Case is reported, as if before that Case the Law had been doubtful, whether the Husband should be Tenant by the Courtesie, when the Wife Tenant in tail had Issue which dyed, and so she dyed without Issue.

For the Estate was determined, and this was the reason that Leases for life, or years are not good against the Lessor, for Cessante Statu primitivo, &c. yet one may be Tenant in Dower without Issue, and therefore the Estate tail will continue to some purposes: 21 Edw. 3. Dower after a Dying seised without Issue.

21 H. 3. Dower 198. Tenant by the Courtesie may be, although the Issue dye before the Wife.

16 E. 3. Aid 129. One may be Tenant by the Courtesie of the moiety of Gavelkind without Issue by the Custome there.

Reppes Case, the Child was ripped out of his Mothers Belly, and so after the death of the Feme the Baron could not be Tenant by the Courtesie.

But this Question rises upon the Case put in Pains [Page 47]Case; Lands are given to a Feme and her Heirs Males, and she hath Issue a Daughter, and dies, the Husband shall not be Tenant by the Courtesie; for although a Man shall be Tenant by the Cour­tesie, notwithstanding the Estate tail be spent, yet his Estate must begin by an Heir heritable to the Estate. Here in our Case the Son was the Heir, and by him the Father would have been Tenant by the Courtesie to all other his Wifes Lands, but not to this; But although a Female cannot be Heir that hath a Brother, yet since the Statute of Donis, and by the Equity of that, a Daughter may be Heir by Cook, in Shelley's Case, notwithstanding that he had also a Son, fol. 103. and so here he may be Te­nant by the Courtesie for this Land by the Daugh­ter, and of other Land by the Son, if the Wife had been Tenant in tail of other Lands to her, and her Heirs Males.

5. Tenant by the Courtesie is, and Tenant in tail in reversion makes a lease to commence pre­sently, hath Issue and dies, Tenant by the Courte­sie dies, if his Issue shall avoid the Lease.

This Question is grounded upon the words of the Statute of 32 H. 8. which gives power to Te­nant i [...] tail to make Leases; Provided always, that this Act, &c. shall not extend to any Leases to be made of any Mannors, &c. being in the hands of any Farmer or Farmers, by vertue of any old Lease, unless the same old Lease be expired, surrendred or ended within one year after the making of the new Lease; and upon this Clause hath risen many Questions; as Tenant in tail makes a Lease for For­ty years not warranted, and Ten years after makes a Lease for Twenty One years to another warran­ted: Within a year Tenant for Forty years surren­ders, [Page 48]Tenant in Dower surrenders to the Issue in tail upon condition, Tenant in tail makes a Lease, &c. Tenant in Dower enters for the condition, and dies, and Tenant in tail dies, if the Issue may enter?

Tenant in tail makes a good Lease for One and Twenty years, Tenant for years surrenders upon condition, Tenant in tail makes another Lease for One and Twenty years, or three lives, the first Tenant in tail enters for the condition broken; By Philips, the second Lease is good; Cook contra in Elmers Case lib. 5.

And my Question is, whether Tenant by the Courtesie be within those words Farmers, &c. and he is not?

Foster in his Reading upon this Statute, vouched one Richards Case, That Tenant by the Courtesie was no such Farmer.

Points upon the Statute.

1. IF a Feme Covert sole Merchant, by the Custom of London, shall be within the first Branch, or Division of this Statute, which is, using the Trade of Merchandizing, or getting their living by, &c. she is.

That there is such a Custom in London, and men­tioned, and allowed in our Books.

Custom Br. 43. Ley Br. 74.

1 E 4. fol. 6. An Action being brought in C. B. for ones Board in London, he would wage his Law, not. And the difference put between Customs which go with the Lands, as Gavelkind, Borough English, &c. and Customs of Courts, good within the Town, but not here, but a recovery by such Custom may well be pleaded here in this Case, Littleton.

Billing saith, A Feme Covert, sole Merchant, by the Custom of London, shall be impleaded sole here,

35 H. 6. fol. 28. The Question was, Whether the property of the Kings Jewells could be altered or forfeited, because they were pawned, and forfeited in London. By Needham, in the Exchequer Chamber upon an Information: Custom Brook 5. and Pledges 28.

21 H. 7.17. Departure, Brook 10. in case of a Departure, because he had intituled himself by a new matter, that is, by a Custom which he might have pleaded.

9 E. 4.35. A Feme removed by Habeas Corpus, objected by Pigot, that she and her Husband were both arrested for the Femes debt, because a sole Merchant, and prayed that she might be remanded, for they have no remedy here, this had been allow­ed and granted to him, had not the Woman come in charged with a Reddidit; So upon an Exigent.

The Customs of London have been confirmed by Parliament, 1 E. 37. R. 2. and admit that she could not be sole sued here, as in the Courts of London; yet if a Contract made by her shall bind the Husband by the Custom, the Husband shall be sued here, and it shall be said, the Contract of the Husband, as 21 H. 7.

2. The Husband shall be bound by the Contract of his Wife, if he command before, or agree after, and it shall be accounted his folly to suffer his Wife, and so they be both Bankrupts.

To put cases how the Husband shall be prejudiced by the Act of his Wife.

49 E. 3.25. The Husband shall not be charged with the debt of the Wife which she owed before marriage after her death, but if an Action during the Coverture were brought against the Baron and [Page 50]Feme, and Judgment were had against them, and she dies, the Husband shall be charged.

20 H. 6.22. If the Wife buy any thing by the Husbands commandment, or that by his allowance comes to his use, he shall be charged.

9 E. 4.24. Debt against Baron and Feme, the Baron appeareth, the Feme makes default, the de­fault of the Wife is the default of the Husband.

Nat. Brevium 120. G. A man shall be charged by the Contract of his Servant or his Wife, if he gives them Authority, otherwise not.

12 H. 7.24. The Baron shall pay Mony in the Spiritual-Court, which was charged for corporal punishment of the Wife for a slander. And so it is at our Law, for all Slanders and Batteries, as we see every day.

20 H. 7. Kello. 61. A Feme Disseisor takes Hus­band, who occupies the Land without notice, or cognizance of the Husband, yet he shall pay dama­ges. I conclude, her Merchandizes are his by the Common Law, and by the Custom.

3. For all the Reasons aforesaid, the Outlawry of the Husband shall make him a Bankrupt by the Sta­tute, and shall make the Wife a Bankrupt by the Custom, and the Statute.

Which is plain against all, using Trade of Mer­chandizing, and getting their living by Buying and Selling, and that if he be non solvent, as he must needs be by his Outlawry, then she must be non solvent; but whether the Creditors by the Commis­sion shall have the Goods, or the King by his Out­lawry, That is a Question, that comes not within the compass of this Case, but I shall move that some other time.

4. But I put the Husband to be dead before the [Page 51]Commission, and whether his Goods or Lands shall be sold afterwards is a Question, but not properly upon this Statute; for the death of a Bankrupt is not provided for by this Statute, but plainly by the Statute of primo Ja. the last Clause; and I think that even for the debt of such a Wife, it shall be sold after his death: and although I put it, that a Feoffment is made to him by the Son, which can­not work by way of Livery, because he was Tenant in tail, yet if the Donor will enfeoffe the Donee by Deed, this will work to the increasing of his Estate by way of confirmation, 7 H. 6.

5. If the Inheritance of the Feme shall be sold?

She hath power to forfeit it by Attainder, or by Cessavit; and by this Statute they may sell all the Bankrupts Lands lawfully, that is, by any lawful course of Conveyance depart with all.

6. The Commission shall be in force against her after the death of her Husband, for if her Husbands death shall not help his Heir, a Fortiori it shall not help her that lives.

Also, as the credit of the one, was the credit of the other; for who would trust a Woman whose Husband was known to be of no credit; so the of­fence of the one, is the offence of the other; and the gains of the one, the gains of the other.

7. But if this Man and Woman be both Aliens, then neither of them are within this Statute, but another course must be taken with them, by the Statute of H. 8. cap.

The Woman was born upon the Coasts of Flan­ders, and the Man in the Port of Diep, and I hold them both born in the Kings Dominions; for him that was born in the Port (I mean in a Ship lying [Page 52]at that Port Town) there is small question, but it is within the Kings Dominions.

It is said of King H. 2. That he was the greatest King that ever was in England, for he had all the Land and Sea under his Dominion from the Orcades to the Pireneian Mountains, which sever France and Spain, England and Scotland he had by the Norman Conquest; they and Normandy were laid together by Hen. 1 Anjou Tourain, and Main, were the Inheritance of his Father, the first Plantagenet; Poytiers and Aqui­taine, he had by his Wife; Britainy held of him, as of his Dukedom of Britainy; so as all the Sea Coast, even from Calis to St. Sebastians in Spain was his; so that the French King had no way nor passage to the Sea, nor Jurisdiction in the Sea: It is true, that by the Attainder of King John for the murthering of Prince Arthur, a great part of all this was seized by the King of France, and in the end by R. 2. H. 6. and Queen Mary, all the Land was lost, but the Sea was never lost, witness the Isles of Alderney, (which stand within three Miles of France,) and Gersey, and Garnsey, which the French to this day could never conquer, and yet they speak French, and indeed are all that is left to the King of England, that was any part of the Dakedom of Normandy.

But the Coasts of Flanders is more doubtful, for Flanders was never in the Jurisdiction of the King of England, but yet they were never Masters of the Sea. The Lord Admirals Jurisdiction that he claims, is at this day as well of the German Ocean, as in the Straights; and we say, the Dutchmen do us wrong to Fish in these Seas.

8. But admit the Woman is an Alien, yet I take it, if her Husband be an Englishman, they shall be both Bankrupts within the Statute, he (as I said) [Page 53]by the Law, and she by Law and Custom; for as the Custom will allow her to be a sole Merchant if her Husband he a Citizen (altho' she be an Alien) so likewise shall her Estate be subject.

9. But if he be an Alien, yet all will be one for his Goods, but his I ands are the Kings; for if he will Trade and Traffi [...]ue by his Wife and her Credit being English, and having Land, and so have and enjoy the Priviledges and Benefits of a Subject by his Wives legitimation, her Land, and the Custom of the City there, it is no reason but that he should be subject to such Laws as other Subjects are.

So, as if the Wife be an Alien, and the Husband a Subject, or the Husband an Alien, and the Wife a Subject, they are clearly in both cases within the Statute for Goods; but my Case is for Lands, and in my Case I hold them both born within the Kings Dominions.

10. But the greatest Question in my Case, and a thing never yet put in u [...]e or questioned is, if a Bank­rupt is Tenant in tail, if by the sale of the Commi­ssioners the issue in tail shall be barred? they shall; for the words of this Statute, and of the Statute of 26 H. 8. are all one, The words of 26. are;

If any parsons shall be attainted of any High Treason by course of the Common Laws, they shall forfeit to the Kings Majesty their Lands. Tenements, and Hereditaments, wherein they have any Estate of Inheritance.

Our Statute is, That the Commissioners by Deed enrolled, may sell the offenders Lands, Tenements, and Hereditaments, as well Free as Copy, &c. in nei­ther of these Statutes are intailed Lands men­tioned.

But we see in Walsingham's Case, Plowd. and in [Page 54] Dowghties Case, and in common experience, that an Estate tail is forfeited, by 26 H. 8.13.

But you will say in 26 H. 8. there be words more to carry it, than in your Statute, for that saith, any Estate of Inheritance, and an Estate tail is an Estate of Inheritance; but our Statute hath words which tant amount, for ours is of all Lands, Tenements, and Hereditaments, which he or she may lawfully depart withal, and Tenant in tail may lawfully by fine cut off his issue.

And it is set down for Law, that a gift in tail, with condition that the Donee shall not levy a Fine, is unlawful, a void, and repugnant condition; for it is said in Mary Portington's Case, there be three inci­dents to Estate tails, at the Common Law, by Sta­tutes, and by Custom; By the Statute of 32 H. 8. cap. 28. to levy fines, and no condition can take away that from an Estate, that is incident to the Estate, as it is put of Dower, Tenant by the courtesie.

11. The last is upon my conclusion, admit that the issue in tail could avoid the Lease, whether the Vendee hath the same priviledge?

If Tenant in tail make a Lease not warranted, and dies, and the issue levy a fine before entry, 33 H. 8.

Dier, The Conizee shall not avoid the Lease.

8 E. 3. p. 22. The same is if he accept the Rent, or confirm the Lease before entry. The Lord Bedford's Case, Cook lib. 7. The Kings Gardian shall avoid.

The King hath the Temporalities of a Bishop, he shall avoid, and all this is for the benefit of the Heir, or Successor; and so in our case it is for the benefit of the Bankrupt, for in the end they must account with him, and he will say, that by their means he ought not to lose his election and benefit of the Lease.

The first Case of the second Division.

A and B. Disseise C. (who in consideration that A. at his request had married a poor Maid) releases to A. and his Heirs, to the use of B. and his Heirs Females of his Body; they have issue a Son and a Daughter, B. dies, the Daughter makes a Lease to M. for one and twenty years, rendring the ancient Rent, and dies, having issue E. a sole Merchant born upon the coasts of Flanders, and married to F. a Citizen of London born in the Port of Diep, A. grants the reversion to F. who is out­lawed for the debt of his Wife, and A. dies, M. enters.

The Wife is a Bankrupt, and the Land shall be sold charged with the Lease to M.

Points upon the second Case of the second Division.

• 1. TEnant in Gavelkind of a House purchases Estovers out of Land, in Borough English, to be spent in the House, he dies, his Brother makes partition, if the Estovers shall descend all to the elder, or shall be divided, or if by the division of the Land they are extinct?
• 2. Two Brothers in Gavelkind, the one is executed for Felony, if the Custom, the Father to the Bough, &c. holdeth place between Brothers, as between the Father and the Son?
• 3. If one born in Virginia is a Subject born?
• 4. If the exchanging of Gold for Silver, which is an unlawful act, is buying and selling within the Statute?
• [Page 56]5. If a Debt recovered by Information by an In­former, makes the Informer to be a Creditor?
• 6. If remaining in Execution six months at the Sute of the King, makes him a Bankrupt?

Ʋpon the third Case.

• 1. A Feoffment to two, and they intermarry, the Livery is made, if the marriage inter­rupts the Livery?
• 2. If the Lessee is remitted when he enters only to make Livery?
• 3. A Feoffment to B. and a Feme an Alien, how they shall take, and what part the King shall have?
• 4. If one naturalized is within the Statute?
• 5. If a Church-Warden a Bankrupt keeps the Church, if that be a keeping of his House, or taking Sanctuary within this Statute?

Ʋpon the Statute.

• 1. A Bankrupt hath a Seigniory, a Commission is awarded, the Bankrupt dies, a Tenancy Escheats: If the Seigniory, or the Tenancy shall be sold?
• 2. Tenant in Capite is a Bankrupt, and dies, his Heir within age, and in Ward: If the Land can be sold?
• 3. A Bankrupt hath a villain, and manumits him: If the Commissioners can after sell him.
• 4. A Bankrupt is felo de se: If the Goods shall be sold notwithstanding the interest of the Almoner?

The King grants a Mannor to A. to be holden by the service, to be a Justice of Peace within the Manner, the Question is, what Tenure that is, if grand ser­jeanty, Petit serjeanty Tenure by Knights service in Capite, or Tenure by Soccage in Capite?

Neither at the Common Law, nor at any time before the Statute of Quia Emptores terarum, there was no Officer in this Common-wealth, called by the name of a Justice of Peace, and therefore there can be no Authority of any ancient tenure of that nature; But there were divers Officers, who by virtue of their Offices, and as incident to their Office, were Conservators of the Peace, as Sheriffs, Coroners, Constables, and all the Justices of the Kings Bench.

17 ass. 5. A Sheriff, or Coroner may take an Appeal, a fortiori in the Kings Bench, for there Scot saith, That they are the Soveraign Coroners of the Land. But till 18 E. 3. cap. 2. the name of a Ju­stice of Peace was not known.

But whether such a tenure may be created at this day, is a Question? and I think it may, for the King is not bound by the Statute of Quia Emptor. as it is plain by the Books of Com. 240. Bark. Case.

He at this day may create new tenures; and Mar­row in his Book of a Justice of Peace, saith, That if the King grant a man Land to be holden by being a Conserva­tor of the Peace he is a Conservator by tenure, but he doth not determine what Tenure it is Mr. Lambert vouches a Record at Chester, that one Urianus de Sancto Petro that held medietatem serjanciae pacis, and this, he calls it Tenure in Capite, but rather as an Executioner, than as a Judge. It is thus material to the end of the Case, what Tenure this is, that if it be Knights service, then here's a Wardship, and then it will be a que­stion, whether the Kings interest will prevent the authority of the Commissioners? if in Soccage in capite, then that point is cleared. Some would have this to be grand Serjeanty, because it is to be performed in person, and that person is to represent the Kings person, and if (by Littleton) it be grand Serjeanty to be a Chamberlain of the Exchequer, who is but a Keeper (as it were) of the Kings money, it is grand Serjanty much more to be a Keeper of the Kings Peace: Others would have it Soccage in Ca­pite, for it is a Tenure must go with the Land, and so to a person uncapable of the Office (as in this case) to an Infant, or to a Woman, who cannot be a Ju­stice of Peace. And this is an Office, which can­not be transferred, no more than as it is in Kel­loway in his cases incerti temporis, fol. 151. If the Office of a Sheriff, or Coroner be granted to one it can­not be granted over, for such an Officer ought im­mediately to attend on the King without any mean, for the office of a Sheriff, as Sir John Davies saith [Page 73]well, &c. for life, and I am of opinion, that if this grant had been made before primo of E. 3. it had been a Te­nure by grand Serjanty, for then the Tenant could not alien without license upon pain of forfeiture. But now it is otherwise, so as I am of opinion, that this grant being now made, and in fee, it was a tenure by grand Serjeancy for life in the first Patentee, and his Patent was his Commission; But when he doth alien or die it will be a soccage in Capite; And yet if it should turn to be a Tenure by Knights service in Capite, yet I shall maintain the case at latter end, that the Com­missioners may sell the land, notwithstanding that the heir of the Bankrupt is within age, and in Ward.

2. A Bargain and Sale to Baron and Feme and a stranger, and before inrollment, they are divorced, the Question is, how they shall take, as three se­veral Jointenants, or each shall have a third part, or whether the husband and wife shall be jointenants for either of them a quarter part, and the stranger a jointenant with them for a half part?

35 Ass. 15. It is plain, that if one make a feof­ment to the husband and wife, and a third person, the Husband and Wife as one person, take the one Moiety, and th'other person the other Moie­ty, vide Librum. 7 H. 4. fol. 17. That they that be divorced, the divorce will change, and alter their estates, as if Lands be given in tayl speciall to an Husband and Wife, and then they are divorced, the estate tayl is turned to a freehold, and they are made jointenants, by dividable Moieties whereas before they held by intireties, and yet if they marry af­terwards again they are Tenants in tayl again.

3. 39 H. 6.43. The difference is taken between a feoffment before coverture, and after, for if it be before, and then they intermarry, if the Husband [Page 74]alien all and die, the Feme shall have a Cui in vita but for a Moiety, contrary if it be after marriage: Copledikes Case 3. rep. Baron and Feme jointenants, the Baron suffers a recovery of all, and dies, it shall be good for nothing against the Wife.

But there have been many Questions raised, how they shall take when a Conveyance is commenced before coverture, and finished after, or as our Case is when the Conveyance is commenced during coverture, and finished after Divorce: as if a rever­sion be granted to a man, and Feme sole, and they intermarry, and the tenant attorns, they shall take by entireties, because by the Book of 48 E. 3. The Attornment shall not relate, and yet if a Feoffment of a Mannor be made to a man Feme sole, and they intermarry, and then the Tenants attorn, they shall be in of the whole Mannor by Moieties, because in that case the Attornment will relate, as it is proved by Longes Case, which was Pa. 31 Eliz. Rot. 20 24. One made a Feoffment of a Mannor to which an Advowson was appendent, the Church became void, and the Tenants attorned, it was adjudged that in this case the Attornment should relate, and that the Feoffee not the Feoffer should present.

But in our Case, here be two relations together, the Relation of the Divorce, and Relation of the Inrollment. I have shewed, that the Relation of the Divorce shall change their Estates, and the Re­lation of the Inrollment will give it them, as they were to take at the time of the ensealing of the Indent. 6 E. 6. Bro. 6 E. 6. two Jointenants, and one Bargains and sells all the Land, and before Inroll­ment, the other dies; yet no more shall pass than the Party had at the time of the ensealing of the Deed. Surely the Deed relates to make them [Page 75]in by Intireties, and the Divorce to make them Jointenants, but shall this Relation of the Divorce change, or alter the Estate of the third person. And I take it, this nothing at all concerns the Stranger, nor shall it alter his Estate, but it shall be as a matter of estopel binding the Baron and Feme, but not to be respected of estrangers, and this is proved by the writ of Cui ante divorcium, for there the Feoffment of the Husband stood as a discon­tinuance till it was defeated:

Lex non oberit tertio extraneo, prodesse alteri nemo tenetur, sed obesse vetatur.

48 E. 3.38. Tenant for Life, the remainder for Life, the remainder in Fee, the first Tenant for life makes waste, he in remainder in fee releases to him in remainder for life, this shall not make him who was the first Tenant for life, to be punishable in waste.

43 E. 3.17. An appeal is brought against two as Principals, and an exigent is awarded, now the King is interested in their Goods, they appear, the Plantiff declares against one of them as princi­pal, and against the other as accessary, the second de­sires to have restitution of his Goods, he shall not, for alteration of the plaint by and between the Plantiff and Defendant, shall not by relation of any matter ex post facto prejudice the King or a third parties interest.

But before this Divorce, A. grants the services to I. S. a Tenant to B. the Husband, here ariseth three Questions at once.

• 1. If one bargain to two, and afterwards levies a Fine or Feoffment to one of them, whether it be not such a disagreement to the former Con­tract, as by that bargain the other shall have all, [Page 76]and the Feoffee nothing? and I think the other shall have all, and the Feoffee or Conizee nothing.
• 2. Whether if one bargain for a Mannor, and before Inrollment the Bargainor grants by Fine or Feoffment parcel of the Mannor, to the Vendee, whether this destroys not the bargain for all? It doth.
• 3. There is Husband and wife, and the Hus­band purchases by bargain and sale to him and his Wife, and their Heirs, and before Inrollment, the Husband takes a Fine, or a Feoffment of all, and then the Deed is inrolled; what shall the Wife have? I think she shall have nothing. For the first, and for all these questions, we must agree upon this ground, which is set down in Hinds Ca. Coke li. 4. That if a man buy Lands by bargain and sale, and before Inrollment he accepts of a Fine, or a Feoff­ment, he is in by the fine, and the Inrollment is of no force.

The next rule is, That if Lands be conveyed to two, and the one will disagree in Court of Record, or disclaim in the tenancy, all vests in the other.

17 E. 3. fo. 6. a Placito 18. A gift in tail was made to the Husband, and Wife, and they had issue, and the Baron died, the Wife disagreed, all descended to the issue.

10 E. 4. fol. 13. The Tenant infeoffs the Lord, and a stranger, the Lord disagrees, the stranger shall have all.

20 E. 4. Fitz. Nuper obiit 14. If the Defendant in a Nuper obiit disclaim in the Blood, the other Coparcener shall have all by descent, and a Mor­dancester of all.

22 H. 6.44. A Precipe against two if one disclaim, all vests in the other.

So here, in as much as the use passed by the [Page 77]contract, if one of them will waive that contract, and take himself to another bargain, then the first contract will stand good for all to the other, and the Inrollment for all shall relate to the use of the other, and shall be paramount to the fine, and destroy the Conveyance by the fine, as it is in Po­phams Case. 5 Eliz.

2. But then comes in the next question, this fine was but of part of the thing bargained and sold, and therefore it will not destroy the contract for all, but only for part, that is for a Moiety of the services. I take it that this contract being entire, being de­stroyed in part, is void for all, Qui partem individui facit nihil facit. I will example it with other Cases.

34 H. 6.21. It is a good plea in an action of debt for rent, that the Lessor entered before the day of payment, for the contract was entire, and therefore the rent not apportionable.

22 Ass. 53. Lease for life rendring rent for Land part in Franchises, and part in Guildable, in an Assise brought at Common Law, for the rent, Co­nizance shall not be granted, for the rent is entire, and the Kings Court shall be preferred contrary to Thorp, as it is in 46 E. 3.8. But if the Land is in que­stion, conizance shall be granted for so much as lies in Franchises.

9 E. 4.1. One is to lease a Chamber, and find the Lessee his board, for 6 s. a Week, in an Action of Debt for the Money, non demisit cameram is a good Plea, for destroy the contract in part, it is destroyed in all, for it is entire.

30 H. 8 Litle Broke. I sell my Horse, and another man's for 20 l. to be paid at a day to come, and before the day, the other man recovers his Horse against the Vendee, yet the Vendor shall have an action for all the money.

So here the Consideration of the money raises the use that's an entire Sum, and if you will have that the Demeasnes shall pass by the contract for the use, and the services, or part of the services shall pass by the grant, what a confusion would that be, and how much of the Consideration went for the one, and what for the other. I might that way maintain my conclusion, that the whole Mannor passes to D.

9 E. 4. Choke: A Mannor consists of Demeasnes, and Services, sever them and the Mannor is de­stroyed, and in Sr. Rol. Heiwards Case none shall take by fraction of Estates.

3. The third question being, that the Husband purchases Lands by Bargain and Sale to him and his Wife, and before the Deed is inrolled, the Husband takes a Fine or a Feoffment of the Land, to him and his heirs, and then the Deed is inrolled, what shall the Wife have? and I say (as I said) she shall have nothing.

3 H. 7.9. It is plain, that if Lands be conveyed to a Feme Covert, if her Husband disagree, the Feof­ment made to her is made void, and it shall return to the Feoffer. But if a Feofment be made to I. S. and a Feme Covert, and her Husband disagrees, all vests in I. S.

Rutland's Case, li. 5. Cook is, that the Husband by In­denture limits Lands to the use of his Wife, but be­fore the fine levyed, by other Indentures he limited the same to other uses: so in that case before the assurance is perfected, the Husband by whose means, and bargain making, this use was to rise to the Wife, before this Assurance finished, makes a new bargain for himself, and the Wife if he disagree can take nothing.

Kenn's C. Cook. lib. 7. It is the Husband hath the power to contract for the use, although it be of the Wives Lands.

4. The next matter that I intend a question upon the Statute of Inrollments, is (supposing this Land is held in Capite) Lands held in Capite are bargained and sold to a man, and before the deed is inrolled, the Bargainee dies, his heir within age, whether here be such a dying seised, and a descent, as his Son shall be in ward? and I think it is.

There be divers Cases, where the heir shall be in ward, and yet the Ancestour dyed not seised.

48 E. 3.8. If there be Lord and Tenant, and the Tenant is disseised and dies, his heirs within age, the Lord may seise, &c.

20 H. 6. Tenant in tail aliens, and dies, his heir within age, his heir shall be in Ward to the Donor.

33 H. 6.5. Tenant for life, the remainder in fee, he in remainder dies, his heir shall not be in ward for the remainder, but if the Tenant for life die, then by matter ex post facto he shall be.

11 H. 4.61. By Hank. and Norton. If the heir recover in a writ of ayel on Cocinage he shall be in Ward.

If the Father lose by error, or false verdict, If the Son reverse the Judgment by error or attaint, he shall be in ward: If the Father recover and dies be­fore entry, or execution, and the Son sue execu­tion, he shall be in guard.

Points upon the Statute.
Swinburn Fol. 175. I will that my villain be manu­mitted when my Son comes to age, my Son dies before the age, the villain shall be at Liberty, when the Son would have been of age.

D. Enters, and manumits a villain: The Question is, a man hath a Mannor to which be villains regardant, he becomes a Bankrupt, manumits the the villain, Commission is agarded, if the Commissio­ners may sell the villain? and I have concluded they cannot, For the villain being once at liberty, in this case is infranchised for ever.

I grant that in divers cases a villain may be infran­chised pro tempore, and yet be a villain again.

13 E. 4.2. As if Tenant in tail will enfeof his vil­lain of the Mannor, the issue shall have a Formedon and reduce both the Mannor, and the villain.

33 H. 6.13. Enfranchment by Tenant for years, or for life, is good but for their time.

And it is much controverted, whether if a nieff marry a Freeman, she be not for ever enfranchised.

Old Nat. Brevi. fol. 6. If her Husband die she shall be a nieff again.

33 E. 3. Statham Vil. She shall be neiff again even to her own Son, when her Lord and Husband dies: But as the Law saith, there is nothing more respected than life, and liberty, So I am of opinion, and I have authority for it, that if she be once married, either to her Lord, or another Freeman, she is at liberty for ever.

31 E. 1. Fitz. vill. 46. It is first questioned, and some there are of opinion, that after the death of her [Page 81]Husband, she shall be in bondage again, quod Burton negavit, but if she marry the Lord, then by all she is infranchised for ever.

Britton fol. 78. She is infranchised for ever.

Natura brevi. B. 78. G. I will conclude with the first authority; by Fitzherbert Brittons opinion seems reasonable, if she divorce not her self, or ack­nowledge not her self in Court of Record, in favour of Liberty, and because she and her Husband are but one person in Law, and of the same condition with him.

There be divers things favoured in Law, as Wo­mens dowers, the King, Lords, Holy Church, an­cient Records, Devises, Infants, Purchasors and pos­sessions; But next life, Liberty of all things is most favoured.

18 E. 4.6. No amercement lies against the She­riffs return, yet in a writ of Libertate probanda, if the Sheriff returns, that he hath no wrît of nativo habendo depending before him, one may offer the contrary in favorem libertatis. Quia pro­pensiores esse debemus ad liberandum, quam ad obligan­dum.

It hath been made a Question, upon the Statute 39 Eliz. that appoints the Lands, Tenements, and Hereditaments of Accomptants to be sold, which they had at the time when they fell into Arearages, whether if the Accomptant shall manumit a villain, he shall be nevertheless sold, and the best opinion of him that read upon the Statute in this place was, that his liberty could not be revoked, for here were nei­ther Lands, Tenements, nor Hereditaments; and so here.

27 Assizar. Enfranchisement for a time by act in Law, but if the Lord will manumit his villain for [Page 82]a day, by his voluntary grant, he is at liberty for ever.

The Tenant dies without heir: the Question is this, A Lord is a Bankrupt, and dies, a Tenancy escheats, if the Seigniory, or the Tenancy shall be sold?

I take it, as I have concluded, the Tenancy, that is the Land shall be sold, first see the words of the statute Primo Jacobi, The Commissioners may pro­ceed in the execution of the Commission, in such sort as they might have done, if the party Offender were alive; this makes an end of the question, for if he were alive, and the Tenancy escheated, the Land should be sold. And therefore I shall not need to put you Cases at Common Law, where the Tenancy escheating shall be bound to that, where the Land was tyed.

6 H. 4.1. Tenant in tail discontinues, and dies, and leaves a Seigniory to descend to the issue in tail, a Tenancy escheats, in a Formedon by the issue, the Tenancy shall he Assets.

14 H. 8 4. Fitzherbert, cestui que use of a Sei­gniory, a Tenancy escheats, the Feoffee shall hold the Land to the use of the Feoffer.

46 E. 3.4. Tenant in tail of a Seigniorty, a Tenancy escheats, Tenant in tail discontinues, and dies without issue, the Donor shall have a Formedon of the Land.

3. A Commission is awarded, D. is felo de se, the Question, a Commission is awarded, and the Bankrupt becomes felo de se, Office is found, if the Almoner shall have his goods, or the Commissio­ners may sell them? for the Lord Almoner hath all the goods, and chattels of Felons of themselves, and all Deodands, as appears by [Page 83]our Books, and his Charter which I have seen.

6 E. 6. Dier fol. 77. The King leases Richmond fee with all Deodands, and after grants to the Almoner, the term expires, the grant to the Almoner void, because the other lease was not recited.

2. Mar. Dier fol. 107. The King grants to the Archbishop of Canter. Deodands in D. and to the Al­moner all in general, Hales is felo de se.

Plow. Dame Hales, the Bishop is attainted, the King shall have the Lease.

It is true (as it appears in Dame Hales case) That when two titles come together, that is the Kings and a subjects, the Kings shall be preferrd, As if a villain be a fool natural, the King, not the Lord shall have him.

If a villain be felo de se, the King, not the Lord shall have his goods. Then a Bankrupt is felo de se, shall the King, or the Creditors have his goods? I think the Creditors: For if the Bankrupt in life had no authority to dispose them, (as it is in Tibna­bams Ca.) much less shall he dispose of them by his death. And admit the Almoners Patent were before the Statute of primo of the King, yet both the King, and the Almoner, by Act of Parliament have given away their title to the Creditors.

4. I have already argued, that the heir of the Bankrupt is in by descent, now the Case is, he is with­in age, and an office is found, and that the Land is held of the King in capite, the Question, (and the hardest question in my Case,) is, whether after an office of all this matter found, the Commissioners may sell? And I think they may.

For this office, finding the whole matter, notwith­standing a tenure in capite, a dying seised of the Tenant, and the minority of an heir is found, yet [Page 84]nothing vests in the King: For when an Act of Parliament shall appoint the Land to go another way, and the course taken according to the Sta­tute is found in the Office, the King his Officers in the Law shall consider of all the whole matter in Concreto, and not in abstracto, and shall challenge nothing for the King, which belongs not to him, as is seen by a Devise made by Tenant in capite, according to the Statute of 32 H. 8. of Wills.

5. The Commissioners imprison the Bankrupt in his own House: Two questions, first whether the Commissioners may imprison him by the Statute of 13. which gives them authority to dispose of his body, as they shall see good in their discretions, when as the Statute of primo appoints an imprison­ment upon a special cause of refusal, as if there were no Law general to imprison him, in divers cases expressa nocent Vide, my Moote Book?

I think they may. It is true that Leges posteriores priores contrarias abrogant, but this is not a contrary Law, but a strengthning, and a confirmation of the former Law in a particular, nor doth it revoke the former no otherwise than that, where by the Statute of 27 H. 8. Leases shall be under the Dutchy Seal. This doth not take away the Au­thority of the Great Seal, but that Grants may pass under the Great Seal since the Statute: And for sureness now a days, they put many times both Seals to them.

2. Question is, whether this Imprisonment in his own House be such a Dealing in the Commission, by the Commissioners as is intended by the Statute of primo. That his dying afterwards shall not alter the Case, For if it be a lawful Imprisonment, then here is a Dealing, if not contrary, for Ea possimus [Page 85]quae jure possimus, for as it is said by Herle for a Ma­xime, that all Leets, Hundreds, and in 2 E. 3. all Ports, and Cities are the Kings, and the Lords have but the use and profits of them under the King; so it is said, all Gaoles are the Kings Prisons, and none o­thers of the Land, for life, and member belongs to him only, and the Lords have only the regard; and that is the reason, that in all Corporations in their Charters they always have a Grant, and liber­ty to have a Prison.

Auditors by the Statute of W. 2. cap. 11. may send the Baily, found in Arrearages to Prison; by the Book, it must be to the next Gaol, though it be in another County, otherwise an Action of false Im­prisonment lies. So our Commissioners must be careful to pursue their Commission; but because the Statute saith, they may dispose of his body at their discretions, therefore to stay him in his own House, or in one of theirs, till he be further examined, I think it not amiss, although I have heard, that some Commissioners have been blamed for not sending him to the Gaol.

1. A. makes a Feoffment in Fee to B. by livery, within the view, B. Covenants, with C. to stand seised to the use of D. his Son, A. enters and makes a Feoffment to B. D. enters, and makes a Lease for years to E. a Merchant, upon condition to have in Fee, E. is a Bankrupt, C. disagrees to the Contract, E. becomes a Recusant Convict, and hath not Lands sufficient to pay 20 l. a Month, the Com­missioners sell the Land, the King seizes the Term, the condition is performed.

The Vendee shall have the fee-simple.

Points.

• 1. IF livery within the view may be counter­manded by livery in fact?
• 2. If the Feoffee, to whom livery is made within view before entry, Covenants to stand seized to another use, and after enters, if the Covenant good, that is, if by his entry he by relation is in from the time of the Livery?
• 3. If a covenants with B. to stand seised to the use of C. and C. enters, and B. disagrees to the Co­venant, if the Land shall revert to A.?
• 4. If a Bankrupt hath a Lease for years upon condi­tion to have fee, if the Commissioners may sell the Land with the possibility?
• 5. A Bankrupt hath a Term, and is a Recusant convict, if the King or the Creditors shall have the Term?

2. The King, Lord, Mesn, and Tenant of Borough English Land, the Tenant by License of the King to create Tenures, devises the Land to A. in fee, to hold of his Heirs by Knights service, A. is attainted of Felony, and devises the Land to his eldest Son a Merchant Bankrupt, the Mesn enters, the younger Son reverses the Attainder, the eldest waives the Devise.

The Commissioners may sell all the Land.

Points.

• 1. IF the King may grant to the Tenant of another to create new Tenures in prejudice of the Mesn as to Escheats?
• [Page 87]2. If Tenure in Borough English, which is always Soccage, may be altered into Tenure in Knights service?
• 3. If it may be altered as to the Custom to de­scend to the youngest?
• 4. If it may be altered as to the Tenure, but not as to the Custom, if the youngest Son shall be in Ward?
• 5. Upon the Statute of Wills 32 H. 8. Lord and Tenant, the Tenant is attainted, and Devises his Land, and dies, the Heir reverses the Attainder before entry of the Lord, if the Devise is good?
• 6. One Devises Land to a Merchant, and he be­comes a Bankrupt, and waives the Devise, if the Commissioners may sell the Land?

3. A Merchant makes a Lease for Life to an In­fant, the remainder to the King for Life of A. B. enters, and dies seised, the Deed is Inrolled, A. dies, the Infant enters, the Lessor, in consideration of marriage, covenants to stand seised to the use of himself and his Wife, and their Heirs, the Infant at full age makes a Feoffment, the Heir of the Dis­seisor enters, the Lessor is a Bankrupt, the Commi­ssioners sell, Lessor dies, the Feme waives.

This is a good Sale of all the Land in Possession, and Reversion.

Points.

• 1. WHether the Inrollment doth not relate to avoid the descent?
• 2. Whether the Entry of the Infant reduce the reversion?
• [Page 88]3. Whether the Sale not being good against the Wife, is made good by her waiver?

Vide ante the Principal Case.

5. One grants a Rent Charge to a Physician, and his Heirs, pro Consilio impenso & impendendo, the Physician is his own Apothecary, and becomes non solvent for Drugs and Simples, which he used in his Art, a Commission is awarded, the Physician keeps his House for fear of Arrests, the Physician brings a Writ of Annuity, and recovers by erroneous Judgement, the Commissioners sell the Rent, the Recoveree reverseth the Judgment, the Physician dies.

This Sale of the Commissioners was good for this Rent, but not to take effect during the Life of the Physician.

Points.

• 1. IF an Annuity in Fee be granted pro Consilio may be sold?
• 2. Whether he have any Election after he is Bankrupt?
• 3. Whether the bringing of this Annuity which is reversed, be an Election?

6. One makes a Gift in Tail rendring Rent, and dies, the Rent is arrear, a Disseisor enters, and le­vies a Fine, five years past, the Heir of the Donor is a Bankrupt.

The Commissioners shall sell the Rent, and the Arrearages.

Three Points upon the Statute.

1. UPon the Statute of Fines, the Second and Third upon the Statutes of Limitations, and Bankrupts.

1. Upon the Statute of Fines, that is, if Fines of the Land shall be a Bar for the Rent?

2. And 3. Upon the Statute of Limitations: If Commissioners may sell when the Party was con­cluded by the Statute of Limitations: 6 Jacobi Banco Regis, Executors notwithstanding no Seisin in their Testator by fifty years, shall destrain by the the Statute of 32 H. 8.

7. A. and B. Tenants in Common of the Man­nor of D. and Jointenants of the Mannor of S. They by Deed Poll bargain and sell Common of Pasture, within the Mannors for a Cow to C. and his Wife, and to the Heirs of their two bodies be­gotten, C. the Husband grants the Common to E. in Fee, the Wife dies without issue, E. is a Bank­rupt.

E. had Common for a Cow, but it is neither Land, Tenement, nor Hereditament, which may be sold by the Commissioners.

8. The King grants to I. S. that he only for his life shall have the Importation of Steel, he assigns his Patent to I. N. a Merchant, I. N. becomes non solvent, and after acknowledges himself to be a Villain regardent to the Honour of Hampton-Court, a Commission is awarded.

I. N. Is a Bankrupt, and the Commissioners may sell all his Lands and Goods, but not the Monopoly.

9. A. and B. Jointenants Covenant for natural affection to stand seised to the use of C. for life, C. enters, and B. dies, C. dies, the Heir of B. makes a Gift in Mortmain, the Lord before entry bar­gains and sells the Seigniory to I. S. who enters, and makes a Gift in Tail, the remainder to I. N. a Merchant, Tenant in Tail is attainted of Trea­son, and suffers a common Recovery, Office is found, I. N. becomes a Bankrupt, Tenant in tail dies without issue, I. N. waives the remainder.

The Commissioners may sell the Moiety of this remainder.

10. One grants an Advowson to a Feme Co­vert sole Merchant, the Church becomes void, the Husband in consideration that I. S. doth enter into Bond to preach twice a Week, presents him to the Benefice, the Feme becomes a Bankrupt, the Husband dies, the Feme waives the Grant, the Commissioners within the six months sell the Pre­sentation, and the Advowson.

This is a good Sale of the Advowson, but the King shall present.

Points in the Case at Common Law.

• 1. TEnant by Copy surrenders into the hands of two Tenants, and the Lord separates the Freehold from the Mannor, if the surrender is void?
• 2. Tenant by Copy, surrenders to one for years, and after to the use of another in Fee, if good with­out Attornement?
• 3. If the Tenants are bound to Present the sur­render at the Lords Court, after he had separated [Page 92]the free hold from the Mannor, That is, whether the Presentment shall not interest the party to whose use, &c. by relation from the surrender?
• 4. If Tenant by Copy surrender to the use of one for years upon condition, and after he surrenders the reversion to the use of another in fee, and after the condition is broken, if the Grantee in reversion shall enter for the forfeiture by the Statute of 32 H. 8. Cap. 34.
• 5. If a Copy-holder Lessee for years by surrender commits waste, if this is a forfeiture to the Lord, or onely to him in reversion, or of the reversion?

Points upon the Statute.

• 1. IF a Merchant who departs by license, and upon a privy Seal will not return, but is non solvent, shall be a Bankrupt?
• 2. One had onely the free-hold of a sole Copy­holder, if such Copy-hold may be transferred by sale of the Commissioners?
• 3. A Copy-hold is surrendred to the use of a Hus­band, who will not be admitted, if the Commissio­ners can sell?
• 4. Whether one fine, 2. fines, or no fine be due to the Lord?
• 5. Admitting a fine were due, and the Lord after tender refuseth it, what remedy the Vendee hath for the Land, or the Lord for the fine?

1. When there is a Lord of a Mannor, and Co­py-holder of Inheritance surrenders into two Tenants hands, and then the Lord makes a Feofment of the Copy-hold, I take it that this severance of the [Page 93]Free hold, and of the Copy-hold from the Mannor shall not destroy the surrender, For when the Co­py-holder hath once surrendred, he hath dismissed himself of all his interest, and the right is in the party to whose use the surrender was made.

Bunting Ca. Coke. li. 4. The death of the surren­derer, the death of the Tenants, nor the death of the party to whose use the surrender was made, shall not alter the Case. But the party to whose use such a surrender is made, hath such an interest as shall descend to his heir, for his heir shall be admitted, and by the same reason his interest shall remain, not­withstanding the Lord sell the Free hold (as it is said in Morrels case,) the custom hath so esta­blished, and fixt the estate of the Copy-holders that the Lords severing it from the Mannor, cannot alter it.

It was adjudged, that the custome of a Man­nor being, that if Tenant for life by Copy die, his Wife shall have her Widdowes estate, the Lord dis­solved his Mannor, the Copy holders Wife died, he took a new Wife, and then he died, the Second Wife had her Widdowes estate, and yet there was no Court, whether she could come to have the death of her Husband found and presented, and where she might be admitted? &c.

But admit that the Surrender had been made into the Lords hands, out of the Court, as by Melwich his Case it may, or admit it had been made in Court, and the party to whose use it was made, had ten­dered the Lord his due fine, and the Lord would de­mand more, and so defer the admittance: In these Cases, the Law is plain, that the party may enter, and no Action lies by the Lord against him. And what if the Lord dissolve the Mannor, shall that [Page 94]alter the case? No, no more than if a Copy­holder of inheritance die, and the Lord severs the Freehold from the Copy before the Heir be admit­ted, this shall not destroy the Heirs estate, but he may lawfully enter, and hold it for ever without ad­mittance.

2. But here notwithstanding this severance of the Free hold from the Mannor, the two Tenants pre­sent the Surrender the next Court held by the Lord for the Mannor. The Question is first, whether the Tenants were bound to do it or no? And the next, what is wrought by it? And I take it they ought to present it; For notwithstanding the Copy­hold be severed from the Mannor, yet they are not severed, they be Tenants still, and they must do their duties, and the rather, because it is not al­together severed, for Tenant for years of the Co­py-hold, remaines still Tenant to the Lord, and his rents and duties are to be done to the first Lord, and not to the Copy-holder in reversion: But to what use is this presentment of theirs? I take it to this use. It shall have relation to the Surrender and in­terest of the party, to whose use it was made from the time of the Surrender. Like as an Office found 10. years after an escheat, will intitle the King to all the mean profits from the death of the party; Or as a Deed acknowledged to be Inrolled, shall be Inrolled notwithstanding the death of any of the parties, and shall have relation from the date of the Deed, to intitle the Bargainee to the profits: Or as a Legacy is given by Will, cannot be sued for till the Will be proved, and then the Probate makes the Legacy due by relation, ever since the death of the Testator; Even so the Presentment hath relation to intitle the party to whose use the Surrender was [Page 95]made, from the time of the Surrender; And this appears plainly by Rowswels Case in Chancery, Feme Tenant for life of a Copy-hold, the Lord grants the Reversion to three, the Baron Surrenders to one of them, who first dies, there the Lord would have kept the Land as occupant, during the Husbands life. 9 Eliz. Dyer. 267.

But it was decreed, that if the Husband and Wife would surrender to the Surviving Lessees in reversion, the Lord must admit them, or else avoid the pos­session; So if the Lord will not admit the party to whose use, the party shall have the Lands; if a man surrender to the use of his last Will and Testament, the Lord shall not have the Land but the Tenant during his life.

3. But before I go any further, let us consider of this Lease, it is by a Surrender upon Condition, and he in reversion surrenders to anothers use, and the Condition is broken: My Question is, whether he in reversion shall enter for the Condition? by the Common Law he cannot, then may he enter by the Statute of 32 H. 8. Cap. 34. of Conditions, there be divers Statutes which reach Copy-holds, though they be not named.

Heydons Case, lib. 3. Copy-holders are Lessees within the Statute, 32 H. 8. of Monasteries.

The Statute of Cui in vita, Receipt, quod ei defortiat, Coke li. 4. Kite. per Wray, Copy-hold estate is with­in the Statute of Champertie, and Maintenance, 32 H. 8. Cap. 9. Dean and Chapter of Worcesters Case, Coke li. 6. Copy hold is within the Statute of 13. Eli of Leases by spiritual persons, Lands usually let, &c.

Lillingstones Case adjudged 27. Eliz. That if the Lord infeoff the Copy-holder to anothers use, that the Copy-hold is saved by the Proviso in the Statute of 27. H. 8.

Margaret Podgers Case. A Copy-holder is bound by Fine, and 5. years.

The general rule is layed down in Heydons Case, That all Statutes that may be for the good of the Copy-holder shall extend to them, therefore I am of opinion, that such a Grantee shall enter for non­payment of rent, or for doing of waste, as the words of the Statute are; For it is for the good of the Copy-holders that their Farmers be bound to pay their Rents & keep their Tenements in repair. I should make small question of this if the Lease were made by license, for then it is a plain lease at Common Law, and an Eje­ctione firme will lie: But here the Lessee comes in by the Lords admittance, but that is answered by my Lord Cook, when he is once admitted, he is in imme­diately from the Surrender and in the Per.

4. But this Condition is, for waste, and it is broken, whether is there a forfeiture to him in re­version, or a forfeiture to the Lord of the estate in fee simple? It is to the Lessor, not to the Lord, wherein I fall again upon the difference, when it is by License, and when by Surrender, for I take him to be as if he had a particular estate with a remainder over. In Podgers Case fo. 107. Si cop. pour vie sit sem­ble al case del Duke of Norff.

Points upon the Statute.

A Merchant being a sufficient man departs the Realm, and beyond the Seas becomes non sol­vent, and so refuses to return, although he be ser­ved with a privy Seal to return: Here be two Que­stions, [Page 97]First whether he be a Bankrupt for not re­turning; For he is not within the Compass of the Statute of departing the Realm. The next Question is, (admitting him to be a Bankrupt:) Whether the King shall have his Goods, as the goods of a Fu­gitive, or else whether they shall go to satisfy the Creditors? For the first, I think, he is a Bankrupt, and although he be not within the compass of these words, (depart the Realm) yet it is plain, he is within these words (absents himself) for although his departure was no offence either to the King or his Creditors (For Merchants both by the Com­mon Law, and notwithstanding the Statutes of 5 R. 2. Cap. 2. or the Statutes of 13 Eliz.) might de­part the Realm without license, except the King (as it is in Natura Brevium fol. 85. had made pro­clamation to the Contrary.) Yet the King not only by the Statute but by the Common Law, as he may forbid a man to depart, so he may send for him at his pleasure to return; And that is proved by the ex­press Book of 2 & 3 Phil. and Mary. Dyer, fol. 128.

Where it is said, That if he be commanded to return, either by the privy Seal, or the great Seal, and refuse, his Lands and his Chattels shall be siesed into the Kings hands; and for that a President was found in the Exchequer, where in Anno 19 E. 2. It was William de Brittains case, although it is true (as I said) the first departure is no offence accor­ding to the Book of 13 Eliz. D. fol. 296. But then admitting he is a Bankrupt, and admitting that by his refusal to return he hath forfeited all his Goods and Lands to the King, The Question is, whether the King, or the Creditors shall be preferred? And I take it the (Creditors shall be preferred) Yet He agree the rule is, that when a title falls to the [Page 98]King and a Common person both at once, the King shall be preferred.

Dame Hales, Villain and Ideot, Priority and Po­steriority. 5 E. 3.

But I rely upon a Case, which was ruled upon a Trial by my Lord Cok. 12. Jac. int. Newman and Martin, ou Martin fuit adjudge Bankrupt because he was beyond the Seas, &c.

2. Points upon the Statute. One hath the free­hold and another hath the Copy-hold of one onely acre severed from the Mannor, this is plain, as it is in my Lord Cokes 4. reports in Case. This Copy-hold by no means can be trans­ferred from one to another. But now our question is, Whether this Copy may be sold by Commissio­ners? I say, Parliamentum potest omnia, By Act of Parliament it may be sold, And here the very words of the Parliament are, That the Commissioners may sell his Copy-hold estate.

The Law was taken before Corbets case was first argued, That it was impossible to cut off perpetui­ties, yet there were divers before, that were cut off by Act of Parliament, and they all that argued for the perpetuites agreed, that by Act of Parliament it might be done. By the Common Law a thing in action cannot be transferred, as a debt upon an Obligation; Yet by the Statute of Bankrupt, Ja­cobi primo, we see it is done every day.

But it will be objected, that the Statute goes on and saith, That the Vendee shall compound with the Lord for the Fine, and be admitted: Now if there can be no admittance, then no sale, and it shall be intended such Copy-hold whereof admit­tance may be. And in Dr. Bonhams case, divers cases are put where divers Acts of Parliament are [Page 99]void and divers others construed directly contrary to the words. But out of that Case I will prove this to be good; for first this Act saith, The Com­missioners may sell, then there is their Authority; the Vendee shall compound, that is a second action which must be done, if it may be done. Hillary 38 Eliz. A Grant was made to the Mayor and Commonalty of London, that the Mayor should have the search, &c. of all Handicrafts, and should punish them, but granted no Court where the same should be punished; this was good for to search, and to discover; but void for him to punish, but it must be punished, as it may be otherwise.

The Statute of 5 Eliz. cap. 13. of Highways saith, Who comes not at the common days shall forfeit, and orders, that the offence shall be presented at the next Sessions, &c. Upon pain of Forty Shillings; no Certificate is made, yet the offence shall be punished.

3. But now we are upon the point of Fines, a question rises in this Case, whether two Fines, or but one, or no Fine be due to the Lord; and I think a Fine is due. Plainly two Fines should have been paid, one to the Lord of the Mannor upon the surrender of A. to C. and another upon the sale by the Commissioners, as it is in the 4th. Report fo. 22. the heir surrenders before admittance, the Lord shall have two Fines. But in Hubbard and Hammond's Case, it is said no Fine is due to the Lord before admittance; for the admittance is the cause of the Fine; and if after admittance it be denied, it is a forfeiture. But I take it in this case, the Lord shall have no Fines; for the Statute must have a reasonable construction; and indeed for all parties according to equity; and in all [Page 100]Statutes where the ordering of things is referred to mens discretions, equity and good Conscience ought to respected; and therefore it is said, 3 E. 3. An accompt ought to be amended by the Audi­tors, according to equity and good faith: But what remedy hath the Lord for it?

4. But here a Fine is tendered, and refused; now the question is double, 1. What remedy generally? 2. Whether it be lost for ever or not? For the first, if it had been in a case that the Lord could have admitted him, he should have had the ordinary re­medy, as all Lords have for their Fines, that is up­on presentment of a Surrender, or of the death of a Tenant, or of sale by Commissioners, the order is to call the Party that should be admitted, and if he come not in time, to seize his Land: But here can be no Calling, for here's no Court: Surely, I think as the Vendee may enter without admittance, so the Lord may enter again upon him, and seize the Land till his Fines be paid; but these Fines have been tendred, and refused.

We see that tender and refusal in many cases is peremptory, as Littleton in case of Mortgage.

27 E. 3.88. Un distr. pur dam. fesant, & si avoyde, the Tenant pleaded, that before the taking, at the taking, and after the taking, he tendered sufficient amends, and the Avowant refused, he hath lost his damages, and shall pay damages, &c.

22 Hen. 6.44. A Man is bound in an Obligation to stand to the award of J. S. he awards that the one shall release the other, who tenders a release, the other refuses, in Action of Debt, sur le ob. tender and refusal is a good plea, sans dira uncor Prist.

But yet in the same case it is put, That if Money had been awarded, and tendered, and refused, [Page 101]the Bond had been saved, but the duty had remained.

45 E. 3.9. The Lord destrains, the Tenant ten­ders, the Lord refuses, yet the Rent is not lost, but at another time the Lord may distrain.

Brian, If the Tenant tender his homage, and the Lord refuse, he cannot destrain, but upon a request, if the Tenant refuse, he may destrain. So here, the Tenant tenders his Fine, the Lord refuses, I take it the Fine is not lost; but after a new request the Lord may seize.

5. The last point upon my Statute is, a Bankrupt purchases a Copyhold, and the Tenant surrenders into two Tenants hands to the use of the Bank­rupt, and now he will not be admitted: whether the Commissioners shall sell the Copyhold? And I think they shall by the very words of the Statute, which are, That the Commissioners shall sell all Lands which the Bankrupt shall purchase with any other Persons of trust, or to his secret use; If then they may sell Lands wherein he hath secret use, much more, Lands wherein he hath an express use: And in this Case, if his negligence to pray to be admitted, or his absence beyond Sea shall hinder the present Sale, and he die, his heir may be admitted after his decease: And then a greater Question will rise, Whether the Land may be sold, or not?

2. A Copyholder of Inheritance, where the Custom is, that the Wife shall be indowed, sur­renders into the hands of two Tenants to the use of the Mayor and Commonalty of D. in Fee, and dies; the Wife marries with I. S. a Merchant, the Mayor and Commonalty are admitted, the Heir of the Copyholder enters: I. S. and his Wife affirm a Plaint in the Lords Court, in nature of a [Page 102]Writ of Dower, and recover against the Heir, the Mayor and Commonalty enter, I. S. and his Wife sue a Precept, in nature of a Scire facias, a­gainst the Mayor and Commonalty, for to have a a Writ De Dote assignanda, and damages: I. S. be­comes a Bankrupt, the Commissioners sell the Copyhold, and assign the damages which shall be recovered; the Vendee compounds with the Lord.

This is a good sale for a third part of the Copy­hold, during the Coverture, and a good Com­position; but the Assignment of the Damages is void.

3. A. Is Tenant in Tail of a Mannor, where the Custom is, that the Wife of a Copyholder shall have a Widow's Estate: A. grants white Acre to B. by Copy for life, and after he makes a Lease of white Acre for life to F. the Wife of B. dies: A. makes a Feoffment of the Mannor to G. and all the Tenants attorn: A. dies, B. takes a second Wife, and dies, the Issue in Tail enters into the Mannor; the second Wife takes M. to Husband, who becomes a Bankrupt; the Commissioners sell white Acre, the Vendee compounds with the Issue in Tail, and enters, F. dies.

The Sale is good during Coverture, and the Composition is good.

4. Baron and Feme have issue, A. a Daughter, the Baron dies, the Mannor of Sale is given to the Feme for life, the remainder to the Heirs of the Baron and Feme: A Copyholder surrenders to the use of him­self in Tail; the remainder to A. in Fee, the Feme [Page 103]takes a second Husband, and hath issue B. another Daughter and dies, A. enters, the Copyholder suf­fers a customary recovery, and dies without issue; his Heir being a Merchant, and Bankrupt: B. en­ters, the Commissioners sell the Copyhold: the Vendee compounds with B.

The Sale is good, but the Composition is good but for a fourth part.

• 1. A. Shall have a Moiety as Heir of the Hus­band, and the Moiety of the other Moiety as Heir of the Feme, and B. the residue.
• 2. If Tenant by Copy, by Recovery may bar the Remainder?
• 3. If when the Lord is in Remainder, it be not so annexed to the Fee, that it cannot be pulled out by a Recovery?

5. The Mannor of D. is holden of the Mannor of S. by Copy, and I. S. holds a House, and Land Common for ten Cows of the Mannor of D. by Copy in Fee: The Lord of D. surrenders his Mannor to the use of I. S. for life, who is ad­mitted accordingly: I. S. grants the Common by Copy to A. a Merchant, A. is admitted, and is a Bankrupt; I. S. dies, the Lord of D. enters, the Commissioners sell the Common, the Vendee com­pounds with the Executors of I. S.

The Common cannot be sold, and if it might the Composition shall be with the Lord of D.

6. Tenant by Copy is disseised, and the Dissei­sor is admitted Tenant by the Lord; the Lord [Page 104]bargains and sells the Mannor to I. S. in Fee, by Deed inroll'd, the Disseisee becomes a Bankrupt; the Commissioners sell the Copyhold, the Vendee compounds with the Bargainer.

This is a good Sale, and a good Compo­sition.

• 1. If Tenant by Copy may be disseised, or ousted, and this shall be no disseisin to the Lord?
• 2. If the Lord by the admittance of the Disseisor hath dispensed with the disseisin in part, and so he may apportion his own wrong?

7. A. disseises B. of the Mannor of S. and dies seized, C. the Son of A. enters, a Copyhold es­cheats; D. enters and disseises C. and Leases the Mannor for years to E. who grants the Copy to F. in Fee; F. dies, his Heir is sworn of the Homage, and becomes a Bankrupt; D. dies, B. enters, the Com­missioners sell the Copyhold, the Vendee com­pounds with B. and is admitted; the Heir of D. recovers in a Mortdauncester, C. recovers in Entry sur disseisin, and B. recovers against him in a Writ of Right.

The Sale is good, and the Composition good.

8. A. and B. joynt-Tenants in Fee of a Man­nor, they grant white Acre to I. S. for life by Copy; A. enters into Religion at Roan, B. makes a Lease for years of the Acre to C. to whom I. S. surrenders; B. dies, A. is deraigned, C. surrenders to A. I. S. becomes a Bankrupt; the Commissi­oners sell the Copyhold, the Vendee compounds with A. the Heir of B. enters.

This is a good Sale, and a good Composition for a Moiety.

9. Six Copyholds escheat, the Lord grants them to A. a Merchant indebted, and after the Lord makes a Feoffment of the Freehold of the Copy­hold to B. C. and D. the Merchant gives over Trading, B. disseises C. and D. the Merchant con­tinues his debt by Interest, seven years pass, C. and D. recover against B. and have judgment to hold in severalty; C. and D. make partition; the Mer­chant renues his Bonds with the Creditors, and keeps his House, the Commissioners sell the Copy­holds, the Vendee compounds with B. C. and D. severally admitted.

The Sale is not good, because the Merchant is no Bankrupt; but if it were good, the Composition was good, and B. C. and D. have three Customary Mannors.