The complete LAWYER. OR A TREATISE Concerning TENURES AND ESTATES  
In Lands of Inheritance for Life, and for Yeares: Of Chattels real and personal, and how any of them may be conveyed in a legal form, by Fine, Recovery, dead, or Word, as the Case shall require.  
Per GULIEL. NOY, Armigerum, nuper Attournatum Generalem CAROLI Regis defunctum.  
LONDON, Printed for D. Pakeman, and are to be sold at his Shop, at the sign of the rainbow, near the Inner-Temple-gate in Fleetstreet. 1651.   

The complete Lawyer. OR, A Treatise concerning tenors and Estates in Lands of Inheritance for Life, &c.  
Question. HOw were the multitudes of people at the first divided?  
Answer. Into Families, commonwealths, and kingdoms.  
Q. To what end?  
A. To live godly, peaceably, and quietly together.  
Q. How is that performed?  
A. By keeping the Law of God, which we call Religion, and by executing virtue, and punishing 'vice, by which virtue and good manners do spring.  
Q. What doth best uphold and maintain these things?  
A. The Law.  
Q. How manifold is that?  
A. Two fold, viz. The Law of Nature, and the Law written.  
Q. What is the Law written?  
A. It is either Divine or Civill.  
Q. What doth the Civill Law work?  
A. A defence and encouragement to the good, and a bridling and punishment to the evil.  
Q. What else doth it work?  
A. A security to the life of man, and quiet enjoying of Meum and Tuum.  
Q. How came in Meum and Tuum?  
A. By the Law of Jus gentium, whereby right and property to Lands, Tenements, goods and chattels, are belonging to men.  
Q. How doth every Subject in England claim and hold his lands and goods.  
A. By Estates in Law.  
Q. How many Estates in Law are there in Lands and Tenements.  
A. Three, viz. Estates of Inheritance, Francktenement, and chattels realls  
Q. How are Estates of Inheritance divided?  
A. Into Fee Simples, and Fee tail.  
Q. How are Fee Simples divided?  
A. Into Fee Simples absolute, and Fee simplo conditional.  
Q. What is an absolute Fee simplo?  
A. When lands are given to me, and to my heires for ever.  
Q. What is a Fee simplo conditional?  
A. When Lands are given to me and to my heires for ever, upon Condition I do such or such a thing, &c.  
Q. How are Estates Tayle-divided?  
A. Into tails general and special, and into Tenant in tail after possibility of issue extinct.  
Q. What is an an entail general?  
A. When lands or tenements are given to I S. And to the heires of his body lawfully begotten or to be begotten.  
Q. What is an entail special?  
A. When lands or tenements are given to a man, and to his wife, and to the heires of their two bodies between them lawfully begotten.  
Q. How is tenant in tail after possibility of issue extinct?  
A. When lands are given to a man and his wife, and to the heires of their two bodies between them lawfully begotten, if the man or wife die without issue between them, the Survivor is Tenant in tail after possibility &c.  
Q. Is such a Tenant punishable of wast or noe?  
A. Noe, he is not punishable of wast, yet he may forfeit his Estate by granting a greater Estate to another then he hath himself.  
Q. May other Tenants entail forfeit their Estates?  
A. Noe, unless they commit Treason.  
Q. How is Francktenement divided?  
A. Into four parts, viz. tenant by courtesy, tenant in Dower, tenant for his own life, and tenant for another mans life.  
Q. How are chattels divided?  
A. Into real and personal.  
Q. What is a chattel real?  
A. A term for yeares, the ward of lands, and tenant at will.  
Q. What are chattels personal?  
A. All manner of Goods, corn, cattle, household-stuff, and vtensills whatsoever.  
Q. How doth a Fee simplo in lands or Tenements pass from one to another?  
A. It may pass by a Fine, or by dead, in raising of a use upon valuable considerations, or by deed with Livery of seisin, or or by a will in writing sealed since the Statute of Wills, or by a dead without livery, enrolled within six Moneths after the date therof by the Statute in the 34 year of H. 8 and by a Reversion in fee by Atturnement. But of things incorporate, there can be no actual livery, but they pass by grant in writing onely, or by lineal discent.  
Q. May tenant in fee simplo convey his lands and tenements from his wife and heir?  
A. Yey that he may, to whom and by what Estate he will, except it bee in mortmain, contra statutum in the seventh of Edward the first, and excepting such right& Dower as his wife hath in the said lands.  
Q. May be charge these lands?  
A. Yes, either by a yearly Rent with Clause of distress, which is called a Rent-charge, or by an Annuity, or by statute, and also if he die, these lands shall bee assetts to pay his debts.  
Q. Is there no forfeiture of these lands?  
A. None, except he commit felony or treason.  
Q May they any way escheat?  
A. Yes, if the tenant die without heir general or special, then the Lord of whom they are holden shall have the same by escheat.  
Q. What is the law sithence the statute in such cases.  
A. If at this day there bee Lord and Tenant in fee simplo by Chivalrie and twenty pence rent, If the Tenant enfeoff and Estranger of the said land, the Estranger shall hold of the Lord by the said services and rents as the Tenant did hold, and the Feoffer or seller, shall bee excluded, and be not meant at all.  
Q. What if the said Tenant maketh a feoffment of the said land to another without expressing to whose use?  
A. Then it shall bee to the use of the Feoffer and his heires, except a valuable consideration bee given for the land, then it shall bee to the use of the Feoffees.  
Q. What if the Tenant sithence that statute doth enfeoff a stranger of part of the land?  
A. Then the stranger shall hold of the Lord per sea-shore Morum, viz. the Rent shall be apportionated.  
As if there be twenty Acres of land, and twenty shillings Rent, the Purchasor shall hold by three shillings Rent for three Acres.  
But if there be an entire service, that cannot be apportionated, as a horse, a hawk &c. The Lord shall have the whole.  
Q. What if the purchase be of the moiety of of the whole land?  
A. There shalI bee noe apportionallment of the Rent &c.  
Q. What if the Lord sithence that statute purchase parcel of the tenencie?  
A. By that purchase all the entire annual services be extinct, except it be for the profit of the Comonwealth, then it remaineth, otherwise it is extinct. For that purchase red Bruertons case in the sixth part de lo: cook.  
Q. What if the Lord purchase parcel of the land where the Rents and services are apportionated.  
A. Then the rents and services shall be apportionated.  
Q. Put a Case thereof?  
A. If there be Lord and Tenant of six Acres of land by six pence rent, and suite of Court, if the Lord purchase two Acres, the Rent shall bee apportionated; but otherwise if the rent and services be entire, as svit of Court, homage &c. Extinct.  
Q. What if these entire services come to the Lord of part of the land by the mere Act of God, or of the law?  
A. Then the entire services shall remain to the Lord.  
Q. Put a Case of that?  
A. If there bee Lord and Tenant of four Acres of land, by a hawk, homage, svit of Court, and herriot, in this case, if one of these Acres descend to the Lord, the whole services remain.  
But if the Lord had purchased the said Acre, or released to the Tenant the services of the said Acre, all the services always are extinct.  
Also in this case, if the Tenant doth enfeoff any Estranger of one of those Acres, the Feoffee shall hold the whole services.  
But otherwise if the services may bee apportionated, as of Rent, Common, or Perper, &c. And thereupon are great diversities between Rent-service and Rent charge  
Q. What apportionallment is there of Rent-Charge?  
A. Rent Charge is now at this day as Rent service was before the statute. That if the party that hath the Rent, purchase any part of the land charged, the whole Rent is extinct.  
Q. May a tenor be reserved upon a gift in tail sithence the said statute?  
A. Yes, look how a tenor may be created and reserved upon lands and tenements in fee simplo before the statute, so it may be of lands given in the tail sithence the said statute.  
Q. What if the Donor reserveth noe service upon the gift in tail?  
A. Then the Donee shall hold by such services as the Donor holdeth over.  
Q. How is this to bee understood?  
A. Where the Reversion in fee simplo remaineth in the Donor.  
Q. What if the Reversion be granted over?  
A. Then the Grantee thereof shall hold his Reversion of the chief Lord.  
Q. Is the King tied by the statute of Quia emptores terrarum?  
A. Noe, the King is not Subject to that statute.  
Q. Vpon what things may a tenor bee reserved?  
A. Properly upon a feoffment, or gift in tail, in lands or Tenements, and of Corporate things, into which may be an entry or manual occupation.  
Q. Of what things may noe tenor bee reserved?  
A. Vpon incorporate things, as Courts, Rents, ways, Piscaries and such like.  
Q. Of what things in nature must the tenor bee?  
A. Of things which are either profitable to the Feoffer or Donor, or to the commonwealth.  
Q. May the service upon the tenor be reserved to be done by an estranger?  
A. They cannot properly be so reserved.  
Q. Can the Tenant hold his land by two tenors?  
A. Noe, one parcel of land cannot bee holden by several tenors.  
Q. What tenor and service may be reserved upon an Estate of franktenement?  
A. Commonly upon an Estate of franktenement nothing is reserved but Rent, and to that Rent fealty is incident by proper Right.  
Q. What is Franktenement?  
A. In estate for ones life, or for another mans life.  
Q. How doth it pass?  
A. Either by writing, or by parol, and upon the same generally there must be a livery of seisin.  
Q. How many maner of Estates for life are there.  
A. There are four, tenant for his own life, for another Mans life, Tenant in Dower, and by courtesy.  
Q. Have these like power as the other tenants have.  
A. Noe, the said Tenants for life, and tenants for yeares, may not grant a greater estate to another of the said lands, then he hath himself, nor may not commit wast, nor charge, nor encumber the said lands, longer then they have estate therein.  
Q. What do you call wast.  
A. Wast is properly any thing that is done, or committed in the said land to the disinheriting of the lessor, or of him in the reversion.  
Q. Who shall punish wast or forfeyures.  
A. He that is next in reversion or remainder in the said land of an Estate of inheritance.  
Q. By what law.  
A. Tenant in Dower and Tenant by the courtesy, before the statute of Gloucester, and the rest by the statutes.  
Q. What call you a Reversion or Remainder?  
A. The estate that dependeth, and is to come in possession after these particular Estates ended.  
Q. How doth a Reversion pass, sithence there can be noe livery of seisin without licence of the Terre tenant?  
A. It doth pass properly by dead in writing, and Atturneyment of the particular Tenant, or by fine, &c.  
Q. How doth a Remainder pass?  
A. always it beginneth with the particular Estate, and dependeth upon the same, otherwise it is commonly not good, unless it be by device, or will, and it must begin when the particular Estate endeth; or or else it is nought.  
Q. Put me a case upon that point?  
A. If a lease be made to I. S. of certain lands for life, the Remainder thereof to the right heires of I. N. this is a contingent Remainder, for if I. S. die in the life of I. N: the Reversion thereof is voided, otherwise if I.N. die in the life of I S: and hath an heir, then the remainder is good.  
Q. What difference is there between a Reversion and remainder?  
A. Great difference, The Reversion is the remnant of the Estate, that the Donor or leasor reserveth in himself, and passeth not with the particular Estate.  
But the Remainder always passeth with the particular Estate at the first Creation thereof, but being created, may pass as a Reversion without the particular Estate. Also he that cometh to lands by Remainder, cometh in as a Purchasor, and shall not bee in ward, but the other in reversion may be in ward.  
Q. What other Estates are there unmentioned.  
A. There is Tenant by the statute merchant of the staple, Tenant by Elegit, Tenant for yeares, Tenant at will, and Tenant by Sufferance.  
Q. Doth an action of wast lie against these Tenants.  
A. Noe, but onely against tenant for yeares, and he is subject unto the like law, as tenant for life is.  
Q. May an estate of Remainder depend upon an Estate for yeares?  
A. Yes, very well, and then if the Remainder be for one life or more, there must be livery of seisin made to the tenant for yeares at his first entry.  
Q. If Tenant for yeares die, who shall have his term.  
A. If he do not grant it in his life, nor device it by his will, his Executors or administrators shall have the same.  
Q. How may it pass.  
A. Either by writing, or by parol, and it shall be assetts to pay the owners debts if he die possessed thereof.  
Q. What do you call assetts?  
There is assetts intermaines which is goods and chattels of the Decedent, and there is assets per discent, which is land in fee simplo, and both these shall be liable to pay debts so far as they will go.  
Q. What do you mean by device or will?  
A. When lands, goods, and chattels, are devised or given by the last will and testament of any.  
Q. May lands be so given without licence?  
A. Yes they may, sithence the Statute of wills. 32. H. 8.  
Q. How was the Law before that Statute?  
No man before that Statute could give Lands or Tenements by his Will in writing, to make an Estate of frank tenement or upwards, unless the same were in use, viz. in the hands of the Feoffees.  
Q. How is the Law sithence that Statute?  
A. Sithence that Statute a man may device all his lands in soccage, and two parts of his lands holden in Knights service.  
Q. Why may he not device the other third part?  
A. Because it ought to descend, that the lord be not defrauded of his tenor, viz. Ward, Marriage, &c.  
Q. How be Wills made?  
A. Either in writing, or else without writing, and then it is a Nuncupative Will; but no Estate in Lands for life, or upwards will pass by a Will Nuncupative, which is without writing.  
Q. What general learning is else of wills?  
A. The last Will is always of force, Quia voluntas est ambulatoria& non consummatur usque ad mortem Testatoris, and then the intent of the devisor shall be much taken therein, as far as the words will extend.  
Q. What do you mean by the words use?  
A. I distinguish it thus, That before the Statute of 27. H. 8. one man might have the lands, and another the use of the same lands.  
Q. What did invent those uses?  
A. Two things, viz. fear and fraud; fear in the time of War and troubles, and fraud to defeat the lords of the fee and Creditors.  
Q. How many manner of uses are there?  
A. Two viz. in Esse, and to come in contingency.  
Q. How in Esse?  
A. Either in possession, or reversion, or remainder.  
Q. How in contingency?  
A. Uses which may come and after be in possession, reversion, or remainder, if they be not cut off or barred.  
Q. What things are incident to those uses?  
A. Confidence in the persons enfeoffed and purity in estate.  
Q. Did they good or harm in Common Law?  
A. They did more harm then good, whereupon divers Statutes were enacted, as 1o R. 2. the 4. H. 4. 1o H. 7. the 11. H. 7. and 1o R. 3. were ordained to suppress the mischiefs that uses brought in.  
Q. Were those mischiefs remedied by those Statutes?  
A. No, they were not, until the Statute of 27. H. 8. by which statute uses were transferred into possession, so that now upon creating of an use, it is presently turned into possession, and the the Feoffees are but conduit pipes to lead the uses.  
Q. How was it before that statute?  
A. Before that statute, he that had the possession, viz. the Feoffes might sell the land from Cestui queen use, and he had but his remed in the chancery.  
Q. Are there any uses now in law.  
A. Yes, but they are transferred ipso facto into possession,& hereupon the Feoffee is excluded.  
Q. Why are they used.  
A. Properly to estate wives, for the husband cannot enfeoff or grant Immediately to his wife, because they are but one person in the law.  
Q. How must such an Estate be made?  
A. The husband must enfeoff two or three to the use of his wife for life, or otherwise.  
Q. Why must he household-stuff two at the least?  
A. Otherwise one Feoffee hath such an estate thereby, that his wife cannot have her Dower.  
Q. May not the subject hold lands of ●… he King?  
A. Yes, all the lands of England are holden either mediately or immediately from the King as Lord Paramount▪  
Q How may they bee holden of the King?  
A. By Knights service in Capite, by soccage in Capite, by Knights service won in Capite, by soccage won in Capite by grand serjeantie, and by petty Serjeantie.  
Q. What difference is there in these tenors?  
A. Many great differences. All lands holden in Capite in Chivalry, do draw ward, Marriage, and relief, viz. a Knights fee is five pound, and so rateably, and it causeth all other lands holden of measne Lords to be in ward. Also the tenant cannot grant these lands for life, or for any other higher estate without licence of the King, nor his wife cannot mary without licence, and if they do, they shall answer the King measne profitts. And if a Tenant enter, and sell without licence, he must pay for his licence one yeares profit thereof. But to have a licence before he enter, and sell, is but the third part of one yeares profit. Also the heir having been in ward, when when he cometh to full age, must sue livery, which will cost him one yeares profit. And if he be at full Age at the death of his Ancestor, then he must have a primer seisin, which is of like charge.  
Q. What if it bee holden in soccage in Capite?  
A. That draweth not ward &c. nor any other lands, and the relief is one yeares rent, but the tenant must sue his livery or primer seisin of those lands onely.  
Q. What of lands in Knights service onely?  
A. That draweth onely ward, Marriage and relief, onely for that land, in case of a common person, but that the King must have his Prerogative without priority or posterioritie.  
Q. What do you mean by priority?  
A. That if a common person holdeth several lands of two Lords by Knights service, the eldest tenor, viz. he that made the first feoffment, which is not so in the Kings case.  
Q. How may one otherwise hold of the King?  
A. He may hold by grand Serjeantie, and by petty Serjeantie.  
Q. How do they differ?  
A. Grand Serjeantie is Knights service and more, for the relief thereof is the value of the land by year, and petty Serjeantie is soccage in nature.  
Q. Put a case thereof?  
A. He that holdeth of the King to find a man to serve in the wars by forty daies at his own cost, holdeth by grand serjeantie; But he that is to find a horse, or such a thing, to serve as aforesaid, that is petty serjeantie, because it ●… s not to be done by a mans body.  
Also the tenant may hold of the King, or of a common person by Escu●… ge, Homage, Ancest. Or by homage, feal●… je, and svit of Court.  
Q. What is the meaning thereof?  
Put me a case thereof?  
A. Escuage uncertain is Knights service, and Escuage certain is soccage. Homage Ancest. is always between the Feoffor and Feoffee and their heires; the other Homage is sometimes joined to Knights service, and sometimes to soccage. And fealty is always incident to all manner of tenors and Estates.  
Q. Of what nature are these services?  
A. Some of them are valuable, and some not.  
Q. Upon what cause were they reserved?  
A. To keep a knowledge between the Lord and tenant in lieu and recompense of the land.  
Q. What remedy is there if the tenant doth not his service?  
A. The Lord may of common right distrain for them, and if the tenant die without heir general or special, or be attainted, the Lord shall have the land by escheat, as having noe tenant to do his service. And thus much briefly of Estates, tenors, and service.  
Q. Why hath the Lord the ward of the t●e body and lands of the heir being not twenty one yeares of age?  
A. Because if the land be given to the tenant to do service of Chivalrie, and when the tenant dieth, his heir being within age, for that such a tenant cannot do the service, the Lord will have the body and land until he come to age.  
Q. When shall such an heir he said to be in ward?  
A. When the Father dieth seized of lands holden in Knights service and his heir being a son, and within the age of one and twenty yeares, and if it be a daughter, within the Age of fourteen yeares, the Lord shall have the ward until sixteen yeares by the statute law.  
Q. Why if the Father die seized but of a Reversion of the said land, an estate for life or yeares then being on foot?  
A. The heir shall be in ward for his body.  
Q. Is it so if the Father die seized of a Remainder?  
A. Noe, the heir there shall not be in ward, if the tenant for life be living.  
Q. What other difference are t●ere?  
A. If lands holden in Knights service come to the heir by discent, he shall be in ward, but if it come by purchase, he shall not be in ward.  
Q. Put a case thereof?  
A. If the Father and son purchase lands, holden as aforesaid, to them, and to the heires of the Father, and the Father dieth, the son within age shall be said to bee in by purchase, and not by discent, and shall not bee in Ward. But by the Statute in the 30th. of Hen. 8. If it be holden by the King, he shall be in Ward.  
Q. When shall the heir be said to be out of ward?  
A. If it be a Male, when he accomplisheth the age of twenty yeares; if it be a Female, she must be full fourteen yeares at the death of her Ancestor, otherwise the Lord will have her Ward until she be sixteen by the Statute.  
And also, if the heir being in Ward, and within age, be made a Knight, then he shall be out of Ward: But otherwise if he be made a Knight in the life of his Father.  
Q. What is the Lord to have by his Tenant when he cometh to full age?  
A. He is to have the value of his Marriage, if he doth not take a wife during his Nonage, and the double value of his Marriage, if he take a wife during his Nonage, and the double value of his Marriage, if he take a wife during his Nonage, if the Lord tender him a wife without disparagement. But note that the first tender is not material.  
Q. How shall that value be tried?  
A. By a Jury, sworn to try and value the same.  
Q. Shall the heir in Soccage within age be in ward?  
A. Yes, until he come unto the age of fourteen yeares, and then the Guardian is to account unto him for the profits of the said lands, and after the age of fourteen yeares, he is to take the profits of his lands by his Procheni amie. But the Guardian in Chivalry is not so to do, but to have the Ward of Body and Land to his own use until the age aforesaid.  
Q. Who ought to have the wardship of the heir in Soccage?  
A. If his Lands do descend unto him by the fathers side, his next Uncle or friend on the Mothers side, to whom the Land may not descend; Et sic è converso.  
Q. What is the relief of lands in Soccage?  
Ans. The value of one yeares rent.  
Q. What if a man bee disseised of his lands and tenements, or dispossessed of his goods and chattels, what remedy hath he in Law?  
A. His remedy is either to enter into the Lands and Tenements, if his entry be congeable, as if there bee no discontinuance nor discent cast; or else to bring his Action, and so to recover the same by course of the Law, upon every which Action there is a proper and special Writ ordained.  
Q. How many manner of Actions are there?  
A. There bee Actions real, and Actions personal, and Actions mixed.  
Q. What do you call Actions real?  
A. Some are possessory, and some are ancestor, the first being where the plaintiff hath been seized, and is disseised, and the other where the plaintiff was never seized, but some of his Ancestors, whose next heir he is.  
Q. What shall the plaintiff recover in real Actions?  
A. In a real Action the plaintiff shall recover the thing in demand.  
Q. For whom, and against whom do these Actions lie by Law?  
A. always by, or against Tenant for life.  
Q. Shall the plaintiff in these real Actions always recover Costs and Damages?  
A. In some of these Actions he shall, in some not.  
Q. How shall he know what Action doth lye properly for every demandant?  
A. That is great learning, and a long discourse.  
Q. Let me somewhat understand it in general.  
A. First you must note that there are some Writs onely for Tenant in Fee simplo, as a Writ of Right, of Ayel, Besaiel, Cozenage, nuper obiit, and such, like as Natura brevium will show thee.  
Also, there are some Writs onely for Tenant in tail, and the Donor, as a Formedon in remainder, discender,& in reverter.  
The first for Tenant or heir in tail, the second for him in the Remainder, when there is noe heir, and the entailed land ought to come unto him by his Remainder.  
And for the Donor, when both the other do fail, and for want of heir or remainder, the land ought to revert or come back to the Donor.  
And some other wtitts do lie for Tenant for life, against Tenant for term of life, and the writ of novel Disseisin, and all the writs of entry in degree as the case lieth, viz. that the writ of entry sur disseisin, the writ of of entry in the Per, cvi, and Post, and in all these damages are to be recovered, and not commonly in the former.  
Q. How are these and the former to be tried?  
A. The writ of Right being the highest writ in nature, lieth where all the rest fail, and is to be tried by battle and grand assize; and the issue is by joining the mise upon the mere right, and the rest are to be tried by verdict of twelve men, unto which the parties may have their due Challenge.  
Q. What is the nature of actions personalls?  
A. It is for the most part to recover Costs and damages for the thing in demand, and are to be tried by verdict as aforesaid.  
Q. Recite some of these writs for actions personal?  
A. There are many, as a writ of trespass, of debt, account, deceit, Detynue, Covenant &c. vide Natura brevium.  
Q. How else do the real and personal actions differ?  
A. In real actions, the land must be summoned and the view taken. But in personal Actions, the person of the Defendant must be summoned.  
Q. What are actions mixed?  
A. They are part in realty, and part in personaltie.  
Q. Recite one thereof?  
A. There is the Action of wast, in which the place wasted, shall be recovered and triple damages.  
Q. How and by whom are these trials to be executed in law?  
A. They are executed two ways, either by Judges, which ought to be twelve, or by jurors lay men, which ought to be twelve and Freeholders.  
Q. When by the Judges?  
A. When the council in law of both sides do demur in law, that is, resteth upon a mere point in law, that shall be tried by Judges.  
Q. When by a jury.  
A. When the said Lawyers join upon an issue in fait which must be tried juxta probatum& allegatum, viz. by evidence and witnesses.  
Q. Where shall the trial in fait bee?  
A. In that County where the jurors may take best notice of the matter; nam ibi semper debet fieri triatio ubi Iuratores Meliorem possunt habere notitiam.  
Q. How is that meant?  
A. As when one is robbed in one county, and the goods are found in another county, or wounded in one county, and dieth in another county, sometimes the Counties shall join together if they may.  
Q. You have reasonably satisfied me in this matter, perceiving thereby that the law is the life and sinews of every Common-wealth. But what doth your law consist of?  
A. It consisteth of a positive law, of custom, and of statute.  
Q. What do you call the positive law?  
A. That which was the first law, before customs or statutes did alter the same.  
Q. show me some example of your positive law?  
A. There is a positive law in England, that a discent doth toll an entry, that between some Tenants the survivor shall have the whole, if noe act be made to the contrary, that the eldest son shall inherit, and all the daughters by equal portions. Et sic de ceteris.  
Q. What do you call custom?  
A. custom may be in free land or in Coppiold land.  
Q. How in the one and how in the other?  
A. By the custom in certain Burroughs which is called burrow English, the youngest some shall inherit. And in Gavelkind all the sons, & sic de ceteris.  
And in Copyhold land the words sibi et suis do create an estate of inheritance, and the wife of a Copyholder that dieth seized of his Copyhold lands shall have her free Bench during her widowhood.  
Q. How are these customs maintained?  
A. The life of a custom is use and continuance, so that it be not altogether against reason.  
Q. What do you call your Statutes?  
A. Acts and laws, which are established by Act of Parliament, by the King, the assent of the Lords spiritual and temporal, and the Commons of the realm.  
Q. To what end are they made?  
A. They are made generally either to abridge the power of the Common-Law, or else to enlarge the same.  
Q. Was the Common-Law defective before these Statutes?  
A. No, not altogether defective, but the Law hath been by great wisdom altered, or at least increased, or abridged, according to the offences of the Subjects growing and increasing from time to time.  
Q show me some examples thereof?  
A. At the Common-Law, the counterfeiting of the great seal of this realm was Felony, and now by Statute it is Treason. So the cutting of a purse was but trespass, and afterwards the losing of his thumb, and now Felony, and so of divers other things.  
Q. Have these Statute Laws amended or paired the Common Law?  
A. Where it hath not altered the positive Law, but hath onely increased or decreased the punishment thereof, it hath done great good, but where it hath altered the Common Law in substance, it hath done great harm.  
Q. show me an example where a Statute hath altered the Common Law?  
A. Amongst others, I will speak only of the Statute of Westm. the second, of entails.  
Q. Did that Statute good or harm?  
A. In my opinion much more harm then good to the Common-wealth and Subjects.  
Q. show me some of the conveniences, and inconveniences.  
A. The first cause of that Statute was to continue lands in the issue in tail, or in him in remainder secundum voluntatem Donatoris, which now may be cut off by fine and recovery.  
Secondly, if the Father die far in debt, these lands will not bee liable to pay his debts, and thus sometimes the Creditor is undone, and many times defrauded.  
Thirdly noe man can take any good Estate from the Tenant in tail contrary to the statute of 2. H. 8. But he must be at the charges of a fine and Recovery, whereby the estates of poor men are defeated.  
Fourthly, if the Father commit felony, the son shall have the lands' which is an encouragement to evil.  
All which as it standeth in my opinion, hath brought more harm then good, as purchaser defeated, leases evicted, Estates and grants upon good considerations avoided, Creditors defrauded, offenders emboldened, and divers other inconveniences.  
Q. I understand this, and the law in the same sort in the rest. But how may estates in tail be cut off contra voluntatem Donatoris, and I will trouble them no more?  
A. always the donee in tail in possession, by a gift in tail by his Ancestor, by a fine duly executed may cut off that entail, and conclude parties and parties viz. those who are parties to the same fine, and their heires.  
If it be with Remainder over to persons name in the dead, then there needeth a fine with Recovery to make it sure, yet the fine is good as long as the first Donee hath issue living, and doth bind him in the remainder, if he maketh not his claim within five years after his title accrued.  
But by a Recovery with a fine it is barred presently after the perfecting.  
Q. How must this fine and recovery bee sued out?  
A. First there must be a Recognition of the Sellor, which is the Conizor by Dedimus potestatem, or in the Common Pleas before the Judges to the Buyer called the Cognizee, of the nature and quantity of the land, and then finished accordingly to make him Tenant of the land. Then take a Praecipe quod reddat, or a Writ of entry in the Post, must be brought by two strangers against the said Tenant, and he must vouch the Conizor, viz. the Tenant in tail, and he must appear by attorney or in person, and vouch the common vourcher, and so the Tenant to hold in quiet possession, and the Conizor, or tenant in tail to recover over so much land, and this recovery over( so pursued) is the reason of the Law,& called the double recovery.  
Q. What is the single Recovery?  
A. Such a Praecipe or Writ of Entry in the Post must be brought against the Tenant in tail, and he must vouch the common vouchee, which must appear as aforesaid, and confess the warranty.  
Q. Why is this not so good as the other?  
A. Because it behoveth there the tenant in tail to be seized of the state tail at the time of the Recovery; for if he be seized of any other estate at the time of the Recovery; as if he first discontinue the tail, and so bee seized of a Fee simplo at the time of the Recovery, then the Recovery is void.  
Also a collateral warranty from the Ancestor of the Tenant in tail, which Ancestor dying without issue, and the said warranty descending upon the said issue in tail, is a bar also of the tail, if he maketh not his claim in the life of his said Ancestor.  
Q. If the Remainder aforesaid be in the King, shall the King bee barred as aforesaid?  
A. This was somewhat doubtful before the Statute of 34& 35 Hen. 8. But sithence that Statute it is no discontinuance of the tail, nor bar to the Tenant in tail, nor to the King in Remainder; yet the Law maketh a difference at this day, if the King give lands in tail, with the Remainder or Reversion in the King, a Fine or Recovery will not bar that entail.  
But if a common person give lands in tail without a Reversion or Remainder in the King, that entail may be cut off by a Fine and Recovery. And so the difference is, when the gift is from the King, and when from a mean person. And thus much generally of entailed lands.  
Q. I pray you put me some more difference between the Prerogative and grant of the King, and of a mean person; and first touching his person?  
A. First the Kings Majesty hath two bodies, viz. a natural and a politic body.  
Q. Where, and when hath he a politic body?  
A. For three causes, viz. Causa Majestatis, necessitatis,& utilitatis.  
In the first he cannot give, nor take, nor grant but by matter of Record.  
Secondly to avoid inter-Regnum and Nonage, &c. That body cannot die.  
Thirdly, to take lands by discent, and in that case the half blood cannot hurt. Vide cook, Calvins case.  
Q. What is the meaning of all this?  
A. That the King or Queen of England in their politic bodies cannot be disabled, as by death, Nonage, Marriage, or any such like, as a common person may be.  
Q. What of his natural body?  
A. He may have lands by discent and purchase as a common person may do by way of Remainder or matter of Record.  
Q. What is his Prerogative in grants made unto him, and in grants made by him?  
A. It is a ground in Law, quod nemo potest plus juris ad alium transfer quam in ipso est. And further, nothing can pass from the King, nor for the most part to the King, but by matter of Record, viz. by Letters Patents under the great seal, and that the King cannot pass any thing by livery of seisin, nor by matter in fait, nor cannot disseise, nor be disseised.  
Also it is a maxim in Law, quod nullum tempus occurrit Regi, that there shall be no Laches nor Estopples in the King for any right or title contrary to his express grant.  
Q. Then it seemeth that grants made from the King shall be taken strictly?  
A. Yes, the King must not bee deceived in his grant, and the thing must bee name, and expressly set down; for things not name will not pass by this word Appurtenances, and the grant shall not bee taken strictly against the King, nor largest for the Grantee, as in a common persons case.  
Q. What things in a common persons case will pass by this word Appurtenances?  
A. An Advowson appendent, common appendent, or appurtenant, and by reason of Vicinage, ways, and such like.  
Q. What things may pass by the grant of another thing, as incident thereunto?  
A. Many things may pass by the grant of another thing without special naming of the same.  
As a Rent by the grant of the Reversion. By grant of a Mannor, the Hundred Court or Leete, and the services. By grant of a Faire, the Court of Pypowder, and many things ease in the same nature.  
Q. Which be things corporate and incorporate?  
A. Things Corporate are whereof there may be an actual possession, and entry there unto, as of a Mannor, a house, lands, tenements, and such like.  
Q. Which be things incorporate?  
A. Things incorporate are rents, Courts, services, Common, and such like, and these may be appendent, appurtenant, or belonging to corporate things, as lands and such like.  
Q, What do you call Common?  
A. It is the depasturing of one mans Cattle in the lands of another man, in which the commoner hath no estate, but it is according to the nature of the common claimed.  
Q. How many sorts of commons are there?  
A. four, Common appendent, appurtenant, engross, and by reason of vicinage.  
Q. How do they differ?  
A. Many ways, Common appendent and by reason of vicinage cannot be but by Prescription, time out of mind, but the other two may begin at this day.  
Also Common appendent belongeth properly to arable land, or to meadow, or pasture that was anciently arable land, and it must be used with such Cattle as are levant and couchant upon the same lands, viz. the same both in summer and winter, and with such Cattle as may hid and gain the lands, viz. ear and muck the said lands, and not with hogs, goates or goose.  
But if the Commoner purchase any part of that land, or the tenant sell any part thereof, the common shall be apportioned; But if the commoner buy all the said lands by an equal estate, with the commoner, the common is drowned, and common appendent cannot be severed or granted from the land, otherwise of appurtenant. But if the Commoner appurtenant purchase any part of that land, the whole common is extinct, because it is against common right, and common appurtenant may belong to any, and for all manner of Cattle sans nombre, so as the usage and claim of either of these commons sheweth and declareth what manner of common that is.  
Common engross may be by grant or prescription to have common in another mans lands with twelve oxen, or or twelve kine or less, to a certain number; and that may be granted over to another.  
Common by reason of vicinage is when two Seignories or Lordshipps, and the Tenants thereof have used time out of mind to common together in in their commons or fields in the fallow or common time, by reason of their adjoining, and want of enclosure, and this common is of the nature as common appendent, and the one tapistry or lordship; may enclose from the other, and drive or keep the ones cattle out of the others tapistry or Lordship; but the one may not not staffe-drive their cattle into the others tapistry or township, and the one cannot have an action of trespass against the other, if the ones cattle wander or voluntarily go and depasture the others tapistry or Lordship.  
Quaere if the one may enclose part of their said lands from the other, and leave part thereof for common; vide Tyrinhams case in cook. Also none of these commoners can have an action of trespass against an estranger which shall do trespass there, nor is to take his common otherwise then with the mouth of his cattle. Quaere if the Commoner may trench the ground to loose out the water that hurteth the said land, Stat. 12 H. 8.  
Q. Make me I pray you better to understand briefly what Tenant in Dower is?  
A. Dower is such an Estate for the third foot during the wifes life, in all such lands and tenements, as her husband was at any time seized of an estate of inheritance during the coverture.  
Q. Is the wife to have a third during her life of all such lands and tenements?  
A. No, he must be sole seized thereof, and not in joint tenancy.  
Secondly he must have the Francktenement and the inheritance of the said land in the said barony, simul& semel during the Coverture.  
And thirdly he must be seized of such an Estate in the Coverture, that the child that he shall beget of the said wife, may by possibility inherit the said lands.  
Q. Of what age ought such a wife to be at the death of her husband?  
A. Of the age of nine years.  
Q. May the husband by his act any way bar the wife of her Dower?  
A. Yes, in committing of Treason, but not of Felony, by the Statute in the first of E. 6. by laches, entry, suite, and pleading.  
Q. May tenants in Dower forfeit their Estates?  
A. Yes, divers ways, as other Tenants for life may, and also by elopment from her husband in his life without reconciliation.  
Q. May the wife of him that holdeth lands of the King in Capite be endowed by the heir or any other common person?  
A. No, she ought to come into the Chancery, and there make an oath, that she will not mary without the Kings licence, whereupon a Writ shall bee directed to the Escheator to endow her.  
Q. May the wife have Dower, and also jointure of her husbands lands?  
A. Noe, unless it bee in especial cases.  
Q. When may the wife be at her Election?  
A. If the jointure be made during the Coverture, then at the decease of her husband, she may choose the one, or the other, but if it bee made before the Coverture, then shee must be tied to her jointure onely.  
Q. Was it so at the Common law?  
A. Noe, but is now so by the statute of 27. H. 7. vide Vernons case in the fourth part of the Lord Cookes reports.  
Q. Is tenant in Dower punishable of wast.  
A. Tenant in Dower and by the courtesy were punishable of wast by the Common law, and the other particular Tenant by the statute of Marlebridge.  
Q. How many Ages of women are there to be observed in law?  
Q. Eight, First seven yeares in aid pure fill merrier. Next nine yeares to bee endowed of her husband, if her husband be seven yeares of age or upwards at his death, ten yeares upon ravishment, twelve to consent to marriage, full fourteen to be free from ward until the age of sixteen, seaventeen to be an Executor, twenty and one to do all acts.  
Q. What do you call Tenant by the courtesy?  
A. It is when the husband after the death of his wife, is to have an estate for life in the lands of the wife, and whereof she dyed seized of an Estate of Inheritance.  
Q. What Estate ought the wife to have in the said lands whereof the husband may be tenant by the courtesy?  
A. She ought to have such an estate as the husband is to have by whom she claimeth Dower as aforesaid. And besides the wife must thereof have a possession in fait, and not onely in law, except it be of an Advowson, or of a rent, but otherwise in Dower.  
Q. What else is requisite to make him Tenant by ●h● courtesy?  
A. He must have a child by his wife during the Coverture, that is born alive  
Q. May he forfeit his Estate?  
A. Yes, as tenant in Dower may.  
Q. May his wife hurt his estate, or possibility of Estate?  
A. Yes, if the wife commit felony before he is entitled to be tenant by the courtesy, viz. having noe issue, he shall not be tenant by the courtesy, but otherwise after issue.  
Q. What other particular Estates are there?  
A. There is tenant by elegit, statute Merchant of the staple.  
Q. What is tenant by Elegit?  
A. It is the Creditor or debtee that hath the moiety of all the lands of the debtor delivered unto him by way of Extent, with all the goods of the said debtor until the debt be levied by the statute of Westm. The second.  
Q. What is tenant by statute or recognisance?  
A. It is such a creditor which hath all the lands and tenements of the debtor delivered unto him by Extent, until the said debts be paid by the yearly value thereof.  
Q. What if the land extended grow better and of more yearly profit?  
A. Then the debtor may have an Audita quaerela, and thereupon shorten the Extent and time of payment.  
Q. What if the Cognizee purchase part of the said land?  
A. If the Cognizee purchase any part of the said land after the execution& extent, the whole is discharged; But if it be before the execution,& after the statute acknowledged, it is a discharge for the other Feoffees of the said land. And also if the Cognizor repurchase the said land of the Cognizee, an extent may be sued thereof.  
Q. What if divers strangers be severally enfeoffed of the said Land, and an extent be sued against one onely?  
A. He shall have an Audita quaerela to have contribution of the rest. But if the Conizor reserve any part upon such a feoffment, and an extent be sued onely against him, he shall have a Contribution. Quaere if his heir shall have Contribution.  
Q. What difference is there between these Statutes and an Obligation?  
A. These Statutes bind the land from the time of the acknowledgement, and maketh it liable in whose hands soever it be to pay the Debts. But the Obligation bindeth not the lands nor goods but from the time of the Judgement.  
Q. Doth a writ of waste lie against such a tenant?  
A. No Action of waste lieth against such a tenant, but an action of account.  
Q. Besides these grounds of Law, and matters before rehearsed, what is the general learning of making and dissolving of Contracts?  
A. First, it is a general learning, that there must be in every Contract quid pro quo, viz. Some valuable consideration between the parties to be payed or performed, either presently, or at a day to come, or else some earnest to bee given presently, otherwise the Contract is voided; for ex nudo pacto non oritur actio. And some doubt whether a consideration past, do make a contract good. Another learning is, that in an Action of trespass, quod actio personalis moritur cum persona, and the heir or executor shall not be charged therewith.  
Q. You have reasonably satisfied me in general concerning grants to men, and from men; Now show me a little how such Contracts and grants may be discharged and avoided by the Law by parties consent, and I will make an end?  
A. First, it is a general ground, Quod nihil est tam conveniens naturali aequitati quam unumquodque dissolvi eo ligamine quo ligatur.  
Q. VUhat do you mean by that?  
A. As there are matters of Record, and in fait, and some matters in fait by writing, and sometime by parol, the matter of Record generally must be defeated by the like matter, and the matter in writing by matter in writing, and not by parol, except it be in few cases.  
Q. Put me a case thereof?  
A If I enter into a Bond to pay six pounds at a day, I may pled Payment thereof by parol and witnesses, but otherwise of a Bond without condition.  
Also every lease or estate of Franktenement or for yeares, may be drowned by taking an higher estate in the same land at any time after. Also these lesser estates may be surrendered into greater Estates, and the lesser so drowned.  
Q. Put me a case thereof?  
A. A lease is made to one for life, the Remainder to another for life, the Remainder to the third in tail, if he that hath the first estate for life surrender to him in tail, or in fee, the surrender is void, because of the mean Estate for life.  
Q. How by Releases?  
A. There it behoveth that he that releaseth hath an Estate in Esse at the time of the Release made, and that he to whom the Release is made hath a Franktenement in the land, or in fait.  
Q. Somewhat let me understand the nature of tithes, and what you call them?  
A. It is commonly the tenth part of the yearly profits which the lay man pays to the spiritual man out of his lands, tenements, and hereditaments.  
Q. How many manner of tithes are there?  
A. Three, viz. temporal, prediall, and mixed.  
Q. When began these tithes?  
A. Abraham gave the first tithes to Melchisedeck?  
Q. Did Abraham then give the tenth of his increase?  
A. Many doubt whether it was more or less.  
Q. May the spiritual man take all those tithes without delivery?  
A. Noe, although they be severed the ninth from the tenth, but must be set out by the lay man, for Melchisedeck did not take his tithes, but Abraham gave his tithes.  
Q. What remedy had the spiritual man if the lay man would not give his tithes?  
A. He had noe remedy before the statute in 2. E. 6. but to sue for the same in the spiritual Court, for by that statute triple damage are given to the spiritual man, upon wrongful detaining or taking away the said tithes.  
Q. Who may prescribe to have tithes or not to pay tithes?  
A. Noe lay man except the King, or the Patron ought to have tithes in their own right, or prescribe to pay tithe. Vide cook le second part deal Report Ca: Levesque de Winchester.  
Q. Are tithes always to be payed proprio genere.  
A. Noe lay man can prescribe in non decimando, but in modo decimandi?  
Q. Of what things are tithes properly to be paid?  
A. Out of such things as do increase and bring a yearly profit, as of corn, grass, wood, Cattle, Silva cedua, wool, calves, and such like.  
Q. What tithes are to be paid in cutting down of great trees?  
A. None at all, because it is a destruction of the stock, and so it seemeth of all wood above twenty yeares growth.  
Q. Where are those tithes to be recovered?  
A. If the right of tithe be in question, in the spiritual Court; but if the lay man prescribe in modo Decimandi, then upon the libel, he is to sue a Prohibition, alleging his manner of tithing, and shall be tried at the common law by a jury, for the spiritual Court will allow noe such plea, but in proprio genere.  
Q. To what spiritual man is the Lay man to pay his tithes?  
A. Most commonly to the person or Vicar of the Parish.  
Q. What? was it always so?  
A. No, before the council of Latecan, the Lay man might have pay d his tithes to any spiritual man whatsoever that would take cure of his soul.  
Q. Are all payed at this day to the person or Vicar of the Parish?  
A. No, some were given out of houses of Religion, as to abbeys, Priories, Nunneries, chantries, and such like.  
Q. How happeneth it that Lay men have, and enjoy tithes contrary to the Law?  
A. That began upon Appropriations.  
Q. What mean you by that Sir?  
A. It is a maxim in Law, that the Fee simplo as well of tithes, as of all other Lands and Tenements, is such in some parsonas the fee simplo of tithes in the Ordinary, Patron, or Incumbent, which three together may grant or charge the said tithes at their pleasures.  
Q. What mean you by that?  
A. I mean that the Spiritualit heretofore abounding in Livings, were content with the Patron for gain or favour to grant a great part of the tithes to any Lay man.  
Q. What did they usually grant?  
A. Most commonly the Rectory or Parsonage either in Fee simplo, or for a long term, and for a small rent.  
Q. How was the Cure then served and discharged?  
A. By that means a poor vicarage was hatched out of a great Parsonage, which Vicar in these daies dischargeth the cure, and the Lay man holdeth the residue of the Parsonage.  
Q. May such Leases bee made at this day?  
A. No, divers Statutes have abridged their power in such case, and especially the Statute in 13 Eliz. So that they can make no good Lease but for three lives, or one and twenty yeares, according to the Statute.  
Q. Now lastly a word or two concerning the quantity of Lands and Tenements, and their special names and terms in Law, and of all manner of Reliefs, &c. due for the same, and then I shall fully make an end?  
A. First you must note, that two Fardells of Land make a nook of Land, and two nooks make half a Yard of Land, and two half Yards make a Yard Land, and four Yard Lands make a hid of Land, and four, and some say eight Hides make a Knights Fee, the relief whereof is 5.l. and so rateably. And every Knights Living or Revenue heretofore was, or ought to have been 20.l. per annum. And the yearly Revenue of every Baron was, or ought to have been four hundred marks. And the yearly Revenue of every Count or Earl 400.l. whereas the relief of a Baron was, and is 100. Marks, of an earl or Count 100.l. and of every Duke 800.l. So you may note, that the Knights Revenue at the first being 20.l. per annum, the Baron at the first was to have thirteen Knights Fees, and a quarter of a Fee. And the earl or Count twenty Knights Fees, and the Dukes forty Knights Fees, by which proportion the reliefs aforesaid were ranted, as before is mentioned; which is the reason that Noblemen ought not to be arrested or attached by their bodies, because the Law doth presume that they have sufficient Lands and Tenements to discharge any Suite.  
And they have these Dignities given them by the King for two purposes, viz. ad consulend. Regi tempore pacis,& ad defendend. Regem tempore belly; in token whereof they are adorned with a Cap of honour on their heads, and with a sword by their sides.  
Also there is another relief due after the death of the Tenant that holdeth by Grand Serjeantie, and likewise after the death of the Tenant that holdeth in So cage, whereof I have made mention before. And the relief for lands in Soccage is due to the Lord immediately after the decease of the Tenant, of what age soever the heir is. But of the rest, when the heir hath not been in Ward, and is of full age, at the death of his Ancestor, such a relief is due presently after the death of his said Ancestor, being tenant of any such lands, or of any such Estate, as before is mentioned.  
Vale.  
Quicquid agas prudenter agas,& respice finem,  
Lex plus laudatur quando ratione probatur.   

A brief TREATISE Concerning TENURES& ESTATES in Lands and other Hereditaments, and of chattels real and personal.  
And how any of them may be conveyed in a legal form by Fine, Recovery, Deed● or Word, as the Case shall require.  
By the former Author W. Noy.  
LONDON, Printed in the year, 1651.   

A brief TREATISE Concerning Tenants and Estates in Lands, &c. Hereditaments and chattels.  
THe most part of all such things which the Kings majesty or any of his Subjects doth or may enjoy, are, according to the terms used in the laws of England, either Hereditaments or chattels, wee call such things Hereditaments, which are Hereditary, and in a natural body may descend from Ancestor to heir, 
Hereditaments natural and political.  and from heir to heir for ever, or which in a body politic may successively or otherwise have a perpetual continuance, as Honours, messages, Dignities, privileges, Liberties and such like. And to some purpose it maketh no matter what estate or interest the party hath which enjoyeth any such thing, for although he hath therein the basest or meanest estate that may be, yet the name of an hereditament in a thing enjoyed in a natural sense remaineth, because it is in his kind hereditary, and an estate of inheritance hath therein always his being in some person, except by some accident in some special case it happen to be for a time suspended, or for ever extinguished, as shall afterwards appear. 
Grant the interest of all the hereditaments which one occupieth and enjoyeth, doth grant chattels for yeares also.  And therefore he that hath but a term of yeares in Lands, granteth his interest in all the hereditaments which he occupieth or enjoyeth, his interest in the lands is thereby granted; but yet nevertheless he that hath therein but a term for certain yeares, hath but a chattel, and in regard thereof, in common sense it looseth the name of an hereditament of that, in the most usual and proper sense it retaineth the name of an hereditament onely in such person as hath therein an estate of Free-hold or inheritance. And therefore if a man seized of certain lands in Fee, and possessed also of other lands for term of yeares, doth demise all his hereditaments, to another for certain years, the lands, wherein the Leassor had but a term do not pass thereby no more then they should pass in the same case if the Leassor had demised all his Tenements: and yet in a natural sense Lands retain the name of a Tenement and Hereditament, as well in a Termor, as it doth in him that hath therein a Freehold or Inheritance.  
Also every Hereditament is either 

local,  
Transitory,  
or, mixed.    
1. local, 
local.  as messages, which are vulgarly called houses or lands, be they arable Meadow or Pasture, &c.  
2. Transitory, 
Transitory.  as Dignities, privileges, Liberties, Rents, Services, and such like.  
3. mixed, 
mixed.  as Honours, or manors, which consist of messages, Lands, Services, privileges, &c.  
Rectories or Parsonages when they consist of things local and Transitory, as Land, and tithes, and such like. But a Rectory when it consists onely of Tithes( as some doth) is a Transitory Hereditament, and the observation of this difference is very material in matter of Conveyance, as shall be hereafter declared. But it seemeth that such things, whereof no estate of Inheritance is, or ever was in being, are not to bee termed Hereditaments. Also if a man seized of lands in Fee simplo, granteth out of the same a yearly rent, or common of pasture for life, or for yeares, this rent or common( as to me seemeth) is not properly any Hereditament; because no estate of inheritance is, or ever was thereof in being. But if a man seized of Fee in lands, doth by sufficient conveyance in the Law demise the same to another for term of his life,& limiteth the remainder thereof to the right heires of a man that is living at the time of such demise, no estate of inheritance is thereof in being in any person whatsoever; for by the Law the estate of inheritance passeth out of the Leassor presently, and yet it cannot bee in such heir to whom it is so limited, until the death of his Ancestor; for until his death he can have no heir, but the person which is likely to be his next heir, is in the mean time onely termed his heir apparent. Also if J. S. seized of a Rent in Fee, doth by sufficient conveyance grant the same to another for life or for yeares, and after the same I. S. doth release or grant the rent unto him that is Tenant in Fee simplo of the land out of which it is issuing, and to his heires, in which case the inheritance of the rent is extinct in the land; yet in a common and proper sense during the said estate for life, in the same, and in a natural sense, during the said estate for yeares, it retaineth the name of an Hereditament: For in both these cases, an estate of Inheritance in the thing demised or granted, had once his being; albeit by matter Ex post facto in the said case of Remainder, it remaineth in suspense and abeyance for a time, and in the other case extinguished for ever. And in that which followeth, when I speak generally of things Hereditary, or Hereditaments, I mean thereby Hereditaments according to the common sense: Chattels are such things as are not hereditary, but testamentary, as movable goods, Leases for years, Wardship of lands and body, and such like▪ And they are called testamentary, as well because by the course of the common Law, things onely of that nature, 
Diversity.  and not hereditaments( as shall be hereafter declared) might bee disposed by Will and Testament. As also because after the death of such Testator, the Law doth transfer the same to the Executor of his last Will and Testament for the payment of his debts and legacies; for until a Statute made 32 H. 8. Hereditaments were not disposeable by Will, if the Testator had therein any greater Estate than for yeares, except such use as is aforesaid, and Hereditaments that were devisable by Will, by a special custom, and not by the common Law. And the cause whereof an estate of Inheritance of a use was Testamentary by the Common Law, did arise of the same estimation which the Law then had thereof, being less than of a chattel; for a chattel was protected by Law against wrongs, but so was not a use apt remedy by Law, being for the one ordained, and not for the other. But it is to bee noted, that albeit other Hereditaments were not Testamentary by the course of the common Law; yet by especial custom in some Cities and Burroughs, the Lands and Tenements therein situate were always Testamentary, in regard of their own nature; as Chattels were, but sub modo by a special custom.  
Of Chattels, some are real, and some are personal: 
real, or personal.  chattels real are properly such as do savour of the realty ( viz.) do consist of such things as are in their nature Hereditary, Wardships of Lands, or of other Hereditaments, Leases, or Interest for yeares, or at will derived out of any thing whereof an Estate of Freehold or Inheritance hath or had a being: chattels personal are goods movable, as Goods, Plate, Money, Oxen, Kine, &c. 
Without life or living.  And hereby it appeareth that some Chattels personal are without life, and some living: But it is to bee observed yet, that living Creatures ferae naturae, as Deere, Conies, Hares, and such like, are not Goods or chattels, except they are made tame. Also Characters or Deeds of any estate of Inheritance or Freehold, albeit they be movable, are not Chattels. Also Chattels real, are either local, 
Local.  Transitory, 
Transitory.  or mixed, 
mixed.  in such cases as is before observed of Hereditaments; for albeit they are termed chattels, in regard of the feebleness of their estates, yet the things enjoined by force of such interests, are for the most part by nature Hereditaments; and of these differences in chattels real, some profitable use may be made, as hereafter shall also appear. And it is to be noted that some interests for years are derived neither from any Inheritance or Freehold, but onely from a mans person: As if a man doth by dead create an Annuity for years, without limiting it to Issue, out of any Land or Tenement, the same is derived onely from the person which granted it, who in his life time, and his Executors or Administrators that represent his person after his death, shall bee onely charged therewith; and therefore as well such interest in an Annuity, as also a Wardship of the body of an Infant, which consisteth of a person, may in a strained sense be termed personal. But albeit the words Gaard. de Terre. in the division of Possessions in the beginning of Mr. Littletons tenors, do seem to imply, that Wardship of Body is not to be reckoned in the number of chattels real; yet it appeareth by other express books, that Wardship of Body is no less real then the Wardship of Lands: And therfore such implication as aforesaid, is no proof, that it is to be reckoned in the number of chattels personal otherwise then in a strained sense; or things Transitory or movable, consisting of any estate( As Wardships consisting of a term during the minority of the Ward, or a term in an annuity, villain, &c.) are not properly called chattels personal, but real. Furthermore, because some things which may be enjoyed in form aforesaid, are neither Hereditaments nor Chattels, It is therefore meet to consider, in what general those things are comprised: And as to that it is to be observed, that not one-those things which are neither Hereditaments nor Chattels, but also all Hereditaments whatsoever, in every such person that hath therein any greater estate than for yeares, are vouchsafe under the general name of Freehold, as in the Chapter next following it doth more at large appear.  

Franctenement.  
WHat is a Freehold, and what is a chattel, is very lively set forth in the beginning of Littletons tenors, by the said figure of division of Possessions: whereby it appeareth, that al manner of estates of inheritance, or for life( bee they estates according to the Common Law, or according to the custom, are comprised in the name of Franctenement) That is to say, every of them is aptly termed a Freehold within Judgement of Law, is greater than any estate for yeares, though it be made for many thousand yeares, in regard of any probable presumption that estate for life may be more perdurable, than such estate for yeares: but in regard a Freehold, which is proper as well to any estate of inheritance, as to an estate for life, in account of Law hath always been had in greater estimation than any estate for yeares; and for this onely cause a term for yeares is subject to a forfeiture by an Utlary in a persosonall action for an offence, wherein the offender is felo de se, 
Felo de se forfeiteth all Chattels.  and such like, but no estate of Freehold( unless it be by some special custom) is subject to any forfeiture of that kind. The difference between a Franctenement and Chattels being so discovered as is aforesaid; It seemeth fit to proceed to the consideration of Estates. An Estate is that which in latin wee call Status; 
Diversities.  and it may aptly be thus defined, viz. 
The definition of an estate.  An estate is a permanent abode or Continuance for for a time or for ever, in a thing of such nature as either is, may, or might be hereditary, as manors, Mills, Lands, Tenements, Rents, Services, Commons, Dignities, Liberties, Franchises, privileges, Offices, and such like; but no estate can be proper to chattels personal. And for that cause a gift thereof for a momentary time is of like force as if if it were given for ever. But it may be objected that so it may be said of a of a term for yeares in lands or other hereditaments( that is to say) if such a term be given or granted for an hour; it is of like force, as if it were given or granted for ever, yet such term therein is properly called an estate. To which objection I answer, that although the lawe be so in a grant of a term, which is as much to say, his whole interest in the thing, wherein he is so interested( viz.) his land, and not his term therein for one hour; the Grantee shall enjoy it no longer then for the time so limited, but otherwise it is of such gift or grant of chattels personal; but herein a difference 
Difference.  is to be observed, between such a gift or grant of goods movable, and a demise thereof; for although a grant for yeares of things properly devisable doth enure as a demise or lease thereof, yet such grant hath not the like operation in a thing devisable; only in an unproper or borrowed sense.  
And therefore albeit a grant of goods movable for a time, doth alter the property for ever; yet a demise therof for a time shall only enure as a disposition of the profits thereby arising during that time. As for example. If a stock of sheep or kine be leten for certain yeares, the Leassee hath not thereby the general property thereof, but onely a special interest or property therein, by force whereof he may take the profit thereof during the term; but such interest therein is not properly an estate. And albeit it be vulgarly called a lease of such Kine or sheep, yet it is not so to be termed, otherwise then in a borrowed sense; For if a man so interested therein is likewise possessed of other leases of lands, and granteth all his leases to another, his interest in these chattels personal, or the profits thereof, will not pass thereby. 
1 general  Of Estates some are general, and some Particular, 
2 Particular  as hereafter appeareth.   

general Estates.  
A general Estate is that which wee term an Estate in Fee simplo, which is the greatest and largest Estate that may be; and it is divided by Littleton in his first Chapter of his first book according to the Etymology of the words Fee simplo, which in latin are called Feodum simplex, quia feodum idem est quod Hereditas,& simplex idem est quod legitimum vel purum,& sic Feodum simplex idem est quod hereditas legitima vel hereditas pura; and it received the name of a general estate, not onely because it was the most common and usual of all other estates; but also for that in regard of the amplenesse thereof it is exempted from the number of all particular estates.  
But yet it is further to be observed, that there be three kindes of Fee simplo; The first a Fee simplo without any other addition. The second a Fee simplo determinable. The third a base Fee simplo.  
The first of these is more general and common than any of the residue, and it can never perish so long as the substance, whereof the estate ariseth, hath any being. And therefore albeit that he, which is seized of such estate, happen to to die without heir, yet the same estate is not extinguished but by act in Law, in some other degree transferred to the Lord, of whom the said Lands were holden by way of escheat, because the land wherein the Tenant hath such estate, doth still continue; but if a man seized in Fee of a rent charge, or rent sack, dieth without heir, this Fee simplo, 
Absolute conditional.  although it be of the first sort, doth perish, because the rent, wherein he hath estate, being transitory, is by such dying without heir, quiter swallowed up and drowned in the land, out of which it did issue. And albeit a Fee simplo of this kind is sometimes absolute, sometimes conditional, yet the condition thereunto annexed, doth not alter the same in nature or kind, but onely in the accidental quality.  
Secondly, a Fee simplo determinable is such as may be determined by a special limitation before the efluction of the time comprised in the general and proper limitation.  
Thirdly a base Fee-simple is when two Fee-simples in one thing are in being at one time, the one being in nature more worthy then the other. In which case that that is the least worthy, is called a base Fee-simple, because it is base in respect of the other.  
There is a general rule in the law, that none can have an estate lively, but the Donee; which is the party to whom it is given, or the heires of his body. 
Every estate of inheritance is either fee-simple or fee-tayle.  And it is further to be observed, that every estate of inheritance is either Fee-simple, or fee-tail; of the one hath been sufficiently spoken for this time: For the other, some further touch shall be given in the Chapter next following.   

Particular Estates.  
A particular estate is such as is derived from a general estate by separation of one from the other; As if a man seized in Fee simplo of lands or Tenements, doth thereof Create by gift, or grant an estate tail, or by demise, a lease for life, or any estate for yeares, these are in the Donee or Leassee particular estates in possession, derived and separated from the Fee simplo in the Donor or Leasor, in reversion. Also if lands be demised to A. and the estate tail limited to B. these are particular estates derived ut supra, and separated in interest from the Fee simplo in remainder given to C. albeit the same remainder doth depend upon those particular estates. And of particular estates, some are Created by agreement between the parties, as the particular estates before specified; and some by the act of law, as the state of tenant entail, apres possibility, d' issue extinct, Estates by the courtesy of England, Dower and wardshipp. For albeit an estate in Dower be not complete, until it be assigned, which oftentimes is is done by assent and agreement between parties; yet because the party, that so assigneth the same, is compellable so to do by course of law; that estate is also said to be only created by law. Also an estate at will is a kind of particular estate, but yet not such as maketh any division of th' estate of the Leasor, for notwithstanding such estate, the Leasor is seized of the lands in his drawn, as of Fee in possession, and not in reversion: Also an estate at will is not such a particular estate, whereupon remainder may depend. But of all the states before mentioned many fruitful rules and observations are both generally and particularly so lively set forth by the said Mr. Littleton in the 1. 2. 4. 5. 6. 7. and 8th. chapters of his first book, which is extant as well in English as in French; whereunto I refer you.   

Possession.  
IT is further to be observed, that all estates that have their being are in possession, reversion, remainder, or in right, but of all these possession is the principal, for that it is the full fruition of all the fruit of the estate. There are two degrees of possession, The first and Chiefest possession in fait, 
Two degrees of possession 

1 possession in fait.  
2 possession enley.    the other possession in law. Possession in fait or deed is such as is before spoken of, and that is most proper to an estate which is present and immediate, but such possession of immediate estate, if it be no greater then a term; doth operate and endure to make the like possession of the Free-hold, or Reversson. When a man is said to have a term, it is to be intended a term of yeares; when it is said, a man to have the Fee of Lands, it is also to be intended a Fee simplo; possession in Law, is that possession which the Law itself casteth upon a man before any entry or perancy of profits. As if there be a Father and son, and the Father dieth seized of lands in Fee, and the same do descend to his son as his next heir, in this case before any entry, the son hath a possession in Law. So it is also for a Reversion expectant, or a Remainder dependent upon a particular estate for life; In which case, if Tenant for life die, he in reversion or remainder before his entry, hath onely possession in Law. All manner of possessions, that are not possessions en fait, are onely possessions in Law; and it is to bee observed, That if a man have a greater estate in Lands than for years, the proper phrase of speech is, that he is thereof seized; but if for yeares onely, then he is thereof possessed; but yet nevertheless the substantive possession is proper, as well to the one as the other.   

Reversion.  
A Reversion is properly an Estate which the Law reserveth to the Donor, Grantor, Leassor, or such like, when he doth dispose a Lease, or other estate in Law, then that whereof he was seized at the time of such disposition. As if a man seized of lands in Fee, doth give the same to another, and the heires of his body, or if he do demise the same for life or yeares, in this case the Law reverteth the reversion thereof in Fee to the Donor, or Leassor, or his heires, because he departed not with his whole estate, but onely with a particular estate, which is less than his estate in Fee: And such reversion is said to be expectant upon the particular estate also, if he that is but a Tenant for life of land by dead or parole, giveth the same to I.S. in tail, or for term of his life, which is a greater estate than he may lawfully dispose; in this case the Law reserveth a reversion in Fee in such Donor, though he were formerly but Tenant for life. And the reason thereof is, for that by such unlawful disposition, which by dead or word cannot be without livery and seisin, he doth by wrong pluck out the rightful estate in Fee, that was thereof formerly seized in reversion or remainder, and by force thereof, by a priority of time gained in an instant, he was seized of a Fee simplo at the time of the execution thereof. But if a man seized of lands in Fee simplo, giveth the same unto A. and his heires until B. do die, without heir of his body; in this case the Law reserveth no reversion in the Donor, because the state so disposed to A. is a Fee simplo, which though it be a Fee simplo determinable, is in nature so great, as the state which the Donor had at the time of such gift, and consequently he departed thereby with all his estate. And thereby an apparent difference is between a gift made to A. and the heires of his own body, and a gift made to him and his heires until B. die without heir of his body; for in the one case the Donee hath but an estate tail, in the other a Fee simplo determinable; A. hath a possession of reversion; for if B. die without heir of his body, then whether A. be living or dead, the land shall revert to the Donor. But such possibility of Reversion is much differing from the nature and property of a Reversion; for he that hath but such a possibility, hath no estate, nor hath he power to give his possibility; but in the other case, the Donor hath estate in Fee, and therefore he hath power to dispose thereof at his pleasure.   

Remainder.  
A Remainder is a remnant of an estate disposed to another at the time of creation of such particular estate whereupon it doth depend. As if I. S. seized of lands in fee, demiseth the same to B. for life, the Remainder to C. and the heires of his body, the remainder to D. and his heires; In this case B. hath a particular estate for life, and the remnant of the estate of the Leassor is then also disposed to C. and D. ut supra whereby B. hath an estate for life: C. A remainder in tail: and D. a remainder in Fee depending in order upon the particular estate in possession; and in every remainder five things are requisite. 
5 things Required in a remainder.   
1. That it depend on some particular estate.  
2. That it pass out of the Donor grantor or leassor at the time of Creation of the particular estate, whereupon it must depend.  
3. That it rest during the particular estate, or at the instant time of the determination thereof.  
4. That when the particular estate is created, there be a remnant of an estate left in the Donor to be given by way of remainder.  
5. That the person or body, to whom the remainder is limited, be either capable at the time of the limitation thereof, or else Potentia propinqua to be thereof capable during the particular estate; If lands be given to I. S. and his heires the remainder for default of such heir, to I D. and his heirs, that remainder is void because it doth not depend upon any particular estate. But if land be given to I D. and his heires during the life of I, N. the remainder to I B. this remainder is good, 

No remainder can depend upon a Fee simplo.  
But upon a particular estate descendable. Nota.   for it is not limited to depend upon a Fee-simple, but upon a particular estate, which is only called an estate for life of I B. discendable. If lands be given to B. For twelve yeares, if C. do so long live, the remainder after the death of C. to D in Fee, the remainder is void, for in that case it cannot pass out of the Leor. al temps dl Creation dl particular estate pr. ans. But if a lease be made to B. for life, the remainder to the heires of C. who is then living, this remainder is good up-a contingency, That if C. die in the life of B. For this remainder may well pass ount of the Leasor, presently in abayance, without any inconvenience, becuse only the inheritance is separated from the Freehold as in abayance.  
If lands be given for life with a reremainder to the right heires of I S. and the tenant for life death in the life of I S. This remainder is voided, because it did not rest or settle either during the particular estate, or at the time of the determination thereof; for until I S. die, no person is thereof, capable by the name of his heires; but if lands be given to I. S. for term of his life, the remainder to his right heir in the singular number, and the heires of his body; and after I. S. hath issue a son and dieth, this is a good Remainder, and the son hath thereby an estate tail; for although it were unpossible, that such remainder should rest during the particular estate; because during his life none could be his heir; yet it might rest at the instant of his death, which was at the time of his determination of the particular estate. Concerning a fourth thing, if a man seized of lands in Fee, granteth out of the same rent or common of pasture, or such like thing( which before the grant had no being) to I. S. for term of his life, the remainder to I. D. in Fee, this remainder is void; because of this thing granted, there was no remainder in the grantor to dispose. And whereas some heretofore have been of opinion, that albeit the same can take no effect as a remainder, yet it shall take effect as another grant of a new rent or common, ut res magis valeat quam pereat.  
There is a rule of Law, that all things enjoyed in a superior degree, 
A Maxim.  should not pass under the name of a thing in an inferior degree: and therefore if lands be given to two persons, and unto the heirs of one of them, or unto the husband and wife, and the heires of the husband, and he that hath the estate of inheritance granteth the reversion of the same land to another in Fee, such grant is void, because the grantor thereof was seized in a superior degree, viz. in possession, and not in reversion, as appeareth 12o. Edw. 4. 12& 13 Edw. 3. brook, Title of Grants. And concerning the fift and last thing; If a Lease be made of Land for term of life, the Remainder to the mayor and commonalty of D. whereas there is no such Corporation then in being, this Remainder is merely void; albeit the Kings Majesty by his Letters Patents do create such Corporation during the particular estate, at the time of such grant the Remainder was void, because then there was no such body Corporate thereof capable, or in potentia propinqua to bee created or made capable thereof during the particular estate; but the possibility thereof was then foreign, and not prabably intended. The like law is if a Remainder bee limited to jo: the son of T. H. who had then no son, and afterwards during the particular estate, a son is born, who is name John, yet this Remainder is void; for at the time of such grant, it was not probably to bee intended that T. H. should have any son of that name. Also before the dissolution of abbeys, if a lease of lands were made to I. S. for life, the Remainder to one that then was a Monk, such Remainder was void, for the cause before alleged, albeit he were deraigned during the particular estate: but if such Remainder had been limited to the first begotten son of I. S. it had been good, and should accordingly have vested in such son afterwards born during the particular estate.   

Rights.  

A twofold Right.  A Right in Law is either clothed, or naked. A Right clothed is when it is wrapped in a Possession, Reversion, or Remainder. A naked Right, which is also most commonly called a Right, is when the same is separated from the possession or remainder by disseisin, discontinuance, or other divesting and separating of the possession from it. As for example, if a lease of land be made for life to I. S. the remainder to I. D. in Fee; in this case I. S. hath a Right clothed with a possession, and I. D. clothed with a remainder; but if a stranger that hath no right or title, doth in the same case enter into the land by wrong,& put I. S. forth of possession, such entry by wrong, is called a disseisin:& therefore the possession is moved from the right; for by reason thereof, the disseisor is seized of the land, and I. D. hath also the like naked right to the Remainder by such disseisin, is likewise devested and plucked out of him, and cannot be revested in him during the right of such particular estate, unless the possession of the particular Tenant be therewith revested, which must bee by his entry, or recovery by action, and by such entry of the particular Tenant, or by his recovery with execution, the Remainder shall be revested as well as the particular estate. Also there is a Right in Goods and Chattels, as well as in Lands, Tenements and Hereditaments, which is also clothed with a possession, so long as the rightful proprietor hath the same, but if another doth take them from him by wrong, he now hath onely a naked Right to the same, which cannot be by him granted for the cause before alleged; but yet he may release his right therein to him that is thereof possessed; for the same reason it is before alleged of a release of Right in Land, and if such right happen to be forfeited to the King, his Highnesse may grant the same by his Prerogative.   

Common Recoveries.  
A Common Recovery is such as is suffered and recovered by the assent of both parties to the same of any manors, Lands, Tenements, Advowsons, Rents, Services, or other Hereditaments for such estate thereof, and to such use or uses as are between them agreed upon; and it is most commonly suffered by the Writ of Entry sur disseisin in le post. the nature of which Writ is sufficiently set forth by Justice Fitz-Herb. in his book of Natura Brevium, albeit sometimes it hath been,& may be also u-in other actions. And such common recovery is usual by single, double, or triple vourcher, as the cause doth require. And for the better understanding hereof, it is requisite to observe the terms of Law used therein. The immediate party that recovereth, is called the Recoveror; and the party against whom the Recovery is had, is called the Recoveree; but in the proceeding therein, he that is to recover is called the Demandant, and the party against whom the immediate recovery is to be had, is called Tenant; for it is to be noted, that he must be Tenant of the Freehold, or else the Recovery cannot be a good and sufficient assurance in the Law. A vourcher is the calling into the Court of some other person to warrant the land; and he that first voucheth ( viz.) he that calleth another to warranty, is the Tenant, and the party vouchsafe termed the Vouchee or Tenant by the warranty. And in a Recovery with a single vourcher, are included two Recoveries, viz. one at the suite of the Demandant against the Tenant, and another at the suite of the Tenant against the Vouchee. And if it be with a double vourcher there are included in it, three Recoveries, one by the demand against the Tenant, one other by the Tenant against the Vouchee, and the third by the first Vouchee against the second Vouchee. And in a Recovery with a triple vourcher, are included four Recoveries, whereof three are such as are last mention●d& a fourth is a Recovery by the second Vouchee against the third; and in these Reveries the Demandant hath Judgement to recover the land against the Tenant, and the Tenant hath likewise judgement to recover in value against the Vouchee; and if it be with a double vourcher, the first vourcher hath also the like Judgement to recover in value against the second; and if it be with a triple vourcher, the second Vouchee hath the like Judgement against the third. And the Record also maketh mention of the execution of the Judgement against the Tenant by Entry, or Writ of Habere fac seisinam accordingly. And when such Recovery is so executed, the uses agreed upon, do forthwith arise out of the Lands, Tenements, &c. so recovered accotding to the mutual agreement of the parties. 
Recoveries with single vourcher.  The scope of a common Recovery, with a single vourcher, is to bar the Tenant and his heires of such onely estate tail which then is in him, to bar others of such estates as they have in any Reversion expectant, or remainder dependent upon the same. And of all Leases and encumbrances derived out of such Reversions or Remainders. The scope of a common Recovery with a double vourcher, 
Recovery with double vouchcr.  is to bar the first vourcher and his heires of every such estate as at any time was in the same vourcher, or any of his Ancestors, whose heir he is of such estate; and all other persons of such right to a Reversion or Remainder, as were thereupon at any time expectant or dependent; and of all Leases, Charges, and encumbrances derived out of any such reversion or Remainder, and that will be also a perpetual bar of such estate whereof the Tenant was then seized of in reversion or remainder expectant, or dependent upon the same, &c. 
Recovcry with triple vourcher.  The scope of a common recovery with a triple vourcher, is to make a perpetual bar of the Estata of the Tenant, and of every such estate of inheritance as at any time had been in the first or second vouchee, or any of them, or either of their Ancestors, whose heires he, or they are of such estate, and as well of every Reversion thereon dependent, as also of all Leases, Estates, Charges, and encumbrances derived out of any such Reversion or Remainder.  
The Law doth so protect the Kings Possessions, that they cannot be devested or taken from him by any feigned Recovery, Disseisin; and such protection thereof doth also support and preserve the remote reversion and remainder pursuing the same, that they cannot bee devested by a feigned recovery suffered by Tenant in tail in possession, or by his feoffment, or by any disseisin of the Freehold; but yet such Recovery will be sufficient of the particular estate tail, of the Recoveree or Vouchee, and of such Reversion there upon dependent as are in esse between his estate and Remainder in the King, unless the estate tail of the Recoveree or Vouchee were created by Letters Patents of his Highnesse, or of some of his Progenitors, or by his, or some of their provision.   

Fines.  
AS a common Recovery is an assurance of the greatest force to bar such reversions and remainders as are aforesaid in the precedent Chapter, so to another purpose, that is to say, to Conclude strangers of their right, if they do not make their claim according to the form of the Satutes in that behalf made' a Fine, is before all other assurances to be preferred, and it receiveth the name of a Fine, Quia finis finem legibus imponit. In every fine there are two several parties, the Commissor, and the Commissee; the party levying the Fine is called the Commissor, and he to whom it is levied, is called the Commissee. A fine is partly said to be levied, when it is knowledged, in the Court, or when it being knowledged else where, is certified into the Court, and received to be there ingossed and recorded. There are two sorts of Fines, the one at common law, the other levied and proclaimed according to the statute. Two several statutes are chiefly to be considered in fine levied, and proclaimed according to the form of a statute, the one of them is the statute of 1. R. 3. chap. 7. 
1. R. 3. cap. 7. 4. H. 7 cap. 24. 32. H. 8. cap. 36.  The other is the statute of 4. H. 7. chap. 24. being in some thing afterwards explained by a statute made in Anno 32. H. 8. chap. 36. the number of these proclamations are four: and to be made at four several terms, and a fine levied, and proclaimed, in the Kings Majesties Court, before his Justices of the common Pleas: of any lands, or hereditaments is ordained to be a final end, and to conclude as well privies as strangers to the same, except such strangers as are women, Covert persons then being within age viz. the age of 21. yeares, in person, or out of this realm, or not of whole mind, at the time of such fine levied. But this exception is conditional, viv. that they or their heires, inheritable to the same lands &c. do take their action or lawful entry according to their right and title, within five yeares next after they be of full age of 21. yeares, out of prison, uncovert, within this realm, and of whole mind, and the same actions sue, or their lawful entries take and pursue according to the law. Concerning fines with proclamations, five things are to be observed. First the time of levying and proclaiming the same. 
5 things are to be observed concerning fines with proclamations.  Secondly the place where, and before whom it is to be levied. Thirdly of what things it be levied. Fourthly what ceremonies are therein to be observed. Fiftly the several times are to be observed and considered; First that the fine be levied after the feast of Easter, which was in the year of Lord God, 1496. For all fines levied before that time are out of the compass of this statute 4. H. 7. 
4, H. 7.  As by the letter of the same statute it appeareth; 2. that the proclamation must be made in time of the term; and therfore if any of those proclamations do happen to be made either before the beginning or after the end of any term, or on a Sunday, or other festival day exempted from the term, as on the feast day on of the Purificatioa of St. Mary the virgin, Ascention day, all Saints, All Souls or on the feast day, of St. John Baptist, if it happen on any other day then on the friday next after Trinity Sunday and to be recorded accordingly, 
23. Eliz. cap. 3.  then if it be not holpen by the statute 23. Eliz. cap. 3. All the proclamations are reversable, by a writ of error, or by Plea, as it appeareth in Finches case Plow: come. 266. 267. and then the fine will be of no other natur or force, 
Plow. come. 266. 267.  then a fine without proclamations And although in truth, the procalmations were all made within the terms, according to the form of the statute, yet if the record or records, do purport the contrary, they are reversable by error, or avoydable by Plea, if it be not holpen by the said statute; for a record is of that credit in law, that no averment may be admitted to the contrary.  
It is to be considered who are privies, and who are strangers to a fine; according to the statute, there are three privities only. 1. privity in blood only. 2. privity in estate ( tantum) 3. privity in blood and estate. There are three kindes of privities. 1. in blood tantum. 1. One is when a man is heir to to his late Ancestor, and yet hath nothing by discent from him. As for example, if a father seized of lands in fee, doth thereof household-stuff a stranger and his heires, or if he by his last will and Testament in writing did dispose the same, being holden in Soccage to another in Fee, and hath issue and dieth, in such case, sch issue is privy in blood, having nothing by discent. 2. One other kind of privity in blood is, when something is descended unto him, as heir unto his Ancestor and yet he claimeth the same by some other right, and not as heir, to such Ancestor. As for example, if there be a father and son, and the son purchaseth lands of a stranger in fee, and is thereof disseissed by his father, who death thereof seized, and the same descend to his son as heir, in this case the son is privy also in blood, but not in estate; for although the possession of the same land came to him by discent as heir to his father, yet he was therein remitted forthwith to his former estate. 3. And a third kind of privity in blood tantum, is where a man in some respect is privy in blood and estate, and in another respect privy in blood tantum. As for example, if there bee two brothers, and the eldest purchaseth lands in Fee, and is thereof disseised by his younger brother, afterwards disseised by a stranger, and that stranger dieth thereof seized, the younger brother being within age, and afterwards the elder brother dieth without issue, the younger son hath two manner of rights to the land; the one is a right of Entry against such heir as is in by descent during his minority; but that right is onely in respect of his former possession which he obtained by disseisin, and not as heir to his brother, and in this respect he is privy in blood to his eldest brother, but not privy in estate. The other right that is now in the younger brother, is onely a right in Action, and not a right of Entry, and this is in him as heir to his brother, whose entry was taken away by the said discent, in respect of his right, he is privy in blood and estate to his brother. Privity in estate tantum, is where a man claimeth an estate in land, as assignee to another; as if A. household-stuff B. in this case B. and his heires are privy in estate to A. Privity in blood and in estates are of two sorts, whereof the one may properly be called a privity of blood and estate, the other is so called unproperly, and in a borrowed sense. That which is properly called a privity in blood and estate, is when both privities do accrue by discent, by or from one Ancestor. The other is, when the one of them accreweth by one manner of title, and the other by title of another kind; As for example: If there be a father and a son, and the father purchaseth lands, and death thereof seized, and the same doth descend to his son, he is to his father in a proper sense privy in blood and estate; because both those privities do to him accrue, by one discent from one Ancestor.  
It is to be noted, that such privyes as the statute meaneth, are after the engrossing de le fine et proclamation made according to the form of the statute, absolutely barred without hope of recovery or restraint, by any claim; but such as are strangers are barred only conditionally, if they or their heirs do not claim according to the form of the statute within the times therein prescribed. It is a rule in law, that no error in the fault of the Judge can be assigned to reverse a Judgement, unless it be so apparent, that it may be tried by view of the record, or by inspection of the person: for if it should, many grave Iudgments would be overthrown by corrupt trials, of false surmises to the subversion of Iustice and maintenance of 'vice. But if the Judge give judgement for the one party upon the matter appearing of record, whereas he ought to give Iudgment for the other party, this is reversable by error, because such a fault of the judge through ignorance of the law is apparent by the view of the record. Also a fine levied by a feme covert is not erroneous,& therefore it is not reversable by error, but avoydable by her. Also a fine levied by a feme covert at the common law is avoydable by the entry of the husband; yet since a fine levied at this day and proclamation according to the form of the said statute of 4. H. 7. or 31. Eliz. Cannot be avoided by the entry of the husband, of the commissor, as to the estate of inheritance, but only to the Franktenement during the coverture, and so long afterwards as he shal be tenant by the curtefy, if he had issue by his said wife, before the fine levied. And in that case albeit the husband do enter within five yeares or before proclamations had and made, the Feme and her heires are barred as privyes to the fine, the words of the said statute of 4 H. 7. be the fine to be a final end, and conclude as well privies as strangers, and yet all strangers shall not be barred by such fine, the king is no such stranger as is comprised in the said act; for if the law-makers had meant to conclude the King thereby of his right, then it is not to be doubted( his greatness being such as it could not be forgotten) but they would have made some provision for his claim, which thing they have not done, because they never intended to conclude him; but others, being bodies corporate of things that go by way of succession, are comprised in this word( strangers) in the body of the act. And yet they are not contained in the letter of exception, or of any of the savings which do save rights, to men and their heires, speaking nothing of corporations or successions, or of any thing in succession.  
There be two kindes of liveries; 
Livery twofold 1 en fait 2. in law  the one called a livery en fait which is a ceremony used in the execution of a Feeoffment in Fee, or a lease for life, by delivery of the ring of the door of the house, or a clod of the land contained in the Feoffment, in the name of the house and other hereditaments therein comprised. The other is called a Livery in Law, or a livery within the view, with the like ceremony in other form used in the execution of such feoffment, or Lease pure vie; but that is not alway made upon the land, but onely in the view thereof, that is to say, in a place where the parties do see and behold the land; and the Feoffer so beholding the same saith to the Feoffee, I make livery to you of this land according to the purport of the dead( if it be a feoffment by dead) if it be without dead, then the words are to this effect ( viz.) I do deliver to you seisin of this land; or, if I do make livery and seisin of this land to you and your heires, or if it be for term of life, to you for term of your life. This being done, the Feoffee or Leassee, must enter, and before such entry the livery within the view is not complete; for if the Feoffer happen to die before an entry made by the Feoffee, such livery within the view is void, and cannot be good by any entry afterwards made.   

Conveyances and Assurances by deed poll, or by parol.  
A Conveyance or Assurance by deed poll, is when it is made by a single dead which is not indented, and albeit many Conveyances may be by Indenture, which could not be good by Law, if they were made by deed poll, or by parol; yet è converso all Conveyances and Assurances that may be sufficient by deed poll, or by parol, may also without all question bee good by Indenture. Also what thing soever may be conveyed by parol, may be also conveyed by deed poll, but è converso, many things may be conveyed by dead poll, which may not be conveyed by parol. Therefore it seemeth fit now to consider what things in respect of their nature and kind may be conveyed by dead poll, and not by parol; and as touching Hereditaments transitory, or things transitory, which do pass properly, or arise by grant, not by Livery, Reversions, and Remainders expectant, or dependent upon a particular estate in any Hereditaments whatsoever, may by apt conveyance, pass, or be created by dead poll, but not by parol: and hereupon ariseth the general rule, that those things which do lye in grant, and not in livery, cannot pass by parol, but by deed. But such things as do lye in livery may pass without deeds; feoffments of messages, Lands, Houses, manors, or Rectories, and such like, are Good without dead; and so are Leases for yeares thereof made; because the Freehold thereof will pass by Livery; otherwise it is of grants of Seignori●s in gross Rents, Services, Commons, Advowsons, Wasts, Liberties, Franchises, and such like, being transitory, or of such Remainders or Reversions as are aforesaid. It is to be noted, that Lands, Tenements, or Hereditaments, or any estate therein, or any estate in a thing issuing thereof, cannot be conveyed to the King without matter of Record, as by Fine or Recovery, Record, as by dead enrolled, and therefore a Grant, or any other Conveyance of such thing by dead, is not sufficient, unless the same dead be enrolled. And if a Lease of Land be made for life to I. S. the remainder to I. S. in Fee tail, the remainder to the King in fee, this remainder to his Majesty cannot be good, unless the same be by dead enrolled: But a dead poll thereof enrolled will be no less sufficient to this purpose than an Indenture enrolled. And to the enrolment therof, the King is tied so no time certain, so that an enrolment thereof at any time during his Majesties life will be good in Law; but if it be not enrolled in his life time, then nothing can thereby be in the King. And if the King grant the same to another before enrolment, the grant is void, and cannot bee made good by the enrolement thereof afterwards.  
There are two sorts of conveyances by dead. The one doth enure by transmutation of possession, transferring of a naked right. Conveyances by dead that do enure by way of transmutation of possession, are of divers sorts; whereof some do enure by way of removing of a possession, and creating of an estate, some by creating both of an estate and possession; some by extinguishment, some by suspension hereof; and some by remoion of the possession, and drowning of the estate. Conveyances by transmutation of a possession, that do enure by removing both of the estate and possession, are such whereby an estate and possession formerly settled in the one party, are removed to the other party. Conveyances that do enure by removing of a possession and creating of an estate, are such, whereby a possession formerly settled in one party, is removed to another by creation of a new estate other then such as was in the party from whom it was derived. A conveyance that doth enure by creation of an estate and possession, is when the thing conveyed had no being before the making of such conveyance. A conveyance by transferring of a possession, is said to enure by way of extinguishment, when the thing and the estate conveyed are thereby extinguished. A conveyance doth enure by remotion of the possession, and a drowning of the estate. When a surrender is made of a particular estate for life, or for yeares to him that hath the Reversion or Remainder thereof, in which case the possession of the land is removed, but the estate is drowned; for he to whom the surrender is made is not seized of the particular estate, but of such estate wherein the same is drowned; and such surrender, of an estate which might have been created without deed, or matter of record, may be surrendered by parol.  
Note that a surrender to any person of a particular estate which could not be created without deed, matter of record cannot be good by parol.   

Conveyances by will.  
A Conveyance by will is common-called a device, the party that giveth or bequeathes a thing by will is commonly called the devisor, and he to whom it is bequeathed the devisee; of devices general there be three sorts, 1. a device by the common law, 2. a device by custom 3. by force of the statutes of 32. and 34. H. 8. By the common law no manner of hereditaments, wherein the Testator had any greater estate then for yeares( except an estate in a use of lands or Tenements) was devisable by will, but he that had such use in Fee, or for another mans life, might before the statute. 27. H. 8. de usibus in possessionem transferendis, have devised the same by will as he might do of a term in use. For the better discerning what device is good by the common law, and what not: fix things are meet to be observed. 1. That the devisor be a person able to device. 2. that the devisee be capable of the thing devised, 3. That the things are devisable by law, 4. That the purport thereof being no other in effect, then such as might stand good in law, in a conveyance by act executed in the life of the devisor, 5. That the device be not impossible, 6. that it be certain.  
Concerning the first of these forasmuch as every will doth take effect by the death of the Testator, therefore without the death of such Testator, there can be no will, and without a will there can be no device, and consequently all kind of corporations are unable to device any thing by will, because they never die. A Maior and commonalty, Provost& fellowes of a college, Wardens and commonalty of a company, cannot device any thing by will; no more can a Bishop, dean, person, or Vicar, device any thing devisable, which they have not in their politic capacity,( viz) which he hath in right of his bishopric, deanery, Parsonage, or Vicarage, but every of them may device such things devisable at they have in their natural capacity; for in rerespect thereof every of them must die, but there are some natural persons which have no power nor ability in law to device any thing by will; as persons not of whole mind and idiots; But an infant of 14. yeares of age may make a will, and thereby make an executor of his goods. The husband may device goods or chattels to the wife, albeit they are one person in law; A woman covert hath no power to give any goods by will, for without the consent of her husband, she cannot by law make a will, either of any of her husbands goods, or of such chattels in possession, or in right of action, as are in her husband in his right, or herself in her right. 12. H. 7 Fol. 24. A man outlawed in a personal action, or a person attainted of felony or treason, cannot device any chattels personal or real; for if it were devisable or grantable, the property thereof is in the King, as aforesaid by such outlary or Attainder.  
Concerning the second thing to be observed, not only persons of full age, women sole, and persons of discretion and whole mind, but also infants feme, coverts, idiots, and mad men are capable of a device, because it tendeth to their benefit, and not to their prejudice; but yet such capacity of a woman covert is subject to a condition in law( viz.) if her husband do not disagree to the same; for if at any time during the coverture he doth disagree thereunto, the device is voided in law, unless before such disagreement he did formerly agree to the same; but if he do once agree to it, his disagreement afterwards is of no effect. Also persons outlawed in a personal action, or convict or attainted of felony or treason, are capable of a device; but in such case, if the device be of a chattel, the King shall have the thing devised, as a chattel forfeited by the outlawry, conviction, or attainder; and if the device be of an estate in Free-hold, or Inheritance in lands or Tenements, then in some case the King, and in some case the Lord, of whom the same is holden, as the case may require, shall be entitled thereunto; Also a device made to a child in his mothers womb is good in law.  
Of the third observation, for the better discovering what thing is devisable by the common law, and what not, a difference is to be observed, betwixt an estate to the use of another created by law; and an estate made or conveyed to the use of another by agreement of parties; for where it is created by law to the use of another; there it is not devisable by will, but if it be made or conveyed by agreement, it is other wise; as for example; If a man seized in Fee of lands holden in soccage, hath issue a son and dieth, the son being under 14. yeares of age, in this case the law appointeth the care and custody of such issue, and of the same lands, which came to him by discent from his father, unto his mother( if she be living) as Guardian in soccage, until he be of the age of discretion viz. 14. yeares; but this wardship in soccage, so to her accrueing by by law, is to the only use and profit of the Infant, and therefore it cannot be devisable by will, neither shall it go to the Executor or administrator of the mother after her death, but to the next Ancestor of the Infant of the mothers side, as it appeareth, Plowden fol. 239. and 294. in the case between Osborne and joy.  
Concerning the fourth if cestique use in Fee of Land before the said Statute of 27 H. 8. had devised the same to I. S. and his heires, and for default of such heires to remain to I. D. or if he had devised the same to I S. and his heires, until I. N. do happen to die without issue of his body, the remainder to I. D and his heires, this device of such Remainder had been void; because by the rules of Law, a Remainder could not be limited to depend upon an estate in Fee simplo, so that such a Remainder could not have been created by conveyance executed in a mans life.  
Concerning the fifth observation; if a man be possessed of a term determinable by his death, doth device the same by will to another, the device is void, because it is unpossible that it should take any effect. Also a device to I. the son of T. S. of D. whereas the same of T. S. hath onely issue W. is void, because there is no such person in rerum natura. So it is also, if a term be devised to the Executors of I. D. whereas I. D. died Intestate.  
Concerning the sixth observation, if any having issue many children, doth by Will give or bequeath a cup of silver, a horse, or any other thing devisable, to one of his sons, this device is void, because it is uncertain which of his sons should have it; so it is also, if the like device be made dis-junctively to I. S. or I. D. but a device to one of his sons, at the choice of his Executors, is good, because the uncertainety may be reduced to a certainty by the election of the Executors. So also if a man be possessed of a term in lands for 60. years, and by his Will device to I. D. such and so many years of his said term, as shall be nominated or appointed by his Executors, this device is good, causa qua supra: and yet a gift or grant thereof in that form made by conveyance, executed in his life, could not be good, the reason thereof is, because he can have no Executors in his life time, by reason whereof it is impossible to reduce such Gift or Grant unto a certainty before his death; and a conveyance executed in a mans life must be reduced to a certainty before his death, or else it can be of no effect in Law But that reason ceased in a device( which taketh no effect until his death) and therefore the Law is therein differing accordingly. Also it is to be observed, that a device of Chattels may be good, either by will nuncupative, or by writing.  
Concerning a use, it is to bee observed, that a man seized of Lands or Tenements in Fee, to the use of him and his heires, could not by the common Law device the use thereof by Will, unless the same Lands or Tenements were devisable by custom. But if I. S. seized of certain Lands in Fee, had enfeoffed certain persons thereof to the use of himself and his heires, this use so severed from the possession, was deviseable by the Common Law, albeit the Lands out of which it riseth were not devisable.   

Conveyances by Will of Lands devisable by custom.  
IT is to be noted, that albeit by the rule of the Common Law no Hereditaments ( other then a Use) was devisable by Will; yet by particular customs in divers Cities, Burroughs, Lands and Tenements therein situate have always been devisable by Testament, so that the custom doth therein alter course of the Common Law. But in every such device, six things are especially to be observed.  

1. That the thing devised goody comprised within the custom.  
2. That the device be pursuant to the custom.  
3. That the power of the Devisor be not restrained by Statute.  
4 That the custom be lawful and reasonable.  
5. That the intent of the Devisor be certain, lawful, and not unpossible.  
6. That the Will bee not countermanded.   
Concerning the first of these, the observation is double.  
1. That the thing devised be as well in nature and kind, as also in continuance, such as is warranted by the custom.  
2. That it be contained within the bounds and limits thereof. As to the first part, if by custom all the tenements within a certain City or burrow bee devisable by Will; A rent charge, and rent sack which had continuance time out of mind, are in nature, kind, and continuance, such as bee comprised within the custom, and therefore are by force of such custom devisable. As to the sec●●d part of the observation; If a man seized of rent in fee, which time out of memory hath had a continuance, the same rent is issuing as well out of lands within the limits of such custom, as aforesaid, as also out of Lands not contained within the precincts, this Rent is not devisable by the said custom, because the same or any part thereof is not contained within the precincts thereof, which must bee taken strictly.  
The second observation hath three branches, one concerning the person devising, another touching the persons to whom the device is made; And the third granteth the device itself.  
1. As to the first branch, a device made by a foreigner, to any person of lands or tenements situate within the City of London.— to the custom of London, as appeareth M. 8.& 9. Elix. fol. 255. But yet some persons comprised within the general custom are by the rule of the common Law exempt from the same, as a device made by a person lunatic, an idiot, an Infant, and a man seized onely in the right of his wife, is void, this custom notwithstanding.  
As to the second branch; Citizens and Freemen of London may by the custom of the said City, without the Kings licence, lawfully device lands in London, whereof they are seized in Fee, to Guilds or Corporations, as appeareth by 5. H. 7. 10. 19. But if he bee only a Freeman, and no Citizen, or only Citizen and no Freeman, he cannot without the Kings special licence lawfully device in mortmain.  
As to the third branch; if the custom be, that lands and tenements within a certain city be devisable in Fee tail for such estate, West. 2. was a Fee simplo; also it seemeth probable, that by force of a custom, that maketh lands and tenements devisable, a man may device those things that are therein growing as trees, grass, and such like. But if a device of a rent, or common out of lands devisable, is not pursuant to the custom, because they had no being at the time of the device, and though they had any beginning, yet they were created within the time of memory, they are not devisable for the cause aforesaid. If a house be onely erected upon devisable lands by custom, a device thereof is pursuant to the custom; albeit in that place there was never any house before, because the house doth retain the nature of the land, whereupon it was built as a principal part, whereof it doth consist, the change of the name notwithstanding.  
Concerning the third observation; it is to be noted, that albeit the custom hath been to device lands to any person or body politic, yet the same may not by force of such custom be devised at this day in mortmain, upon pain of forfeiture, according to divers statutes, unless the licence of the King, with the consent of the Lords mediate and immediate, be first therein had and obtained; for such custom is in that behalf qualified and retrained upon the pain aforesaid by the statutes of mortmain( viz.) Magna Charta. A custom that began onely since the statute, cannot be good; for every custom that may evidently appear to have his beginning since the time of R. 1. is void in law, as appeareth by 33. H. 6. 27. 9. H. 6. et. Littleton 38. yet nevertheless the customs to device mortmain are not abrogated by any of the said statutes; for the device, or other form of alienation in mortmain is not by any of the said statutes made void, but it is only in advantage of the the Lords, who might sustain loss thereby, prohibited upon pain of such forfeiture to them accrueing, as thereby appeareth; so that by licence& consent as aforesaid, a device in mortmain by force of a custom may stand good in law, without danger of the penalty of forfeiture.  
Concerning the fourth observation; if the custom be not lawful and reasonable it is void; so that a device by virtue thereof cannot be of any force in law. And therefore if an alien do purchase and device lands lying within a certain Borough by force of a custom that lands and tenements within the same borough are devisable to aliens in Fee to their own use, and by them devisable by testament, this device is voided, for such custom against the Kings prerogative is unlawful; albeit his highnesse cannot be thereunto entitled without office or other matter of Record, yet mean between such purchase and office found &c. I take the Alien to be pernour of the profits, and that the estate purchased is forthwith in consideration of the same lands, until the kings title do appear by office or other matter of record Also it is to be observed, that a custom to device a Right, separated, from the possession, cannot be lawful, because it savoureth of maintenance. As touching unreasonable customs, if the custom within any city or burrow be, that Tenements therein situate are devisable by Infants, idiots, or mad men, it is unreasonable, and therefore voided. But a custom that the same be devisable by children of 14, years is good.  
Concerning the fifth observation; if the intent of the devisor be uncertain, unlawful, or impossible, the device will be of no force in law. The intent of devisor may be uncertain, either in the person to whom he doth device, or in the thing devised, or in the estate that should pass thereby. And first concerning the person it appeareth 49. E. 3. 3. one jordan did device certain Tenements in London to one for life, so that after his decease the same should remain unto 2. of the better sort of the fraternity of London, this remainder was agreed to be voided for want of certainty, which persons of the fraternity should have the same. Secondly, as as concerning the certainty in the thing devised; as for example; if a man seized of lands or tenements devisable; doth by wilbequeath a portion therof to I.S. this device is voided because it doth not appear, what or how great a portion thereof the devisee should have by foree of the said will. 3. Albeit the intent of the devisor doth certainly appear, and the persons to whom the device is made, and in the lands and tenements devised, yet if the estate therein limited be so uncairten, that neither by matter expressed or implyed in the will, nor by a common preferrment it cannot be reduced into a certainty, the device will be voided in law. And therefore if a man seized of lands devisable as well by will nuncupative as by writing, doth by will in writing amongst other things bequeath the same to I. S. for such estate as is specified in a schedule thereunto annexed, and then the devisor dieth without annexing any schedule to the said will, or other declaration of the certainty of the state, this device is voided in law. Now it is be considered, that albeit the intent of the devisor be certain in all things, that nevertheless though it be unlawful, the same will be no force. And therefore it is also needful to discern, where and in what case the intent of the devisor is unlawful, and where not; and the intent of the devisor is unlawful, when it is so repugnant to the rules of the law, as that by any counsel learned in the law, it could take no effect by conveyance executed in his life time; as for example; a device of a naked right, or possibility of a remainder to depend upon an estate in the simplo thereby bequeathed, is said to be unlawful; for as no such remainder could be bequeathed, id est conveyed by any act executed in a mans life, so also no bare right could be conveyed by the like act executed in his life to any person, other then such as were seized, or to be seized of the free hold of the same lands at the instant of the execution of the conveyance, and that only by way of the extinguishment. And hereupon it followeth, that a man having right to lands devisable being by defeisable title in the possession of I.S. cannot device the same by will to I. D. So also the Lord, of whom the lands devisable are immediately holden by Knights service, cannot device his possibility of Escheates or wardship, that may thereof accrue to him, when his Tenant shall happen to die without heires, or the possibility of wards, when the heires shall be within age.  
Concerning an intent impossible, wee term that an impossible intent, which by no probable and common possibility can be accomplished, and of such impossible intents, there are 3. sorts. 1, Impossible both at the time of the making of the will, and also at the death of the devisor. 2. Impossible only at the time of the device, and not at the time of the decease of the testator. 3. Impossible at the time of the making of the device. And as to first sort of lands devisable by will, bequeathed to the heires of S. who was attainted of felony or treason, unreversed at the time of the device, or death of the devisor: or if in time of Romish religion, such device was made to one that was a Monk, being not deraigned at the time of the device, or death of the testator; or if the same be devised to the heires of I. D. who was then dead without heir; or to a corporation that had noe being at the time of the will, or death of the testator; Or if a man by his will do device a certain house in a borough, wherein at the time of his device and death, he had nothing: Or if lands be devised to the executors of I.S. who died intestate, in every of these cases, the intent of the devisor was impossible, both at the time of the device and death of the devisor; and for such impossibility, the devices are absolutely void.  
Concerning the 2. sort; if lands were devised to a Monk, who at the time of the death of the testator was deraigned, or to the heirs of one is that attainted of &c. which is afterwards reversed before his death, or to a Corporation that hath a being at the time of his death, but not created at the time of the device, in these cases, the intent of the devisor, was onely impossible at the time of the device, but not at the time of the decease of the testator. And yet I take the Law, that those devices be also void, nam quod ab initio non valet id tractu temporis non convalescit.  
The sixth observation is, that the device be not countermanded; for it is a clear case, that it is countermandable at the pleasure of the Devisor, or thereby the device will bee of no force in Law. And it is to be noted, that there are two kindes of Countermands, the one is a countermand in dead, the other a countermand in Law. A countermand in dead, is when a Testator doth expressly revoke his Will formerly made, or any part thereof; and this countermand by word is of no less force then if it were by writing; for albeit the Will contain, amongst other things devices of Lands, bee it in writing as an effectual part thereof, in case where the custom or law doth so require it; yet nevertheless an express countermand by word of the will, or of any device of lands therein comprised, will be sufficient in Law to control the same, as it appeareth by Reits case, 14 El. Also, if after the making of the will, the Testator doth cause a device therein made to one man to be quiter strike out; this is also a countermand in dead of that device, and the will standeth good for all the residue. A countermand which in Law is that which neither by word nor deed is expressed, but onely in those other acts implyed. As for example, the making of another will doth imply a revocation of the former, and therefore it is a countermand in Law thereof. So likewise if lands be devised by will, and afterwards the devisor infeoffeth a stranger in Fee thereof, this feoffment doth imply a revocation of the device of the land, and therefore it is in that part a countermand in Law, albeit he afterwards repurchase the same. 44. Ed. 3. 33. And although lands devisable by a custom may be executed by a Writ of ex grm. querela, yet if there be no special custom to the contrary, the devisee may( if he please) execute the same by Entry as it appeareth by 35 Asss. plit. 12. 40. Asss. p. 2. 27. Asss. p. 60 And in every such case the possession in Law of the thing devised is immediately after the decease of the Testator no less cast upon the Devisee, then it should have been cast upon the heir, if no device had been thereof made, as appeareth brooks title device, 490.   

Conveyances by Will, by force of the Statute of 32& 34. H. 8.  
ALthough Lands and Tenements, wherein a man had any greater estate than for years, were not devisable by the Common Law 〈◇〉 until● the making of the Statute 27 H. 8. cap. 10. de vsubus in possessionem transferendis, men did commonly put their lands in use; ( viz.) they did enfeoff others in Fee, to the use of themselves& their heirs, to the end that they might device the same use, and by force thereof after the decease of the Testator, the Feoffees did at the request of such devisee, make and execute to them an estate in the land according to the use devised, and if the Feoffees did refuse so to do, the devisee might thereunto compel him by suite in the Chancery. And so by such subtle invention the devisee obtained the effect of a device of the same Lands or Tenements which were not then devisable by Law.    

The Table.  

A.  

APportionalment of Rent Charge. pag. 9  
Assets, what they are called. pag. 13  
Actions real and personal. pag. 24    

C.  

Chattels divided. pag. 4  
custom why so called, and how they are maintained. pag. 29  
Common why so called. pag. 39  
Contracts and Grants. pag. 47  
Common Recoveries. pag. 84  
Conveyances and Assurances by dead poll, or parol. pag. 99  
Conveyances by Will. pag. 103  
Conveyances by Will, of Lands devisable by custom. pag. 121  
Conveyances by Will, by force of the Statute of 32& 34 H. 8. pag. 123    

D.  

device or Will defined. pag. 14    

E.  

Estates in Law how many. pag. 2  
Estates of inheritance divided. pag. 3    

F.  

Fee simplo how it passeth. pag. 5  
Franctenement what it is. pag. 10  
Fines and Recovery how sued out. pag. 33  
Franctenement. pag. 65  
Fines. pag. 89    

G.  

Grants. pag. 35  
general Estates. pag. 69    

H.  

Hereditaments and Chattels.    

L.  

Law how defined. pag. 2  
Lands and Goods how held. pag. 2  
Lands and Tenements their quantity and terms. pag. 57    

P.  

Priority, the meaning of the word. pag. 19  
Particular Estates. pag. 72  
Possession. pag. 74    

R.  

Reversion and Remainder, what difference between them. pag. 11  
Recovery single what it is: pag. 33  
Reversion. pag. 73  
Rights. pag. 82  
Remainder. pag. 76    

S.  

Soccage in Capite. pag. 18  
Statutes what they are, and to what end made. pag. 30    

T.  

tenors and Services. pag. 20  
trials how executed. pag. 27  
Things corporate and Incorporate what they are. pag. 38  
Tenant in Dower. pag. 41  
Tenant by courtesy. pag. 44  
Tenant by Elegit. pag. 45  
tithes the nature and manner of them. pag. 49    

V.  

use, the meaning of the word, &c. pag. 15    

W.  

Wast why so called. pag. 11  
Ward and Wardship. pag. 21  
Writs for Actions personal. pag. 27    
FINIS.