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2 What pertes
If a bishop bargain and sell lands whereof he the term, and it shall not inure by way of dis. is seised in the right of his. see, this is good charge, although the husband may dispose of the during his life; otherwise, it is where a bishop is wife's term. infeoffed to him and his successors, to the use of So if the lord of whom the land is beld be in1. D. and his heirs, that is not good, no, not for feoffed to the use of a person attainted, the lord the bishop's life, but the use is merely void. shall not hold by way of discharge of the use,
Contrary law of tenant in Mil; for, because of the king's title, annum, diem et rastum. if I give land by tail in deed, since the A person uncertain is not within the statute,
statute, to A., to the use of B. and his nor any estate in nubibus or suspense executed; heirs; B. hath a fee-simple determinable upon as if I give land to I. S. the remainder to the the death of A. without issue. And like law, right heirs of I. D. to the use of I. N. and his though doubtful before the statute was; for the heirs, I. N. is not seised of the fee-simple of an chief reason which bred the doubt before the estate pour vie of I. S. till I. D. be dead, and then statute, was because tenant in tail could not exe- in fee-simple. cute an estate without wrong; but that since the Like law, if, before the statute, I give land to statute is quite taken away, because the statute I. S. pour autre vie to a use, and I. S. dieth, living saveth no right of entail, as the statute of 1 R. cestuy que use, whereby the freehold is in sus. III. did; and that reason likewise might have pense, the statute cometh, and no occupant enbeen answered before the statute, in regard of the tereth : the use is not executed out of the freehold common recovery.
in suspense for the occupant, the disseisor, the A feme covert and an infant, though under lord by escheat. The feoffee upon consideration, years of discretion, may be seised to a use; for not having notice, and all other persons which as well as land might descend to them from a shall be seised to use, not in regard of their perfeoflee to use, so may they originally be infeoffed sons but of their title ; I refer them to my division to a use; yet, if it be before the statute, and they touching disturbance and interruption of uses. had, upon a subpæna brought, executed their It followeth now to see what person estate during the coverture or infancy, they might may be a cestuy que use. king may te a century have defeated the same; and then they should may be cestuy que use; but it behoveth have been seised again to the use, and not to their both the declaration of the use,
and the convey own use; but since the statute, no right is saved ance itself, to be matter of record, because the unto them.
king's title is compounded of both; I say, not If a feme covert or an infant be infeoffed to a appearing of record, but by conveyance of reuse present since the statute, the infant or baron cord. And, therefore, if I covenant with I. S. to come too late to discharge or root up the feofsment; levy a fine to him to the king's use, which I de but if an infant be infeofsed to the use of himself accordingly; and this deed of covenant be not and his heirs, and I. D. pay such a sum of money enrolled, and the deed be found by office, the use to the use of I G. and his heirs, the infant may vesteth not. E converso, if enrolled. If I covedisagree and overthrow the contingent use. nant with I. S. to infeoff him to the king's use,
Contrary law, if the infant be infeoffed to the and the deed be enrolled, and the feoffment also use of himself for life, the remainder to the use be found by office, the use vesteth. of I. S. and his heirs, he may disagree to the But if I levy a fine, or suffer a recovery to the jeoffment as to his own estate, but not to divest king's use, and declare the use by deed of covethe remainder, but it shall remain to the benefit of nant enrolled, though the king be not party, yet it nim in remainder.
is good enough. And yet, if an attainted person be infeoffed to A corporation may take a use, and yet it is not a use, the king's title, after office found, shall material whether the feoffment or the declaration prevent the use, and relate above it; but until be by deed; but I may infeoff I. S. to the use of office, the cestuy que use is seised of the land. a corporation, and this use may be averred.
Like law of an alien; for if land be given to A use to a person uncertain is not an alien to a use, the use is not void ab initio, yet void in the first limitation, but exeneither alien or attainted person can maintain an cuteth not till the person be in esse; so action to defend the land.
that this is positive, that a use shall never be in The king's villain, if he be infeoffed to a use, abeyance as a remainder may be, but ever in a the king's title shall relate above the use; other person certain upon the words of the statute, and wise, in case of a common person.
the estate of the feoffees shall be in him or them But if the lord be infeoffed to the use of his which have the use.
The reason is, because no villain, the use neither riseth, but the lord is in confidence can be reposed in a person unknown by the common law, and not by the statute dis- and uncertain; and, therefore, if I make a feoffcharged of the use.
ment to the use of 1. S. for life, and then to the But if the husband be infeoffed to the use of use of the right heirs of I. D)., the remainder is not his wife for years, if he die, the wife shall have in abeyance, but the reversion is in the feoffor,
Of a tise to 2
3. Contr. the
Weale v. Low. er, Foll. 66, 66. an Gilb.
quousque. So that upon the matter all persons in by the common law wherein I observe unto uncertain in use are like conditions or limitations you three things: First, that the letter is full in precedent.
the point. Secondly, that it is strongly urged by Like law, if I infeoff one to the use of I. S. for the clause of joint estates following. Thirdly, years, the remainder to the right heirs of I. D. that the whole scope of the statute was to remit uits is not executed in abeyance, and therefore not the common law, and never to intermeddle where void.
the common law executed an estate ; therefore the Like law, if I make a feoffment to the use of statute ought to be expounded, that where the my wife that shall be, or to such persons as I shall party seised to the use, and the cestuy que use is maintain, though I limit no particular estate at one person, he never taketh by the statute, except all; yet the use is good, and shall in the interim there be a direct impossibility or impertinency for return to the feoffor.
the use, to take effect by the common law. Contrary law, if I once limit the As if I give land to I. S. to the use of himself
whole fee-simple of the use out of me, and his heirs, and if I. D. pay a sum of money, becestie and part thereof to a person uncertain, then to the use of I. D. and his heirs, I. S. is in by Po 12, is it shall never return to the feosfor by the common law, and not by the statutes. bramov. way of fraction of the use; but look Like law is, if I give lands to I. S. and his
how it should have gone unto the feof- heirs, to the use of himself for life or for years,
I having no son at that time, the re- by a kind of subtraction of the inheri. lee sinuple re Y-1.57
. mainder to my brother and his heirs : if tance or reoccupier of my estate, but C. J Hale, in
my wife die before I have any son, the merely at the cominon law.'
use shall not be in me, but in my bro But if I infeoff I. S. to the use of intra. 2 Raym. ther. And yet if I marry again, and have a son, himself in tail, and then to the use of it shall divest from my brother, and be in my son, I. D. in fee, or covenant to stand seised to the which is the skipping they talk so much of. use of myself in tail, and then to the use of my
So if I limit a use jointly to two persons, not in wife in fee; in both these cases the estate tail is esse, and the one cometh to be in esse, he shall executed by this statute : because an estate tail take the entire use; and yet if the other afterward cannot be reoccupied out of a fee-simple, being a come in esse, he shall take jointly with the for- new estate, and not like a particular estate for life mer; as if I make a feofiment to the use of my or years, which are but portions of the absolute wise that shall be, and my first begotten son for fee; and, therefore, if I bargain and their lives, and I marry; my wife taketh the whole sell my land to I. S. after my death the serveret use, and if I afterwards have a son, he taketh without issue, it doth not leave an essen und 162. jointly with my wife.
tate tail in me, nor vesteth any present But yet where words of abeyance work to an fee in the bargain, but is a use expectant. estale executed in course of possession, it shall So if I infeoff I. S. to the use of I. D. for life, do the like in uses; as if I infeoff A. to the use and then to the use of himself and his heirs, he of B. for life, the remainder to C. for life, the re- is in of the fee-simple merely in course of posmainder to the right heirs of B. this is a good re- session, and as of a reversion, and not of a rebainder executed.
mainder. So if I infeoff A. to the use of his right heirs, Contrary law, if I infeoff I. S. to the use of A. is in the fee-simple, not by the statute, but by 1. D. for life, then to the use of himself for life, the common law.
the remainder to the use of I. N. in fee: now the Now are we to examine a special point of the law will not admit fraction of estates; but I. S. disability of persons as take by the statute: and is in with the rest by the statute. that apon the words of the statute, where divers So if I infeoff I. S. to the use of himself and persons are seised to the use of other persons; so a stranger, they shall be both in by the statute, that by the letter of the statute, no use is con- because they could not take jointly, taking by tained: but where the feoffor is one, and cestuy several titles. que use is another.
Like law, if I infeoff a bishop and Therefore it is to be seen in what cases the his heirs to the use of himself and his ed. Sugd. 138. same persons shall be both seised to the use and successors, he is in by the statute in the right of cestuy que use, and yet in by the statute; and in his see. what cases they shall be diverse persons, and yeo | And as I cannot raise a present use to one out VOL. III.-10
Ser Mr. San
Gith its 10
of his own seisin; so if I limit a contingent or son stands seised by force of any fine, recovery, future use to one being at the time of limitation teoffment, bargain and sale, agreement or otherno: seised, but after become seised at the time of wise; but yet the feme is to be restrained for the the execution of the contingent use, there is the reasun aforesaid. same reason and the same law, and upon the It remaineth to show what persons same difference which I have put before. may limit and declare a use: wherein may loland and
As if I covenant with my son, that, after his we must distinguish; for there are two marriage, I will stand seised of land to the use of kinds of declarations of uses, the one of a prehimself and his heirs; and, before marriage, I in- sent use upon the first conveyance, the other upon feoff him to the use of himself and his heirs, and a power of revocation or new declaration; the then he marrieth; he is in by the common law, and latter of which I refer to the division of revoca. not by the statute; like law of a bargain and sale. tion: now for the former.
But if I had let to him for life only, then he The king upon his letters patent may declare a should have been in for life only by the common use, though the patent itself implieth a use, if law, and of the fee-simple by the statute. Now (none be declared. let me advise you of this, that it is only a matter If the king gives lands by his letters patent to of subtilty or conceit to take the law right, when I, S. and his heirs, to the use of I. S. for life, the a man cometh in by the law in course of posses- king hath the inheritance of the use by implication
sion, and where he cometh in by the of the patent, and no office needeth; for implicamaterial for de statute in course of possession ; but it tion out of matter of record amounteth ever to mat
is natural for the deciding of many ter of record. causes and questions, as for warranties, actions, If the queen give land to I. S. and his heirs to conditions, waivers, suspensions, and divers the use of the churchwardens of the church of Dale, other provisos.
the patentee is seised to his own use, upon that For example; a man's farmer committed waste: confidence or intent; but if a common person had after he in reversion covenanteth to stand seised given land in that manner, the use had been void to the use of his wife for life, and after to the use by the statute of 23 H. VIII., and the use had of himself and his heirs; his wife dies; if he be returned to the seoffor and his heirs. A corporain of his fee untouched, he shall punish the waste; tion may take a use without deed, as hath been if he be in by the statute, he shall not punish it. said before; but can limit no use without deed. So if I be infeoffed with warranty, and I cove- An infant may limit a use upon a feoffment
, nant with my son to stand seised to the use of my- fine, or recovery, and he cannot countermand or self for life, and after to him and his heirs; if I be avoid the use, except he avoid the conveyance : in by the statute, it is clear my warranty is gone; contrary, if an infant covenant in consideration of but if I be in by the common law, it is doubtful. blood or marriage to stand seised to a use, the use
So if I have an eigne right, and be infeoffed to is merely void. the use of I. S. for life, then to the use of myself If an infant bargain and sell his land for money, for life, then to the use of I. D. in fee, I. S. dieth. for commons or teaching, it is good with averIf I be in by the common law, I cannot waive my ment; if for money, otherwise ; if it be proved it estate, having agreed to the feoffment; but if 1 is avoidable; for money recited and not paid, it is am in by the statute, yet I am not remitted, be- void ; and yet in the case of a man of full age the cause I come in by my own act : but I may waive recital sufficeth. my use, and bring an action presently; for my If baron and feme be seised in the vid. A. Becko right is saved unto me by one of the savings in right of the feme, or by joint purchase the statute.
during the coverture, and they join in fol. 3i. Now on the other side it is to be a fine, the baron cannot declare the use for longer
seen, where is a seisin to the use of time than the coverture, and the feme cannot de en el entorui another person; and yet it is out of the clare alone ; but the use goeth, according to the
statute which is in special cases upon limitation of law, unto the feme and her heirs: the ground, wheresoever cestuy que use had re- but they may both join in declaration of the use medy for the possession by course of common in fee; and if they sever, then it is good for so law, there the statute never worketh; and there- much of the inheritance as they concurred in; for fore if a disseisin were committed to a use, it is the law accounteth all one, as if they joined ; as in him by the common law upon agreement. So if the baron and feme declare a use to I. S. and if one enter as occupant to the use of another, it his heirs, and the feme another to I. D. is in him till disagreement.
for life, and then to I, S. and his heirs, So if a feme infeoff a man, causa matrimonii the use is good to I. S. in fee. præiocuti, she hath remedy for the land again by
And if upon examination the feme will declare the course of the law; and, therefore, in those spe- use to the judge, and her husband agree not to it
, it cial cases the statute worketh not; and yet the is void, and the baron's use is only good ; the rest pords of the statute are general, where any per- of the use goeth according to the limitation of law.
Where there is a seisin to the
of the statute.
See Gill, Us ed. Sugd. 445 449
OFFICE OF CONSTABLES,
ORIGINAL AND USE OF
COURTS LEET, SHERIFF'S TURN, ETC.,
THE ANSWERS TO THE QUESTIONS PROPOUNDED
BY SIR ALEXANDER HAY, KNIGHT, TOUCHING THE OFFICE OF CONSTABLES.
A. D. 1608.
1. Question. What is the original of constables ?) and the petty constable is over the town or
Answer. To the first question of the original of village. constables it may be said, caput inter nubila con 2. The court-leet, unto which the constable is dit; for the authority was granted upon the an- attendant and minister; for there the constables cient laws and customs of this kingdom practised are chosen by the jury, there sworn, and there long before the conquest, and intended and execu- that part of their office which concerneth inforted for conservation of peace, and repression of all mation is principally to be performed: for the manner of disturbance and hurt of the people, and jury being to present offences and offenders, are that as well by way of prevention as punishment; chiefly to take light from the constable of all but yet so, as they have no judicial power, to hear matters of disturbance and nuisance of the peoand determine any cause, but only a ministerial ple: which they, in respect of their office, are power, as in the answer to the seventh article is presumed to have best and most particular knowdemonstrated.
ledge of. As for the office of high or head constable, the original of that is yet more obscure; for though The jurisdiction of the court-leet is to three ends. the high constable's authority hath the more am 1. To take the ancient oath of allegiance of all ple circuit, he being over the hundred, and the males above twelve years. petty constable over the village; yet I do not find 2. To inquire of all offences against the peace; that the petty constable is subordinate to the high and for those that are against the crown and peace constable, or to be ordered or commanded by him; of both, to inquire of only, and certify to the and therefore, I doubt, the high constable was not justices of jail delivery; but those that are ad origine ; but that when the business of the against the peace simply, they are to inquire of county increased, the authority of justices of peace and punish. was enlarged by divers statutes, and then, for 3. To inquire of, punish, and remove all public conveniency sake, the office of high constable nuisances and grievances concerning infection of grew in use for the receiving of the command- air, corruption of victuals, ease of chaffer, and tents and prescripts from the justices of peace, contract of all other things that may hurt or and distributing them to the petty constables : grieve the people in general, in their health, quiet, and in token of this, the election of high constable and welfare. in most parts of the kingdom is by the appoint And to these three ends, as matters of policy ment of the justices of the peace, whereas, the subordinate, the court-leet hath power to call election of the petty constable is by the people. upon the pledges that are to be taken of the good
But there are two things unto which the office behaviour of the resiants that are not tenants, of constables hath special reference, and which, and to inquire of all defaults of officers, as conof necessity, or at least a kind of congruity, must stables, ale-tasters, and the like: and likewise foi precede the jurisdiction of that office; either the the choice of constables, as was said. things themselves, or something that hath a The jurisdiction of these leets is either remain similitude or analogy towards them.
ing in the king, and in that case exercised by the 1. The division of the territory, or gross of sheriff in his turn, which is the grand leet, or the shires, into hundreds, villages, and towns; granted over to subjects; but yet it is still the for the high constable is officer over the hundred, king's court.
2. Question. Concerning the election of con- 3. For matters of nuisance, disturbance, and stables ?
disorder, although they be not accompanied with Answer. The election of the petty constable, violence and breach of the peace. as was said, is at the court-leet by the inquest First, for pacifying of quarrel begun, the conthat make the presentments; and election of head stable may, upon hot words given, or likelihood constables is by the justices of the peace at their of breach of the peace to ensue, command them quarter sessions.
in the king's name to keep peace, and depart, and 3. Question. How long is their office ? forbear: and so he may, where an affray is made
Answer. The office of constable is annual, ex- part of the same, and keep the parties asunder, cept they be removed.
and arrest and commit the breakers of the peace, 4. Question. Of what rank or order of men if they will not obey; and call power to assist are they?
him for that purpose. Answer. They be men, as it is now used, of For punishment of breach of peace past, the inferior, yea, of base condition, which is a mere law is very sparing in giving any authority to abuse or degenerating from the first institution; constables because they have not power judicial, for the petty constables in towns ought to be of and the use of his office is rather for preventing the better sort of resiants in the same; save that or staying of mischief, than for punishment of they be not aged or sickly, but of able bodies in offences; for in that part he is rather to execute respect of keeping watch and toil of their place; the warrants of the justices; or when sudden nor must they be in any man's livery. The high matter ariseth upon his view, or notorious circonstables ought to be of the ablest freeholders, cumstances, to apprehend offenders, and to carry and substantialest sort of yeomen, next to the them before the justices of peace, and generally degree of gentlemen; but should not be incurn- to imprison in like cases of necessity, where the bered with any other office, as mayor of a town, case will not endure the present carrying of the under-sheriff, bailiff, &c.
party before the justices. And so much for peace. 5. Question. What allowance have the con- Secondly, for matters of the crown, the office stables ?
of the constable consisteth chiefly in these four Answer. They have no allowance, but are parts: bound by duty to perform their office gratis ; 1. To arrest. which
the rather be endured because it is but 2. To make hue and cry. annual, and they are not tied to keep or maintain 3. To search. any servants or under-ministers, for that every 4. To seize goods. one of the king's people within their limits are All which the constable may perform of his bound to assist them.
own authority, without any warrant from the 6. Question. What if they refuse to do their justices of the peace. office?
1. For, first, if any man will lay murder or Answer. Upon complaint made of their refusal felony to another's charge, or do suspect him of to any one justice of peace, the said justice may murder or felony, he may declare it to the conbind them over to the sessions, where, if they stable, and the constable ought, upon such decannot excuse themselves by some allegation that claration or complaint, to carry him before a is just, they may be fined and imprisoned for justice of peace; and if by common voice or their contempt.
fame any man be suspected, the constable of duty 7. Question. What is their authority or power? ought to arrest him, and bring him before a justice
Answer. The authority of the constable, as it of peace, though there be no other accusation or is substantive, and of itself, or substituted, and declaration. astricted to the warrants and commands of the 2. If any house be suspected for receiving of justices of the peace ; so again it is original, or harbouring of any felon, the constable, upon comadditional: for either it was given them by the plaint or common fame, may search. common law, or else annexed by divers statutes.
3. If any fly upon the felony, the constable And as for subordinate power, wherein the con- ought to raise hue and cry. stable is only to execute the commands of the 4. And the constable ought to seize his goods
, justices of peace, likewise the additional power and keep them safe without impairing, and in which is given by divers statutes, it is hard to ventary them in presence of honest neighbours
. comprehend in any brevity; for that they do cor- Thirdly, for matters of common nuisance and respond to the oflico and authority of justices of grievances, they are of very variable nature, acpeaco, which is very large, and are created by cording to the several comforts which man's life the branches of' soveral statutes: but for the ori- and society requireth, and the contraries which ginal and substantive power of constables, it infest the same. may be reduced to three heads; namely,
In all which, be it a matter of corrupting air, 1. For matter of prace only.
water, or victuals, stopping, straightening, of 2. For peace and the crown.
endangering of passages, or general deceits in