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In the treating of Conditions, I will not trouble you with any exquisite defini∣tion of Conditions, because I doe imagine that I shall draw that out of the resolution of the cases, which I shall propose vnto you. My first question therefore is this: Whether doth the word [Diuision. 1]
(Si) alwaies import and signifie, a condi∣tion in matter of contract and limitation of estate.
* 1.1It doth not alwaies signifie a con∣dition, but sometime it signifieth an vncertain cause, as I promise to Titius ten pound, if he do accomplish my busines. Sometime it signifieth a certaine cause, as if the iudge do giue iudge∣ment for me: sometime it signifieth an vncer∣tain euent conditional, as I promise thee twen∣tie pound if I. S. be in Westminster hall such a day, and sometime it signifieth a condition or a conditionall disposition, which alwaies sus∣pendeth the premisses or matter precedenta) 1.2: as if I promise vnto you Stichus my bondser∣uant, & if I do not deliuer him vnto you with∣in such a day, then I will giue vnto you twentie pound nomine paenae, here is both a condition, & likewise conuentio paenalis, which is presently to take effect vpon the breach of the conditi∣onb) 1.3. So if the testator say, if my bondwoman shall bring forth three children at three labors, let thē be free: now if the woman bring forth foure children at two labours, they shall all bee free: for though there bee foure children, yet there is but a double labour, and in the eye of law bringing forth but two children: for all that bee brought forth at one birth, are but as one child in regard of their natiuitie, as our law intendeth, because the law respecteth that quod
plerunquefit, and for the most part one child is borne at a birth, and not two or morec) 1.4. And in this case, benigna interpretatio facienda est in fauorem libertatis. And because it can not bee well vnderstood whether of the two children shall be free, therefore both by construction of law shall be free.
This seemeth straunge to mee, that two children should bee one childe, two procreations one birth, vnlesse it bee because the parents were one person in law, when they begot them. And surely Quintilian maketh two distinct procreations in your case, & ther∣fore he saith. Quid refert an ex eisdem prima illa duorum corporum antmorumque compago semini∣bus oriatur? sibi quisque firmatur, sibi quisque componitur, & duo pluresue fratres nascuntur fato singulorumd) 1.5: And Esau and Iacob famous twinnes were borne so continuatly (as I may say) together, that the later did holde the fate of the formere) 1.6. Yet God forbid that wee should accompt these two one. Saint Augu∣stine boldly and wittily distinguisheth them thus: Vnus duxit mercenariam seruitutem, ali∣us non seruirit: vnus a matre diligebatur, alius non diligebatur: vnus honorem, qui magnus a∣pudeos habebatur, amisit, aliter ademptus est. Quid de vxoribus, quid de filiijs, quid de rebus, quan∣ta diuersitasf) 1.7? And therefore surely in this point I take your law to be contrarie to the course of
nature.
It is not in the supposall of one procreation of two twinnes, eyther contrarie to nature, or arte: not contrarie to nature, because as there is one conception of two twinnes, so there is one puerpercie, though it bee finished at diuers times, for the labour still continueth, not contrarie to arte: for the Astro∣nomers hold, that twinnes are alwaies borne vnder one Horoscope, vnder the same constel∣lation, and the same situation of the starres: for the Horoscope in Astronomy, if it be formally taken is nothing els but horae inspectio, if it bee materially taken, it is that part of the Zodiacke which ascendeth vpon our hemisphere: for the Zodiacke circle is alwayes rowled about, and some portion of it doeth alwayes arise to vs, some doth alway decline: some is in one regi∣on of the heauens, some in another, and chil∣dren being borne vnder one situation of the stars, as they be like in the qualities both of the bodie and minde: so in the producing them to light, there is but one labour: in their cres∣sence in the wombe, there is but one operation of nature.
You haue rather aunswered mee, then satisfied mee: for I am perswaded, that I shall neuer bee of your opinion whilest I liue, neyther will I applaude to your lawe in this. But Anglonomophilax, I hinder you
from examining the parcels of Codicgnost. his precedent speech of conditions.
I will not meddle with Co∣dicgnost. his midwiferie in handling matters of law, but will turne saile from it: as Cato disli∣ked to prattle with women in the Senate houseg) 1.8. But as to the assertions of law, which he hath set downe, they shal not glance frō me without touch. Whereas he hath said that this word (si) doth signifie an vncertaine cause in their law, so it doth likewise in ours,* 1.9 as appea∣reth by Boldes case in my L. Dyers reportes which was thus. R. Bolde brought an action of debt against Molineux for 30. pound, vpon an obligation endorsed with this condition, that if it fortune Ioane Molineux to decease before the feast of S. Iohn baptist which shall be in the yeare of our Lord 1553. without issue male of her bodie by the said R. B. lawfully ingendred then liuing, that then &c. and the defendant said, that after the making of the said writing & before the said feast the aforesaid Ioane at B. in the countie of L. dyed without issue male of the bodie of the said woman by the said R. B. lawfully ingendred then liuing: and the plain∣tife said, that hee ought not to bee barred from his action: for he said that after the making of the said writing, & before the said feast, name∣ly the 12. of Iune, anno &c. the said plaintife at M. in the countie of Lancaster, tooke to wife
the said I. and they had issue betwixt them H. Bolde, and after & before the said feast the said I. and the said B. dyed, the said H. being the sonne of them both at the time of the death of the said I. being then full liuing, and after and before the said feast, namely the twelfth of Iune the saide H. B. at B. aforesaid dyed, and the defendant hereupon did demurre in law. And the question was whether this word (tunc) in the condition should be referred to the time of the death of the wife: and it seemed to Mountague and Baldwin that it should not, but that it ought to bee referred to a time cer∣taine: for euerie tunc relateth to his quando, but they thought that it should bee referred to the feast which is certaine, and not to the death of the woman, which is vncertaine: but Shelley and Knightley thought otherwise. For in di∣uers cases relation shall not bee made ad proxi∣mum antecedens: as if a man make a lease for life the remainder in taile the remainder ouer to I. S. in forma praedicta, this shall not bee re∣ferred to the estate taile, which doth next pre∣ceed, because it wanteth the word (heires) to make an estate tayle, and therefore it shall be referred to the first estate. Which later opi∣nion if it bee lawe, then by our law (si) may signifie and may make other wordes to signi∣fie an vncertaine cause of the accomplishment of a conditionh) 1.10. And whereas hee hath said
that sometimes it signifieth a certaine cause (as if the iudge doe giue iudgement for me:) So likewise it signifieth a certain cause in our law,* 1.11 for 8. E. 4. the case was this. An action of debt was brought vpon an obligation by the Dut∣chesse of Suffolke: the defendant said, that it was endorsed with this conditiō that if the de∣fendant should stand to the arbiterment of the said Dutchesse touching all maner of suits &c. betwixt him & one B. that then the obligation should be void &c. And this was admitted to be good, and thereupon it may be concluded that (si) sometimes in our lawe importeth a cause certaine, as the Dutchesse in this case was a certaine cause of the arbitermenti) 1.12. So 23. Eliz. the case was that two were bound to stand to the arbiterment of two, if they did make their awarde within two daies after the date or making of the said obligation, and the obligation bore date die Sabbati ante prandium, and the award was made the same day post prā∣dium, and this was held to be good, because it shall bee intended that it may be made at any time after the date of the obligation vntill two daies immediatly following be past.* 1.13 And as in the ciuill law, so likewise by our law (si) whe∣ther it be expressed or implyed may signifie an vncertaine euent: for if a rent be graunted for life to I. S. the remainder to him that shall first come to Paules the next day in the morning,
this remainder is good, though it be vpon a (si implyed) if I. S. dye not before the next day, and if one come to Paules the next day in the morning, and if hee which commeth thither be a person able to take by the grauntk) 1.14. And whereas he saith, that by their law it signifieth a condition,* 1.15 or a conditionall disposition, so it doth likewise in our law, as it is well recited in my Lord Dyers reports out of Bracton: Scito quòd, vt modus est, si conditio, quia causa. And as to his conceited case of the puerperie,l) 1.16 I take his reason to bee verie good, that benigna interpre∣tatio facienda est in fauorem libertatis.
What say you now sir?
I say that as for such a para∣doxical [Diuision. 2] fantasie, Non persuadebis etiamsi per∣suaseris. But I pray you resolue me this: If I sel to another certain land for an hundred pound, vnlesse another the next moneth following doe giue more for it by fiue pound at the least, whether doth this word (vnlesse) make a con∣dition, or it is an idle clause and vneffectuall.
I take it clearely to make a good condition,* 1.17 for though the sale be pure and vn∣conditionall, yet it is resoluble and defeasible vpon a condition contingentm) 1.18: for the words following may qualifie and gouerne a direct graunt or deuise: as if the testator say, I deuise vnto A. a C. li. for the making of my tomben) 1.19: or if he said, I deuise vnto him a hundred li. pro
cura liberorum meorum sustinenda: or if he said, I deuise vnto him so much to endow certaine poore maydens, or to ransome certaine priso∣ners out of captiuitie, here there is no conditi∣on implyed, but onely a limitation or modifi∣cation to what intent or purpose the deuise iso) 1.20. So if the testator say,* 1.21 I deuise to Titius C. li. which I will shall be paied vnto him out of my money which I haue in such a place, as namely in such a closet, or such a chest: if in the closet or chest there bee no money, then there is no∣thing due, but if there be a lesse summe, yet all the mony is due by reason of the intentp) 1.22. And if the testator deuise to euerie one of his free men a seuerall & certaine yearely maintenance out of his landes in Dale, if his landes in Dale be not sufficient for these seuerall maintenan∣ces, yet they ought to be supplyed of his other landesq) 1.23: because the adiection and mentio∣ning of the place was onely vsed for a certaine demonstration of the lande which should bee charged with payment, and not for the taxa∣tion or restraint of the legacie: for legatum non restringitur. But if a man deuise ten pound to his daughter vntil she mary, by this is intended a yearely paiment of x. li.r) 1.24, because the worde (vntill) doeth signifie in this case a limitation. And though there ought to be a multiplication of paiments: yet there is a limitation ad tempus nubēdi, that afterward the paiment shall not be
due: but if a mā deuise to his daughter his lands which he bought of Cornelius vntill she marie, this signifieth not a yerely legacie, because sub∣iecta materia non patitur vt sit multiplicabile: But it onely signifieth an extinction of the legacie whē the mariage is accomplished. For if a man deuise his land in Dale to A. vntill he be Shirife of London, as soone as he is Shirife of London the legacie is determined, and immediatlie reuerteth to the heires) 1.25. For as it is in the power of the Testatour to make the legacie begin at a certaine time, so likewise it is in his power to make it end at a certaine time.
You haue put good and perspi∣cuous diuersities betwixt a condition and a li∣mitation. I pray you Anglonomoph. shew what your Law determineth of this difference.
* 1.26The verie same difference is in our Law, which by cases shall be explaned. A man graunteth to an other his manour of B. so that he paie 10. li. yearely to the lessour, du∣ring the life of the lessour: and if the said rent be behind, that then it shall be lawfull for the lessour to distraine for it in the lessees manour of S. the lessour hath a franktenement in the rent sub modo, depending vpon the will of the lessee (and the lessour,) and there is a limita∣tion implied by Law, though not verbally ex∣pressedt) 1.27. So if a man make a Lease to one for life, paying the first six yeares 3. quarters of
corne, and if he will hold it longer a C. s. the word (If) in this case maketh but a limitationu) 1.28. So if a rent of 5. pound be graunted to I. as long as the grauntour, his heires or assignes shall hold the manour of W. this was adiud∣ged to be a freehold in the grauntee, but yet with a limitationuu) 1.29, (as long as the grauntour should hold the manour of W.) So if a man graunt a common in his land in Dale, when he put∣teth in his beastes, or graunteth an estouer of Wood, when he commeth to his manour of D. the grauntee hath a freehold, but qualified with certaine limitationsa) 1.30. So it is if the king graunt an office to I.S. donec bene & fideliter se gesseritb) 1.31. So if land be leased to one quamdiu se bene gesseritc) 1.32. So if a man deuise his land to his eldest sonne in taile, with seuerall remain∣ders in taile, and that the partie morgaging, incumbring, entangling, or aliening the land, shall be clearelie discharged, excluded, and dis∣missed touching the intaile, and the conuey∣ance of the intaile shal be of no force vnto him, this is not a condition, but a limitation: for if it were a condition, the right heire might en∣ter for the breach, and defeat all the meane remainders in taile, which is not consonant to the intent of the Deuisourd) 1.33. And whereas you haue said that a man by way of limitation may deuise money to be paied out of his chest or coffer, and if there be no money in the chest
or coffer,* 1.34 there is no money due, our Law dea∣leth more amplie and beneficially in like cases. For if a man graunt to me an annuitie of x. li. to receiue out of his coffers, if he haue neither coffers, nor money in thē, yet his person shal be charged with the annuitiee) 1.35, because the graunt it selfe induceth a charge vpon the grauntour. Yet an annuitie may be graunted with a limita∣tion: as if an annuity be granted to take at euery time as often as the grauntour shall come to his manour of S. or as often as the grauntee shall come to the house of the grauntourf) 1.36. So if I graunt an annuitie of x. li. out of my land in Dale, and I haue no land in Dale, this graunt is not void, but my person shall be chargedg) 1.37.
Pause here Anglonom. What is Cano∣nologus drowsie, or entred into some dreame?
I was neither drowsie, nor drea∣ming, but the eies of my mind were somewhat closed and shut, as the hares be when she wat∣cheth for the houndes: for if I could haue taken any aduantage of the speeches of my two com∣panions, I would not haue been so long silent. But in truth our Law in the matters of conditi∣on before handled, hath no other oracle but the Ciuil Law, if hereafter there happen any vari∣ance, I will not conceal it from you.
Let me then aske you this questi∣on Codicgn. A man deuiseth to R. x. li. and if he wast or spend it, then he deuiseth vnto him x. li
againe: Suppose that he do spende twentie pound, whether may he afterward demaunde 10. li. because the deuise is indefinite.
The deuise is not indefinite:* 1.38 for this word (againe) signifieth as much as once againe, according to the rule of our Law: Rursus verificari potest in vna viceh) 1.39: Otherwise it might be that the executor should be char∣ged to the full value of all the goodes of the Testatour: For if the deuisee were an Acola∣stus, though the executor were by the execu∣torship a Craesus, yet all would not serue.
Your reason is good, but yet I would not be peremptorie in this matter, for it is not in our Law so cleere: For two Iudges were opposed against other two in thē like case. There is a Prouiso in a Lease,* 1.40 that neither the lessee nor his assignes, shall not alien to any without the assent of the lessour, but onely to the wife, or the children of the lessor, and the lessee alieneth to one of the sonnes of the lessour: It was left ambiguous, whether the restraint were now determinedi) 1.41.
Let this be the case. I am bound to paie you twentie pound, if your ship come [Duision. 4] from Russia, and after the ensealing and deli∣uerie of the bond, we make this condition, that the twentie pound which I did before owe vnto you vpon the aforesaid condition, I shall now owe vnto you absolutelie and with∣out
condition, whether in this case is the a∣greement of any force to defeat the condi∣tion.
* 1.42By our Law it is of force to ouer∣throw the condition: for it is a renewing of the bond (as we tearme it) and so the later bond shall preiudice, and swallow vp the for∣merk) 1.43.
* 1.44Our Law holdeth the con∣trarie, and the reason is this, because it is an in∣conuenience in reason, that an especialtie sea∣led and solempnlie deliuered, should be auoy∣ded by the bare agreement of the parties, which is but a meere matter in factol) 1.45. Yet in some ca∣ses it is not inconuenient, that an obligation should be auoided by a matter in facto where there is a strong and peremptorie operation in Law. As if a man be bound to a feme sole, and afterward he marieth her: Or if a man be bound to a villaine, and after he purcha∣seth the manour to which the villeine is regar∣dant, the mariage & the purchase maybe plea∣ded in auoidance of the especialtie. So in an auoydance of a statute merchant it is a good plea to saie that part of the land is purchased by the reconusee. So in a writ of Annuitie, it is a good plea to saie, that he hath paied it in a foreine countie. So if a man by deede graunt a rent, if the grauntee surrender the rent with the especialtie, this is a good auoy∣dance
of the especialtiem) 1.46. But where a man was bound to paie xx. nobles at a certaine day, and if he failed, that then he would loose x. li. paiable at the same day: an action of Dette was brought for the x. pound, and it was al∣lowedn) 1.47: for here there were two seuerall bandes, one of them consequent vppon the other, but not abolishing the other. And if a defeasance vpon a statute marchant be, that the payment of the money should be made at Bristowe, and the conusee receiued it at an o∣ther place, this is a good discharge of the sta∣tute, for now the Law hath discharged ito) 1.48. But one matter of recorde may be auoided by an other: Therefore the case was 20. E. 3. in a writ of Accompt the defendant said that the plaintife by a deede, which he shewed forth did graunt, that if the defendant did make a reconusance vpon statute marchant such a daie at Canterburie to the plaintife, that the writ of accompt should be held as voide: This was admitted by the Court to be a good agree∣ment to auoide the writ of annuitie, as soone as the statute is deliuered to the plaintifep) 1.49.
I would know Codicgn. what your Law doth determine of impossible conditi∣ons, whether it doth vtterlie reiect them or what force and effect it assigneth vnto them.
Impossibilitie,* 1.50 our Law maketh three-fold: iuris, facti, et naturae. Iuris, as when
there is a repugnancie in the condition, so that the Law doth wholie frustrate, and disanull the condition, or els it is directlie contrarie to the Law:* 1.51 As if a man should contract with a woman si prolem euitauerit, or si adulteram se praestiterit, the one of these being against the Law of nature, the other against the Law of God, both of them are by our Law made voideq) 1.52. And indeed there is a repugnancie betwixt the contract and the condition, mari∣age being a thing instituted and ordeined for the procreation of children, and the auoyding of fornication.* 1.53 Impossibilitas facti, is when there is great difficultie in the thing that is to be done, and it is not possible to bee easilie done, howbeit it is not absolutelie impossible to be done, this impossibilitie of the condition doth frustrate the act precedent: As if I say that Stichus my villeine shall be free, if he will giue a thousand pound for his freedome, this though it be not impossible, yet it is verie diffi∣cult for a villein to performe, & because of the difficultie, the Law will imagine that I did but trifle by this forme of enfranchisement, and so Stichus shall gaine nothing by itr) 1.54. So it is if a man being at Yorke bee bound to paie to an other at London x. pound before sunne-set, this though it be not impossible in it selfe, because a Pegasus or poast-horse may help the matter, yet because it can not with any faci∣litie
be pefourmed within so short time, our Law holdeth the condition to be voides) 1.55. Im∣possible by nature that is said to be,* 1.56 which is repugnant to naturall reason, and contrarie to the course of nature. As if I giue a horse to one vppon condition that he shall touch hea∣uen with one of his fingers: or that he shall extinguish fire with oyle: or that he shall build a village in the cloudest) 1.57.
These differences haue been well opened by Codicgnostes. Now I will re∣quest you Anglonomoph. to explane and illu∣strate them by cases.
I will particularlie speake of them all: And first of Conditions against Law.* 1.58 If estates in land be made vppon conditions contrarie to Law, the estates be good, and the conditions voide: But then the estates must not begin, neither take effect by force of the condition, neither depende vpon such con∣ditions, as to the existence of them. But if a man seised of land doe enfeoffe a straunger vppon condition, that if the feoffour doe kill I. S. one of the Queenes subiectes, it shall be lawfull for him to reenter, the estate is good, and the condition voideu) 1.59. So it is if one en∣feoffe an other vpon condition, that if the feoffour doe burne the houses of I. S. it shall bee lawfull for him to reenteruu) 1.60: for such conditions are impossible to bee good by
Law. But if a lease for life be made, or a lease for yeares of land vpon condition, that if the lessee kill I. S. within such a day that then he shall haue and hold the land to him and to his heyres foreuer, notwithstanding that the lessee do kill I. S. within the day, yet his estate is not enlarged, because the condition was a∣gainst law & the estate should haue beene en∣larged by the performance of the condition, but notwithstanding such condition, yet the lease is good, because that did not beginne by the condition. But if an obligation be endor∣sed with a condition directly contrarie to law, both the obligation, & the condition be voida) 1.61. And if a man be bound that he shall keepe the obligee without damages, and doe not shew wherein such condition is voide, because hee may suffer damages for committing treason, murder, or other felonie which thinges are a∣gainst law, and it is also against law, to saue him without damages for such thinges, so that the cōdition is void, but the obligation is not void, because such things are not expressely rehear∣sed within the condition, so that the condition is not directly contrarie to lawb) 1.62. And conditi∣ons which are repugnant in themselues are voide in law: as if a feoffement or gift in tayle be made, that the feoffee or donee may not take the profits: or vpon condition, that they shall make no waste: or vpon condition that
the wife of the feoffee &c. shal not be endow∣ed, or if a lease for life be made vpon condition that the lessee shall doe no fealtie, these estates be good, and the conditions voide: or if an an∣nuitie be granted, prouiso that it shal not charge the person of the grauntor, the graunt is good the condition is voidec) 1.63. But if a man seised of land in see lease the said land for yeares by in∣denture rendring rent, prouiso that the lessor shall not distrein for the rent, this is a good pro∣uiso because the lessor may haue an action of detted) 1.64. but land or rent may be giuen to a man in taile so that he may alien to the profits of his issue, and this is a good condition: for it is a∣greeable to law and the donor may as wel giue conditionally as simpliciter in the tailee) 1.65. And 7. H. 6. it was held by all the Iustices in the esche∣quer chamber beside Iune, that if a man make a feoffement with warrantie, prouiso that the feoffee shall not vouch him and his heires, and that if he doe, the warrantie shall be voide, this is a good prouiso. But if the prouiso had beene that he should neyther vouche nor rebutte, the prouiso had beene void: for that had cut off all the force of the warrantief) 1.66. And if two grant custodiam parci de A. to I. capiendo feoda quae B. nuper parcarius cepit, prouiso quòd scriptum non extendat ad onerandum vn des grauntors, this prouiso was taken to be void, because it restrey∣neth all the effect of the graunt in regarde of
him, and if land bee giuen in taile the remain∣der in fee, vpon condition that if the donee, or his heires do alien in fee, that the donor or his heires may enter, the opinion of the court was that this was a good condition: for a man may make a condition in the negatiue of any thing which is prohibited by the law, as if he make a feoffement, prouiso that the feoffee shall not not committe felonie, or that hee shall ali∣en within age, or in mortmayne: and a man may enfeoffe A. and his wife vpon condi∣tion, that they shall enfeoffe none other, for that were a discontinuance: otherwise it is that they shall not leuie a fine, for that is contra∣rie to their estateg) 1.67. So if a man make two ex∣ecutors, prouiso that the one of them shall not administer, this is a void prouiso, because it re∣strayneth all the authoritie giuen in the premi∣ses as to him, and the intent which agreeth not with lawe is to no purposeh) 1.68. And it hath beene agreede, that if a man doe limitte an vse in taile with a prouiso, that if cesty que vse doe such an acte, his estate shall cease du∣ring his naturall life, that this prouiso is repug∣nant, and against lawe, for the estate can not be determined in part. And Iustice Walm∣sley sayd, that when an estate is giuen to one, it may bee defeated wholly by condition or limitation, but it cannot bee determined in parte to one, and giuen in parte to another:
for that is repugnant to the rules of law, as if a man make a lease for life vpon condition that if the lessee pay not twentie pound, that ano∣ther shal haue part of the land, this future limi∣tation is voidei) 1.69.* 1.70 And as to conditions impossi∣ble in facte, such conditions if they go to the defeasans of an estate, the estate notwithstan∣ding remaineth good: but estates cannot bee enlarged by such a condition impossible: and if an obligation bee endorsed with a condition impossible, the obligation is good, and the con∣dition is voide. Therefore if a man seised of land doe enfeoffe a straunger vpon condition that if the feoffor go on foote from London to Stamford in a day, that then it shall bee lawfull for him and his heires to reenter, the condition is voide, quia impossibile, the estate goode) 1.71: but if A. bee bound to B. that C. shall appeare in the common place Octab. Trin. in an action of debt brought by the said B. against C. retour∣nable at the same day, and C. appeareth the same day, and his appearance is not recorded, now the obligation is forfeited. But if in this case C. had dyed before the day of the returne the obligation had beene saued, because the condition became impossible by the acte of Godf) 1.72.
Now I pray you shew vnto me [Diuision 6] whether conditions are to bee expounded strictly and according to the rigorous sence of
the wordes are according to equitie and the exigence of the case, so that the circumstances of a mans speech or actions, shal haue the regi∣ment of conditions.
* 1.73Conditions are in our lawe taken according to equitie. For if I graunt to one an annuitie often pound yearely, quamdiu res meas gesserit, the law maketh this sence of these wordes that he shall haue ten pound yearely, si res meas gesserit together with a limitationg) 1.74. So if I buy of one the fishes which are taken by him, though he haue not alreadie taken any fi∣shes, yet the wordes doe imply a condition, that that the buyer shall haue them if any bee taken. So if I say, Acceptis centum solidis a Titio instituo eum haeredem, it is not meant that in re∣gard of fiue pounde receiued of Titius I doe make him my heire or executor, but the words are conditionally meant: if the testator doe re∣ceiue 5. li. of Titius &ch) 1.75. So if I deuise to one XX. li. pro docendo talem discipulum, this (pro) doth signifie a condition, because by common vsage prius docendus est discipulus quàm soluendū salarium magistroi) 1.76. So if I doe contract with a woman in this sort, I promise vnto you A. that you shal be my wise donec terra ponatur super o∣culos meos, these words are not generally to bee vnderstood, for so the partie may lay earth vp∣on his eyes, and slip the collar and breake pro∣mise: but they must be vnderstood according
to common intendement, that she shall be his wife vntill his carkasse bee couered with earth, that is, vntill he be buried, so it is, if he should haue said, Donec oculi, & os mihi claudanturk) 1.77.
Our law many times taketh the words of a condition strictly to preserue an estate.* 1.78 A lease was made to one vpon conditiō, that the lessee shal not alien to A. the lessee alieneth to B. who alieneth to A. the cōditiō is not brokē: for a condition which goeth to defeat an estate must be taken strictlyl. 1.79. And 28. H. 8. the case was thus: A lease for yeares was made by in∣denture, the lessee did couenant and grant, that if he his executors or assignes did alien, that it shold be lawful to the lessor to reenter: after he made his wife his executrix and dyed, the wo∣man tooke an other husband which aliened. The first question was whether the wordes of the couenant abouesaid did make a cōditi∣on. And if it were a condition, the 2. question was, whether there were any breach of condi∣tion in the case. Some held that there was no breach of condition, because the husband was possessed of the tearme by acte of law, & is not an assignee no more then a tenant by the curte∣sie is, or the land of a villaine. But Browne and Shelley held that the husband was an assignee in law, and that the land was subiect to the cō∣dition into whose hands soeuer it did comem) 1.80. But lately in Ridgeleys case the condition was
extēded by equity for the safegard of the party. The case was thus: A man was bound to ano∣ther in a c. l. that he shold discharge the obligee & saue him harmeles of all suits & incumbran∣ces against I. S. and after the said I. S. sued the obligee, & proceeded vnto iudgement, where∣fore the obligee brought an action of det vpon the obligation, and the defendant pleaded non damnificatus est. And Beamond Sergeant did maintayne the plea in his argument, because that hee was not damnified in the eye of law vntill the goodes or the lande, or the person of the plaintife were actually charged. For before that time he was onely chargeable, but not charged. Sergeant Harris argued to the cō∣trarie: for he said that he was chargeable to the execution of the partie, & so not saued harme∣lesse, & two sorts of damages were held by Iu∣stice Walmesley the one executorie, the other ex∣ecuted executorie, which a man may in future time sustayne: Executed, as if the land or the person shoulde bee in present execution. And if the disseisee make a release to the dis∣seisor, and a straunger cancelleth the deede of release, the disseisor may haue an action of trespasse against him: and yet the disseisor doth continue possession, and is not as yet actually damnified. And Iustices saide, that the land of the party was in some sort charged, for none
in such case would buy the land of the partie, but onely vnder the value, because of the iudgement executorien) 1.81. But wee haue a rule in our law, that when a condition is to bee per∣formed to a straunger it is to bee performed most strictly: and it the condition bee perfor∣med at an other place, this is not sufficiento) 1.82. And 21. H. 6. it is said that if a man be bound, that he or his feoffees of the mannor of W. shal graunt to the obligee 20. s. rent for tearme of life, and he hath three feoffees, two of the feof∣fees cannot graunt this rentp) 1.83. But 7. E. 4. it was affirmed in the kings bench, that if a man were bound to make one a sure sufficient and law∣full estate in certaine land by the aduise of I. S. if he make an estate according to the aduise of I. S. be it it sufficient or not, or lawfull or not, he is excused of his bond: and a like matter was in the common place the same terme, and they were of the same opinionq) 1.84.
I wold gladly be satisfied in this, when a man maketh one his heire or executor, [Diuision. 7] and if hee refuse to performe any thing that is comprised in his will, then he willeth that I. S. shall bee his heire or executor, and shall per∣forme his will, and shal seise his goods and en∣ter into his lands post haereditatē aditam, though the heyre or executor haue intermedled with the will, and haue performed some thinges
according to the intent of it: Now if the Te∣statour die, and the heire or executor haue per∣fourmed some thinges of the will, but refuseth to perfourme other some, and hath seised the goodes, and entered into the landes of the partie deceased: Whether may I. S. enter vpon him for the condition broken and defeat his whole interest in the landes or goodes: or shall he still reteine part of the landes, and goodes, because he hath perfourmed part of the will?
* 1.85I. S. or the substitute of the Te∣statour is now by the will and breach of the the condition become directly the heire or ex∣ecutor to the Testatour: And all the authoritie or interest of the fomer heire or executor is vt∣terlie determined,* 1.86 frustrated, and defeatedr) 1.87: for the authoritie or interest of the heire or exe∣cutor by our Law may not be apporcioned, but he must succedere in vniuersum ius defunctis) 1.88. And there is an other substitution in our Law, which we call a reciprocall substitution, and it is thus: The Testatour saith, I doe make S. and T. my sonnes within age my heires, and I sub∣stitute the one of them to the other, that is, if the one die, the other shall haue all, and the mother nothing at allt) 1.89.
I haue noted in your wordes Codign. two thinges, which haue no small co∣herence and agreement with matters of our Law. First in that by will according to your
Law, an entrie may be limitted to a straunger. 2. In that ye hold that he which defeateth the estate of him that breaketh the condition shall defeat his whole estate, and shal entirely claime the possession. Which two assertions I shall seuerally prooue by cases of Law beginning with the first:* 1.90 A man seised in fee of landes de∣uisable, did deuise them to one for terme of his life, and that he should be a Chapplein, and that he should chaunt for his soule all his life time, and that after his decease the tene∣ments should remaine to the Cominaltie of a certaine village, to finde a chappleine perpe∣tuall for the same tenements, and he died, and the deuisee entred, and held the landes sixe yeares and was no chappleine, and the heire of the deuisour outed him, and he brought an Assise: And it seemed to the Court that the limitation that he should be a chappleine was no condition, and that the heire could not enter, for then the remainder should be de∣feated, which may not be, because by the in∣tent a perpetuall chappleine ought to foundu) 1.91: Whereby it appeareth that they in the remain∣der were to take aduantage in this case of the breach of the thing that was to be done, and not the heire. So in Fitz Iames his case, the clause of entrie was limitted to him in the re∣mainder for breach of the condition by the par∣ticular tenant: for it was helde that the limita∣tion
might determine the estate, and that being determined, he in the remainder might en∣teruu) 1.92. Also 34. E. 3. the case was, that a man had issue a sonne and a daughter, and deuised land deuisable to one for life, vpon condition, that if the sonne should disturbe the tenant for life, that the land should remaine to the daugh∣ter, and the heires of her bodie, the father di∣eth, the sonne disturbeth the tenant for life, who dieth, the daughter brought a Formedon, and it was alloweda) 1.93:* 1.94 But yet the aduantage of entrie by vertue of the limitation is not in other late reportes so cleare, but hath been greatlie doubted of: Stubes being Cestuy que vse deui∣sed to his wife certaine land during her life, ita quòd non faceret vastum, the remainder to his yonger sonne in taile, and died, after the Sta∣tute of 27. of ioyning the possession to the vse is made, the woman dieth, the question was who should enter for the condition broken, the heire, the feoffees, or he in the remain∣derb) 1.95. And an other case was equally doubt∣full, Wilford was bound in an Obligation without daie of payment limitted, and de∣uised his land to his executors vppon con∣dition, that if they did not paie the said summe according to the obligation, that the deuise should be voide, and that then A. should haue the land to him and to his heires vp∣pon condition that hee paied the money,
Wilford died, A. died, the executors are reque∣sted to pay the money, and they would not pay it, the question of the booke left vndeci∣ded, is whether the heireof A. may enter into the land, and paie the moneyc) 1.96. In like maner land in Gauelkind was deuised to the eldest sonne vpon condition, that he should paie 100. li. to the wife of the deuisour, he fayled of the payment, it was questioned by Manwood, whe∣ther the yonger sonne might enter into the moitie, as by an implied limitationd) 1.97. But touching such entries by force of some speci∣all limitation or condition, Mast. Frowike gi∣ueth a good rule 21. H. 7. that an estate of inhe∣ritance can not cease by vertue of a condition broken onelie, but there ought to be also an entrie: But otherwise it is of a particular estate, and the reason is, because such an estate may be determined by word as by surrender: and by the same reason it may cease by the wordes of the conditione) 1.98.* 1.99 Now that the whole estate of the feoffee or donee is defea∣ted by the breach of the condition, and the en∣trie of the partie, may be prooued by diuerse authorities in our Law, and that there can be no fraction of the condition, 14. Elizab. all the Iustices agreed: And so was iudgement giuen in Winters case, that by the graunt of the reuer∣sion of part of the landes, with which a con∣dition runneth, the condition is wholie con∣foun∣ded,
because it is a thing penall and entire, and may not be apportioned nor diuidedf) 1.100. And 33. of Henrie the eight, according to Mast. Brookes report, it was helde for Law, that if a man giue land in taile, or lease it for life, rendring rent, with a condition for de∣fault of payment to reenter: now if he lease part of the land to the donour, or lessour, or if the donour or lessour enter into part of the land, he cannot enter for rent behind after, but the condition is wholie suspen∣ded, because a condition cannot be appor∣tioned or diuided. Therefore some scruple may with good reason be made of the case 16. Elizab. in my Lord Dyers reportes, A man leased land for yeares, vppon condition that the lessee should not alien the land to anie person without the assent of the lessour, nor any part of the land, the lessour giueth licence to alien part, and the lessee alieneth the resi∣due without licence, it was adiudged that the lessour may enter notwithstanding the dis∣pensation of the condition ex parteg) 1.101. How∣soeuer 5. Edw. 6. be to the same purpose, that a man enfeoffed two vppon condition to make backe a lease for life to the feoffour, the re∣mainder in fee to a straunger: the one of them onelie maketh estate accordingly. And by the opinion of manie, this is good for a moitie by
the dispensation of the partie, who might take aduantage of the condition by his accep∣tance of estateh) 1.102. For 23. Elizab. the case was such: A man was bound in an hundred pound to giue to the obligee the moitie of all the fishes taken by his water-mille, he tooke twentie one fishes, and gaue tenne to the ob∣ligee, and an action of Dette was brought vpon the obligation, and the plaintife reco∣uered, because he did not giue vnto him the moitie of the other fishe. This was adiudged in the Kinges Bench. But now suppose that the condition doth extende onelie to some particular estates, whether shall the other estates depending bee totallie defeated by the breach of the condition? And surelie our Law is, that the breach of the condi∣tion shall defeat no estate, but onelie that whereunto it is annexed. For the case was 3. Mar. that a man deuised land to his wife vppon condition, that shee should bring vp his eldest sonne, the remainder to the se∣cond sonne: The elder sonne entreth for the condition broken, hee shall onelie defeate the estate of the wife. And if the tenant for life, and hee in the remainder ioine in a feoffement vppon condition, that if such an acte be not done, that the tenant for life shall reenter, this doth not defeate the en∣tire
estate of the feoffeei 1.103. And if a gift of land be made in taile, the remainder to the right heires of the donee, vppon condition that if hee alien in fee, then the donour may enter, if the donour enter for the condition broken, the estate taile is onelie defeatedk) 1.104. So if a man lease land for life by deede in∣dented, the remainder ouer in fee rendring a rent with clause of reentrie for non pay∣ment by the tenant for life, and to reteigne the land during his life: If hee enter for the condition broken, he shall haue the land onlie during the life of the tenant for lifel) 1.105.
I giue yee great thankes for the vnwearied continuance of your paines, and though I bee in questioning at a non-plus: yet I see your inuention and memo∣rie are not grauelled nor dryed vp, parched as it were with summers drought. I praie you therefore let vs still conuerse together vnder one roofe (within my walles there is no Sinon, no Dauus, no Momus, but chast learning cabboned with frugall contentment,) that if God doe still vouchsafe the Moone-diall of this
darksome life, with the reflexe of his intel∣lectuall illumined influence, this triple-whee∣led clocke may still be kept in motion, by the diuine agilitie of his Law-fauouring spirit.
1. Si doth not alwaies signi∣fie a condition in the ciuill law.
2 Sometime it signifieth an vncertain cause 3 Sometime it signifieth a certaine cause. 4 Sometime an vncertaine euent.
5 Sometime a condition.
l. itaqueff. si cert. pet. l. de monstra. ff. de condi. & de∣monstr. § fi. Insti. de verb. oblig.
l. Stipulatus. §. 1. ff. de verb. obli.
l. Aretusa. ff. de stat. homi. l. cum mater. § fi. ff. de fidei commis.
Quintil. in Gemin. lan∣guent.
Genes. 25.
August. lib. 5. de ciuitat. De. c. 4.
Liui. li. 34.
6. Si doth sig∣nifie an vncer∣taine cause at the commō law.
28. H. 8. 14. Dy. Boldes C.
7. Si, signifi∣eth a certaine cause at the common law.
8. E. 4. 1. & 9 Dutchesse de Suffolke C.
8. Si, by the common law may signifie an vncertaine euent.
Assis. pl. 47. Perk. 13. sect. 56.
9. Si, signifi∣eth a conditi∣on by the common law.
4. Mari. 139. Dy.
1 The word (nisi. or vn∣lesse) doth sometime sig∣nifie a conditi∣on at the ciuill law.
l. 2. §. si in diem ff. pro emp.
l. quib. die∣bus. §. fi. ff. de condi. & de mon.
l. mille. C. de epi. et cle.
2 Law is a modification or limitation of a graunt is made.
l. quidam testamento ff. de leg. 1. l. Lu∣cius. ff. de ali. & ciba.
l. Paulo Cal∣limacho. §. fi. de leg.
l. legatum ff. de annu. lega.
L. fi. C. de leg.
3. A difference betwixt a limi∣tation and con∣dition at the common Law.
3. E. 3. 15. Assise 172.
15. E. 3. Execution 63.
10. Ass. pla. 8. Br. Estates 31.
17. Ass. pla. 7.
3. Ass. pla. 9. et. 6.
37. H. 6. 29.
13. et 14. Eliz. Com̄ Newyses c. 403.
4. The com∣mon Law is more ample and large then the Ciuil law in matter of limitation.
Fitzh. Nat. bre. 152. A. 9. H. 6. 17.
14. E. 4. 4.
9. H. 6. 53. per Newt. et Cot.
1. Rursus, or the word (a∣gaine) signi∣fieth once a∣gaine by the Ciuill Law.
l. fidei com∣miss. §. si quis ff. de leg. 3.
2. How farre forth a word of restraint is to be exten∣ded at the common Law.
Mar. 152. Dy.
1. An agree∣ment by word may defeat a condition in writing at the ciuill Law.
ff. de noua. et C. eo. ti.
2. The com∣mon Law is quite contra∣rie to the a∣foresaid asser∣tion of the Ci∣uill Law.
1. H. 7. 14. Dones case per Dauers.
1. H. 7. Dones case per Keble.
26. E. 3. 71.
46. E. 3. 4.
20. E. 3. Ac∣compt 79.
1. Three sortes of impossibili∣ties at the Ci∣uill Law.
2. What im∣possibilitas iu∣tu is at the Ciuill Law.
C. fi. de condi. appo.
3. What im∣possibilitas facti is at the Ciuill Law.
L. cum hae∣re. §. 1. ff. de sta. li.
Insti. de verb. obli. §. loca.
4. Impossibili∣tas naturae by the Ciuil Law.
Ioan. ad reg. Nemo. li. be reg. iur.
5. Which be conditions a∣gainst Law by the censure of the common Law.
4. H. 7. 4. 2. H. 4. 9.
Perk. Condic. 139.
8. E. 4. 13. 2. E. 4. 3.
9. H. 4. Conditions 6.
21. H. 30. 20. E. 4. 8.
5. H. 7. 7.
46. E. 3. 4. G. garrantie 18.
7. H. 6. 44.
10. H. 7. 8.
19. H. 8. 4. Dy. p Brud. & Englef.
41. Eliza. Corbets case 86. b. Com̄.
6 What con∣ditions impo∣ssible in fact are at the common law.
14. H. 8. 32.
9. E. 4. 25. 15. H. 7. 2. 38. H. 6. 19.
1. Conditions in the ciuill law are taken according to equitie.
l. pater §. fi. ff. de condi. & demon.
l. a testatore ff. de condi. & demon.
l. nec semel. ff. qu. di. le. ce.
c. ex literis. 1. de spon.
2 The com∣mō law ta∣keth conditi∣ons many times strictly.
31. H. 8. 45. Dy.
28. H. 8. 6. Dy.
33. Eliz. Ridgeleys c.
36. H. 6. 8.
21. H. 6. 19.
7. E. 4. 13.
1. There may be a substituti∣on of one heire after an other, or of one exe∣cutor after an other at the Ciuill Law.
2 The heire at the ciuill Law must s••ccedere in vniuersum ius defuncti.
Insti. de vul∣ga. substi. §. quo casu.
ff. de verb. signif. l. nihil aliud est haere∣ditas, et l. bo∣nor. eo. tit.
Gazalup. verb. substitu∣tio breui lo∣qua.
3. By Will ac∣cording to the common Law an entrie may be limitted to a stranger.
29. Ass. pla. 17.
13. et 14. Elizab. Com̄ 403. Newyses case.
34. E. 3. Formedon pla. vlt.
4. The aduan∣tage of entrie limitted to a stranger is in the late reports doubted of.
3. Mar. 117. Dy.
3. Mar. 128. Dy.
15. Eliz. 317. Dy.
21. H. 7.12. per Frowike.
5. That the entrie for the condition bro∣ken, defeateth the whole es∣tate.
14. Elizab. 308. Dy.
16. Elizab. 334. Dy.
5. Ed. 6. 69. Dy.
3. Mar. 125. Dy
11. H. 7. 6. 13. H. 7. 23. 10. H. 7.11.
29. Ass. pla. 17.