An abridgement of the Lord Coke's commentary on Littleton collected by an unknown author; yet by a late edition pretended to be Sir Humphrey Davenport, Kt. And in this second impression purged from very many gross errors committed in the said former edition. With a table of the most remarkable things therein.

Sect. 169. of 113.

Item per tiel custome home poit deviser per sen testamentum que les executors point aliewr les tenements in Fee, &c. pur cert. sum. de mony a distribut. pur son alme, & issint. poies veir icy un case ou home poit faire loial estate. & encore il navoit riens en les te∣nements al temps del estate ft. quia consuetudo ex certa causa ratio∣nabili usitata, privat communem legem. Here it appeareth that the Executors having but a power, as Littl. putteth the Case, to sell, they must all join in the sale. Fo. 112. b. Vide, &c. Dyer 177.

But if a man deviseth Lands to his executors to be sold and maketh two Executors and the one dieth, yet the survivor may sell the Land, because as the state, so the Trust shall sur∣vive; and so note a diversity between a bare trust, and a trust coupled with an interest. 39. Ass. p. 17. Dyer 210. and 371.

By the Statute of 21 H. 8. it is provided that where Lands are willed to be sold by Executors, that though part of them refuse, yet the residue may sell. Lib. 1. 173.

Mine advise to them that make such devise by will is, to make it as certaine as they can, as that the sale be made by his Executors or the survivors or survivor of them, if his meaning be so, or by such, or so many of them as take upon them the probate of his will, &c. And it is better to give them an authority then an estate, unlesse his meaning be they should take the profits of his Lands in the mean time, and then it is necessary that he deviseth, that the mean profits till the sale shall be assets in their hands, for otherwise they shall not be so. Vide lib. (fo. 113.) Stat. 32. H. 8. c. 2. 34. H. 8. cap. 5.

Consuetudo prescripta & legitima vincet legem. But no Cu∣stome or prescription can take away the force of an Act of Parliament. Praescriptio est titulus ex usu & tempore substanti∣am capiens ab autoritate legis, A title taking his substance of use and time allowed by the Law. 12 E. 4. 1. 2 M. Br. pr. 100. 6 E. 6. Dy. 31. 45. Ass. 8.